PUBLIC SERVICE |
Selection Process |
Merit Principle |
Abercrombie v. Canada (Attorney General)
T-166-99
Dawson J.
31/3/00
7 pp.
Judicial review of Appeal Board's decision lacked jurisdiction to hear Public Service Employment Act, s. 21 appeal on ground no appointment made--S. 21 providing appeal procedure to challenge appointment on basis not made according to merit principle--D. Wipp employed as Employment Counsellor (PM-02) at Human Resources Centre in Vanderhoof, B.C., until July 1995--Granted one-year leave of absence without pay because spouse relocated--On June 5, 1996 "appointed" as Program and Services Officer (PM-02) at Human Resources Centre in Kelowna for almost four months--"Appointed" for second term of six months--Thereafter "assigned" to same position for six months--"Assignment" twice extended--Appeal Board holding no promotion resulting from transfer from one position to another at same group, level--Accordingly no appointment resulting from "assignment" to position in Kelowna--Holding applicant not demonstrating Kelowna position requiring additional, special qualifications, duties similar--Application allowed--Cases establishing following test to determine whether appointment: (1) was assignment of such "significant and indefinite duration" as to be presumed to place D. Wipp at "distinct advantage" in any subsequent selection process; (2) was there such significant or substantial change in functions requiring "additional or special qualifications" so that "assignment" tantamount to new position; (3) was staffing action attempt by Department to avoid observance of merit principle--Board failed to properly apply correct legal test by not addressing issue of duration of assignment, given importance of this part of legal test, especially in light of case law holding in some circumstances even nine months too long for assignment--Also Board not mentioning attempt to circumvent merit principle part of legal test in reasons--Evidence Department under financial restraint in Kelowna, reluctant to create new position while negotiations under review, yet wished to accommodate D. Wipp's relocation, would have made appointment but for fact of negotiations--Evidence required analysis as to whether Department exercising reasonable management flexibility or whether attempting to avoid merit principle--Public Service Employment Act, R.S.C., 1985, c. P-33, s. 21 (as am. by S.C. 1992, c. 54, s. 16).