Digests

Oriji v. Canada (Attorney General)

T-1432-03

2004 FC 666, Mosley J.

6/5/04

26 pp.

Judicial review of Public Service Commission investigator's decision, made pursuant to Public Service Employment Act (PSEA), s. 7.1, dismissing complaint Department of Public Works and Government Services Canada (PWGSC) made, improperly rescinded offer of employment--Challenged decision redetermination of complaint as result of order of Gibson J. (Oriji v. Canada (Attorney General), [2003] 2 F.C. 423 (T.D.))--Applicant only successful candidate in open competition for CR-04 position--Informed starting date would be April 2, 2001 provided successfully completed language tests, security clearance, reference checks--In March applicant informed position no longer available as to be staffed by surplus PWGSC employee--In fact, said employee not yet declared surplus--Appointed on acting basis-- Applicant never tested for second language proficiency-- Investigator finding no offer of employment because selection process not completed, no eligiblity list formed, PWGSC official lacking authority to make offer--Applicant arguing such finding res judicata as result of Gibson J.'s decision-- No merit to such argument--Gibson J.'s finding first investigator's finding based upon erroneous interpretation of PSEA, s. 22 not subsequently precluding new investigator, upon rehearing of matter, from determining no offer of employment made based on different reasoning--As long as not relying on earlier erroneous interpretation of s. 22, open to new investigator to make new findings, relying on separate, distinct analysis--Investigator's finding no offer of employment made to applicant based on correct interpretation of PSEA and Regulations, and such interpretation reasonably applied to factual circumstances--Pursuant to legislative scheme, once applicant demonstrating meeting all requirements for position, entitled to be placed on eligibility list, ranked according to merit--Eligibility list not established because applicant not yet considered qualified due to fact not having completed second language testing, requirement deemed necessary by PSC to demonstrate language proficiency pursuant to PSEA, s. 20--Pursuant to PSEA, s. 17(1.1), candidate may be placed on eligibility list pending verification of security, reliability and medical requirements of position--But s. 17(1.1) not mentioning candidate may be placed on eligibility list pending outcome of language testing --Omission of reference to second language requirements in s. 17(1.1) indicating demonstrating language proficiency for position regarded as integral to position itself and affecting whether applicant in fact qualified for position-- While applicant only person passing written examination, not passing second language tests to demonstrate bilingual qualification at "BBB" level--Thus, no requirement for PWGSC to establish eligibility list, means of appointing person through open competition--Although delay by PWGSC in arranging second language testing, between time of examination (February 2001) and March 2001 when potential surplus employees identified, questionable, not giving rise to remedy-- No authority or portion of PSEA or Regulations indicating PWGSC under duty to schedule applicant for testing in timely manner--PWGSC officials apparently misunderstanding duties, obligations under Work Force Adjustment appendix-- S. 1.1.1 thereof providing when employees affected by workforce adjustments, all departments must ensure "whenever possible" such employees "given every reasonable opportunity" to continue careers with Public Service--This responsibility, combined with express authority set out in PSEA, s. 11, supporting PWGSC's halting of selection process, prior to establishment of eligibility list, and proceeding by way of acting appointment of employee to be declared surplus--No error in law in such appointment on acting basis--Investigator finding no entitlement to priority appointment as not yet declared surplus, correct-- Investigator's finding characterization of appointment as "priority" had no impact on applicant reasonable and open to her on evidence--Evidence supporting investigator's finding acting appointment made in compliance with PSEA and Regulations--Investigator's conclusion merit principle respected, having regard to both s. 10(1) and obligation set out in PSEA, s. 11, that appointments shall be made from within Public Service, correct--Finally, investigator correct in distinguishing Attorney General of Canada v. Sharpe, [1983] 1 F.C. 292 (C.A.)--Allegations of fraud, tampering with evidence, abuse of authority, perjury, claim PWGSC intentionally misleading applicant or concealing facts in relation to acting appointment, not at all substantiated-- Application dismissed--Public Service Employment Act, R.S.C., 1985, c. P-33, ss. 7.1 (as enacted by S.C. 1992, c. 54, s. 8), 10(1) (as am. idem, s. 10), 11, 17(1.1) (as enacted idem, s. 14), 20, 22 (as am. idem, s. 17).