A-778-86
Colette Laberge (Applicant)
v.
Attorney General of Canada (Respondent)
and
Guy Saint-Hilaire and Louise Moissan (Mis -en-
cause)
INDEXED AS: LABERGE v. CANADA (ATTORNEY GENERAL)
Court of Appeal, Pratte, Lacombe and Desjardins
JJ.—Québec, September 29; Ottawa, November
24, 1987.
Public service — Selection process — Merit principle —
Department may not require selection board to assess candi
dates as to some only of position's requirements — Failure by
selection board to assess capacity of candidates to perform one
of duties described in competition notice — Failure vitiating
results of competition only where, because of such failure,
merit principle transgressed.
A competition was held to fill the position of "problem-solv
ing co-ordinator" within the Department of National Reve-
nue—Taxation. The duties described in the notice of competi
tion included the co-ordination of requests made under the
Access to Information Act and the Privacy Act. This duty had
recently been added to the position and training was to be
provided. In the list of required qualifications and knowledge
prepared by the Department for the selection board, no men
tion was made that candidates had to be familiar with the
relevant legislation. As a result, the selection board did not
inquire as to the candidates' knowledge in that area. This is a
section 28 application to set aside the decision of a Public
Service Commission appeal board rejecting the applicant's
appeal against the successful candidate's appointment. The
applicant argues that the principle of selection according to
merit had not been observed in that the selection board failed to
assess the candidates' capacity to perform all the duties of the
position. The appeal board was of the view that the selection
board's function is only to assess the candidates in terms of the
selection criteria established by management.
Held, the application should be allowed.
The merit principle requires that the candidate best able to
perform all the duties specified in the notice of competition be
selected. The Department concerned is responsible for defining
the positions and the qualifications thereof. It cannot require a
selection board to consider the candidates' abilities in terms of
only some of the position's requirements. The selection board is
a tool used by the Public Service Commission to carry out the
duty imposed on it by section 10 of the Public Service Employ-
ment Act. The Department does not have the power to alter the
obligations imposed on the Commission by that provision.
That does not mean, however, that a candidate's knowledge
must be directly assessed so as to determine his capacity to
immediately perform all the duties of the position. In many
cases, a candidate's capacity to perform one duty can be
inferred from his capacity to perform another. Nor does it
mean that a candidate cannot undergo the normal training
period to become familiar with the new duties of the position.
The question which the appeal board should have addressed
was whether the alleged impropriety (the failure to assess the
candidates' abilities to perform one of the duties of the posi
tion) had the effect of transgressing the merit principle. Such
failure will vitiate the results of the competition only if the
answer is affirmative.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Access to Information Act, S.C. 1980-81-82-83, c. 111,
Schedule I.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Privacy Act, S.C. 1980-81-82-83, c. 111, Schedule II.
Public Service Employment Act, R.S.C. 1970, c. P-32, ss.
10, 21.
COUNSEL:
Jean Gaudreau and John G. O'Connor for
applicant.
Jean-Marc Aubry for respondent.
SOLICITORS:
Gaudreau, Vaillancourt & St-Pierre, Qué-
bec, for applicant.
Deputy Attorney General of Canada for
respondent.
Appeals Branch, Public Service Commission
for Public Service Commission Appeal Board.
The following is the English version of the
reasons for judgment rendered by
PRATTE J.: This application made pursuant to
section 28 of the Federal Court Act [R.S.C. 1970
(2nd Supp.), c. 10] is against a decision of an
appeal board established by the Public Service
Commission, which dismissed an appeal brought
by the applicant under section 21 of the Public
Service Employment Act [R.S.C. 1970, c. P-32].
In July 1986 the Public Service Commission
announced that a closed competition would shortly
be held to fill the position of "problem-solving
co-ordinator" with the Department of Revenue
Canada—Taxation in Québec. The notice gave the
following description of the duties included in this
position:
Administers and co-ordinates the problem-solving program
to ensure that the complaints and problems of individuals and
corporations are dealt with promptly. Identifies obvious trends
or deficiencies in the system or procedures which create or
aggravate problems, reports on them to regional office and
head office management and recommends a series of actions to
correct such deficiencies. Conducts research and investigations
into allegations by taxpayers and the information media of
unfair or inappropriate treatment of taxpayers by the Depart
ment and recommends a series of actions to deal with such
problems. Co-ordinates ministerial correspondence and high-
priority requests for information from MPs and others which
are sent to the district office. Is entirely responsible for receipt
and co-ordination of information requests at the district office
made pursuant to the Access to Information Act and the
Privacy Act. Performs other duties. [My emphasis.]
