PUBLIC SERVICE |
Jurisdiction |
Buttar v. Canada (Attorney General)
A-55-99
Sharlow J.A.
4/4/00
10 pp.
Appeal from dismissal of application for judicial review of Appeal Board's decision lacked jurisdiction to consider whether relevant standards of competence applied in consistent manner--Public Service Employment Act, s. 10(2) permitting selection according to merit to be based on competence of person being considered for appointment as measured by such standard of competence as Commission may establish, rather than as measured against competence of other persons--Appointment under s. 10(2) representing alternative application of merit principle, not exception thereto--Health Canada's process to select research scientists for promotion requiring Sectoral Committee to recommend candidates for promotion to Departmental Review Committee for final decision after assessment of applications against classification standard for scientific research--Sectoral Committee concluding appellant only qualified candidate for promotion--Subsequently chair of Committee putting forward additional names--Sectoral Committee's revised recommendation including Dr. Larry Whitehouse, but indicating appellant best candidate from Bureau of Drug Research--Departmental Review Committee assessing applications individually against classification standard, concluding only Dr. Whitehouse qualified for promotion--Appellant appealed pursuant to s. 21(1.1), permitting appeal against appointment by other than competition by person meeting selection criteria--Appeal Board holding inquiry centred upon whether Dr. Whitehouse meeting qualifications for appointment; as no evidence not qualified, appeal dismissed; consistent application of standard of competence outside jurisdiction on s. 21 appeal--As requirement of merit principle raising question of law, standard of review correctness--Motions Judge dismissing application for judicial review--Appeal allowed--Appellant's complaint rooted in fact Sectoral Committee, integral component of selection process, knowledgeable as to relevant standards, concluding appellant qualified for promotion--Addition of Dr. Whitehouse to candidates considered by Sectoral Committee followed procedure Appeal Board characterizing as "highly irregular"--Also significant Appeal Board, Court hampered in examination of basis of Departmental Review Committee's conclusions because no notes kept of deliberations--Appeal Board perceived limitation to jurisdiction precluding it from even considering possibility selection standards inconsistently applied--Failed to discharge mandate of guarding application of merit principle--Validity of appointment of Dr. Whitehouse could not fairly be determined without considering whether qualifications assessed on basis of same standards as applied to other candidates simultaneously seeking promotion--Appeal Board erred in declining to consider that issue--Public Service Employment Act, R.S.C., 1985, c. P-33, ss. 10(2) (as am. by S.C. 1992, c. 54, s. 10), 21(1.1) (as enacted idem, s. 16).