Digests

Finley v. Canada (Attorney General)

T-750-04

2004 FC 1668, Noël J.

1/12/04

17 pp.

Judicial review of decision of Public Service Commission Appeal Board declining jurisdiction to hear appeal filed by applicant under Public Service Employment Act, s. 21(1) --Whether candidate assessed as part of closed competition in Public Service Commission, and who participated as candidate with statutory priority right to appointment, can be "unsuccessful candidate" with right of appeal under Act, s. 21(1)--Applicant, employee of Industry Canada, applying to closed competition to establish eligibility list from which Human Resources Development Canada (HRDC) could fill anticipated CR-04 vacancies--Application initially screened out as applicant not meeting area of competition criteria, being employee of Industry Canada, not of HRDC--In fact, "surplus employee" of Industry Canada, thus giving her right to be assessed in priority to other candidates without regard to selection criteria--At PSC's request, HRDC interviewed applicant, determined not qualified--Nine successful applicants placed on eligibility list--Applicant appealed-- Board holding no right of appeal since not in area of competition--At issue definition of "unsuccessful candidate" --Unsuccessful candidate in closed competition may exercise right of appeal to Public Service Commission Appeal Board pursuant to Act, s. 21(1)--Situation in Attorney General of Canada v. Landriault, [1983] 1 F.C. 636 (C.A.) virtually same as present case--No reason not to consider applicant "unsuccessful candidate", therefore person with right to appeal appointments--Board erred in relying on Beaudry v. Canada (Attorney General) (2000), 180 F.T.R. 279 (F.C.T.D.), affd (2000), 264 N.R. 389 (F.C.A.) in determining applicant did not qualify as "unsuccessful candidate"--Proper reading of Beaudry decision indicating Court's interpretation in that case restricted to Act, s. 21(1.1)--S. 21(1.1) limiting right of appeal to persons who meet s. 13(1) selection criteria--Only the case, however, where person appointed by process other than competition--In present case, eligibility list filled by way of competition--Nor did applicant's status as surplus employee deny her right to appeal decision--To be assessed according to one's statutory priority rights meaning s. 13(1) selection criteria waived, candidate assessed on basis of merit alone--No statutory provision precluding surplus employee from appealing decision not made pursuant to priority rights --Situation extraordinary as often evaluation of surplus employees occurs prior to closed competition being called-- Application granted--Public Service Employment Act, R.S.C., 1985, c. P-33, ss. 13 (as am. by S.C. 1992, c. 54, s. 12), 21(1) (as am. by S.C. 1992, c. 54, s. 16), (1.1.) (as enacted idem), (5) (as am. by S.C. 2003, c. 22, ss. 197, 206(l)).