Kite v. Canada ( Attorney General )
T-1143-95
Muldoon J.
29/10/96
11 pp.
Judicial review of PSC Appeal Board's dismissal of appeal under Public Service Employment Act, s. 21 against promotions-S. 21 permitting unsuccessful candidates to appeal appointment-Applicant scientist at National Hydrology Research Institute (NHRI), where review committee initially screening candidates for promotion against classification, promotion standard-If passing threshold, promotion documents forwarded to Conservation and Protection Service Promotion Committee (C&P Committee)-If candidate meeting classification standard C&P Committee recommending candidate to Departmental Promotion Committee (DPC) which considers making appointments under s. 10(1)-In 1992 C&P Committee rejecting applicant's application for promotion as not meeting leadership criterion-As no other successful candidates, decision not appealed-In 1993 NHRI review committee finding application deficient in leadership category and not recommending application to C&P committee-Three other scientists from Atmospheric Environment Service (AES) promoted-Applicant appealed-In dismissing appeal, Board finding nothing improper in NHRI committee reviewing only applicant's leadership skills to see if would warrant any change at C&P level-Also finding 1992 promotion not under appeal, and therefore, without any evidence to contrary, deemed correct-Application dismissed-Board to determine whether promotions made in accordance with merit principle-No jurisdiction to reassess merit-Board must determine NHRI's assessment of merits made reasonably-(1) Board correctly declining to rule on correctness of 1992 C&P decision-S. 21 allows Board only to confirm or revoke appointments-(2) Board correctly holding NHRI committee reasonable in concluding applicant not meeting program leadership subcriterion-No reason to make new evaluation of Dr. Kite's promotion as neither standard nor application changing-Inappropriate at this point to adjudicate fairness of existence of extra threshold (i.e. NHRI committee) for NHRI scientists than for AES scientists when no evidence of system breaching procedural fairness-Board correctly concluding NHRI committee correctly applied standard-While another reviewing body may have come to different conclusion, Board's assessment of NHRI's decision, made on facts, not constituting reviewable error of law-Board's method not error in law-Although promotion should have been made under s. 10(2), requiring delegation from Public Service Commission, Board correctly applying s. 10(1) analysis because promotion made under s. 10(1)-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).