James H. Brooker (Applicant)
v.
Attorney General of Canada (Respondent)
Court of Appeal, Jackett C.J., Pratte J. and
Cameron D.J.—Ottawa, April 3 and 4, 1973.
Public service—Selection of public employees—Constitu-
tion of selection boards—Not restricted to public
employees—Public Service Employment Act, R.S.C. 1970, c.
P-32, secs. 6(1) and (5), 10.
An unsuccessful candidate for a public service appoint
ment moved to set aside the decision of an appeal board
rejecting his appeal. He contended that the selection board
set up by the Department for the competition was improper
ly constituted in that one of its members was not a public
employee.
Held, the application must be dismissed.
In carrying out its statutory duty under section 10 of the
Public Service Employment Act to select persons for
appointment to the public service, the Public Service Com
mission may use a selection board as its instrumentality and
is not restricted to using public service employees on such
boards. Where pursuant to section 6(1) the Commission
delegates its selection power to a deputy head or, under
section 6(5), a deputy head sub-delegates that power to a
person under his jurisdiction, the deputy head or the sub-
delegate may also make use of a selection board whose
membership is similarly unrestricted.
APPLICATION.
COUNSEL:
M. W. Wright, Q.C., and J. L. Shields for
applicant.
I. G. Whitehall and P. Bétournay for
respondent.
SOLICITORS:
Soloway, Wright, Houston, Killeen and
Greenberg, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondent.
JACKETT C.J. (orally)—This is a section 28*
application to review and set aside a decision
delivered on September 11, 1972, by a board
established by the Public Service Commission
to, conduct an inquiry under section 21 of the
Public Service Employment Act in respect of an
appeal by the applicant in respect of the
appointment or proposed appointment' of the
successful candidate in a competition for the
position of Assistant District Superintendent of
Education in the Department of Indian Affairs
and Northern Development at London, Ontario.
The ground for the application that was relied
on at the hearing is that the appointment or
proposed appointment is based on an eligible list
established as a result of a report by a selection
board set up by the Department in question for
the competition in question and that such selec
tion board was improperly constituted because
one of its members was not an employee of the
Federal Public Service.
As a background to understanding the point,
it is sufficient to recall
(a) that, under the Public Service Employment
Act, R.S.C. 1970, c. P-32, the exclusive right
and authority to make appointments to or
from within the Public Service, with excep
tions that are immaterial here, is vested in the
Public Service Commission (section 8) and
that such appointments must be based on
"selection according to merit" by competition
or otherwise (section 10),
(b) that the Public Service Commission may,
for the purpose of the process leading up to
the "selection" in question, establish selection
or rating boards as its instrumentalities to aid
it in carrying out that statutory function, 2 and
(c) that a "deputy head" or a person under his
jurisdiction may be authorized to exercise and
perform any of the powers, functions and
duties of the Public Service Commission'
(section 6).
The provisions in question read as follows:
8. Except as provided in this Act, the Commission has the
exclusive right and authority to make appointments to or
from within the Public Service of persons for whose
appointment there is no authority in or under any other Act
of Parliament.
10. Appointments to or from within the Public Service
shall be based on selection according to merit, as determined
by the Commission, and shall be made by the Commission,
at the request of the deputy head concerned, by competition
or by such other process of personnel selection designed to
establish the merit of candidates as the Commission consid
ers is in the best interests of the Public Service.
6. (1) The Commission may authorize a deputy head to
exercise and perform, in such manner and subject to such
terms and conditions as the Commission directs, any of the
powers, functions and duties of the Commission under this
Act, other than the powers, functions and duties - of the
Commission in relation to appeals under sections 21 and 31
and inquiries under section 32.
(5) Subject to subsection (6) a deputy head may authorize
one or more persons under his jurisdiction to exercise and
perform any of the powers, functions or duties of the deputy
head under this Act including, subject to the approval of the
Commission and in accordance with the authority granted
by it under this section, any of the powers, functions and
duties that the Commission has authorized the deputy head
to exercise and perform.
