PUBLIC SERVICE |
Selection Process |
Sherb v. Canada (Attorney General)
T-653-03
2004 FC 247, Phelan J.
18/2/04
9 pp.
Judicial review of decision Public Service Commission (PSC) had no jurisdiction to conduct review of qualifications for position under Public Service Employment Act, s. 12.1 after selection process completed--Basis for decision found in Canada (Attorney General) v. Asselin (1999), 253 N.R. 388 (F.C.A.)--PSC has jurisdiction to review qualifications established by deputy heads without being limited to pre- or post-selection time frames--As consequence, request for investigation of qualification requirement can be made at any time--S. 12.1 permitting Commission to review qualifications for appointment to any position to ensure they afford basis for selection according to merit--"Affords" future-looking but used in context of "qualifications established by deputy head"--S.12.1 silent about precluding request for investigation when selection process concluded--Asselin, supra, not operating to preclude person such as applicant from making request under s. 12.1 in respect of future selection processes and qualifications thereof --Court of Appeal appeared to accept s. 12.1 could be invoked as free-standing provision separate from appeal process--Important to distinguish first, between investigation and appeal and second, between jurisdiction and remedy--As merit principle overarching value expressed in Act, s. 12.1 must be interpreted in manner adhering to principle, absent clear language to contrary--Acknowledging PSC's jurisdic-tion to review qualifications not contrary to concept of finality --Issues with respect to remedy appropriate place to focus on principle of finality--S. 12.1 contains no express or implied time limitation--For purposes of considering scope of s. 12.1, dealing with jurisdiction not remedy--No reason to impose by implication any such time limit--Application allowed--Public Service Employment Act, R.S.C., 1985, c. P-33, s. 12.1 (as enacted by S.C. 1992, c. 54, s. 11).