Canada ( Attorney General ) v. Hasan
T-649-98
Evans J.
9/11/98
20 pp.
Judicial review of deployment investigator's (investigator) report, following respondent's complaint, that deployment of one Leung to position of AU-05 in Verification and Enforcement Division of Revenue Canada in breach of Public Service Employment Act, s. 34.2(2), and abuse of authority-Prior to deployment, Leung had, along with five others, won closed competition for promotion from AU-04 to AU-05 within Revenue Canada-Promotions appealed to PSC Appeal Board (AB)-Judicial review of AB's decision allowing appeal, on ground selection process flawed, still pending-Investigator found deployment in effect promotion contrary to AB decision as PSC should have given effect to AB decision and revoked all candidates' promotions, including Leung's, and also found improper exercise of deputy head's discretion over deployment within Department-Issues (1) whether investigator exceeded legal authority when investigated whether Leung held substantive AU-05 position at time of deployment; (2) whether investigator erred in law in holding Act, s. 21(3) did not authorize Commission to refuse to give effect to AB's decision pending outcome of application for judicial review of that decision; (3) whether investigator erred when concluded on facts Leung's deployment not in accordance with Act and abuse of authority; (4) whether Court should use discretion and refuse to grant relief on ground application for judicial review premature, since investigator's report and recommendations have not yet been referred to PSC for its consideration in accordance with Act, s. 34.5-Application dismissed-(1) Clear investigator not precluded from considering whether deployment constituted promotion-Since power to investigate deployment obviously includes investigation of propriety thereof, investigator must be able to consider any matters relevant to inquiry, including events that took place before deployment occurred-Broad interpretation of scope of investigator's jurisdiction consistent with overall scheme of 1993 amendments-Accordingly, investigator did not exceed scope of authority by considering whether Leung's earlier promotion from AU-04 to AU-05 had been effectively cancelled as result of AB's decision allowing appeal of unsuccessful candidate-(2) and (3) Investigator correct in holding Act, s. 21(3) not authorizing PSC, for purposes of efficiency, to delay giving effect to AB's decision unless and until AB's decision set aside on application for judicial review-AB determined "defect in due process" of selection within meaning of Act, s. 21(3)-Act, s. 21(3) not enabling PSC to stay implementation of AB's order, as it sees fit-PSC may take such measures as it considers necessary to remedy defect-However, suspending implementation of AB's decision pending determination of judicial review application not rationally related to remedying defect in selection process identified by AB-In fact, resulted in perpetuation of problem because of subsequent deployment-Revocation of appointment, following appeal being upheld, serves to ensure that merit principle protected by erring on side of AB findings; results of continuing appointment disastrous to that principle and to credibility of appeal process-Furthermore, AB Practice and Procedures Guide stating: AB decision final and immediately binding on parties and successful candidates and remains so as long as not quashed by Federal Court, or unless stay of execution granted by Court-Commission exercised its discretion under Act, s. 21(3) for improper purpose or by taking into account irrelevant consideration, and deployment of Leung consequently abuse of process-Fact only PSC, and not AB, may formally revoke Leung's promotion did not justify PSC's conduct herein-Investigator right to regard PSC as having done what it was under legal duty to do, so that at deployment, Leung held substantive AU-04 position-Public Service Employment Act, R.S.C., 1985, c. P-33, ss. 21(3) (as am. by S.C. 1992, c. 54, s. 16), 34.2 (as enacted idem, s. 22), 34.5 (as enacted idem).