Date: 19980507
Docket: A-340-97
(T-692-96)
CORAM: DESJARDINS J.A.
DÉCARY J.A.
LÉTOURNEAU J.A.
BETWEEN:
JAMES G. LAIDLAW, JEAN MAITLAND, GERRIE IRWIN,
KAREN V. DUMEAH and ANN MYKETYN
Appellants
(Respondents)
- and -
ATTORNEY GENERAL OF CANADA
Respondent
(Applicant)
Heard at Ottawa (Ontario) on Wednesday, May 6 and Thursday, May 7, 1998.
Judgment delivered from the Bench on Thursday, May 7, 1998.
REASONS FOR JUDGMENT
OF THE COURT DELIVERED BY: DÉCARY J.A.
Date: 19980507
Docket: A-340-97
(T-692-96)
CORAM: DESJARDINS J.A.
DÉCARY J.A.
LÉTOURNEAU J.A.
BETWEEN:
JAMES G. LAIDLAW, JEAN MAITLAND, GERRIE IRWIN,
KAREN V. DUMEAH and ANN MYKETYN
Appellants
(Respondents)
- and -
ATTORNEY GENERAL OF CANADA
Respondent
(Applicant)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa (Ontario)
on Thursday, May 7, 1998)
DÉCARY J.A.
[1] As a general rule, appointments within the Public Service are based on selection according to merit. That selection is either made by competition or by such other process determined by the Public Service Commission ("the Commission"), pursuant to subsection 10(1) of the Public Service Employment Act, R.S.C. 1985, c. P-33, as amended in 1993 ("the Act"), (the "relative" merit principle), or, in some circumstances prescribed by the regulations, based on the competence of the person as measured by such standard of competence as the Commission may establish, rather than as measured against the competence of other persons, pursuant to subsection 10(2) (the "individual" merit principle). One of such circumstances described in subrule 4(2)(b)(ii) of the Public Service Employment Regulations, 1993, SOR/93-286 ("the Regulations") is "where an employee is to be appointed to the employee's reclassified position and [...] the position is one of a group of similar positions of the same occupational group and level in a part of an organization that have all been reclassified [...]".
[2] The principal issue argued in this appeal is whether the Commission has the statutory discretionary authority to choose between the relative (subsection 10(1)) or the individual (subsection 10(2)) merit principle in staffing positions in circumstances such as described in subrule 4(2), or whether the Commission is bound in such circumstances to use the individual merit principle route.
[3] A brief look at the facts is warranted. The appellants had held the position of "unit head" in the Halifax office of Revenue Canada. Under a modernization initiative, there was a departmental reorganization in which jobs were categorized as follows: A (review and update), B (reclassification) and C (new job). Revenue Canada treated the appellants' position as new, under category C. For jobs considered to be reclassified under category B, staffing action was taken under subsection 10(2) when there were incumbents already in the positions. For jobs categorized as "new" in category C, as was the case of the appellants, staffing action was taken under subsection 10(1) of the Act.
[4] The appellants, therefore, had to participate in competitions held under subsection 10(1) and they were unsuccessful. They appealed to an appeal board pursuant to section 21 of the Act and submitted that their position was not new, but was a reclassification of their actual position. They alleged that staffing for their jobs should therefore have taken place on the same basis as that used for category B jobs, i.e. on the basis of the incumbent's competence pursuant to subsection 10(2).
[5] The appeal board found that the positions were not new and that the appellants had a statutory right to be considered for appointment pursuant to the provisions of subsection 10(2) of the Act and subrule 4(2)(b)(ii) of the Regulations. The appeal board was of the view that these provisions were mandatory once an employee came within their contemplation.
[6] The respondent then sought judicial review of the appeal board's decision. It argued that the jobs at issue were not new jobs and in any event that the Commission was at liberty to resort to the selection process set up in subsection 10(1) even if the conditions for the application of subsection 10(2) had been met.