What the applicant says, as I understand it, is
that, where there has been a delegation by the
Commission to the appropriate deputy head, of
a power related to the making of an appoint
ment to a Public Service position, that power
must be exercised by the deputy head himself or
by some person under his jurisdiction to whom
he has duly delegated such power and, based on
that self-evident proposition, the argument pro
ceeds that, if a person who is not under the
jurisdiction of the deputy head has served on a
selection or rating board, that board was
improperly constituted and the resultant "selec-
tion" is invalid. This can only be so if a member
of a selection or rating board, as such, exercises
powers of the Public Service Commission that
can only be exercised if he has been authorized
to exercise or perform powers, functions or
duties of the Commission under section 6 or
some other provision of the same kind. This, in
effect, as I understand it, is the applicant's case.
To test the applicant's position, consideration
must be given first to the position under the
statute in a case in which the Commission itself
exercises the , appointing power. The relevant
provision' is section 10 of the Public Service
Employment Act which, in so far as relevant,
reads as follows:
10. Appointments ... shall be based on selection accord
ing to merit, as determined by the Commission, and shall be
made by the Commission ... by competition or by such
other process of personnel selection designed to establish
the merit of candidates as the Commission considers is in
the best interests of the Public Service.
As I read this, there must be
(a) first, a "selection according to merit, as
determined by the Commission", and
(b) second, an appointment by the Commis
sion based on that "selection".
The question here is not how that "selection"
process may be carried on. The section is clear
that it may be carried on by competition or by
such other process of personnel selection
designed to establish the merit of candidates as
the Commission considers in the best interest of
the Public Service. The question here is, rather,
by whom can the mechanics of such process be
carried on. The "selection" must be "deter-
mined" by the Commission and what is raised
for consideration here is what agencies or
instrumentalities, if any, are available to the
Commission for the purpose of carrying on the
competitions or other processes of personnel
selection that must be utilized to put it in a
position to determine a "selection".
To begin with, I think it must be clear that
Parliament did not have in mind that the Com
mission itself, which consists of only three
members,' would personally run every competi
tion and personally carry on the mechanics of
each of the other processes of personnel selec
tion that might be adopted. Obviously, the size
of the Public Service when the Public Service
Employment Act was adopted in 1967 was such
that Parliament must have intended that those
three members utilize the services of a very
large number of other persons in the selection
processes. If this were otherwise in doubt, it is
made clear by section 12 of the Act, which
authorizes the Commission "in determining .. .
the basis of assessment of merit in relation to
any position" to "prescribe selection stand
ards ...".
Who, then, was the Commission intended to
use for the operation of competitions and other
selection processes? A review of the Act does
not reveal an express provision for the creation
of a branch of the public service to act as the
supporting staff for the Commission in connec
tion with the performance of the very onerous
duties imposed on it although this is obviously
contemplated and such a branch has been creat
ed and is the main instrumentality of the Com
mission for the carrying out of its duties. 6 What
is expressly provided for in the statute is an
authority in the Commission to "engage compe
tent persons to assist the Commission in the
performance of its duties" (section 5(c)). This I
take to be an authority to enter into contracts
for services with persons who do not become
servants of the Commission. I have no doubt
that the Commission can use either its own
employees or persons engaged under section
5(c) to carry on the selection processes contem
plated by section 10. What is more, I find noth
ing in the Act or in the spirit of the Act that
would restrict the Commission to using only
such persons in the selection processes. Certain
ly, I would consider it an unnecessary fetter on
the Commission's powers if it could not invite a
knowledgeable public servant in one of the vari
ous departments and agencies to be a member
of a selection board whether or not his particu
lar department or agency has any interest in the
particular appointment. I go further and I
express the view that there is no limit on the
class of persons whose services can be so util
ized provided they can and will serve the objec
tives of the legislation. It may well be that a
person outside the Public Service is able to
make a contribution to "selection" for an "ap-
pointment" to an important post in the Public
Service although, by virtue of his position in the
community, it would not be appropriate for him
to accept an engagement such as is contemplat
ed by section 5(c) of the Act. I find nothing in
the statute to limit the Commission's use of
persons in the selection process by reference to
their membership in the Public Service or any
other particular class and, in the absence of any
compelling reason to imply any such limitation,
I am of the view that no such limitation can be
implied.
