Beaudry v. Canada ( Attorney General )
T-1925-98
Sharlow J.
12/1/00
12 pp.
Judicial review of Appeal Board Chairperson's decision not having jurisdiction to hear appeal-In 1998 National Energy Board (NEB) establishing positions-Viewed as reclassifications of existing positions then held by individual respondents-Individual respondents appointed to these positions without competition-Applicants seeking to challenge appointments on basis not reclassifications, but new positions-Commencing appeal under Public Service Employment Act (PSEA), s. 21-Appeal Board Chairperson holding not having jurisdiction to hear appeal-Application dismissed-PSEA, s. 10(2) permitting appointment without competition based on qualifications of individual-Public Service Employment Regulations, s. 4(2)(b)(iii) providing selection referred to in PSEA, s. 10(2) may be made where employee to be appointed to employee's reclassified position and no similar occupied positions in same occupational group and level within same part of organization-Appointment under s. 10(2) subject to appeal under s. 21(1.1), giving right to appeal only to those who meet criteria established under s. 13(1) for process by which appointment made-S. 13(1) permitting Commission to establish criteria prospective candidates must meet in order to be eligible for appointment-NEB adopted "area of selection" policy which, by agreement with Public Service Commission, became s. 13(1) criteria for appointments-Area of selection for reclassifications defined as "persons employed in Branch of the NEB in which the reclassification occurs"-Applicants not employed in branches individual respondents employed in, not within area of selection established for reclassified positions-If s. 21(1.1) read literally, applicants not within class of person entitled to appeal appointments-Applicants submitting s. 21(1.1) should be given expansive interpretation based on Attorney General of Canada v. Landriault, [1983] 1 F.C. 636 (C.A.); Canada (Attorney General) v. Laidlaw (1998), 237 N.R. 1 (F.C.A.)-Both involving appeals commenced under s. 21(1) by unsuccessful applicant in competition leading to challenged appointment-As "unsuccessful candidates", within class of persons given right to appeal-Applicants herein asking Court to interpret s. 21(1.1) as though words "any person, who at the time of the selection, meets the criteria established pursuant to subsection 13(1)" were "any person who, at the time of the selection, meets the criteria established or that should have been established pursuant to s. 13(1)"-S. 21(1.1) not giving applicants right to appeal-Chairperson correct in finding not having jurisdiction to hear appeals-Judicial review proper means of challenging area of selection policy or determination of whether reclassification-Appeal Board Chairperson erred in holding applicants not challenging appointments; successful challenge would require evidence similar occupied positions in same occupational group; no other employees in NEB could have qualified for these positions-None of these errors affecting correctness of conclusion lacked jurisdiction to hear applicants' appeals-Public Service Employment Act, R.S.C., 1985, c. P-33, s. 10(1),(2) (as enacted by S.C. 1992, c. 54, s. 10), 13 (as am. idem, s. 12), 21(1) (as am. by S.C. 1992, c. 54, s. 16), (1.1) (as am. idem)-Public Service Employment Regulations, 1993, SOR/93-286, s. 4(2)(b)(iii) (as am. by SOR/97-142, s. 2).