[7] Rothstein J. found that there was no reason to disturb the finding made by the appeal board that the jobs were not new jobs. He went on, however, to decide that the provisions of subsection 10(2) were permissive only and that the appellants had no right to prevent the Commission from going through the competition process set out in subsection 10(1). He continued by observing that even if the Commission had a statutory discretion, the discretion could only be exercised within the parameters set out by the Supreme Court of Canada in Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2 at 7-8, McIntyre J. (see Canadian Assn. of Regulated Importers v. Canada (Attorney General), [1994] 2 F.C. 247 (C.A.) and Carpenter Fishing Corp. et al. v. The Queen (23 December 1997), A-941-96 (F.C.A.) [unreported]), that is where the decision was made in bad faith and, where required, in violation of the principles of natural justice, and where reliance was entirely or predominantly placed on considerations that were irrelevant or extraneous to the statutory purpose.
[8] Presumably the finding that the jobs were not new jobs totally undermined the decision taken not to use the subsection 10(2) process and, as a result, the Motions Judge thought that the case could not be disposed of without first asking the appeal board to consider an issue which had become unavoidable. He therefore allowed the application for judicial review and chose to remit the matter back to the appeal board "for redetermination in accordance with these reasons". The last paragraph of his reasons reads as follows:
| This matter is remitted to the appeal board for redetermination. I expect that the board will in turn allow Revenue Canada to exercise its discretion in respect to the team leader/co-ordinator position. Such exercise of discretion, of course, must respect the appeal board's decision that the position is not new. Having already decided under its modernization initiative to staff reclassified positions on the basis of competency pursuant to subsection 10(2) of the Act, I would expect that Revenue Canada, in exercising its discretion, would treat the team leader/co-ordinator position in accordance with this policy and, if not, that a meaningful and logical explanation for not following the policy would be provided. |
| [A.B. at 423] |
[9] It will be convenient to reproduce at this stage the relevant provisions of the Act and of the Regulations:
Public Service Employment Act
| Appointments 10. (1) Appointments to or from within the Public Service shall be based on selection according to merit, as determined by the Commission, and shall be made by the Commission at the request of the deputy head concerned by competition or by such other process of personnel selection designed to establish the merit of candidates as the Commission considers is in the best interests of the Public Service. |
Nominations 10. (1) Les nominations internes ou externes à des postes de la fonction publique se font sur la base d'une sélection fondée sur le mérite, selon ce que détermine la Commission et à la demande de l'administrateur général intéressé, soit par concours, soit par tout autre mode de sélection du personnel fondé sur le mérite des candidats que la Commission estime le mieux adapté aux intérêts de la fonction publique. |
| (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. |
(2) Pour l'application du paragraphe (1), la sélection au mérite peut, dans les circonstances déterminées par règlement de la Commission, être fondée sur des normes de compétence fixées par celle-ci plutôt que sur un examen comparatif des candidats. |
Public Service Employment Regulations, 1993
| Process of Personnel Selection 4. (1) Where a selection referred to in subsection 10(1) of the Act is made by a process of personnel selection other than a competition, that process shall involve the consideration of such material and the conduct of such examinations, tests, interviews and investigations as the Commission considers necessary or desirable to assess the merit of a candidate and shall be conducted in accordance with standards for selection and assessment that may be prescribed by the Commission pursuant to subsection 12(1) of the Act. (2) A selection referred to in subsection 10(2) of the Act may be made in any of the following circumstances, namely,
[...]
|
Mode de sélection du personnel 4. (1) Dans le cas d'une sélection de personnel faite aux termes du paragraphe 10(1) de la Loi autrement que par concours, le mode de sélection doit comprendre l'étude des documents et la tenue des examens, épreuves, entrevues et enquêtes que la Commission juge utiles ou souhaitables pour évaluer le mérite des candidats, tout en respectant les normes de sélection et d'évaluation fixées par la Commission en vertu du paragraphe 12(1) de la Loi. (2) La sélection visée au paragraphe 10(2) de la Loi peut se faire dans l'une ou l'autre des circonstances suivantes: [...]
[...]