The situation is, of course, that no matter
whose services are utilized by the Commission
in operating competitions or other selection pro
cesses, the resultant "selection" must, in law, be
one "determined by the Commission". Whether
that must be accomplished by adoption after the
selection process has been worked out or can be
accomplished alternatively by an adoption in
advance is a matter upon which it is not neces
sary to express any opinion at this time.
What flows from this analysis as far as this
matter is concerned is that, while rating or
selection boards do play an important part, as a
practical matter, in the selection process, they
do so as part of the machinery established by
the Commission to carry out and perform its
powers, functions and duties under the Act. The
Commission has not authorized them to exer
cise or perform its powers, duties or functions
but has used them as an instrumentality by
which it carries out its statutory functions. This
is what occurs whenever responsibilities of
comparable magnitude are imposed by statute
on a minister or a statutory agency and is a
means of exercising statutory powers well rec
ognized by the law.'
When, however, we turn to the exercise of
the Commission's powers by a deputy head we
have a change in the legal position. In such a
case, by virtue of section 6(1), the deputy head
has been authorized "to exercise and per
form ... powers, functions and duties of the
Commission" under the Act. To the extent of
such authority 8 it is the deputy head, and not the
Commission, who makes the selections and
makes the appointments because he has been
vested, under the statute, with the legal authori
ty to do so, even though, just like the Commis
sion, he must seek the aid of others to carry out
the mechanics of operating the selection
processes.
Similarly, when a person under the jurisdic
tion of a deputy head exercises the Commis
sion's powers, such person has, by virtue of
section 6(5), been authorized "to exercise and
perform ... powers, functions and duties that
the Commission has authorized the deputy head
to exercise and perform", and, to the extent of
such authority, it is such person under the
deputy head, and not the deputy head or the
Commission, who makes the selections and
makes the appointments, because he has been
vested, under the statute, with the legal authori
ty to do so, even though, just like the deputy
head and the Commission, he must seek the aid
of others to carry out the mechanics of operat
ing the selection processes.
If my conclusion that there is no limitation of
the kind contended for on the class of persons
whose services can be utilized by the Commis
sion when it is operating a competition for an
appointment that it is going to make under sec
tion 10, I think it follows that there is no such
limitation when a deputy head, or a person
under a deputy head, is operating a competition
for an appointment that he is going to make by
virtue of powers conferred on him under section
6. As far as I know, there is no rule of law that
any other departmental function must be per
formed by employees of the department as
opposed to persons other than employees per
forming services under contract or
gratuitously; 9 and I do not know of any rule of
law that would make it illegal for a department
to make use of the services of persons willing to
make available to the government their special
abilities by serving on selection boards whether
they do it for a fee or gratuitously.1°
In my view, • the application should be
dismissed.
* * *
PRATTE J. and CAMERON D.J. concurred.
* Section 28 of the Federal Court Act, subsection (1) of
which reads as follows:
28. (1) Notwithstanding section 18 or the provisions of
any other Act, the Court of Appeal has jurisdiction to
hear and determine an application to review and set aside
a decision or order, other than a decision or order of an
administrative nature not required by law to be made on a
judicial or quasi-judicial basis, made by or in the course of
proceedings before a federal board, commission or other
tribunal, upon the ground that the board, commission or
tribunal
(a) failed to observe a principle of natural justice or
otherwise acted beyond or refused to exercise its
jurisdiction;
(b) erred in law in making its decision or order, whether
or not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding
of fact that it made in a perverse or capricious manner
or without regard for the material before it.
' The appeal was brought by letter dated July 18, 1972,
which is, in terms, an appeal against the decision taken in
the competition. However, it has been treated throughout
the proceedings as an appeal under section 21 of the Public
Service Employment Act, which reads as follows:
21. Where a person is appointed or is about to be
appointed under this Act and the selection of the person
for appointment was made from within the Public Service
(a) by closed competition, every unsuccessful candi
date, or
(b) without competition, every person whose oppor
tunity for advancement, in the opinion of the Commis
sion, has been prejudicially affected,
may, within such period as the Commission prescribes,
appeal against the appointment to a board established by
the Commission to conduct an inquiry at which the person
appealing and the deputy head concerned, or their repre
sentatives, are given an opportunity of being heard, and
upon being notified of the board's decision on the inquiry
the Commission shall,
(c) if the appointment has been made, confirm or
revoke the appointment, or
(d) if the appointment has not been made, make or not
make the appointment,
accordingly as the decision of the board requires.
