Monique Charest (Applicant)
v.
Attorney General of Canada (Respondent)
and
Richard Anderson (Applicant)
v.
Attorney General of Canada (Respondent)
and
Jean Lemieux (Applicant)
v.
Attorney General of Canada (Respondent)
Court of Appeal, Jackett C.J., Thurlow and
Pratte B.—Montreal, December 19, 1973.
Judicial review—Appeal Board established by Public Ser
vice Commission—Board interviewing for position—Leakage
of information regarding questions asked—Appeals re
appointments—Results of competition made void by
Board—Appeal by successful applicants—Whether contrary
to law and natural justice—Public Service Employment Act,
ss. 10, 21.
In a competition held to find qualified persons to fill
certain positions in the Public Service, the committee put
the same series of questions to each candidate. Twenty-
three persons were declared qualified and several unsuc
cessful candidates appealed under section 21 of the Public
Service Employment Act. The Board allowed the appeals on
the ground that the selection committee did not take the
necessary precautions to avoid leaks and the successful
candidates learned of the questions posed to the candidates.
The successful candidates appealed on the ground that the
Board's decision was contrary to law and natural justice in
that it imposed a penalty on the applicants without proof
that they had been at fault and particularly where one of the
applicants was the first candidate to be interviewed.
Held, dismissing the appeal, that the Board did not act in
an irregular manner. It did not declare the applicants guilty
of wrongdoing, but merely made void the results of a
competition that did not attain the objective of selection by
merit as required by section 10. The rights of appeal created
by section 21 is not to protect the appellants' rights but is to
prevent appointments being made contrary to the merit
principle. The one who was interviewed first appeared 19
out of 23 on the eligibility list. If his name was the only one
left on the list after cancellation of the others, this would
guarantee him appointment over others perhaps better quali-
Pied than he is. This is also incompatible with the merit
principle.
MOTIONS for judicial review.
COUNSEL:
D. E. Tellier for applicants.
Denis Bouffard for respondents.
SOLICITORS:
Cloutier, Tellier and Cayer, Montreal, for
applicants.
Deputy Attorney General of Canada for
respondents.
The judgment of the Court was delivered by
PRATTE J.—These three motions were submit
ted under section 28 of the Federal Court Act.
The three applicants are challenging the same
decision: that pronounced on August 23, 1973
by a board established under section 21 of the
Public Service Employment Act.
In February 1973 officials of the Department
of Manpower and Immigration announced the
holding of a competition in accordance with the
provisions of the Public Service Employment
Act, to find qualified persons to fill the position
of supervisor, level 3, in manpower centres in
the metropolitan Montreal area. This competi
tion was closed, that is open only to certain civil
servants in the Montreal area. Eighty persons
entered, and as is customary, a committee was
appointed to rule on their qualifications. This
committee examined the files of candidates and
decided to hold an interview with each one.
During the interviews, which took place on
April 9 and May 10, 1973, the committee put
the same series of questions to each candidate.
Following this examination the committee pre
pared a list of the candidates it considered quali
fied. There were twenty-three naines, including
those of the three applicants.
The unsuccessful candidates were informed
of the result. As they were entitled to do by
section 21 of the Public Service Employment
Act, several of them appealed the appointments
that were about to be made as a result of this
competition. These appeals were allowed by a
Board, whose decision is now being challenged
by the three applicants.
The decision of the Board summarizes the
principal ground raised by appellants before it
as follows (Record, page 36):
The selection committee did not take the necessary precau
tions to avoid leaks. The highest ranked candidate, Miss
Monique Charest, met Mr. Jacques Arbour, a candidate who
had been interviewed before she was called, and she dis
cussed with him the questions put to the candidates by the
selection committee.
It should be noted that the Miss Charest just
referred to is one of the three applicants in this
Court.
At its hearing the Board heard evidence from
both sides as to whether or not, before being
questioned by the committee, Miss Charest had
learned from another candidate, who had
already taken the oral examination, the ques
tions that would be asked. In its decision the
Board analyzed this evidence and concluded as
follows (Record, page 41):
It is still impossible for the appeal board to determine with
any certainty which witnesses were telling the truth, and it
has to recognize that there is no absolute proof of cheating
in this competition. However, as a result of the testimony,
the evidence as a whole raises a real doubt in the minds of
the board as to leaks, and this doubt is sufficient to support
a conclusion that the competition should be repeated,
because justice must not only be done, it must be seen to be
done.
All the appeals are accordingly upheld.
It will be seen, therefore, that the Board
allowed the appeals, not because it believed that
Miss Charest had cheated, but because it con
sidered the oral examination had been organized
in such a way that it was quite possible the
candidates, by communicating with other candi
dates whom the committee had already ques
tioned, had known in advance the questions
they would be required to answer.