[...] |
[10] The appellants' proposed interpretation of subsection 10(2) of the Act and of subrule 4(2) of the Regulations, namely that the word "may" in these two provisions is empowering rather than discretionary in nature and requires that the power thus conferred be exercised when the circumstances prescribed in subrule 4(2) are met, may not be without interest. As noted by professor Côté in The Interpretation of Legislation in Canada, 2d ed. (Cowansville, Que.: Yvon Blais, 1991) at 202:
| Finally, in certain cases the word "may" is considered to be imperative because of the context, the legislative history, the purpose of the statute or possible negative consequences of the exercise of discretion, which the legislator is deemed to intend to avoid. In short, the courts make full use of the general rules of interpretation in order to determine if Parliament meant to confer not only a power, but one whose exercise is discretionary. |
[11] In that regard, the following words of Addy, J. in Thyssen Mining Construction of Canada Ltd. v. The Queen, [1975] F.C. 81 at 87-88 (F.C.T.D.), are particularly apposite:
| There are several cases which lay down the principle that where a power is vested in a public officer for the purpose of being used for the benefit of persons specifically designated and where conditions are specified when persons are entitled to call for the exercise of that power, the power ought to be exercised and the Court will order it to be exercised. In certain circumstances, a mere power may carry with it the duty to exercise that power even though such an obligation to exercise is not specifically mentioned. Enabling words are often construed as compulsory wherever the object of power is to effectuate a legal right. But where the words are, according to their natural meaning, only permissive, then the burden is on the person who contends that an obligation exists to exercise the power to show something in the circumstances of the case which creates this obligation [...] |
[12] Subsection 10(2) is not, properly speaking, an exception, for by its very introductory words, it is enacted "for the purposes of subsection (1)", which establishes the principle that selection is to be made according to merit. Subsection 10(2) provides for alternative means to achieve the result prescribed by subsection 10(1) and the fact that these means are alternative to those defined in subsection 10(1) does not mean that they are inferior to them.
[13] Once the Commission has prescribed, as it is empowered to do by subsection 10(2), circumstances where the selection process allowed by that subsection may apply, and where these circumstances all appear to be such as to make unnecessary the type of competition contemplated by subsection 10(1), it is tempting to say that the Commission, which, itself defined these circumstances, ought to apply subsection 10(2). Such an interpretation would have the advantage of protecting the incumbents of positions which are subject to reorganization where it is established that the positions are not new. These incumbents would not, of course, have a right to be reappointed; they would, rather, have a right to be assessed in conformity with the standard of merit prescribed by subsection 10(2).
[14] We need not, however, decide this issue one way or another, because there exists in our view another avenue that permits us to dispose of the appeal.
[15] In the case at bar, the evidence is to the effect that the Commission, assuming it had the right to choose between the subsection 10(1) or the subsection 10(2) process, had decided to proceed under subsection 10(2) whenever the jobs reclassified were not new jobs. The appellants did not benefit from that process solely because, in the view of Revenue Canada, their jobs were new jobs. Once it is determined by the appeal board " and that finding was confirmed by the Motions Judge " that the jobs were not new jobs, the premise under which the Commission excluded the appellants from that process proved to be wrong and their exclusion could no longer be justified for it was based on an erroneous consideration. Furthermore, the Commission should not be allowed, once it has chosen to proceed under subrule 4(2), to treat differently employees whose situation is similar. In these circumstances, there is no need to refer the matter back to the appeal board for it has already reached the right conclusion and could do nothing more than reach the same conclusion but on other grounds.
[16] Counsel for the respondent argued that the appeal board had no authority to determine whether the positions at issue were new positions. The respondent had argued the opposite before the appeal board. She was right then and she is wrong now. It is trite law,since the decisions of the Supreme Court of Canada in Canada (Attorney General) v. Brault, [1987] 2 S.C.R. 489 and Doré v. Canada, [1987] 2 S.C.R. 503, that in order to determine whether the merit principle has been properly applied " and the individual merit principle is as much the merit principle as the relative merit principle " an appeal board must consider "what [a] 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 [...]". (Doré, supra , at 510, Le Dain J.).
[17] This appeal will therefore be allowed with costs, the decision of the Motions Judge will be set aside and the decision of the appeal board allowing the appeals against the appointments will be restored, albeit for different reasons.
"Robert Décary"
J.A.