Lo v. Canada ( Public Service Commission Appeal Board )
A-196-97
Desjardins J.A.
18/12/97
10 pp.
Appeal from Trial Division decision ((1997), 126 F.T.R. 264) allowing respondent's application for judicial review, referring matter back to Public Service Appeal Board-Motions Judge concluding matter not moot despite fact incumbent of contested position transferred to another position, since retired-In July 1993, respondent applied for closed FI-4 competition as Senior Analyst, Treasury Board Secretariat-Qualified in every aspect except linguistic requirement-Appealed selection process to Appeal Board which determined no further action should be taken-Pinard J. concluding Appeal Board erred in dismissing respondent's appeal-In concluding matter not moot, Motions Judge relied principally on amendments to Public Service Employment Act, s. 21, which came into force in 1993, after decision in Noël v. Canada (Minister of Employment and Immigration) (1991), 136 N.R. 398 (C.A.)-Noël decision distinguishable-Although incumbent has left position, Public Service itself, contested appointment not revoked by Commission, ought to be dealt with-Board bound by decision of Pinard J. appointment of Ms. Steadman contravened merit principle-New s. 21(3) only gives Commission power to remedy defect in impugned selection process-Commission not transformed into tribunal empowered to pronounce declaratory judgments or to entertain claims in damages by unsuccessful candidate-Appeal process set out in Act, s. 21 limited-Not giving unsuccessful candidate right to be appointed should appeal succeed-Right of appeal created by s. 21 not to protect appellant's rights-Respondent could not claim more than integrity of application of merit principle-Appeal allowed to make possible modifications to order issued by Motions Judge-Matter referred back to Public Service Appeal Board for redetermination on basis appeal by applicant against appointment of Ms. Steadman should be allowed-Public Service Employment Act, R.S.C., 1985, c. P-32, s. 21 (as am. by S.C. 1992, c. 54, s. 16; 1996, c. 18, s. 15).