Roberts v. Canada ( Attorney General )
T-2046-95
Denault J.
1/5/97
6 pp.
Judicial review of Public Service Commission Appeal Board's decision lacking jurisdiction to hear appeals as positions against which appeals brought assignments, not appointments-After closed competition two employees performing same functions for same salary in different geographical location (Hull) for six months-Applicants relying on Wilkinson v. Canada (Public Service Commission Appeal Board), [1984] F.C.J. No. 1045 (C.A.); Lucas v. Canada (Public Service Commission Appeal Board), [1987] 3 F.C. 354 (C.A.) in support of argument positions appointments disguised as assignments to circumvent merit principle-Canada (Attorney General) v. Brault, [1987] 2 S.C.R. 489 holding appointment created when change in functions of such significant or substantial nature as to call for additional or special qualifications requiring evaluation-As Hull positions requiring performance of essentially same functions, not appointments-Doré v. Canada, [1987] 2 S.C.R. 503 holding substance must prevail over form-Given Supreme Court of Canada's findings in Doré, Brault, proposition articulated in Wilkinson i.e. lateral transfer should be regarded as appointment, necessarily qualified to include consideration of both time frame, actual functions performed in new positions-Thus lateral transfer regarded as appointment only if different functions performed in new position and if new position becoming one of such significant, indefinite duration as may be presumed to confer distinct advantage upon incumbent-As this case involving performance of no new functions, and because incumbents occupying new positions only for short, finite time, Wilkinson proposition, modified by two subsequent Supreme Court of Canada decisions, not successfully relied upon to suggest creation of appointment herein-Federal Court of Appeal deciding Lucas prior to Brault, Doré decisions-Lucas distinguishable on facts as therein incumbent's substantive level changed, entitled to increased salary, acquired different functions, occupied position for one-year period-Application dismissed.