This description was taken from a longer docu
ment which gave a detailed description of the
duties attached to the position of "problem-solving
co-ordinator". This document further indicated
that the duties of this position involving requests
made under the Access to Information Act [S.C.
1980-81-82-83, c. 111, Schedule I] and the Priva
cy Act [S.C. 1980-81-82-83, c. 111, Schedule II]
represented only 5 percent of the total duties: it
also stated that the incumbent would have to, inter
alia,
... be very familiar with tax legislation and legal provisions
regarding the disclosure of information requested, recovery of
taxes, imposition of penalties, the Department's functions
regarding the making of assessments, source deductions and the
various aspects of legal proceedings that might be used by the
Department; be familiar with the Access to Information Act
and the Privacy Act and related proceedings.
The applicant entered this competition. The
merit of candidates was assessed by a selection
board which concluded that eight of the candidates
were qualified to fill the position and that the most
qualified of the eight candidates was a Mrs. Mois-
san. The applicant's name was listed third, below
that of Mrs. Moissan.
The applicant accordingly appealed the appoint
ment of Mrs. Moissan under section 21 of the
Public Service Employment Act. Her appeal was
dismissed: hence this section 28 application.
In this Court counsel for the applicant made
only one argument, namely that the appeal board
had erred in law in finding that, in assessing
candidates' merit, the selection board did not have
to assess their capacity to perform all the duties of
the position.
To understand this argument and the way in
which it was disposed of by the appeal board one
has to know, first, that the duties relating to
information requests made under the Access to
Information Act and the Privacy Act had been
included in the position under consideration for
only a short time. In a note sent to all district
office managers on June 25, 1986, the Assistant
Deputy Minister of the Department of National
Revenue—Taxation first mentioned that the
descriptions of duties for positions in the Public
Affairs Division (the position of problem-solving
co-ordinator was part of this Division) had been
amended the previous February and now included
two new duties, privacy and access to information
requests and ministerial correspondence; he went
on to say:
These duties, for which adequate training will be provided, will
be incorporated into the public affairs divisions of district
offices in the next eight months.
However, if Access to Information and Privacy Counsellors
have to discontinue these duties, the latter will immediately be
transferred to public affairs.
It was therefore expected that all problem-solv
ing co-ordinators would have to be given training
to enable them to perform their new duties. This is
probably why, in preparing for the selection board
a document listing the qualifications and knowl
edge which a problem-solving co-ordinator would
have to have, the Department omitted to mention
that a co-ordinator would have to be familiar with
the Access to Information Act and the Privacy
Act. As a result the selection board, when it exam
ined the various candidates, did not inquire as to
their knowledge in this area.
The argument presented by the applicant to the
appeal board was therefore that the appointment
of Mrs. Moissan to the position of problem-solving
co-ordinator was not made "in accordance with
selection by merit" because, in the competition,
the selection board did not assess the capacity of
candidates to perform all the duties of the position
to be filled.
The appeal board dismissed this argument.
After summarizing the applicant's argument, it
said the following on this point:
According to the Department, there was no requirement that
candidates be assessed in terms of all the duties of a position
and the Department was responsible for choosing the selection
criteria. Moreover, the duty in question had not yet been added
to the position and the incumbent would have to be given the
training made necessary by the addition.
In my opinion, it is a misunderstanding of the function of a
selection board to argue that it should have assessed the
candidates in terms of the duty in question. As various judg
ments of the Federal Court have already held, management is
responsible for determining the selection criteria to be used in a
given staffing operation and the appeal board has no jurisdic
tion to rule on the correctness of the determination made. The
function of the selection board is only to assess the candidates
in terms of selection criteria already established by manage
ment and usually listed in what is known as the "Statement of
Qualifications", and it is only when this function is not properly
performed that the appeal board can intervene. As in the
instant case management had not yet determined the selection
criterion relating to the duty in question, the selection board
could not assess the candidates in terms of such a criterion, and
the appeal board could not conclude that it had failed to carry
out its function.
