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A-114-80
Attorney General of Canada (Applicant)
v.
Dr. Klaus U. Weyer (Respondent)
Court of Appeal, Thurlow C.J., Pratte and Heald JJ.—Ottawa, June 27, 1980.
Judicial review — Public Service — Application to review and set aside the decision of the Public Service Commission Appeal Board allowing an appeal brought pursuant to s. 21 of the Public Service Employment Act — Applicant's only ground of attack is that the Board erred in law in finding that the selection process did not meet the requirements of "merit principle" — Applicant's attack was based on misinterpreta tion of the Board's decision — Application dismissed — Public Service Employment Act, R.S.C. 1970, c. P-32, s. 21 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review. COUNSEL:
L. Holland for applicant.
M. Wexler for respondent and for Profession al Institute of the Public Service of Canada.
SOLICITORS:
Deputy Attorney General of Canada for applicant.
The Professional Institute of the Public Ser vice of Canada, Ottawa, for itself and the respondent.
The Public Service Commission, Ottawa, for itself.
The following are the reasons for judgment of the Court delivered orally in English by
PRATTE J.: This section 28 application is direct ed against a decision of a Public Service Commis sion Appeal Board allowing an appeal brought against a proposed appointment in the Public Ser vice pursuant to section 21 of the Public Service Employment Act, R.S.C. 1970, c. P-32.
The applicant's only ground of attack is that the Board erred in law in deciding that the determina tion that the successful candidate possessed the necessary qualifications for the job had been made
by persons who did not have the legal authority or power to make such a determination. If this were, in fact, the only ground for the decision of the Board, that decision should certainly be set aside. Those to whom the Public Service Commission gives the mandate of determining what persons possess the essential qualifications for a position obviously have the authority to make that determi nation. And, in the case where one of the necessary qualifications is a specified university degree or its equivalent, that authority includes the power to decide whether or not a person who does not have the required university degree has the equivalent of that degree.
In our view, however, the applicant's attack against the decision of the Board is based on a misinterpretation of that decision which, as we read it, rests, at least in part, on the finding that, in this case, the determination that the successful candidate was qualified had been made by a person who did not have the capacity to decide that question in an enlightened manner. From this finding, which is not reviewable by this Court, the Board could legally conclude that the selection process did not meet the requirements of the "mer- it principle".
The application will, therefore, be dismissed.
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