Date: 20041201
Docket: T-750-04
Citation: 2004 FC 1668
Ottawa, Ontario, this 1st day of December, 2004
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
LAURIE FINLEY
Applicant
and
ATTORNEY GENERAL OF CANADA,
L. TENN, K. WILSON, T. BOYLE, C. SILLS, D. REID, K. DERUSHIE,
W. PAPAZIAN, C. NOYES and D. WALMSLEY
Respondents
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Public Service Commission Appeal Board (the "Board"), dated March 11, 2004, declining jurisdiction to hear an appeal filed by the Applicant pursuant to s. 21(1) of the Public Service Employment Act, R.S.C. 1985, c. P-33 as amended (the "Act"). The Applicant seeks:
- an Order allowing the application, with costs;
- an Order declaring that the Applicant was an "unsuccessful candidate" within the meaning of s. 21(1) of the Act;
- an Order setting aside the decision of the Board and referring the matter back to a differently-constituted panel to be decided either on its merits or in accordance with any such directions and reasons as given by this Court; and,
- such further and other relief as counsel may request and this Court may permit.
ISSUE
[2] This application for judicial review raises the question of whether a candidate assessed as part of a closed competition in the Public Service Commission, and who participated as a candidate with a statutory priority right to appointment, can be an "unsuccessful candidate" with a right of appeal under s. 21(1) of the Act.
CONCLUSION
[3] For the reasons outlined below, the answer is yes and judicial review of the decision of the Board declining jurisdiction is granted.
BACKGROUND
[4] The Applicant, Laurie Finley (Ms. Finley, or the "Applicant"), an employee of Industry Canada, applied to a closed competition conducted in order to establish an eligibility list from which Human Resources Development Canada ("HRDC") in Belleville, Ontario, could fill anticipated CR-04 vacancies. The competition poster reads as follows :
"Employees of HRDC occupying a position in RHQ Belleville which includes the Insurance Directorate, Collection Services Ontario East, Information Technology Solutions, Information Technology Centre and the Belleville HRCC, Picton HRCC, Trenton HRCC, Napanee HRCC and Bancroft HRCC."
[5] Ms. Finley's application was initially screened out since she did not meet the area of competition; i.e., she was an employee of Industry Canada and not of HRDC. However, Ms. Finley was in fact a "surplus employee" of Industry Canada, which status gave her the right to be assessed in priority to other candidates ("priority rights") without regard to any selection criteria such as those listed above, and the further right to be appointed to a position in priority to any other candidate should she be found qualified. Therefore, the Public Service Commission ("PSC") requested HRDC assess her according to her priority rights. HRDC did so and had her in for an interview, following which it determined she was not adequately qualified to be placed on the eligibility list. In the end, in October 2003, nine (9) applicants were successful and placed on the eligibility list, none of which were the Applicant.
[6] Ms. Finley filed an appeal against these appointments within the 14-day time-period specified by s. 21(1) of the Public Service Employment Regulations, 2000, SOR/2000-80, as amended (the "Regulations"), on November 8, 2003. On November 20, 2003, the Applicant was mailed two letters from HRDC. The first informed her that her application could not be accepted since she was not within the area of competition (i.e., she was not an HRDC employee), and that she would accordingly not be interviewed in connection with the competition, but that once the results of the competition were made known, appeal rights would be granted to the Applicant. The second advised her of the appointments to the eligibility list and of her rights in appealing the results of the competition. I note that at the time of receipt of both of these letters, Ms. Finley had in fact already been interviewed in connection with the competition, the results of the competition had already become known, and Ms. Finley had already filed an appeal. No satisfactory explanation was given as to why these letters were sent out at this late point in time.
[7] On November 25, 2003, Ms. Finley was requested by an officer at the PSC to resend her appeal since the appeal deadline had been extended to December 10, 2003, which the Applicant accordingly did.
