Date: 19981229
Docket: T-932-98
BETWEEN:
HARPAL BUTTAR
Plaintiff
- and -
ATTORNEY GENERAL OF CANADA AND OTHERS
Defendant
REASONS FOR ORDER
DUBÉ J:
[1] This application for judicial review attacks the decision of the Chairperson of the Public Service Commission of Canada Appeal Board ("the Board") pursuant to section 21 of the Public Service Employment Act1 ("the Act") with reference to the appointment of Dr. Larry Whitehouse to the position of Research Scientist.
1. Facts
[2] The applicant ("Dr. Buttar") is a research scientist at Health Canada, classified at the SE-RES-04 level who applied to be reclassified at the SE-RES-05 level. The Sectoral Committee initially considered three candidates for promotion, concluded that Dr. Buttar was the most qualified and recommended him to the Departmental Review Committee.
[3] However, Dr. Mattok, Chair of the Sectoral Committee, informed his committee that he wished to submit the names of other scientists for the promotion and Dr. Whitehouse was one of the names submitted by him. This request for supplemental submissions was seen as "highly irregular" but the Sectoral Committee agreed, providing that Dr. Buttar be put forward as the best candidate.
[4] Shortly thereafter, the Departmental Review Committee appointed Dr. Whitehouse to the SE-RES-05 level and Dr. Buttar appealed that decision.
2. Decision of the Board
[5] Two members of the Sectoral Committee, Dr. McGilveray and Dr. Neville appeared as witnesses before the Board and testified that the majority of the Sectoral Committee had concluded that Mr. Buttar was clearly better qualified than the other candidates and had therefore recommended him. Dr. Neville stated that the Sectoral Committee had reviewed 15 candidates and had concluded that Dr. Buttar's credentials were far ahead of the other candidates.
[6] On the other hand, Departmental Review Committee representatives stated that both Dr. Buttar and Dr. Whitehouse were individually assessed against the standard of competence by the Departmental Review Committee. Dr. Felix Li, the Chairperson of the Departmental Review Committee testified that it considered that the most important criteria were publications and recognition and relied solely on the documentation submitted. He stated that the Departmental Review Committee had noted that Dr. Buttar was not extensively cited as an international authority in the literature and there was no evidence of awards or honours earned by him. With respect to leadership, the Departmental Review Committee concluded that the appellant did not meet the standards for the SE-RES-05 level "that the scientist was widely consulted within and outside government in several substantial fields of R and D and on broad policy direction". The Departmental Review Committee concluded that Dr. Whitehouse had national and international recognition as an authority.
[7] The Board reviewed subsections 10(2) of the Act and 4(2) of the Public Service Employment Regulations2 which read:
| 10.(2) For the purposes of subsection (1), selection according to merit may, in the circumstances prescribed by the regulations of the Commission, be based on the competence of a person being considered for appointment as measured by such standard of competence as the Commission may establish, rather than as measured against the competence of other persons. |
| ... |
| 4.(2) A selection referred to in subsection 10(2) of the Act may be made in any of the following circumstances, namely, |
| ... |
| (c) where an employee is to be promoted within an occupational group in which positions are classified according to the qualifications of the incumbents; |
[8] The Board gave its interpretation of subsection 10(2) of the Act:
| It is common ground that the Department has been delegated the authority to make appointments pursuant to subsection 10(2) of the Act with respect to incumbents of Research Scientist positions. The standard of competence which has been approved is the Classification Standard for Scientific Research. In such cases, the Department is providing the opportunity to all Research Scientists to submit their qualifications to selection committees (sectoral and departmental) for evaluation of their qualifications against the approved standard of competence. For administrative convenience, the Department evaluates all applicants at the same time, but the consideration of each scientist's candidacy for promotion is an individual selection process. The concept of relative merit, that is, choosing the best qualified person from among those available, does not apply to these selection processes. |
[9] The Board concluded as follows:
