Laidlaw v. Canada ( Attorney General )
A-340-97
Décary J.A.
7/5/98
8 pp.
Appeal from trial judgment allowing application for judicial review from appeal board's decision, remitting matter back to board-Under departmental reorganization, jobs categorized as: A (review and update), B (reclassification), C (new job)-Appellants' positions treated as new, under category C-For jobs considered reclassified under category B, staffing action taken under Public Service Employment Act, s. 10(2) when incumbents in positions-S. 10(2) providing selection according to merit may be based on competence as measured by such standard as Commission may establish, rather than as measured against competence of other persons-Appellants participating in competitions held under s. 10(1), providing appointments shall be based on selection according to merit-Appellants unsuccessful-On appeal, submitting positions not new, but reclassification, and staffing should have taken place on same basis as category B jobs i.e. basis of incumbent's competence pursuant to s. 10(2)-Appeal board finding positions not new; appellants having statutory right to be considered for appointment pursuant to s. 10(2), Public Service Employment Regulations, s. 4(2)(b)(ii)-S. 4(2)(b)(ii) providing selection referred to in s. 10(2) may be made where employee to be appointed to reclassified position and position one of group of similar positions-Appeal board of view provisions mandatory-Trial Judge agreeing jobs not new, but holding s. 10(2) permissive only; appellants having no right to prevent Commission from going through competition process set out in s. 10(1)-Appeal allowed-Whether Commission having statutory discretionary authority to choose between relative (s. 10(1)) or individual (s. 10(2)) merit principle in staffing positions in circumstances such as described in Regulations, s. 4(2) or whether bound to use individual merit principle, not decided-Once appeal board determined jobs not new, premise under which Commission excluded appellants from s. 10(2) process wrong, exclusion no longer justified-Commission should not be allowed, once choosing to proceed under s. 4(2), to treat differently employees whose situation similar-Appeal allowed-Public Service Employment Act, R.S.C., 1985, c. P-33, s. 10 (as am. by S.C. 1992, c. 54, s. 10)-Public Service Employment Regulations, 1993, SOR/93-286, s. 4(2)(b)(ii).