A-41-81
Attorney General of Canada (Applicant)
v.
W. E. Greaves, Richard A. McNeill, S. L. Morris
and Glen C. Waddy (Respondents)
Court of Appeal, Pratte and Le Dain JJ. and Kerr
D.J.—Ottawa, November 12, 1981 and January 5,
1982.
Judicial review — Public Service — Application to review
and set aside Appeal Board's decision under s. 21 of the Public
Service Employment Act — Board allowed appeals by
respondents against an appointment made without competition
pursuant to s. 5(c) of the Public Service Employment Regula
tions — Board held that the selection violated the merit
principle stated in s. 10 of the Act — Whether Board erred —
Public Service Employment Act, R.S.C. 1970, c. P-32, ss. 10,
21 — Public Service Employment Regulations, C.R.C. 1978,
Vol. XIV, c. 1337, s. 5 — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28.
This is a section 28 application directed against the decision
of an Appeal Board under section 21 of the Public Service
Employment Act allowing the appeals made by the respondents
against an appointment made without competition pursuant to
paragraph 5(c) of the Public Service Employment Regulations.
The Appeal Board held that a competition should have taken
place because it was not satisfied that "a competition would not
be in the best interests of the Public Service". (Respondents
conceded however that that ground of attack could not support
the Board's decision in view of a recent decision of this Court.)
The Appeal Board also held that the selection violated the
merit principle stated in section 10 of the Act, no consideration
having been given to the qualifications of other persons who
might wish to apply for the samel position.
Held, the application is dismissed. A selection which has
been made in accordance with the procedure laid down in the
Act and the Regulations, be it by competition or otherwise,
may nevertheless be successfully attacked under section 21 if
the manner in which the selection was made was such that it
violated the merit principle. The requirements of the merit
principle are always the same. They do not vary with the
method of selection chosen. That principle requires that the
selection be made "according to merit", which means, "that the
best persons possible will be found for the various positions in
the Public Service." The Appeal Board had a valid reason for
allowing the appeal.
Per Le Dain J.: The purpose of the merit principle is to find
the best qualified persons from among those who are available.
It is an implication of section 21 of the Act that the candidate's
qualifications must be compared with those of the persons
whose opportunities for advancement would be prejudicially
affected by his or her appointment. Such persons are usually
identified after a selection is made, as in the present case, but
they may, as a practical matter, be identified before a selection
is made, and should there be any oversight in this respect it
may be subsequently corrected.
Attorney General of Canada v. Appeal Board established
by the Public Service Commission [1982] 1 F.C. 803,
referred to. Nanda v. Appeal Board Established by the
Public Service Commission [1972] F.C. 277, referred to.
APPLICATION for judicial review.
COUNSEL:
W. L. Nisbet, Q.C. for applicant.
M. W. Wright, Q.C. and A. J. Raven for
respondents.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for respondents.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This section 28 application is direct
ed against the decision of an Appeal Board under
section 21 of the Public Service Employment Act,
R.S.C. 1970, c. P-32, allowing the appeals made
by the respondents against the selection of one
Brian Dougall for appointment to a position in the
Department of Employment and Immigration at
Vancouver, British Columbia.
The selection of Mr. Dougall was made without
competition pursuant to paragraph 5(c) of the
Public Service Employment Regulations, C.R.C.
1978, Vol. XIV, c. 1337.' It is common ground
1 Section 5 of the Public Service Employment Regulations
reads as follows:
5. Every appointment pursuant to section 10 of the Act
shall be made, in accordance with selection standards, by one
of the following processes of personnel selection:
(a) an open competition between persons who
(i) respond to public notice, or
(ii) are identified by means of an inventory;
(b) a closed competition between employees who
(i) respond to notice, or
(ii) are identified by means of an inventory; or
(c) the consideration of such material and the conduct of
such examinations, tests, interviews and investigations as
(Continued on next page)
that he occupied, at the time he was selected for
the Vancouver position, a similar position in the
same Department, at Ottawa, and that his
appointment to the Vancouver position was an
appointment which met the requirement of sub-
paragraph 5(c)(i) of the Regulations. It is also
common ground that the selection of Mr. Dougall
was made after the appropriate authorities had
verified that he was qualified to occupy the Van-
couver position and had formed the opinion that "a
competition would not be in the best interests of
the Public Service".
