Digests

Canada (Attorney General) v. Perera

A-769-98

Noël, Stone JJ.A., McDonald J.A. dissenting

8/6/00

45 pp.

Appeal from Trial Division decision ([1999] 2 F.C. D-32) allowing respondent's application for judicial review of Public Service Appeal Board (PSAB) holding itself competent to dispose of constitutional challenge to Public Service Employment Regulations, s. 27 (providing appointments of persons in executive group to other positions in that group excluded from operation of Public Service Employment Act (PSEA), s. 21)--PSEA, s. 21 providing right of appeal against appointments--Appellant submitting, given factual circumstances of case, Regulations, s. 27 invalid pursuant to Constitution Act, s. 52(1) as violating Charter, s. 15--Appeal dismissed (McDonald J.A. dissenting)--Per Noël J.A.: Issue whether Parliament has granted PSAB through its enabling statute power to determine questions of law: Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854 (La Forest J., p. 886)--Grant cannot be found to exist unless tribunal has jurisdiction over whole of matter before it, namely, parties, subject-matter and remedy sought--Role of PSAB narrowly confined: must ensure that merit principle respected within requirements devised by employer; has no say with respect to qualifications which employer-department considers necessary or desirable--PSAB only concerned with actions of Public Service Commission in selecting most meritorious from among candidates who have qualifications required by employer-department--Evidence before PSAB herein indicating basic requirements which resulted in appellant being screened out of competition developed by CIDA although Commission consulted and approved them--Here, subject-matter over which PSAB assumed jurisdiction whether Commission, by concluding appellant did not meet eligibility requirements and screening him out of competition on that basis, despite appellant's allegation that but for discrimination he would have met requirements, breached merit principle under Act and right to equality under Charter, s. 15--Underlying allegation on which jurisdiction of PSAB said to rest herein that employer over time engaged in direct discrimination and systemic discriminatory practices effect of which to prevent appellant from being promoted to EX group and therefore from being eligible and selected for one of contested positions, thereby offending merit principle--Actions of employer-department in management of its affairs have never been held to come within jurisdiction of PSABs even if they should be illegal and compromise merit principle--Appellant has asserted no fact to show Commission has breached its statutory duty under PSEA, ss. 10, 12(3) and to assume jurisdiction on that basis--No attack made with respect to selection standards devised by Commission and no irregularity identified in selection process conducted by Commission--Based on Canada v. Blashford, [1991] 2 F.C. 44 (C.A.), Commission did not have implied authority to reject eligibility requirements developed by CIDA--PSAB did not have jurisdiction--However, if it should be found PSAB has jurisdiction over appeal, PSAB would also have jurisdiction to dispose of constitutional challenge--Constitutional challenge would fall squarely within PSAB's jurisdiction, as limitation of right of appeal would stand as barrier to both appellant's right to be promoted in accordance with merit principle under Act, and right to equality under Charter--As conclusion either one of these rights has been breached would necessarily flow from same set of facts and invite identical findings, if PSAB intended by Parliament to have jurisdiction over one, must also have been intended to have jurisdiction over other--Per Stone J.A. (concurring): Whether given administrative tribunal possessing jurisdiction to deal with Charter issue turning largely on interpretation of relevant statute--PSAB's role limited to determining compliance with merit principle for selection for appointments to positions requiring those qualifications--Attack on Regulations, s. 27 not directly related to selection for appointment process but to argument discrimination had prevented him from being member of qualifying group--Even if discrimination did exist at that stage, would not establish that process somehow defective, and thus justifying PSAB's intervention, but that employer did him wrong before process got under way--Therefore, PSAB lacking either express or implied jurisdiction over subject-matter of dispute--Per McDonald J.A. (dissenting): appeal should be allowed--PSAB appointed pursuant to PSEA, s. 21 has jurisdiction to determine constitutional validity of Regulations, s. 27--PSAB herein meeting requirements as set out by majority in Cooper, and thus has jurisdiction to determine constitutional questions--Proper test whether or not Parliament has granted PSAB jurisdiction to determine questions of law--Actual subject-matter of concern herein whether or not selection process infringement of PSEA, ss. 10 and 12--Appellant need not have met all qualifications for position in order to bring appeal before PSAB: Attorney General of Canada v. Landriault, [1983] 1 F.C. 636 (C.A.)--Up to PSAB upon hearing appeal to determine if selection process done in accordance with merit principle--Fact departments able to establish requirements for given position does not mean PSAB unable to examine application of those criteria in selection process--To say PSAB does not have jurisdiction because it could not find in favour of appellant even in absence of Regulations, s. 27 tantamount to determining PSAB does not have jurisdiction over whole of matter unless Court feels it is possible for appellant to be successful--Court ought not to be confusing issues of jurisdiction with outcome of case on merit--Problematic for Court to make finding of fact on matter of whether appellant meets qualifications (or whether could be deemed to meet qualifications in light of prior decision of PSAB regarding discrimination appellant subjected to) without hearing evidence from parties on question--Also possible for appellant to argue, pursuant to PSEA, s. 12(3), that since current level of employment resulting from discrimination, ought to be deemed to be at executive level and therefore eligible for position--As Commission effectively acting on behalf of PSAB, cannot be argued PSAB without jurisdiction over whole of matter because lacks remedial power--Thus, PSAB has jurisdiction over whole of matter including remedy sought--Wording of enabling statute sufficient to ground implied power to deal with questions of law--Adjudicative nature of PSAB indicating implied power to consider questions of law as must deal with evidentiary and procedural questions (questions of law) in order to dispose of cases brought before it--Also, selection on basis of merit principle requiring application of principle of law, namely merit principle--Practical considerations weighing in favour of granting jurisdiction herein: fact no appeal route from decision of PSEA, s. 21 appeal board; determining whether breach of Charter has occurred requiring knowledge both of Charter jurisprudence and facts at issue which board in best position to evaluate--Final point in favour of granting jurisdiction: efficiency--If PSAB able to deal with Charter question, could determine entire matter, thus requiring only one hearing at Federal Court in which all matters could be dealt with--Public Service Employment Act, R.S.C., 1985, P-33, ss. 10 (as am. by S.C. 1992, c. 54, s. 10), 12 (as am. idem, s. 11), 21 (as am. idem, s. 16; S.C. 1996, c. 18, s. 15)--Public Service Employment Regulations, 1993, SOR/93-286, s. 27 (as am. by SOR/95-568, s. 8)--Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52(1)--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 15.