Federal Court Decisions

     T-1392-96

BETWEEN:

     THE ATTORNEY GENERAL OF CANADA

     Applicant

     - and -

     LORRAINE KOZUB and RON McKAGUE

     Respondents

     REASONS FOR ORDER

ROULEAU, J.

     This is an originating Notice of Motion, pursuant to section 18 and section 18.1 of the Federal Court Act, to review and set aside a decision of an Appeal Board, appointed under the Public Service Employment Act, chaired by Joan Stewart and dated May 9, 1996. That decision allowed the appeals of the respondents, pursuant to section 21 of the Public Service Employment Act, and held that the Department of National Revenue had newly appointed Bruce Bergman and David Lee to positions within the Department without competition in January of 1996.

     The facts of the case are somewhat complex and must be set out in detail in order to understand the legal issues involved. In July of 1994, as a result of a competition, the Department of National Revenue established an eligibility list for positions at the AU-02 level as investigators, Tax Services, in the Special Investigations Unit ("SI") of the Winnipeg Tax Services Office. Ray Desorcy, David Lee, Bruce Bergman and Bill Hartman were the employees on the eligibility list, selected in that order according to merit. The eligibility list became effective July 18, 1994, and remained valid until January 18, 1996. The respondent Kozub did not apply for the competition; the respondent McKague applied but failed to qualify.

     David Slack, an unsuccessful candidate in the competition, appealed the selections for appointment made as a result of the competition. Neither of the respondents appealed. Pending the outcome of the appeal, the Department gave Bergman and Lee AU-02 acting appointments in the SI positions from August of 1994 until September 1995. On July 10, 1995, an Appeal Board, chaired by Joan Stewart, dismissed the Slack appeal.

     By letters dated August 25, 1995, the Department offered Bergman and Lee indeterminate appointments to the Investigator positions at the AU-02 level in the SI Division. The offers specified that the appointments were to take effect on September 5, 1996. On September 1, 1995, Bergman and Lee accepted the Department's offers. On the same date, before the appointments had taken effect, the Department offered, and Bergman and Lee accepted, deployments to Senior Auditor positions, also at the AU-02 level, in the Audit Section of the Department, effective September 5, 1995.

     The respondent Kozub referred a complaint to the Public Service Commission with respect to the deployments. By decision dated January 9, 1996, following an investigation pursuant to subsection 34.4(3) of the Public Service Employment Act, the Deployment Investigator concluded the deployments were invalid, since they had been made before the appointments took effect. On January 18, 1996, the Department revoked the deployments and advised Bergman and Lee that they would revert back to their substantive positions as Investigator, Level AU-02, SI. On the same date, the Department advised Bergman and Lee by letter that the offer, acceptance and all other conditions contained in the letter of offer of August 25, 1996, remained unchanged.

     The respondents took the position that the return of Bergman and Lee to positions as Special Investigator, Au-02, Special Investigations Unit, constituted new appointments made without competition and appealed the alleged appointments pursuant to section 21 of the Public Service Employment Act.

     By decision dated May 9, 1996, the Appeal Board Chair held that she had jurisdiction to hear the appeals, concluding that the previous Slack appeal and the fact that she had dismissed it in July of 1995, were irrelevant to her determination of the respondents' appeal. The decision states as follows at pp. 20 and 22:

. . . the appeal, and the fact I dismissed it, are both irrelevant to my determinations. Mr. Slack had the legal right to appeal when he believed the outcome of the competition did not adhere to merit. No one can state with absolute certainty that a different Appeal Board might not have agreed with him and allowed his appeal. The right to appeal is an integral part of our staffing system. In law it exists not as a benefit to unsuccessful candidates, but rather as a safeguard to ensure that appointments do adhere to the merit principle. So too here. The appellants in this case have gone on record as believing that unless the department considers their qualifications before making the appointments, then those appointments cannot with confidence be seen to adhere to merit. That is the way our Public Service staffing system is designed.

     . . .

In summary, I concluded the department made new appointments of Mr. Bergman and Mr. Lee in January 1996. Therefore I have jurisdiction to decide these appeals. Since the department has not compared the qualifications of the selected employees and the appellants, there is no way to know whether the appointments adhered to the merit principle. Therefore I have allowed the appeals of Lorraine Kozub and Ron McKague.

     The Attorney General now appeals from that decision on the grounds that the Appeal Board did not have jurisdiction to hear the respondents' appeals.

     I agree. It is clear from the evidence that Bergman and Lee were appointed to positions as Special Investigator, Special Investigations Unit, level AU-02 in September of 1995. As conceded by the Appeal Board chair: "I have no doubt that . . . the department would have made the appointments in 1994 if an appeal had not been filed." In fact, the whole process as described above indicates an ongoing intention on the part of the Department to make the impugned appointments. A competition was held in 1994, an eligibility list established, one appeal, involving neither of the respondents, launched and dismissed, and letters of appointment issued. During the appeal process, Bergman and Lee were given acting appointments to the SI positions, as a matter of prudence.

     In my view, the Appeal Board gave undue weight to the conclusion of the Deployment Investigator that the appointments to the AU 02 positions in Special Investigations did not appear to have occurred. Even accepting that the deployments of Bergman and Lee may have been improper, it cannot and does not follow that such a conclusion vitiates their appointment to SI positions. "Appointments" and "deployments" are distinct concepts under the Public Service Employment Act, with different rules applying and different recourses provided for.

     Furthermore, even assuming that the Appeal Board was correct in its finding that the appointments of Bergman and Lee took place in January of 1996, they were nevertheless valid since they were made, contrary to the Board's finding, while the eligibility list was still valid. Accordingly, the Appeal Board erred when it found that the appointments were made without competition. On the contrary, they were made on the basis of an eligibility list established as a result of the 1994 competition, the validity of which was confirmed by the Appeal Board in July of 1995.

     I am satisfied therefore, that the Appeal Board was without jurisdiction to hear the respondent's appeal. Whether the appointments of Bergman and Lee were made in September of 1995 or January of 1996, they nevertheless stemmed from the 1994 competition, the validity of which was maintained in the Slack appeal. The Appeal Board had no jurisdiction to revisit that competition on the basis of an improper deployment. This result only accords with common sense. The Department has already faced one appeal against the competition and an investigation into deployment. The respondents, who did not appeal the 1994 competition, are in effect seeking a third opportunity to dispute the appointments, a procedure which is simply not contemplated by the legislative scheme.

     For these reasons, the decision of the Appeal Board dated May 9, 1996, in Appeal No. 96-NAR-0204J is set aside and the matter referred back to the Appeal Board for redetermination on the basis that the appointments of Bruce Bergman and David Lee were made from the eligibility list established as a result of Competition No. 94-CAE-CC-WPG-355.

JUDGE

OTTAWA, Ontario

June 24, 1997