See Nanda v. Public Service Commission [1972] F.C.
277 at page 297.
There are exceptions that are immaterial here.
° I have in mind the provisions of the statute concerning
the operation of competitions but, in my view, what is
involved here is the more general question as to what means
are available to the Commission to carry on personnel
selection processes generally.
S See section 3 of the Public Service Employment Act.
6 Members of the public service in such branch may
loosely be referred to as employees of the Commission.
Compare Local Government Board v. Arlidge [1915]
A.C. 120 at pages 132 et seq.
See also S. A. de Smith's "Judicial Review of Administrative
Action", Second Edition, at pages 290-92, where there is a
review of some of the relevant authorities in a passage
reading as follows:
Special considerations arise where a statutory power
vested in a Minister or a department of State is exercised
by a departmental official. The official is the alter ego of
the Minister or the department, and since he is subject to
the fullest control by his superior he is not usually spoken
of as a delegate. (A different analysis must, of course, be
adopted where powers are explicitly conferred upon or
delegated to an official by a law-making instrument.) The
courts have recognised that "the duties imposed on minis
ters and the powers given to ministers are normally exer
cised under the authority of the ministers by responsible
officials of the department. Public business could not be
carried on if that were not the case." In general, therefore,
a Minister is not obliged to bring his own mind to bear
upon a matter entrusted to him by statute but may act
through a duly authorised officer of his department. The
officer's authority need not be conferred upon him by the
Minister personally; it may be conveyed generally and
informally by the officer's hierarchical superiors. Whether
it is necessary for the authorised officer explicitly to
profess to act on behalf of the Minister is not certain.
Some matters, however, are so important that the Minister
must address himself to them personally. It would appear
that orders drastically affecting the liberty of the person—
e.g., orders for the deportation of aliens, detention orders
made under wartime security regulations and perhaps
discretionary orders for the rendition of fugitive offend-
ers—fall into this category. Objection to the production of
documentary evidence in legal proceedings on the ground
that its production would be injurious to the public inter
est must be taken by the Minister or the permanent head
of the department, certifying that personal consideration
has been given to the documents in question. It has been
said that when a Minister is required to consider an
inspector's report on objections to a new town designation
order he must in fact genuinely consider the report and
the objections, but it is not clear whether in this or other
contexts the devolution of these functions upon a senior
departmental officer would invalidate the order. Indeed,
as has already been pointed out, there seems to be no
general rule that Ministers when discharging functions of
a judicial character must direct their own minds to the
cases before them. Nor is it necessary for a Minister to
act personally in the exercise of powers of a legislative
character; statutory instruments are in fact signed by
senior departmental officials acting under a general grant
of authority from the Minister concerned.
8 I is a part of the scheme of section 6(1) that the
Commission, when authorizing a deputy head to exercise its
powers, etc., may impose limitations on the authority con
ferred on the deputy head but it has not been suggested that
any limitation so imposed on the authority under considera
tion in this case is relevant to the decision of this
application.
9 There may, of course, be special statutory provisions or
contracts that I do not know of or do not have in mind but
no such special rule has been put forward as applicable here.
'b It has been suggested, although not in argument, that,
having regard to the reason traditionally ascribed for the
existence of the Public Service Commission and its pre-
decessors—as a bulwark against political patronage—there
is reason for placing limits on the extent to which the
departmental officials may use outside help that does not
apply to the Public Service Commission itself. The answer
to this, as it seems to me, is that Parliament, in providing for
a partial return of the recruiting power to the departments
has provided expressly for safeguarding machinery both by
the power provided to the Commission by subsections (1)
and (5) of section 6 to impose limitations on the power
returned to the departments and by the review and revoca
tion powers given to the Commission by subsections (2), (3)
and (4) of section 6. When Parliament has thus explicitly
provided safeguarding machinery, as it seems to me, there is
no justification for implying other limitations on the powers
returned to the departments.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.