[8] On December 11, 2003, HRDC sent a letter to the Recourse Branch of the PSC requesting a hearing on the jurisdiction of the Board to hear Ms. Finley's appeal be held. The letter further stated that Ms. Finley should not have received any letters informing her of a right to appeal the decisions since she had not participated as a "candidate" in the competition and therefore could claim no such right. On March 10, 2004, the hearing concerning the jurisdictional question was held by teleconference. The next day, the Board issued written reasons to the effect that it did not have jurisdiction to entertain Ms. Finley's appeal. It is from this negative decision that Ms. Finley now appeals.
DECISION UNDER REVIEW
[9] After reviewing the facts of the case, the Board determined that it did not have jurisdiction to hear the appeal:
"I am not convinced that I have jurisdiction with respect to this matter. Subsection 21(1) of the Public Service Employment Act gives the right of appeal to "every unsuccessful candidate" in a closed competition. Subsection 13(1) states that the Commision may establish "geographic, organizational and occupational criteria that prospective candidates must meet in order to be eligible for appointment." In Beaudry ... Rothstein J.A. found as follows :
The relevant statutory provisions simply do not provide for appeals to an Appeal Board unless the appellant is a person who, at the time of the selection, meets the criteria established pursuant to subsection 13(1).
The department has stated that the appellant was not within the area of competition for the instant selection process. I have no evidence to the contrary. Given this, I can only conclude that I lack the jurisdiction to hear this appeal."
[10] The Board agreed with the Respondent that even though Ms. Finley had been assessed along with the other candidates in the competition, she did not have a right of appeal against the competition results since she was not in the area of competition (i.e., she was not an employee of HRDC). In coming to this conclusion, the Board relied heavily on the decision of the Federal Court of Appeal in Beaudry v. Canada (Attorney General), [2000] F.C.J. no. 37 (T.D.), affd [2000] F.C.J. no. 1876 (C.A.) ("Beaudry"), which I will discuss in further detail below.
SUBMISSIONS
The Applicant
[11] The Applicant submits that since she actually was assessed by HRDC, regardless of whether this assessment occurred by dint of her status as a surplus employee or not, she was a candidate in the competition, and therefore an "unsuccessful candidate" with a right of appeal pursuant to s. 21(1) of the Act.
[12] The Applicant states that while confusion persists concerning her status in the competition, Ms. Finley was considered by HRDC to be a "candidate" for the purposes of the competition : see, e.g., the letters from HRDC dated November 20, 2003, as well as the e-mail dated November 21, 2003, at pages 60-61 and 75 respectively of the Applicant's Record. Therefore, since she was a candidate, the Board had no basis for its determination that it did not have jurisdiction to hear the appeal.
[13] The Applicant submits that the Board erred in relying on Beaudry in reaching its decision since the Federal Court of Appeal's reasoning in Beaudry is based on s. 21(1.1) of the Act, which deals with the right to appeal selections for appointment by a process other than by way of competition, rather than s. 21(1), upon which Ms. Finley's appeal is actually based. Instead, the Applicant states the Board should have based its decision on Attorney General of Canada v. Landriault, [1983] 1 F.C. 636 (C.A.) ("Landriault") (indeed, the decision in Beaudry is partially based on Landriault). In Landriault, the Court of Appeal concludes that any person who has applied to participate in a competition may appeal under s. 21(1) of the Act, regardless of whether he or she is found eligible or not. The Applicant also cites Taback v. Public Service Commission, [1984] 1 F.C. 328, 52 N.R. 390 (F.C.A.), where it was determined the applicant had the right to appeal under s. 21(1) despite the fact that he had not been an employee of the Public Service at the time he applied in the competition (he had been discharged and was later reinstated).
[14] The Applicant pleads that, as neither the Act nor the Regulations specifically address the ability of an employee with priority rights to appeal a negative decision, it would not be inconsistent with the relevant legislation to allow a surplus employee to appeal the results of their assessment when this evaluation is made as part of the competitive process in a closed competition (as is the case here).
