Federal Court Decisions

     T- 2046-95

BETWEEN:          SHIRLEY E. ROBERTS and MARISA G. VOLPE

     Applicants

AND:                  ATTORNEY GENERAL OF CANADA

     Respondent

     REASONS FOR ORDER and ORDER

DENAULT J.:

     The Applicants seek judicial review of a decision of the Public Service Commission Appeal Board. The Applicants contend that the Board erred when it found that, pursuant to subsection 21.(1) of the Public Service Employment Act, R.S.C. 1985, c. P-33, as amended, it did not have jurisdiction to hear the appeals as the positions against which the appeals were being brought were in the nature of assignments rather than appointments.

     The facts of this case are essentially simple and straightforward.      On April 20, 1995, Citizenship and Immigration Canada issued a Notice of Assignment to all departmental employees. Among other things, the Notice listed the requirements associated with the two Senior Citizenship Officer positions, at the PM-2 or PM-3 level, which the department was looking to staff in Hull, Québec. Twelve employees, including the Applicants, applied for the two positions. After assessing all the candidates, the Selection Board selected Ms. T. Nanglu and Ms. A. Williams for the positions. The Assignment/Secondment Agreements signed by the successful candidates evidence the fact that each was to be posted in Hull for a period of exactly 6 months.¹

     Once installed in the Hull office, the successful candidates performed the same PM-2 level functions they had previously performed in Toronto where they had held PM-2 level Senior Citizenship Officer positions. They did not receive acting pay in their new positions but continued to receive the same salary they had earned while processing the same type of citizenship applications at their former office in Toronto. Significantly, counsel for both parties acknowledged that the Hull positions did not involve the performance of new, in the sense of different, functions by the incumbents and that the salary of the successful candidates was unaltered by the staffing action.

     The Applicants, being two of the ten unsuccessful candidates, appealed the selection of Ms. Nanglu and Ms. Williams for the positions in Hull. Citing lack of jurisdiction,      the Board declined to hear the appeals on their merits. The Applicants now seek a review of the Board's decision.

     This Court is asked to determine whether the Board erred when it found that it did not have jurisdiction to hear the appeals in view of the fact that section 21 of the Public Service Employment Act only confers a right of appeal when the positions at issue are appointments. In the instant case, the distinction between an assignment and an appointment is pivotal in that the distinction, once made, will dispose of the matter. It follows that such a distinction is highly and necessarily fact-specific.

     It should be noted at the outset that, at the hearing, neither counsel contended that the new positions of Ms. Nanglu and Ms. Williams ought to be characterized as deployments. Similarly, neither counsel contended that the two positions in question were the type of appointments which are contemplated by the section 41 exclusion provision relative to the merit principle, the application of which would otherwise be mandated by section 10 of the PSEA. In addition, both counsel acknowledged that the positions in question were neither secondments nor acting appointments.

     At the hearing, Applicants' counsel argued that the positions at issue were appointments which had been, in a manner of speaking, disguised as assignments in order to perform an "end run" around the merit principle. Applicants' counsel would have this Court rely principally on Wilkinson v. Public Service Commission Appeal Board ² and Lucas v. Canada (Public Service Commission Appeal Board)³ for guidance in arriving at the finding that the positions at issue were appointments rather than assignments.

     For the sake of clarity, let us begin at the beginning. Since the PSEA does not expressly define the word "appointment", some understanding of its legislative meaning may be gleaned from the case law. In Canada (Attorney General) v. Brault, the Supreme Court considered "...whether the creation of additional functions in a position in the Public Service, calling for additional qualifications and the selection of a person possessing such qualifications, amounts to the creation of a new position requiring an appointment ... ."⁴ While that decision acknowledges that "...the administration must have reasonable flexibility to make minor changes in the functions of an existing position ... without thereby creating a new position for which an appointment based on selection according to merit must be made", it also indicates that the appropriate test for establishing when an appointment has been created, within the meaning of the Act, is when a "... change in functions is of such a significant or substantial nature as to call for additional or special qualifications requiring evaluation ... . "⁵ In the instant case, the Hull office positions required of the incumbents that they perform essentially the same functions they had previously performed but in a different geographical location. Following the reasoning in Brault, I am inclined to believe that the Hull positions should not be construed as appointments.

     Doré v. Canada⁶ also provides guidance in this area. In that case, the Supreme Court was being asked to determine "... whether the assignment of a person who occupies a position in the Public Service to different functions ... is an appointment to a position within the meaning of the Public Service Employment Act giving rise to a right of appeal under s. 21 of the Act."⁷ Among other things, the Court determined that

... the functions of supervisor of the reception and inquiries section ... were sufficiently different from those previously being performed ... to constitute a new position according to the test indicated in the Brault appeal--a change of functions of such a significant or substantial nature as to call for additional or special qualifications requiring evaluation and therefore what amounts to a selection for appointment.8

[Emphasis added.]