The respondents are employees of the Depart
ment of Employment and Immigration at Vancou-
ver. If a closed competition had been held to fill
the position for which Mr. Dougall was selected,
they would have had the right to participate in it;
on the other hand, Mr. Dougall, being from
Ottawa, would not have had that right. For that
reason, the Commission determined, pursuant to
paragraph 21 (b) of the Act, that the respondents'
opportunity for advancement had been prejudicial-
ly affected by Mr. Dougall's selection. Following
that determination, the respondents appealed
under section 21 against Mr. Dougall's proposed
appointment. The Appeal Board allowed their
appeal on two grounds. First, it held that Mr.
Dougall could not be appointed without a competi
tion because it was not satisfied that "a competi
tion would not be in the best interests of the Public
Service". Second, the Board found that, in any
(Continued from previous page)
the Commission considers necessary to establish the merit
of a candidate for appointment where the Commission is of
the opinion that a competition would not be in the best
interests of the Public Service and the appointment is one
of the following, namely,
(i) the appointment of an employee to a position for
which the maximum rate of pay does not exceed the
maximum rate of pay for the position occupied by the
employee immediately prior to the appointment,
(ii) the appointment of an employee to a reclassified
position that the employee occupied immediately prior
to the reclassification of the position,
(iii) the promotion of an employee in a position to which
he was appointed at a level lower than the full level of
the position,
(iv) the appointment for a specified period from outside
the Public Service to meet an emergency situation, and
(v) an appointment by the Commission, other than an
appointment described in subparagraphs (i) to (iv), that
the Commission considers to be in the best interests of
the Public Service.
event, Mr. Dougall's selection violated the merit
principle stated in section 10 of the Act 2 since that
selection had been made on the sole ground that he
was qualified for the position and without even
considering the possibility that there might be
persons more qualified than him among those who
might have wanted to apply for the position.
Counsel for the respondents conceded at the
hearing that the decision under attack could not be
supported on the first ground put forward by the
Board. Mr. Wright made that concession in the
light of the recent decision of this Court in Attor
ney General of Canada v. Appeal Board estab
lished by the Public Service Commission (supra,
page 803)' where it was held that an Appeal Board
cannot, on an appeal under section 21 against an
appointment made without competition pursuant
to paragraph 5(c) of the Regulations, review the
opinion of the Commission or of its delegate that
"a competition would not be in the best interests of
the Public Service". I may as well mention
immediately that Mr. Wright also said at the
hearing that he did not want to put in doubt the
validity of paragraph 5(c) of the Regulations. In
other words, for the purposes of this case, he
conceded, as I understood him, that paragraph
5(c) prescribes a process of personnel selection
which the Commission has the authority to pre
scribe by virtue of the last part of section 10 of the
Act.
The argument put forward by counsel for the
applicant may be briefly summarized. This is
clearly a case, said he, where the appointment
could be made without competition pursuant to
paragraph 5(c) of the Regulations. The selection
procedure laid down in that paragraph was fol
lowed to the letter and does not involve a compari
son between the qualifications of the person pro
2 Section 10 of the Public Service Employment Act reads as
follows:
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.
posed for appointment to a position and those of
other persons who might wish to apply for the
same appointment. Mr. Dougall's selection, there
fore, was made in accordance with the rules pre
scribed by paragraph 5(c) of the Regulations. It
was also made in accordance with the "merit
principle" enunciated in section 10 of the Act
("Appointments to or from within the Public Ser
vice shall be based on selection according to mer
it") since that principle, when the selection is not
made by competition, merely requires the selection
of competent persons and does not require the
selection of the best possible persons.