This is the passage from the appeal board's
decision in which counsel for the applicant sees an
error of law. He contends that the merit principle
requires that the candidate best able to fill the
position be selected. The capacity of the various
candidates to fill a given position cannot be deter
mined without assessing their capacity to perform
all the duties of the position in question. The
procedure followed by the selection board was
therefore vitiated and inconsistent with the merit
principle.
To this counsel for the respondent replied that,
at the time of the competition, the new duties
relating to administration of the Access to Infor
mation Act and the Privacy Act had not yet been
added to the position of problem-solving co-ordina-
tor; he also argued that, in any case, the selection
board did not have to assess the candidates in
terms of every one of the duties of the position to
be filled.
Contrary to what was argued by counsel for the
respondent, it seems clear that at the time of the
competition the new duties had in fact been added
to the position to be filled. This can be seen simply
from reading the memo of the Asssistant Deputy
Minister which I quoted above.
It also does not seem true to say that a selection
board does not have to assess candidates in terms
of all the duties of the position to be filled. When a
competition is held to fill a position, the competi
tion must be organized in such a way that the
capacity of the candidates to fill the position can
be determined. This cannot be done without con
sidering the duties to be performed by the
incumbent.
The Department concerned is of course respon
sible for defining positions and the qualifications
they require. Here, the Department did this by
describing the position of co-ordinator as including
the duty of administering the Access to Informa
tion Act and the Privacy Act and as requiring a
good knowledge of these two Acts. The question to
be answered here is whether a Department which
has determined the duties attached to a position
can, in a competition held to fill that position,
require a selection board responsible for adminis
tering a competition to consider the abilities of
various candidates in terms of only some of the
position's requirements. This question must of
course be given a negative answer. Contrary to
what the appeal board found, the function of a
selection board is not merely to carry out the
instructions of the Department concerned. The
selection board is only a tool used by the Public
Service Commission to carry out the duty imposed
on it by section 10 of the Public Service Employ
ment Act. The Department does not have the
power to alter the obligations imposed on the
Commission by section 10 of the Act. Neither the
selection board nor the Commission is a menial of
the various Departments.
That is not to say, however, that a competition
would be improper solely because it had not direct
ly assessed the knowledge of candidates so as to
decide on their capacity to immediately perform
all the duties of the position. When an appeal
board has such a complaint before it it must
consider whether, in the circumstances, the failure
to assess candidates in terms of all the duties of the
position to be filled is consistent with the require
ments of the merit principle. It may be that the
alleged impropriety is only apparent: in many
cases a candidate's capacity to perform one duty
can be inferred from his capacity to perform
another. It may also be that the knowledge
required by the performance of certain duties can
easily be acquired by someone who has the capaci
ty to perform the other duties of the position. For
example, if a candidate had been able to master a
complex statute such as the Income Tax Act, it
can be assumed that he will easily be able to
familiarize himself with another more straightfor
ward statute. The merit principle requires that the
candidate be selected who, at the time of the
competition, is best able to perform all the duties
specified in the competition notice. That does not
mean that a candidate cannot undergo the normal
training period to become familiar with his new
duties, which in the case at bar also included a
training course given to other people in the same
category already occupying the position.
I think it is thus clear that, in the case at bar,
the appeal board was wrong to dismiss the appli
cant's argument solely because the selection board
had no choice but to follow the instructions of the
Department concerned. It should instead have con
sidered whether, in the circumstances, the impro
priety alleged by the applicant had the effect of
damaging the merit principle.
I would accordingly set aside the subject deci
sion and refer the matter back to the appeal board
to be decided by it on the assumption that, when a
competition is held to fill a position in the Public
Service, failure to assess the capacity of candidates
to perform one of the duties of the position vitiates
the result of the competition only where, because
of such an impropriety, the merit principle has not
been observed.
LACOMBE J.: I concur.
DESJARDINS J.: I Concur.
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.