In the case at bar, no new functions were being performed such that the closed competition which was held must be regarded as the simple expression of an administrative preference for a selection method which would be democratic and fair to all the candidates. In other words, because the closed competition was not held for a position which would have required the candidates to perform new functions of a significant or substantial nature, the selection process adopted by the administration, here a closed competition, cannot properly be regarded as a "selection for appointment" within the meaning and scope of the test developed in Brault. In all the circumstances of this case, the "closed competition", which the Board found had been held by the department in order to staff the positions at issue, must be narrowly characterized as a "limited purpose means of selection".

     Additionally, the Court in Doré articulated, as it had done in Brault, the principle that legislative intent cannot be subverted by departmental intent. Specifically, the Court articulated the following proposition:

It is what the Department has objectively done as a matter of fact and not what it may have intended or understood it was doing as a matter of law that must determine the application of the merit principle and the right of appeal.9

Le Dain J.'s finding that substance should be made to prevail over form, in any endeavour to characterize a new position as an assignment as opposed to an appointment, demands that we scrutinize closely that which the department had actually done, in the case at bar, in order to assign the successful candidates to the Hull positions, as it purported to have done. To that end, I note that the department neither altered the PM-02 classification nor the salary of the candidates, in addition to ensuring that they would perform no new functions at the Hull office. Significantly, in Doré as well as in Brault, Le Dain J. focused on a change of functions as indicative of an appointment. Moreover, the incumbents in the case at bar signed a short-term Assignment Agreement by virtue of which their new positions were not to exceed a period of 6 months. Taken together, these factors strongly suggest that the department's de facto actions were consistent with and reflective of its intent to create an assignment rather than an appointment in the present case.

     Given the findings of the Supreme Court in Doré and Brault, the proposition articulated in Wilkinson, supra, namely that a lateral transfer should be regarded as an appointment, necessarily requires qualification. Such qualification would significantly modify the holding in Wilkinson to include consideration of both the time frame and the actual functions performed in the new positions. Thus, the resultant, modified proposition would hold that a lateral transfer should be regarded as an appointment only if different functions were being performed in the new position and if that new position had become one of such significant and indefinite duration as may be presumed to confer a distinct advantage upon the incumbent. A modified understanding and application of the Wilkinson holding would be consonant with Le Dain J.'s view, such as can be gleaned from a close reading of Doré, that it is appropriate to regard a position as an appointment when that position involves both the adoption of new functions and is of a significant and indefinite duration. That reasoning was articulated as follows:

On this issue, I am of the view that while it must be possible for the administration to assign a person in the Public Service to new functions on a temporary basis without giving rise to the application of the merit principle and the right of appeal, that reasonable flexibility should no longer be available [and the position at issue should consequently be regarded as an appointment] where ... the assignment is permitted to become one of such significant and indefinite duration as may be presumed to place the occupant of the position at a distinct advantage in any subsequent selection process.10

[Emphasis added.]

Significantly, the Wilkinson judgment does not characterize or qualify the nature of the lateral transfer contemplated therein: the judgment neither speaks to the issue of time frame nor to the issue of functions actually associated with the position in question. In view of the fact that the instant case involves the performance of no new functions, and because the incumbents were to occupy their new positions only for a short, finite time period, the Wilkinson proposition, modified as it necessarily must be by two subsequent Supreme Court decisions, cannot successfully be relied on to suggest the creation of an appointment in the circumstances of this case.

     As previously indicated, counsel for the Applicants placed considerable reliance on Lucas, supra, in order to advance the proposition that the terms "appointment" and "assignment" have substantially the same grammatical and ordinary meaning and that, as a result, the legislative protections afforded by sections 10 and 21 of the Act should attach to both types of staffing actions regardless of the nomenclature used to describe a given staffing action. For a number of reasons, I think this argument must fail. First, this Court recognizes that Lucas was decided at the Federal Court of Appeal prior to the two leading cases in this area, namely Brault and Doré, supra. Consequently, those cases have provided guidance relative to the distinction to be made between the two terms here at issue such that any distinction between the two words must flow directly out of the characteristics of the position or positions at issue, as discussed at length above. Second, the case at bar can and should be distinguished from Lucas on its facts: in Lucas, the incumbent's substantive level had changed from SCY-2 to CR-4, she was entitled to the increased rate of pay associated with her new position, she had acquired different functions and she occupied the position for a one year period. In contrast, none of these factors is manifest in the case at bar such that the holding in Lucas is best viewed as fact-specific, thus not of appropriate application in the circumstances of this case.

     Having fully considered all of the above, this Court chooses to be guided by Brault and Doré in the resolution of this matter. In so doing, I find that the staffing action at issue in the present case must be viewed as having created two assignments. It follows that the Board did not err when it found that it did not have jurisdiction to hear the appeals on their merits.

     ORDER

     This Application for Judicial Review is dismissed.

OTTAWA, May 1, 1997

J.F.C.C.

__________________

¹      Applicants' Application Record, at pages 23 and 24.

²      File No. A-490-84 (F.C.A.), November 29, 1984.

³      [1987] 3 F.C. 354 (C.A.).

⁴      [1987] 2 S.C.R. 489 at 491.

⁵      Brault at 501-502.

⁶      [1987] 2 S.C.R. 503.

⁷      Doré at 505.

⁸      Doré at 510.

⁹      Doré at 510.

¹⁰      Doré at 511.