Date: 19981217
Docket: T-2386-96
IN THE MATTER OF the Public Service Employment Act, s. 21;
AND IN THE MATTER OF the appeal of Ranjit Perera against the
selections made for appointment in closed competition
95/96-EX-IDA-302 to several positions;
AND IN THE MATTER OF a decision dated the 4th day of October 1996
of Mr. John A. Mooney, Chairman of an Appeal Board struck
pursuant to the provisions of s. 21 of the said Act;
AND IN THE MATTER OF an application pursuant to the provisions
of ss. 18 and 18.1 of the Federal Court Act
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
AND:
K. F. RANJIT PERERA
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This application for judicial review seeks a writ of certiorari to set aside and quash an Appeal Board's decision dated October 4, 1996, and returning to the Appeal Board with the directions indicating that Mr. Perera's appeal be dismissed.
[2] The respondent, an employee of the Canadian International Development Agency, was a public servant classified at the PM-05 level. In January of 1996, the Public Service Commission, at the request of the Canadian International Development Agency, posted a closed competition 95/96-EX-IDA-302, EX-02 positions. The competition was closed and opened only to the EX group in the scientific and professional categories. The respondent did not qualify within these parameters and was therefore screened out.
[3] In May of 1996, the respondent appealed pursuant to subsection 21(1) of the Public Service Employment Act (the "PSEA") and pursuant to subsection 52(1) of the Constitution Act, he challenged the authority of section 27 of the Public Service Employment Regulations adopted pursuant to paragraph 32(2)(e) of the Public Service Employment Act, alleging that it infringed section 15 of the Canadian Charter of Rights and Freedoms.
[4] Section 27 of the Public Service Employment Regulations reads as follows:
| 27.(1) An employee in the executive group is excluded from the operation of section 21 of the Act where that employee is appointed to another position in that group. (2) Sections 17 to 26 do not apply in respect of an employee in the executive group who is appointed or about to be appointed to another position in that group. |
27.(1) Tout fonctionnaire faisant partie du groupe de la direction est soustrait à l'application de l'article 21 de la Loi lorsqu'il est nommé à un autre poste de ce groupe. (2) Les articles 17 à 26 ne s'appliquent pas à la nomination, effective ou imminente, d'un fonctionnaire du groupe de la direction à un autre poste de ce groupe. |
[5] The appeal was brought pursuant to section 21 of the Public Service Employment Act against the selection made for appointment in closed competition 95/96-EX-IDA-302. Section 21 of the Public Service Employment Act reads as follows:
| 21.(1) Where a person is appointed or is about to be appointed under this Act and the selection of the person for appointment was made by closed competition, every unsuccessful candidate may, within the period provided for by the regulations of the Commission, appeal against the appointment to a board established by the Commission to conduct an inquiry at which the person appealing and the deputy head concerned, or their representatives, shall be given an opportunity to be heard. (1.1) where a person is appointed or about to be appointed under this Act and the selection of the person for appointment was made from within the Public Service by a process of personnel selection, other than a competition, any person who, at the time of the selection, meets the criteria established pursuant to subsection 13(1) for the process may, within the period provided for by the regulations of the Commission, appeal against the appointment to a board established by the Commission to conduct an inquiry at which the person appealing and the deputy head concerned, or their representatives, shall be given an opportunity to be heard. (2) Subject to subsection (3), the Commission, on being notified of the decision of a board established under subsection (1) or (1.1), shall, in accordance with the decision, (a) if the appointment has been made, confirm or revoke the appointment; or (b) if the appointment has not been made, make or not make the appointment. (2.1) Where the appointment of a person is revoked pursuant to subsection (2), the Commission may appoint that person to a position within the Public Service that in the opinion of the Commission is commensurate with the qualification of that person. (3) Where a board established under subsection (1) or (1.1) determines that there was a defect in the process for the selection of a person for appointment under this Act, the Commission may take such measures as it considers necessary to remedy the defect. (4) Where a person is appointed or is about to be appointed under this Act as a result of measures taken under subsection (3), an appeal may be taken under subsection (1) or (1.1) against that appointment only on the ground that the measures so taken did not result in a selection for appointment according to merit. |
21.(1) Dans le cas d'une nomination, effective ou imminente, consécutive à un concours interne, tout candidat non reçu peut, dans le délai fixé par règlement de la Commission, en appeler de la nomination devant un comité chargé par elle de faire une enquête, au cours de laquelle l'appelant et l'administrateur général en cause, ou leurs représentants, ont l'occasion de se faire entendre. (1.1) Dans le cas d'une nomination, effective ou imminente, consécutive à une sélection interne effectuée autrement que par concours, toute personne qui satisfait aux critères fixés en vertu du paragraphe 13(1) peut, dans le délai fixé par règlement de la Commission, en appeler de la nomination devant un comité chargé par elle de faire une enquête, au cours de laquelle l'appelant et l'administrateur général en cause, ou leurs représentants, ont l'occasion de se faire entendre. (2) Sous réserve du paragraphe (3), la Commission, après avoir reçu avis de la décision du comité visé aux paragraphes (1) ou (1.1) doit en fonction de celle-ci: (a) si la nomination a eu lieu, la confirmer ou la révoquer; (b) si la nomination n'a pas eu lieu, y procéder ou non. (2.1) En cas de révocation de la nomination, la Commission peut nommer la personne visée à un poste qu'elle juge en rapport avec ses qualifications. (3) La Commission peut prendre toute mesure qu'elle juge indiquée pour remédier è toute irrégularité signalée par le comité relativement à la procédure de sélection. (4) Une nomination, effective ou imminente, consécutive à une mesure visée au paragraphe (3) ne peut faire l'objet d'un appel conformément aux paragraphes (1) ou (1.1) qu'au motif que la mesure prise est contraire au principe de la sélection au mérite. |
[6] The Chairman of the Appeal Board was aware that the respondent applied in the competition but was screened out because he was not in the area of selection established for these positions. He nevertheless granted the audience.