[15] Finally, the Applicant submits that in light of the fact that she was clearly assessed by HRDC and found to be unqualified for the available positions, the argument cannot logically be made that she is not an "unsuccessful candidate" pursuant to s. 21(1) of the Act. There is nothing in the wording of s. 21(1) that restricts the right of appeal to those candidates who meet s. 13(1) selection criteria. Furthermore, according to the Applicant, the Public Service Commission Staffing Manual ("PSC Manual") clearly states that s. 13(1) areas of selection do not apply to persons with priority rights. Therefore, the Board erred in determining that, since she did not meet the selection criteria for the competition, it did not have jurisdiction to hear Ms. Finley's appeal.
The Respondent
[16] While the Respondent seems to disagree with the reasons given by the Board in reaching its conclusion (having stated, at paragraph 23 of its Memorandum, that it took "no position with respect to the ... reasons"), it agrees with the Board's disposition of the Applicant's appeal.
[17] The Respondent's position is that the Applicant was considered for the CR-04 position with HRDC by virtue of two distinct processes. First, Ms. Finley applied as an ordinary candidate alongside the other candidates in the competition. She was found to be outside the area of selection (because she was an Industry Canada employee rather than an HRDC employee) and therefore not qualified for the position. Her qualifications were then subsequently assessed according to her priority rights as a surplus employee. These sorts of priority evaluations and appointments generally occur prior to a competition being held, and a department usually only initiates a competition once it is determined that a qualified employee with priority rights will not be found. In this case, these two processes were occurring simultaneously. HRDC determined, subsequent to this assessment, that Ms. Finley was still not qualified for the position.
[18] The Respondent submits that the Board was thus correct in agreeing with HRDC's determination that, as far as her initial application as an ordinary candidate was concerned, the Applicant was not within the area of selection. Therefore, according to the Respondent, the Board was correct in dismissing Ms. Finley's appeal on this basis.
[19] The Respondent is also of the opinion that the Board did not have jurisdiction to review the HRDC's priority assessment of the Applicant's qualifications; that is to say, her evaluation as a surplus employee was not done within the context of the competitive process, but within that of the priority rights assessment process. The Respondent argues that since there is no appeal from appointments made pursuant to the priority rights of a surplus employee (see s. 21(5) of the Act), and since s. 29(3) of the Act and s. 35(1) of the Regulations clearly enunciate that surplus employee appointments are made "without competition", the evaluation and appointment process of these surplus employees is a distinct procedure from the regular competition process. Therefore, Ms. Finley, as a surplus employee, cannot resort to the appeal mechanism laid out in s. 21(1).
[20] In short, according to the Respondent, the only basis upon which the Applicant could appeal HRDC's decision is in her capacity as an ordinary candidate in the competition, and not on the basis of her subsequent assessment as a surplus employee. Therefore, the Board was justified in refusing to entertain Ms. Finley's appeal since she clearly did not meet the s. 13(1) criteria outlined in the job posting.
ANALYSIS
Applicable Standard of Review
[21] Both the Applicant and Respondent are in agreement that since the Board's decision is based on a question of law - i.e., the definition of the term "unsuccessful candidate" as per its meaning within s. 21 of the Act - the appropriate standard of review is that of correctness (Boucher v. Canada (Attorney General) (2000), 252 N.R. 186 (F.C.A.) at 188.)
Was the Applicant an "unsuccessful candidate"?
[22] An unsuccessful candidate in a closed competition may exercise a right of appeal to the Public Service Commission Appeal Board pursuant to s. 21(1) of the Act, which reads :
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.
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.
[23] An "unsuccessful candidate" is defined in s. 1 of the Regulations as a person:
(a) whose name is on an eligibility list and who has not been and is not about to be appointed to a position for which the list was established;
(b) who was a candidate in a closed competition but whose name is not on the eligibility list; or
(c) who met the criteria established under subsection 13(1) of the Act at the time that another person was selected for an appointment from within the Public Service by a process of selection other than a competition.
a) Toute personne dont le nom figure sur une liste d'admissibilité et qui n'a pas été nommée d'après cette liste ou dont la nomination d'après cette liste n'est pas imminente;
b) toute personne qui était candidat lors d'un concours interne et dont le nom ne figure pas sur la liste d'admissibilité;
c) toute personne qui satisfait aux critères fixés en vertu du paragraphe 13(1) de la Loi au moment de la nomination consécutive à une sélection interne d'une autre personne effectuée autrement que par concours.