It is understandable that the applicants were
not pleased by this decision of the Board. They
had been successful in the competition, and
could therefore expect to be appointed to the
positions they were seeking. The decision being
challenged deprived them for a time of this
expectation, which they could only recover by
successfully passing the tests in another
competition.
Counsel for the applicants argued that the
Board's decision was contrary to law and natu
ral justice, in that it imposed a penalty on the
applicants without proof that they had been at
fault. He further submitted that in the case of
the applicant Anderson, the injustice of the
decision was even more apparent. Anderson,
according to his counsel, was the first candidate
to be questioned by the committee. It would
therefore be impossible for other candidates to
have disclosed to him the questions that would
be asked. Accordingly, he argued, Anderson is
being condemned for wrongdoing which he defi
nitely did not commit.'
It is clear that the evidence before the Board
did not warrant a conclusion that the three
applicants had been guilty of wrongdoing. If the
Board had held otherwise, the arguments of
counsel for the applicants would probably be
justified. However, in my view, that was not the
finding of the Board. It did not find the appli
cants guilty of anything, and did not seek to
impose any penalty on them: it merely voided
the result of a competition which was in its
opinion so organized as to be of questionable
validity. In doing this, I do not feel that the
Board acted in an irregular manner.
It appears to me that, though the decision
does not say so expressly, the Board first found
that the oral examination was held in such a
way that it was possible for several candidates
to have known in advance the questions they
would be asked. That was a finding of fact
which does not seem unreasonable in view of
the evidence. From this finding of fact the
Board then drew a legal conclusion, namely that
the result of the competition should be voided.
In making this determination the Board did not
act unlawfully. I shall now explain why.
Under section 10 of the Public Service
Employment Act, "Appointments to ... the
Public Service shall be based on selection
according to merit ...". The holding of a com
petition is one means provided by the Act to
attain the objective of selection by merit. How
ever, it is important to remember that the pur
pose of section 21 conferring a right of appeal
on candidates who were unsuccessful in a com
petition is also to ensure that the principle of
selection by merit is observed. When an unsuc
cessful candidate exercises this right, he is not
challenging the decision which has found him
unqualified, he is, as section 21 indicates,
appealing against the appointment which has
been, or is about to be, made on the basis of the
competition. If a right of appeal is created by
section 21, this is not to protect the appellant's
rights, it is to prevent an appointment being
made contrary to the merit principle. As, in my
view, this is what the legislator had in mind in
enacting section 21, it seems clear that a Board
appointed under this section is not acting in an
irregular manner if, having found that a compe
tition was held in circumstances such that there
could be some doubt as to its fitness to deter
mine the merit of candidates, it decides that no
appointment should be made as a result of that
competition. Such a decision may well cause
some hardship to qualified candidates who have
done nothing wrong. However, aside from the
fact that it is not an undue hardship (since
candidates can always enter another competi
tion), one cannot admit, in order to avoid this
hardship, that appointments be made in the
Public Service without ensuring that the merit
principle is observed.
The foregoing disposes of the motions of
Miss Charest and Mr. Lemieux. That of Mr.
Anderson presents a special problem.
According to his counsel, Mr. Anderson was
the first to be questioned by the committee. If
that is so, the other candidates could not have
informed him of the questions in advance. Is it
not then unjust to deprive him of what he
earned? Cancellation of the results would be to
preserve the merit principle intact. However,
surely this principle is not at issue in this
instance, since Mr. Anderson established his
qualifications in a competition which, in so far
as he was concerned, was properly conducted.
This argument would be decisive if the merit
principle, as conceived by the legislator, meant
only that where a competition is held to fill
positions, the persons appointed to these posi
tions must have succeeded in the competition.
However, the merit principle goes further. After
a closed competition is held, the names of the
most qualified candidates must be placed on an
eligibility list in order of merit. When the time
comes to make appointments, it is ordinarily the
most deserving candidate, whose name appears
at the head of the list, who is appointed first. A
person whose name appears at the bottom of an
eligibility list compiled for a given position will
usually only be appointed to that position after
all those whose names precede his own on the
list. The record shows that applicant Anderson
was nineteenth of the twenty-three candidates
who succeeded in the competition. If the results
are cancelled for the other candidates, and not
for him, Mr. Anderson's name will be the only
one on the list. This would guarantee him
appointment to the position he is seeking,
regardless of the fact that many other candi
dates may be better qualified than he is. Such an
outcome, in my opinion, would, in addition to
being unfair to the other candidates, be incom
patible with the merit principle.
For these reasons I would dismiss the three
motions.
The record does not indicate that Mr. Anderson was the
first to be questioned by the committee. When this was
pointed out to counsel for the applicants, he requested leave
to produce documentary evidence of this fact. The Court
then decided to dispose of the motion on the assumption
that this fact had been established before the Appeal Board
and on the understanding that, in the event of an appeal
against the Court's decision, counsel for the applicants
would then request leave to complete his record.
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