[7] From the outset, the Department objected and submitted that the Appeal Board did not have the jurisdiction to entertain such application; section 27 of the Regulations was prohibitive and provided among other things that an appeal under section 21 could not be entertained "where an employee is excluded in the executive group and is appointed to another position in that group".
[8] Before the Board, the respondent submitted that section 27 of the Public Service Employment Regulations cannot operate to bar the respondent from exercising his right of appeal since it offended section 15 of the Canadian Charter of Rights and Freedoms by depriving victims of discrimination from recourse; among other remedies sought, a declaration that section 27 of the Regulations be of no force and effect with respect to this respondent because it would breach his equality rights.
[9] The Chairman, relying on three decisions, primarily those in Douglas/Kwantlen Faculty Association v. Douglas College [1990] 3 S.C.R. 570; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board) [1991] 2 S.C.R. 5; and Tétreault-Gadoury v. Canada (Employment and Immigration Commission) [1991] 2 S.C.R. 22, found that the Supreme Court had determined that any administrative tribunal, which has been conferred the power to interpret law, holds a concomitant power to determine that law is constitutionally valid. He was convinced that this Appeal Board had the power since it could be "impliedly conferred" from the tribunal's statutory enabling powers. The Chairman took upon himself the authority and determined that section 27 of the Regulations could be ignored or was unconstitutional and allowed the appeal.
[10] Other than reference to the decisions of the Supreme Court of Canada, he took comfort in Federal Court of Canada, Appeal Division decisions in which there was much discussion primarily dealing with the functions and procedures of tribunals and boards. These authorities do not appear to be relevant and I feel the Chairman could not rely on this latter jurisprudence to grant himself the authority to deal with questions of law.
[11] I am satisfied that a careful reading of the Public Service Employment Act and more particularly section 21 limits the Appeal Board to fact finding. Its domain is restricted to ensure that the merit principle embodied in section 10 of the Act is respected when appointments are made. The Supreme Court of Canada in the decision of Cooper v. Canada (HRC) [1996] 3 S.C.R. 854 made it abundantly clear that an administrative tribunal has no independent source of jurisdiction pursuant to subsection 52(1) of the Constitution Act, 1982. I need only quote from the headnote at pages 887 and 888:
| If a tribunal does have the power to consider questions of law, then it follows by the operation of s. 52(1) that it must be able to address constitutional issues, including the constitutional validity of its enabling statute. This principle was clearly enunciated by this Court in Cuddy Chicks, supra, at pp. 13-14, referring to the earlier decision in Douglas College, supra, in the following passage: |
| The power of an administrative tribunal to consider Charter issues was addressed recently by this Court in Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570. That case concerned the jurisdiction of an arbitration board, appointed by the parties under a collective agreement in conjunction with the British Columbia Labour Code, to determine the constitutionality of a mandatory retirement provision in the collective agreement. In ruling that the arbitrator did have such jurisdiction, this Court articulated the basic principle that an administrative tribunal which has been conferred the power to interpret law holds a concomitant power to determine whether that law is constitutionally valid. This conclusion ensues from the principle of supremacy of the Constitution, which is confirmed by s. 52(1) of the Constitution Act, 1982. |
| ... |
| ...There is no doubt that the power to consider questions of law can be bestowed on an administrative tribunal either explicitly or implicitly by the legislature. All the parties agreed that there is no provision in the Act that expressly confers on the Commission a general power to consider questions of law. There being no such express authority, it becomes necessary to determine whether Parliament has granted it implicit jurisdiction to consider such questions. As stated in Cuddy Chicks, supra, at p. 14: |
| [J]urisdiction must have expressly or impliedly been conferred on the tribunal by its enabling statute or otherwise. This fundamental principle holds true regardless of the nature of the issue before the administrative body. Thus, a tribunal prepared to address a Charter issue must already have jurisdiction over the whole of the matter before it, namely, the parties, subject matter and remedy sought. |
| (my underlining) |
[12] It is evident from a careful reading of the Public Service Employment Act that the Appeal Board has not been granted any powers to interpret law and it goes without saying that he could not entertain a constitutional challenge.
[13] The application is allowed.
JUDGE
OTTAWA, Ontario
December 17, 1998