Digests

Baur v. Canada (Attorney General)

T-896-02

2004 FC 725, Lemieux J.

19/5/04

24 pp.

Judicial review of Appeal Board's (Board) decision dismissing applicants' appeals for lack of jurisdiction on basis staffing action complained of not amounting to an "appointment"--Following program review conducted in early 1996 in context of integration with Fisheries and Oceans Canada, Canadian Coast Guard (CCG) facing reduction involving both large and small vessel fleets which would have significant impact on employees--As result, CCG examined different crewing structures and methods of operation to deliver programs--Decided to change 166 full-time indeterminate positions to indeterminate seasonal positions-- Treated as workforce adjustment situation based on discontinuance of year-round function--All three applicants successfully competed for various seasonal positions, but did not accept offers of seasonal employment as they were unwilling to give up existing full-time positions, essentially for financial reasons--In first year of seasonal employment, seasonal ship's officers, crews worked full-time continuously --In 2001, CCG converted seasonal indeterminate employees into full-time indeterminate employees without competition --Applicants appealing such conversions--To determine whether staffing situation constituted appointment for purposes of Public Service Employment Act (Act), ss. 21(1), 21(1.1), Board adopted test set out in Abercrombie v. Canada (Attorney General) (2000), 185 F.T.R. 300 (F.C.T.D.)-- Board's decision subject to review on standard of correctness --Review of principles governing Act, ss. 10 (merit principle), 21 (right of appeal)--Application of merit principle and right of appeal under s. 21 not depending on how department labels particular staffing action or how it considers what it has done as creating or not creating position and appointing someone to that position--Whether particular staffing action violates merit principle depends upon particular circumstances--Board erred in interpreting test set out in Abercrombie as applying to only three circumstances which would therefore exclude from scrutiny application of merit principle to other staffing actions not fitting into set mould--Ensuring application of merit principle to new situations, circumstances best reflecting Parliament's intention in enacting ss. 10, 21--Board not approaching issue before it in contextual manner--Clear from Board's decision, perspective limited to immediate impact of conversion--Board failed to look at totality of circumstances surrounding staffing actions, including examining why seasonal positions created, why competitions held, who competed, why successful candidates declined to accept seasonal job offers, what level of jumps those who took up seasonal job offers obtained--Board erred in relying upon Treasury Board's undoubted authority over terms and conditions of employment to shield conversion from application of merit principle--PSEA, not Financial Administration Act, governing rights of these applicants--No basis in Act, Regulations or case law for Board's finding "appointment" under Act must involve promotion-- Conversion from indeterminate seasonal positions to indeterminate full-time positions constituted appointments within meaning of Act, s. 21, over which Board had jurisdiction and each applicant has right of appeal-- Application allowed--Public Service Employment Act, R.S.C., 1985, c. P-33, ss. 10 (as am. by S.C. 1992, c. 54, s. 10), 21 (as am. idem, s. 16; 1996, c. 18, s. 15).