| Therefore my inquiry must centre upon the appointment of Dr. Whitehouse to the SE-RES-05 level and whether he meets the qualifications for appointment to that level. While the actions of Dr. Mattok as chairperson of the Sectoral Committee appear highly irregular, that committee was not authorized to determine if scientists would be promoted. Its mandate was to recommend to the Departmental Review Committee those scientists it believed should be considered for promotion. The Departmental Review Committee concluded that Dr. Whitehouse was qualified for promotion to the SE-RES-05 level. While there is no legal requirement for such a committee to keep notes of its deliberations, a prudent selection committee would do so, in order to be able to recall accurately (often at a much later date), the precise basis upon which it reached its conclusions. However, I have not been presented with any cogent evidence that Dr. Whitehouse is not qualified for appointment to the SE-RES-05 level and therefore must dismiss the appeal against his appointment. |
| While I can understand that the consistent application of the standard of competence is of concern to the appellant, this is not a matter I can address within the context of an appeal pursuant to section 21 of the Act. Therefore he will have to seek another forum to address that issue. |
3. Analysis
[10] It is obviously frustrating for Dr. Buttar, having been recommended by the Sectoral Committee, to be faced with the appointment of Dr. Whitehouse by the Departmental Review Committee. However, following the enactment in 1992 of the amended subsection 10(2) of the Act3, the appointment in issue is not based on an assessment of the comparative merits of Dr. Buttar and Dr. Whitehouse. Under the new subsections 10(2) of the Act and 4(2) of the Regulations, candidates to whom these subsections apply are not measured one against the other, but measured separately against such standards of competence as the Public Service Commission ("the Commission") may establish. In other words, the onus on the applicant is not to show that he is more competent than the person appointed, Dr. Whitehouse, but to establish that the appointment of Dr. Whitehouse ought not to have been made. Section 21(1.1) reads as follows:
| 21.(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. |
| (my emphasis) |
[11] The Board found that the promotion process in this instance is governed by paragraph 4(2)(c) of the Regulations that is "an employee is to be promoted within an occupational group in which positions are classified according to the qualifications of the incumbents". It follows that the Board's jurisdiction was not to compare the competence of Dr. Buttar against that of Dr. Whitehouse but was limited to the question of whether Dr. Whitehouse met the qualifications for appointment to the level that he obtained.
[12] In this instance, the Board heard representations from both the Sectoral Committee which recommended Dr. Buttar and the Departmental Review Committee which appointed Dr. Whitehouse. The Board's role was not to compare one candidate to the other but to consider whether or not Dr. Whitehouse measured up to the standards of competence established by the Commission. The Board, however, noted the reasons why unsuccessful candidates were usually not promoted by the Departmental Review Committee and with reference to Dr. Buttar that committee concluded as follows:
| - committee recognizes continued outstanding productivity |
| - recommends enhancement of international reputation, recognition and leadership (no evidence of prestigious international recognition) |
[13] The Board also noted that the "Committee concluded that Dr. Whitehouse had national and international recognition as an authority".
[14] This Court is aware of the jurisprudence with reference to appointments within the Commission based on selection according to merit4. The following proposition established by Pratte, J.A. in Canada (Attorney General) v. Greaves, McNeill, Morris and Waddy5 has been consecrated by the jurisprudence:
| The requirements of the merit principle are, in my view, always the same. They do not vary with the method of selection chosen. That principle requires that the selection be made "according to merit", which means, "that the best persons possible will be found for the various positions in the Public Service ..." [Nanda v. Appeal Board Established by the Public Service Commission [1972] F.C. 277, at p. 297, per Jackett, C.J.]. In the present case, the Appeal Board, as I understand its decision, was not satisfied that the appointment had been made "according to merit" because the qualifications of the selected candidate had never been in any way compared with those of other persons who, like the respondents, might have wished to apply for the position. |
[15] However, that proposition has now been qualified by subsection 10(2) of the Act to the effect that in certain circumstances described by the Regulations, a selection according to merit may be measured, not against other candidates, but under standards of competence established by the Commission. In the case at bar, Dr. Buttar does not allege that Dr. Whitehouse is not competent as measured by the standards of competence established by the Commission and there is no evidence to the effect that Dr. Whitehouse is not competent.
[16] Consequently, this application for judicial review is denied.
OTTAWA, Ontario
December 29, 1998
Judge
__________________4 Charest v. Attorney General of Canada, [1973] F.C. 1217; Leckie v. Canada, [1993] 2 F.C. 473 (C.A.) and Peet v. Canada (Attorney General) (1995), 91 F.T.R. 284.