[24] The word "candidate" is not defined in the Act or Regulations, but it has been discussed in previous decisions of this Court and found to include those persons who applied to a competition but did not meet the selection criteria. In Landriault, supra, Justice Pratte disagrees with counsel for the Attorney General of Canada that only those persons eligible for appointment to a position can be candidates :
"In my opinion, no definite conclusion can be drawn from an examination of the various sections of the Act where the word "candidate" is used. In some of them, like sections 16 and 17, the word "candidate" obviously refers to persons who have participated in the competition and who are, in addition, eligible for appointment in other sections, like sections 13 and 42, the same word seems to refer to persons who take part in the competition whether they be eligible for appointment or not [sic]. In those circumstances, it would seem wise to give the word "candidate" in section 21 its normal meaning which, in my opinion, would include any person having applied for the job. That conclusion seems to be in harmony with the decision of the Supreme Court of Canada in Bullion v. Her Majesty the Queen et al. [[1980] 2 S.C.R. 578] which, as I read it, implies that a person employed in the Public Service who has applied to participate in a closed competition and whose application has been summarily rejected because he was not within the area of competition as defined by the Commission pursuant to paragraph 13(b) of the Act may appeal under section 21 in order to contest the legality of the determination made by the Commission pursuant to paragraph 13(b)." [My emphasis.]
[25] The situation in Landriault is virtually the same as the present case, and I see no reason not to consider Ms. Finley an "unsuccessful candidate" and therefore a person with the right to appeal the appointments. See also Taback, supra, at page 391 (N.R.), where Hugessen J.A. (as he then was) states for the Court of Appeal that : "On any normal reading of those words ["every unsuccessful candidate"], they include the candidate who has been excluded because considered not to be eligible, as well as the one who has been found to be unqualified and the one who has simply not been selected."
[26] The Board's reliance on Beaudry, supra, in determining that Ms. Finley did not qualify as an "unsuccessful candidate", is an error. A proper reading of the Beaudry decision clearly indicates that the Court's interpretation in that case is restricted to s. 21(1.1) of the Act, which is substantially different from s. 21(1) of the Act. Section 21(1.1) reads thus :
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. [My emphasis.]
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. [Mes soulignés.]
[27] Section 21(1.1) clearly limits the right of appeal to those persons who meet the s. 13(1) selection criteria. This is only the case, however, where a person is appointed by a process other than competition. In the present situation, the eligibility list was being filled by way of competition. This section does not have any such similar clause limiting the scope of who may qualify as an "unsuccessful candidate". Therefore, I do not see any reason why Ms. Finley would not be considered to be an "unsuccessful candidate" and thus be able to avail herself of the appeal rights laid out in s. 21(1).
[28] Indeed, in Beaudry, the Court of Appeal notes that its decision to limit the right of appeal under s. 21(1.1) to only those employees who meet the s. 13(1) criteria may seem to result in a lack of symmetry between that subsection and the others, but that "the Court must interpret the words Parliament used" (at para. 4). These comments follow upon Sharlow J.'s analysis at the trial level, cited supra, of why the reasoning in Landriault could not be extended to Beaudry. At paras. 19-22, Sharlow J. recognizes, as does the Court of Appeal later (at para. 4 of its decision), the difference between the wording "every unsuccessful candidate" used in s. 21(1) and that of s. 21(1.1) which uses the more narrow wording, "any person who ... meets the criteria established ... pursuant to s. 13(1)." The former is a much broader concept and should be thus interpreted.