It is clear, in my view, that paragraph 5(c) of
the Regulations does not impose the obligation to
compare the qualifications of the person proposed
for appointment with those possessed by other
persons. And counsel for the applicant is right, in
my view, when he asserts that Mr. Dougall's
appointment was made in accordance with the
requirements of the Regulations. However, this is
not the end of the matter. A selection which has
been made in accordance with the procedure laid
down in the Act and the Regulations, be it by
competition or otherwise, may nevertheless be suc
cessfully attacked under section 21 if the manner
in which the selection was made was such that it
violated the merit principle. For instance, a selec
tion made by competition following all the statu
tory requirements may be tainted by the fact the
qualifications of the candidates have been wrong
fully assessed. This is true when the selection is
made by competition; it is also true if the selection
is made without a competition. The requirements
of the merit principle are, in my view, always the
same. They do not vary with the method of selec
tion chosen. That principle requires that the selec
tion be made "according to merit", which means,
"that the best persons possible will be found for
the various positions in the Public Service ...". 31 In
the present case, the Appeal Board, as I under
stand its decision, was not satisfied that the
appointment had been made "according to merit"
because the qualifications of the selected candidate
had never been in any way compared with those of
3 Nanda v. Appeal Board Established by the Public Service,
Commission [ 1972] F.C. 277, at p. 297, per Jackett C.J.
other persons who, like the respondents, might
have wished to apply for the position. This was, in
my view, a valid reason for allowing the appeal.
For these reasons, I would dismiss the
application.
* * *
The following are the reasons for judgment
rendered in English by
LE DAIN J.: I agree that the section 28 applica
tion should be dismissed. The difficulty that I have
experienced in this case is in seeing how the merit
principle is to be applied, as a practical matter,
where there is only one candidate for a position.
Sections 10 and 21 of the Public Service Employ
ment Act indicate that an appointment may be
made in the Public Service without competition.
To that extent paragraph 5(c) of the Public Ser
vice Employment Regulations, which provides for
appointment without competition, finds support in
the legislation. But the alternative process of per
sonnel selection chosen by the Commission must
be one which, in the words of section 10 of the
Act, is "designed to establish the merit of candi
dates." The merit established by competition is
obviously relative merit. I agree that we would not
be justified in concluding that the word "merit" in
the part of section 10 which reads, "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," is
intended to have the different and more limited
meaning of simply being qualified for a position. I
believe the merit principle was intended to achieve
more than merely the appointment of qualified
persons in the Public Service. Its purpose is to find
the best qualified persons from among those who
are available. In the case of a competition the
persons who are available are identified as candi
dates for the position. The Commission, or those
exercising its delegated authority, know for certain
the persons whose qualifications for the position
must be compared in the light of the merit princi
ple in order to comply with the requirement of
section 10 of the Act. In the case of an appoint
ment without competition there is not an identifi
cation of other candidates for the position. This is
clear from a comparison of paragraphs (a) and (b)
with paragraph (c) of section 5 of the Regulations.
How, then, is the Commission, or those exercising
its delegated authority, to know who the candidate
for appointment is to be compared with in order to
satisfy the requirement of section 10? In my opin
ion, it is an implication of section 21 of the Act,
which gives a right of appeal, in the case of an
appointment without competition, to "every person
whose opportunity for advancement, in the opinion
of the Commission, has been prejudicially affect
ed", that the candidate's qualifications must be
compared with those of the persons whose oppor
tunities for advancement would be prejudicially
affected by his or her appointment. Such persons
are usually identified after a selection is made, as
happened in the present case after the first selec
tion which led to the first decision of the Appeal
Board, but they may, as a practical matter, be
identified before a selection is made, and should
there be any oversight in this respect it may be
subsequently corrected. I am mindful that the
conclusion reached in this case may severely limit
the flexibility provided by the power of transfer in
the Public Service, to the extent that a particular
transfer constitutes an appointment within the
meaning of the Act, but if more is required in this
regard it should be clearly provided by the
legislation.
* * *
KERR D.J.: I agree.
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.