[29] Nor does Ms. Finley's status as a surplus employee deny her the right to appeal the decision. A "surplus employee" is an employee who has been given notice that they may be laid off under subsection 29(1) of the Act. Prior to layoff, and for a year afterward, these surplus employees may have a statutory or regulatory right to be appointed to a position in the PSC for which he or she is qualified in priority to all others : Act, s. 29; Regulations, ss. 1 and 35-40. This means that if a surplus employee is found to be qualified, he or she must be appointed before any other qualified candidate, regardless of his or her ranking on the eligibility list. Areas of selection (e.g., geographical or organizational boundaries) do not apply to persons entitled to priority appointments : PSC Manual, sections 5.4 and 5.11.
[30] To be assessed according to one's statutory priority rights, then, essentially means that any s. 13(1) selection criteria are waived and the candidate is assessed on the basis of merit alone. If found qualified, a surplus employee will be awarded the available position, regardless of whether another employee is more qualified.
[31] It is true that, as the Respondent points out, s. 21(5) of the Act precludes a right of appeal from appointments made under ss. 29(1.1) and (3). That is to say, where a surplus employee is appointed to a position pursuant to his or her priority rights, another employee may not appeal this decision. However, there is no statutory provision that precludes a surplus employee from appealing a decision not made pursuant to these priority rights.
[32] I believe that Ms. Finley has recourse to the appeal mechanism of s. 21(1) both on the basis of her status as a regular applicant and her status as a surplus employee who was assessed as part of the competitive process pursuant to her priority rights. It was imminent that persons would be appointed to an eligibility list for HRDC positions. Selection of the candidates for the eligibility list was conducted by closed competition within HRDC. The Applicant applied as an ordinary candidate. Despite the initial rejection of her application, due to her status as a surplus employee, she was subsequently interviewed. Finally, following notification that her application had been unsuccessful, she filed the proper appeal forms within the requisite 14-day appeal period (later extended, at which point she was asked to resubmit her appeal). There is no language restricting the scope of s. 21(1) to a certain type of "unsuccessful candidate", and I find no compelling reason to thus restrict it. Perhaps it was not Parliament's intention to extend appeal rights to surplus employees in any circumstances whatsoever; however, in the absence of clear statutory provisions to that effect, I cannot impute other than what the legislation indicates.
CONCLUSION
[33] On the basis of the above, I find Ms. Finley to have been a candidate in the closed competition, and therefore an "unsuccessful candidate" with the right, pursuant to s. 21(1) of the Act, to appeal the decision made by HRDC. Similarly, Ms. Finley can also appeal HRDC's decision on the basis of her priority rights, since, as the Applicant argues, there is nothing preventing a surplus employee who was assessed according to his or her priority rights from being considered a "candidate", at least in the circumstances where a closed competition was also being held for the position. I note, however, that this situation is extraordinary, since often the evaluation of surplus employees occurs prior to a closed competition being called.
[34] Since Ms. Finley is an "unsuccessful candidate" with respect to the HRDC competition, her appeal should be heard by a differently-constituted panel of the Public Service Commission Appeal Board to be decided on its merits.
ORDER
THIS COURT ORDERS THAT :
This application for judicial review is granted;
The decision of the Public Service Commission Appeal Board dated March 11, 2004 stating that the Board did not have jurisdiction to hear this appeal is set aside and the Applicant's appeal is referred back for determination in accordance with the law applicable by a differently-constituted panel, with costs.
"Simon Noël"
Judge
FEDERAL COURT
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-750-04
STYLE OF CAUSE: Laurie Finley v. Attorney General of Canada
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: NOVEMBER 16, 2004
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE SIMON NOËL
DATED: December 1st, 2004
APPEARANCES:
Mr. JAMES CAMERONFOR THE APPLICANT
Mrs. MONIKA A. LOZINSKAFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. James CameronFOR THE APPLICANT
Barrister & Solicitor
1600-220 Laurier Avenue West
Ottawa, Ontario
K1P 5Z9
MR. MORRIS ROSENBERGFOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA