Judgments

Decision Information

Nanda v. Public Service Commission

Collection	Judgments
Date	1972-01-14
Report citation	[1972] 1 F.C. 277
Subjects	Administrative Law

Decision Content

Surinder Nath Nanda, Kenneth Elwin Stoughton, Satyadas Bhatacharya, Charles Ralph Chaytor, Dirk Van Dalen, and Thomas Lorne McAnulty (Appellants)

Appeal Board Established by the Public Service Commission (Respondent)

Court of Appeal, Jackett C.J., Thurlow and Kerr JJ.—Ottawa, August 24, 1971; January 14, 1972.

Judicial review—Decision of appeal board established under Public Service Act—Rejection of appeals by unsuc cessful candidates for employment—Refusal to hear wit nesses as to bias of member of rating board—Decision set aside—New hearing limited to evidence of such witnesses— Federal Court Act, secs. 28, 52.

The six appellants, auditors 1 in the public service, were unsuccessful candidates for two positions as auditors 2, and appealed. One of the grounds of their appeals was that a member of the rating board that assessed their qualifica tions was biased. Their appeals were heard together by an appeal board established under the Public Service Act. A witness called by appellants' counsel testified that he had been told of a meeting at which a member of the rating board stated that even though the competition was an open competition [it was later changed to a closed competition] he would do his best to promote three of the present auditors but would definitely take at least one person from outside. Appellants' counsel was, however, refused leave to call three witnesses who had actually heard these state ments made and as appellants withdrew from the hearing before it was completed the witnesses were never called. The appeal board rejected the appeals of the six appellants, who then applied to the court to set aside the appeal board's decision under section 28 of the Federal Court Act on the ground, inter alia, that the board had failed to observe a principle of natural justice in not allowing them to call the witnesses.

Held (Kerr J. dissenting), the appeal should be allowed.

Per Jackett C.J. and Thurlow J.: On the evidence the board's refusal to hear the witnesses was reasonably to be regarded as a refusal to hear them on a relevant matter in full at any time. The hearing should therefore be re-opened but, in accordance with section 52 of the Federal Court Act, the board's further hearing should be limited to an inquiry into the witnesses' statements and its decision reconsidered in the light thereof.

APPLICATIONS to set aside decision of appeal board under Public Service Employment Act, S.C. 1966-67, c. 71.

M. W. Wright, Q.C. and J. L. Shields for appellants.

I. Whitehall for respondent.

JACKETF C.J. (orally)—The six individuals named in the style of cause' apply to this Court to review and set aside a decision of Mrs. Irene G. Clapham, who was a "Board" established by the Public Service Commission under section 45(1) of the Public Service Regulations to hear an "appeal" by each of the applicants under section 21 of the Public Service Employment Act, S.C. 1966-67, c. 71; [R.S.C. 1970, c. P-32]. The "decision" in question is dated at Toronto on May 17 and 18, 1971, and consists of seven pages in which Mrs. Clapham deals with "vari- ous grounds of appeal" advanced on behalf of all the "appellants" followed by two or three pages in respect of the "merits" of each of the appellants.' The appeals were brought against the "appointment" of two persons other than the applicants in accordance with a selection made following Competition 71-DSS-CC-7, AUI (Senior Auditor), Department of Supply and Services, Toronto, Ontario.'

Neither the document embodying the appointments appealed against, nor any of the documents whereby the preliminary steps were taken (apart from the advertisement of the com petition and the report of a selection "Board" to which report reference will hereafter be made), have been placed before this Court. As, how ever, it is common ground that there was an " appeal " under section 21 of the Public Service Employment Act against appointments of per sons who were selected for appointment from within the Public Service by closed competition, it would seem that the following provisions of the Act are part, at least, of the statutory back ground, viz.:

2. (1) In this Act,

(a) "closed competition" means a competition that is open only to persons employed in the Public Service;

(j) "open competition" means a competition that is open to persons who are employed in the Public Service as well as to persons who are not so employed;

8. Except as provided in this Act, the Commission has the exclusive right and authority to make appointments to or from within the Public Service of persons for whose appointment there is no authority in or under any other Act of Parliament.

10. Appointments to or from within the Public Service shall be based on selection according to merit, as deter mined by the Commission, and shall be made by the Com mission, at the request of the deputy head concerned, by competition or by such other process of personnel selection designed to establish the merit of candidates as the Com mission considers is in the best interests of the Public Service.

12. (1) The Commission may, in determining pursuant to section 10 the basis of assessment of merit in relation to any position or class of positions, prescribe selection stand ards as to education, knowledge, experience, language, age, residence or any other matters that, in the opinion of the Commission, are necessary or desirable having regard to the nature of the duties to be performed, but any such selection standards shall not be inconsistent with any classification standard prescribed pursuant to the Financial Administra tion Act for that position or any position in that class.

13. Before conducting a competition, the Commission shall

(a) determine the area in which applicants must reside in order to be eligible for appointment; and

(b) in the case of a closed competition, determine the part, if any, of the Public Service and the occupational nature and level of positions, if any, in which prospective candidates must be employed in order to be eligible for appointment.

14. (1) The Commission shall give such notice of a pro posed competition as in its opinion will give all eligible persons a reasonable opportunity of making an application.

15. Applications shall be in such form and shall be made and verified in such manner as the Commission determines.

16. (1) The Commission shall examine and consider all applications received within the time prescribed by it for the receipt of applications and, after considering such further material and conducting such examinations, tests, inter views and investigations as it considers necessary or desir able, shall select the candidates who are qualified for the position or positions in relation to which the competition is conducted.

17. (1) From among the qualified' candidates in a compe tition the Commission shall select and place the highest ranking candidates on one or more lists, to be known as eligible lists, as the Commission considers necessary to provide for the filling of a vacancy or anticipated vacancies.

(3) When establishing an eligible list in the case of a closed competition, the Commission shall place the quali fied candidates thereon in order of merit.

18. Where an appointment under this Act is to be made to a position by competition, the appointment shall be made from an eligible list established for that position or for positions of a similar occupational nature and level, but where such list is exhausted, the appointment may be made from an eligible list established for positions of a similar occupational nature at a higher level.

21. Where a person is appointed or is about to be appointed under this Act and the selection of the person for appointment was made from within the Public Service

(a) by closed competition, every unsuccessful candidate,

may, within such period as the Commission prescribes, appeal against the appointment to a board established by the Commission to conduct an inquiry at which the person appealing and the deputy head concerned, or their repre sentatives, are given an opportunity of being heard, and upon being notified of the board's decision on the inquiry the Commission shall,

(ci) if the appointment has not been made, make or not make the appointment,

accordingly as the decision of the board requires.

Very briefly, the scheme for appointment to or from the Public Service, as established by these provisions, in so far as this matter is concerned, involves the following steps:

1. The "deputy head concerned" requests that an appointment to or from the Public Service be made by the Public Service Com mission "by competition" (section 10);

2. Where an appointment is to be made by "competition" there are certain preliminary steps to be taken by the Commission (sec- tions 13, 14 and 15);

3. The Commission must consider all applica tions received in time and, after considering such further material and conducting such examinations, etc., as it considers necessary or desirable, must select the candidates who are qualified (section 16(1));

4. From among the qualified candidates, the Commission shall select and place the highest ranking candidates on a list or lists known as "eligible lists" (section 17);

5. An appointment "by competition" is made from an eligible list (section 18) by the Com mission (section 10).

As already indicated, we do not have before this Court any document whereby the "Com- mission" "selected" any candidate, created any eligible list, or made any appointment. We do, however, have a "Board Report" which recites that "this Board" was "conducted ... by the Public Service Commission", and which is apparently a report of a "Board" created by the Public Service Commission to conduct on behalf of the Commission certain competitions under the Public Service Employment Act. That report makes a finding that, of the "candidates" therein referred to, only two were successful and it lists them in ,order of merit. As this is the document that was the subject matter of the appeal that resulted in the decision that is the subject of this application and has been treated by all concerned as falling within section 21 of the Public Service Employment Act, it may be assumed that it has been adopted by the Public Service Commission and is a selection of candi dates by the Commission under section 16 of the Act.

It may further be assumed

(a) that there was a request in this case by the appropriate deputy head to the Public Service Commission for certain appointments to be made by competition;

(b) that the statutory preliminary steps were taken;

(d) that the Commission set up the "Rating Board" to act on its behalf in connection with the conduct of the competition.

I turn now to the provisions relating to the "appeal", the decision of which is attacked by the proceeding in this Court. For convenience, I repeat section 21 of the Public Service Employ ment Act. That section reads as follows:

21. Where a person is appointed or is about to be appointed under this Act and the selection of the person for appointment was made from within the Public Service

(a) by closed competition, every unsuccessful candidate,

(d) if the appointment has not been made, make or not make the appointment,

accordingly as the decision of the board requires.

Pursuant to section 33 of the Act, which reads as follows:

33. Subject to this Act, the Commission may make such regulations as it considers necessary to carry out and give effect to the provisions of this Act.

the Public Service Commission has made the Public Service Employment Regulations, which contain, under the heading "Appeals", the fol lowing provisions relating to a "selection of a person for appointment" by "closed competi tion":

40. Where the selection of a person for appointment is made from within the Public Service by closed competition, the responsible staffing officer

(a) shall give to every candidate a statement in writing that shows

(i) the status of the candidate in the competition, and

(ii) in the case where the candidate is an unsuccessful candidate, the right of the candidate to appeal, under section 21 of the Act, against the appointment and the time, as prescribed by section 42 of these Regulations, within which the appeal must be brought, and

(b) may give to every candidate such information in relation to the participation of the candidate in the com petition as the responsible staffing officer considers appropriate.

42. Every appeal under section 21 of the Act shall be brought,

(a) in the case provided for in section 40 of these Regula tions, within fourteen days from the day on which the statement mentioned in that section is sent to the person proposing to appeal, .. .

44. (1) Every appeal brought under section 21 or 31 of the Act shall be in writing addressed to the Commission and shall state the grounds on which the appeal is based, such writing being hereinafter referred to as the "appeal document".

45. (1) Upon receipt by the Commission of an appeal document referred to in section 44, the Commission shall

(a) establish a board, consisting Of one or more persons, to conduct an inquiry into the matter and give to the board the appeal document, and

(b) send a copy of the appeal document to the deputy head concerned.

(2) Subject to sections 46 and 47, such further steps in relation to the inquiry shall be taken as the Commission determines.

46. The Board established to conduct the inquiry men tioned in section 45 shall give at least three days' notice to the person appealing and to the deputy head concerned, or their representatives, of the time and place fixed by it to conduct the inquiry.

47. As soon as practicable after the completion of the inquiry, the board shall render its decision on the inquiry and shall send a copy thereof, together with the reasons therefor to the Commission, to the deputy head concerned and to the person who appealed.

The report of the "Board" that made the selection in this case does not appear to bear a date. (Such a board is apparently commonly referred to as a selection or rating board.) The work of this selection board was apparently done during the week of February 15, 1971.

Pursuant to the requirement in section 44(1) of the Public Service Employment Regulations, the respective applicants in this proceeding set out the "grounds" on which they based their appeals under section 21 of the Public Service Employment Act, as follows:

S. N. Nanda: "My qualifications and experi ence have not been duly considered to-wards the selection of the successful candidates."

K. E. Stoughton: "... my qualifications have not been duly considered towards the selec tion of the successful candidates in the above competition."

S. Bhatacharya: "... my qualifications have not been duly considered towards the selec tion of the successful candidates in the above competition."

C. R. Chaytor: "1. The competition was improperly called.

2. There are no marks available to rate the candidates.

3. There are conflicting reports as to the information used to rate the candidates.

4. My manager was not consulted.

5. My qualifications were not properly assessed."

D. Van Dalen: "... my qualifications have not been duly considered towards the selec tion of the successful candidates in the above competition."

Th. McAnulty: "1. The competition was not properly posted but was mailed to certain individuals and written in English only.

2. No written examination, properly ap proved by the Public Service Commission, was given but an oral examination was car ried out. No evidence was shown that the same questions were asked of all candidates.

3. No record was kept of the marks obtain able and the marks obtained by the appellant.

4. My interview, although scheduled for 11 a.m. did not begin until 11.45 a.m. and con-

tinued until 1.20 p.m. which was during my normal lunch period."

On May 7, 1971, H. E. Done, Assistant Director, Appeals and Grievances, of the Public Service Alliance of Canada, wrote to the Direc tor, Appeals Branch, Public Service Commis sion, as follows:

I have been appointed to represent the several appellants whose names appear below when their appeals are heard in Toronto at 1.30 o'clock in the afternoon of May 17th, 1971.

C. R. Chaytor.

S. Batacharya. F. E. Lynch.

T. L. McAnulty.

S. Nanda.

K. E. Stoughton.

D. VanDalen.

Each of the appellants has asked me on his behalf to advise you that he wishes to enlarge his appeal document to indicate that he will challenge the appointments made through the medium of competition 71-DSS-CC-7 on the grounds that:

a) the competition was improperly advertised,

b) the Rating Board was improperly constituted,

c) one of the selected candidates does not meet the minimum standards required for the position,

d) the Board erred in declaring that he is not qualified for the position of AU 2.

As their attendance is essential to our case it would be appreciated if the Board would require the attendance at the hearing of

Mr. W. E. Devine,

Staffing Co-ordinator,

Administrative Staffing Program B

and

Mr. R. Landriault,

Staffing Officer, Ottawa,

Department of Supply and Services.

I would appreciate it if copies of any further correspond ence concerning these appeals could be sent to me.

The appeals of the applicants were heard by Mrs. Irene G. Clapham, who had presumably been established as a board for that purpose under section 21 of the Public Service Employ ment Act, at Toronto on May 17 and 18, 1971. The Board made a report, as already indicated, consisting in part of seven pages dealing with general grounds of appeal advanced on behalf

of all the applicants. This part of the report reads, in part, as follows:

These appeals are brought by Messrs. S. N. Nanda, K. E. Stoughton, S. Bhatacharya, C. R. Chaytor, D. VanDalen and T. L. McAnulty against the selection of Messrs. P. H. Thomas and D. S. Prinsloo in Competition 71-DSS-CC-7, AU 2 (Senior Auditor), Department of Supply and Services, Toronto, Ontario.

The Department's representative stated that the selec tions had been made by closed competition in accordance with Section 7(1)(a) of the Public Service Employment Regulations.

The Department explained that all employees of the Department in Toronto at the Auditor 1 Level had been informed by letter that a closed competition was being conducted for Auditor 2 and they were asked to indicate if they wished to be considered for the positions. They were not requested to submit formal application forms since all the necessary information was contained in their personal files. Fifteen employees, including the appellants, requested that they be considered and were called for interview.

The Rating Board assessed the candidates on the basis of a review of their personal files and current appraisal reports, discussion with their supervisors, and their per formance at the interviews.

The Appeal Board will first consider the general points advanced on behalf of all the appellants.

First is the allegation that the Rating Board was improper ly constituted. The appellants called attention to Chapter 10, Section 13 of the Public Service Commission Staffing Manual, the relevant portion of which reads as follows:

In determining the qualifications of candidates by inter view, all members of the board should have a knowledge of duties to be performed, the required qualifications and the selection standards and should participate systemati cally in the questioning of candidates. All the questioning should appear to the candidate to be purposeful. It is the responsibility of staffing officers to see that the member ship of the board and the assignment of subject matter to the members will insure a unity of purpose and full participation. Too many members will reduce the degree of participation of each to the point where each may appear to be for a time an "observer".

The appellants contended that this section meant that every person who served on the Rating Board must have a knowledge of all the duties, technical or otherwise, which the successful candidates would have to perform. One of the members of the Rating Board, Mr. W. E. Devine, a Public Service Commission Officer, was incompetent to serve on the Rating Board since he had no technical qualifi cations as an auditor. Another member of the Rating Board, Mr. J. H. Freke, although qualified from a technical point of view, should have disqualified himself for having precon ceived views. He had been overheard making some remark about the outcome of the competition. Of the three mem-

bers of the Rating Board, only one, Mr. Freke, was fully conversant with the duties of the positions and he was biased. The third member, Mr. R. Landriault, did not have an adequate knowledge of the duties of the positions to be filled.

The Department replied that Mr. Devine was a Public Service Commission Officer who was fully competent to serve as a member of the Rating Board. He was in charge of the Auditor Staffing Programme for the Commission, he was an adviser to Departments on auditors, and he had conducted courses and lectures on the techniques and selec tion of auditors. He was, therefore, exceptionally well quali fied to act as chairman of the Rating Board. Mr. R. Land- riault had wide experience in staffing matters, being a Personnel Officer with the Department, whereas Mr. Freke occupied the position of Director of the Auditor Services Bureau in Toronto, under whom the incumbent of the positions to be filled would be working.

The Department added that the appellants had misinter preted the Staffing Manual and that it had never been the Commission's intention that a Rating Board should consist of technical members to the exclusion of any other mem bers who might make useful contributions to its delibera tions. The Department denied that Mr. Freke had been in any way biased and pointed out that no evidence had been introduced to support this allegation.

This Appeal Board is altogether unimpressed with this ground of appeal and accepts the Department's reply with out hesitation. Two of the members of the Rating Board were fully qualified from the technical point of view and the third member was a Personnel Officer whose competence more than satisfied the requirements of the Staffing Manual. The Manual requires only that the Rating Board members "should have a knowledge of duties to be per formed, the required qualifications and the selection stand ards ...". The appellants have not shown that any Rating Board member failed to meet this requirement.

On the subject of the allegation that Mr. Freke was biased, the Appeal Board is likewise unimpressed with the evidence which the appellants have brought. It is altogether insufficient to make reference to some casual coffee break conversation out of context. The alleged remarks of Mr. Freke prove nothing at all and the Appeal Board will not take them into any account.

The various general grounds of appeal, although labori ously advanced by the appellants, do not contain any valid reason for the appeals to be allowed. The issues raised are without substance and the Appeal Board has no hesitation in dismissing them and passing on to the individual appeals of the six appellants.

The appellants' representative withdrew from the hearing before the individual cases were heard, except that of Mr. Nanda. He stated, "I am dismayed and disillusioned with the quality and the conduct of the hearing. There would be no point whatsoever in pursuing the merits of the individual cases."

Since the appellants did not state that they wished to withdraw their appeals, the Appeal Board informed them that the hearing would proceed in their absence and in the absence of their representative.

This part of the report was followed by a sepa rate section dealing with the "merits" of each of the applicants.

The proceeding in this Court is taken under section 28 of the Federal Court Act, subsection (1) of which reads as follows:

28. (1) Notwithstanding section 18 or the provisions of any other Act, the Court of Appeal has jurisdiction to hear and determine an application to review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis, made by or in the course of proceedings before a federal board, commission or other tribunal, upon the ground that the board, commission or tribunal

(a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;

(b) erred in law in making its decision or order, whether or not the error appears on the face of the record; or

(c) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

The application under section 28 to review and set aside reads, in part, as follows:

TAKE NOTICE that the above named Appellants hereby apply to this Honourable Court to Review and Set Aside a decision of the Respondent delivered by Mrs. Irene G. Clapham as Chairman thereof which decision was released by the Respondent on the 8th day of June, 1971 on the following grounds:

1. The Chairman of the appeal Board failed to observe principles of natural justice in that:

(a) she did not allow the person appearing on behalf of the Appellants an opportunity to call witnesses,

(b) she insisted that the Appellants make final argument before hearing the evidence of the Department of Supply and Services,

(c) without his consent, she gave the written notes of the person appearing on behalf of the Appellants to the person appearing as the representative of the Department of Supply and Services,

(d) 4

(e) she denied the person appearing on behalf of the Appellant the opportunity to put in any evidence in reply.

2. The Chairman of the Appeal Board based her decision on an erroneous finding of fact that she made in a perverse or capricious manner in that,

(a) she held, at Page 4 of the said decision, that the conversation of Mr. Freke was a "casual coffee-break conversation" without hearing all the evidence relating to this issue.

While the application refers to another ground for this application to review and set aside the decision of the Appeal Board that was set up under section 21 of the Public Service Employment Act to deal with the applicants' appeals, the applicants' memorandum of fact and law, as I read it, and the argument of counsel for the applicants, as I understood it, were limited to the ground that Mrs. Irene G. Clapham, who is the appeal "Board" failed to observe the fundamental principles of natural justice "and the legal principle of audi alteram partem in that she did not fairly hear the case put forward by the representatives of the appli cants." The several respects in which she has so failed, according to the applicants, are set out in five different paragraphs of their memorandum of fact and law filed in this Court.

As there was no verbatim record of what transpired at the hearing of the appeals and the parties were not able to agree on the facts that they regarded as relevant, the parties were per mitted to file affidavits and to cross-examine on each other's affidavits.

I shall now summarize, as nearly as I can, the "hearing" of the appeals, so as to give some understanding of the sequence of events in so far as they have been established by the materi al before this Court and bear on the arguments that have been made in this Court.

The Appeal Board sat in Toronto on May 17 and 18, 1971. Mr. Harold Edward Done, Assist ant Director of Appeals and Grievances for the Public Service Alliance of Canada, acted as representative of the applicants, all of whom were with him in the hearing room. Mr. E. F. Coffin appeared as the representative of the Department of Supply and Services. There were also present other persons to assist Mr. Coffin, including Mr. W. E. Devine, who had been chairman of the selection board, and Mr. John Freke, who had been a member of that board.

At the commencement of the hearing, Mrs. Clapham explained the way the hearing would be conducted, as follows:

(a) That I, as Chairman, will read certain documentary evidence which I have which then will be entered into evidence;

(b) The Department will explain the procedure followed by the Rating Board, and the reasons for the failure of the Appellants;

(d) The Appellant's representative will advance his argu ments and case;

(e) The Department's representative may then ask ques tions. If the Appellant was called in person then both the Department and I may ask questions from the Appellant;

(f) The Department may then comment or rebut the points raised by the Appellants.

(g) If the Department has introduced new evidence then the Appellants may introduce evidence in rebuttal to these new points;

(h) Either side may sum up;

(i) I will then review the evidence, and advise in due course the representatives of the Appellants and the Department of my decision.

Having given that explanation, Mrs. Clapham invited the representatives of the appellants and the Department to ask questions if they did not understand any point in the procedure. No questions were asked with reference thereto and no objections were raised to the procedure proposed. '

When Mr. Coffin, the departmental repre sentative, started to give a preliminary explana tion about the selection Board and how it ope rated, Mr. Done objected, probably on the ground that Mr. Coffin's statements were "hearsay", and "requested that the Appeal Board call upon Mr. W. E. Devine, who was present and who was Chairman of the Rating Board, to explain how the Rating Board pro ceeded in its assessment". This objection was overruled and the request was refused. At the conclusion of Mr. Coffin's explanation, Mr. Done availed himself of an opportunity, that was allowed to him, of putting questions to Mr. Coffin.

Thereafter, Mr. Done was given an oppor tunity of putting questions to Mr. Devine, but, when he attempted to question Mr. Devine with respect to his qualifications to sit on the Rating Board, Mrs. Clapham refused to permit such

questions. According to Mrs. Clapham now, the reason she gave at the time for disallowing such questions was that, at that particular "point" in the hearing, "the procedure followed at the Rating Board Hearing was being considered and not the qualifications of the Rating Board mem bers". Furthermore, she says that she "ex- plained to Mr. Done that if he wished to ques tion Mr. Devine's qualifications he may do so later, and then the Department would have to answer his assertions". She further says now that it appeared to her "that the issue Mr. Done was raising was not whether Mr. Devine had the qualifications which he was said to have, but whether those qualifications were sufficient to qualify him as a member of the said Rating Board".

Subsequent to Mr. Devine's "evidence" Mr. John H. Freke, another member of the Rating Board, was questioned by Mr. Done.

After the aforesaid departmental "wit- nesses", according to Mrs. Clapham, she called upon Mr. Done to commence his "case". According to the applicants, Mr. Done explained to Mrs. Clapham that he had three general arguments to make which would apply equally to the cases of all the appellants before her and he "then proceeded with the appeal of S. N. Nanda ...".

In any event, Mr. Done then called upon the applicant Nanda to testify, and he did so. There is a conflict as to what happened at this point. I can, I think, best explain the applicant's posi tion by quoting paragraph 10 of Mr. Done's affidavit. That paragraph reads as follows:

During his testimony, Mr. Nanda stated that he had been told about a meeting held by Mr. Freke at which time Mr. Freke stated that even though it was an open competition, he would do his best to try to promote three of the present auditors in the competition but that he would definitely take at least one person from outside. As this was not direct evidence concerning the meeting, I then proposed to call three witnesses who were actually present thereat. The chairman objected to my calling the supporting witnesses and stated that Mr. Nanda had already spoken on that point and she saw no sense whatever in three other people telling her the same thing. I reminded her that Mr. Nanda had told us quite candidly that he was not present at the meeting and that remarks allegedly made by Mr. Freke had been report ed to him by others. The chairman nevertheless still refused

to allow me to call the three witnesses to testify on this aspect of the evidence.

The respondent's position is that, while the three witnesses in question were not permitted to give evidence at that point in the proceed ings, there was no refusal to hear them and it was always understood that they would be heard at some later point in the hearing of the appeals. Under cross-examination on her affida vit, Mrs. Clapham says that, when Mr. Nanda testified concerning the conversation that Mr. Freke had with his staff and the applicants wished to bring witnesses to testify as to the actual conversation that had taken place, she told Mr. Done that "since each Appellant was to testify in turn, and because I had accepted the evidence that had been brought forward, and the fact that this conversation had taken place, and since the Appellants were testifying then they could re-emphasize this point since they were a witness to this conversation". By her affidavit filed in this Court, Mrs. Clapham gives a reason why she "did not consider" Mr. Freke's conversation relevant. See paragraphs 29 and 30 of her affidavit, which read as follows:

29. That Mr. John H. Freke then gave evidence regarding a point which was raised by Mr. Nanda in his evidence, which concerned a conversation in which the said Mr. Freke expressed an opinion that it would be in the interest of the Department if some of the positions were filled by outsiders, if very clever "hot shots" could be found.

30. That since the above conversation was held prior to the closed competition (the competition under Appeal) and at a time when the competition was open only, I did not consider this conversation relevant.

After Mr. Nanda's evidence, Mr. Done put forward his arguments on the general points to which he had earlier referred. There is, how ever, a difference between Mr. Done and Mrs. Clapham as to what he was being required to do at that stage. Mrs. Clapham says: "I asked Mr. Done to advance his arguments why the deci sion of the Rating Board should not be upheld". Mr. Done says: "I then completed Mr. Nanda's case and waited for the Department to put in its case. However, the chairman advised me that if I had any argument to offer on Mr. Nanda's behalf, I would have to make it now. I replied that I had not yet heard the Department's case, and, therefore, could not make a proper argu-

ment on Mr. Nanda's behalf. The Chairman reminded me that it was her privilege to con

duct the hearing in whatever manner she chose and it was her practice to proceed in this manner. I had no choice but to argue Mr. Nan- da's case." In any event, Mr. Done proceeded to put in an argument which more or less pre cisely followed prepared notes with regard to the "general arguments" that applied to the cases of all the appellants and he also made submissions that applied only or specifically to Nanda's case.

Another controversial question arises in rela tion to the circumstances under which Mr. Done's notes on the general arguments were very reluctantly made available by Mr. Done to Mrs. Clapham and by Mrs. Clapham to Mr. Coffin so that Mrs. Clapham and Mr. Coffin were able to follow them while he read them without having to make notes.

At the conclusion of Mr. Done's argument, the hearing was adjourned until the next day.

The next day, the Department's representa tive, Mr. Coffin, caused Mr. Freke to give evi dence, Mr. Freke caused one or more of his "subordinates" to give evidence, and Mr. Done put questions to Mr. Freke and at least some of the others. Mr. Coffin then "summed up his argument".

Two controversial matters arise at this point. They can best be indicated by quoting from Mr. Done's affidavit. The first is raised by para graphs 21 and 22 of the affidavit, which read as follows:

21. On cross-examination by myself of Mr. Freke, he admitted that he held what he described as an impromptu meeting during a coffee break, and explained to the audit staff that although it was an open competition, at least one or two of the present auditors in the department would be selected for promotion.

22. At the conclusion of the department's case, because Mr. Freke had testified about this meeting and alleged that it had occurred in a casual manner quite incidentally during a coffee break, I requested the opportunity to call witnesses in reply with respect to this meeting. Their evidence would have established that in fact Mr. Freke had sent word around the department that this meeting was to be held in order to discuss the competitions which

were being held. Once again, the chairman refused me the opportunity to call these witnesses.

This incident is not admitted by the respondent but there is some corroboration for it in the evidence of Mr. Coffin. The second controver sial matter that arises with reference to this point in the proceedings is brought out by para graph 24 of Mr. Done's affidavit, which reads as follows:

24. During his argument, Mr. Coffin described the qualifications of Mr. Devine, the chairman of the Rating Board. I objected to this method of establishing the qualifications of the Rating Board because no evidence had been allowed with respect to the qualifications of any of the members of the Board. Further, I reminded the chairman that Mr. Coffin's remarks were quite improper, and that he should not be allowed to continue because I had no opportunity to test the accuracy of his statement. The chairman replied that Mr. Coffin could raise what ever statements he wished in his argument on whatever matters he thought necessary.

The respondent's position is that Mr. Coffin and Mr. Devine spoke concerning Mr. Devine's qualifications and position and were available for cross-examination with regard thereto before Mr. Coffin put forward his argument concerning his rebuttal evidence.

After Mr. Coffin had summed up, it would appear from Mr. Done's cross-examination on his affidavit that he did not "speak again" but he either asked for an adjournment, or took advantage of a luncheon adjournment, to have a meeting with all the applicants, at which time he was instructed by all of them "that it was their opinion that the chairman was not competent to hear this appeal and there would be no point in arguing the merits of any other case". When the hearing was reconvened, he so informed Mrs. Clapham. He informed her that he did not see any point in continuing, and that he was instructed to withdraw and rest his case "on the three basic points" that they had made in sup port of each one. Mrs. Clapham informed him that she would proceed with the appeals in his absence and he replied that that was her privilege.

The foregoing is the best outline that I can construct of the events that took place at the hearing to the extent that we have evidence about them and they are relevant. Inevitably our information is incomplete and imprecise.

Before getting down to the question whether the applicants have succeeded in showing in this Court that Mrs. Clapham failed to observe principles of natural justice in her conduct of the inquiry under section 21 of the Public Serv ice Employment Act, I deem it necessary to explore certain basic points in the relevant legislation and their implications in relation to this application.

In the first place, section 10 of the Public Service Employment Act required that the appointments appealed against be made by the Commission and be based on "selection accord ing to merit, as determined by the Commission". 5 In addition, section 10 requires that the Commission make the selection "by competition" or "by such other process of per sonnel selection designed to establish the merit of candidates as the Commission considers is in the best interests of the Public Service". There are also certain statutory directions concerning competitions (sections 13, 14, 15 and 16). As the selection under attack was made "by com petition", its validity, therefore, depends on its having been a "selection" made by the Commis sion "according to merit, as determined by the Commission" and after complying with such of the statutory regulations as are mandatory rather than merely directory.

The second basic point in the relevant legisla tion that requires to be noted at this stage is that, under section 21 of the Public Service Employment Act, when there is an appeal against an appointment, the Appeal Board is required to conduct an "inquiry" at which the "person appealing" and the "deputy head" con cerned are to be "given an opportunity of being heard". In my view, the "inquiry" contemplated by section 21 is, ordinarily, an inquiry into the question whether the "selection" on which was based the appointment appealed against was a selection "according to merit, as determined by the Commission" and was made by the Com mission in the manner contemplated by section 10. I am further of the view that the "oppor- tunity of being heard" to which the person appealing and the deputy head are entitled is an

opportunity of putting before the Appeal Board during the inquiry any facts that bear on those questions, and a reasonable opportunity of put ting forward submissions as to why, on the facts brought out on the inquiry, the selection should or should not be found to be a selection properly made and based on merit as deter mined by the Commission. In my view, if, on an inquiry under section 21, the Appeal Board has not given such opportunity, there has been a failure to comply with the requirements of sec tion 21 and, therefore, an error in law, which would probably have the effect of making a nullity of any decision that the Appeal Board has purported to give. 6

The question as to what is comprehended in the question whether a selection was a "selec- tion according to merit, as determined by the Commission" is one that has to be considered in relation to the facts of a particular case. I should have no doubt that, where the "selec- tion" is made by the Public Service Commis sion, after going through the formality of a "competition", for reasons that are foreign to "merit", the selection would be a nullity wheth er the three members of the Commission made the "selection" personally or whether it was made by a selection board or other person or persons acting on behalf of the Commission. A clear example of such an illegal selection would be a selection made to comply with a ministerial direction to "select" a named person (if such a direction is thinkable in this period in our histo ry) or to carry out a desire to confer a benefit for personal reasons on a particular candidate. Very difficult questions may arise as to whether an appeal board may overrule the Commission or a selection board or other persons acting on the Commission's behalf, when it has made a choice honestly, without ignoring any section 12 standard, of the candidate who, in its judg ment is most suitable "having regard to the nature of the duties to be performed". In other words, nice questions may arise as to whether section 21 contemplates that the Appeal Board will invalidate an appointment based on a selec tion made by the Commission or those acting for the Commission, on the ground that the individuals concerned had failed in fact to make a "selection according to merit" even though they had honestly done their best to do so on

the materials before them. These questions do not, however, in my opinion, arise on this application.

Certain questions do, however, arise out of the applicants' "ground" of complaint before the Appeal Board that "the Rating Board was improperly constituted". It does not appear that there was any provision in the statute or regula tions for the so-called rating or selection board. It must, therefore, be something called into being by the Commission as the Commission's instrumentality for doing a part of the selection job imposed on the Commission by section 10 of the Public Service Employment Act. On the other hand, while there is no specific legal authority for such a board and, therefore, no legal qualification for its members and no legal requirement as to the manner in which it is to be constituted, nevertheless, if the persons chosen to perform such a task were incapable of performing a "selection" such as is contem plated by section 10—because they were incompetent to form a judgment concerning the candidates having regard to the duties to be performed by the successful candidate, or because they had minds that had become so entrapped in preconceived ideas that they were incompetent to form such a judgment, or because they had lent themselves to some improper arrangement in connection with the matter—then, in my view the Board would have been so constituted that the ultimate selection was a nullity.' Caution must, however, be exer cised in considering any such attack on a selec tion board. It is to be remembered that the statute itself contemplates all selections being made by the Public Service Commission, which consists of three persons, who cannot possibly have themselves the professional or other qualifications required of all candidates for positions in the Public Service. It is also to be remembered that the whole end and purpose of the selection process is filling positions in the Public Service "according to merit", which means, as I understand it, that the best persons possible will be found for the various positions in the Public Service "having regard to the nature of the service to be performed". The whole aim and objective is to make the Public Service as effective as possible. I question, therefore, whether any view honestly held by a

responsible senior officer as to the require ments of the service can disqualify him from participating in the selection process. Surely, the advisability of involving in the selection process those responsible for the efficient oper ation of the Public Service is the reason for section 6 of the Public Service Employment Act under which the Commission can delegate the selection function to the responsible deputy head and persons under him. There is, however, a clear difference, in my view, between a view held by a senior officer as to the requirements of the Public Service and a pre-determined posi tion that a particular selection is to be made or not made regardless of "merit" as that may appear at the end of the selection process.

According to the applicants' memorandum of fact and law filed in advance of the hearing of this application, Mrs. Clapham failed to observe the principles of natural justice and the legal principle of audi alteram partem in that she did not fairly hear the case put forward by the representatives of the applicants. The particu lars of such failure as given by the memoran dum are as follows:

1. She set down the procedure that was to be followed for the appeals but did not follow the procedure set down by the Public Service Commission (paragraph II-2).

2. She denied the representative of the appli cants the right to cross-examine the Chairman of the Rating Board with respect to his qualifications to sit on the Rating Board, which, according to the applicants, was an important issue being raised on their behalf (paragraph II-3). 8

3. The representative of the applicants was not allowed to lead evidence on the question whether Mr. Freke had disqualified himself from being a member of the Rating Board because of certain statements that he made at a meeting with his staff before the hearing "wherein he indicated that he had already reached certain conclusions with respect to the competition" but a different standard was applied to the representative of the Depart-

ment when he led evidence about the meeting in question (paragraph II-4).

4. Mrs. Clapham directed the representative of the applicants to make his "final argu ment" before hearing the evidence put in on behalf of the Department (paragraph II-5).

5. Finally, she erred in making available a copy of the personal notes of the representa tive of the applicants to the representative of the Department (paragraph II-6).

Unfortunately, it is not possible for this Court to judge the merits of these complaints upon a review of precisely what was said and done during the inquiry in question as there was no verbatim report of the proceedings, or, if there was, it has not been put before the Court. I say that this is unfortunate because it has led to a situation where we are being asked to reach a conclusion on the basis of the evidence of the participants, which, in addition to being very sketchy, in the nature of things, is not restricted to an objective statement of what was actually said and done during the hearing, which is all that should properly be taken into account, but is a small proportion of what was in fact said and done mixed with a large proportion of cur rent recollections of what was intended to be said and of ex post facto rationalization and explanation. I mention this to explain why, in my assessment of the situation, I shall try to ignore certain parts of the evidence that, on balance, seem to be very human attempts by witnesses to put a better appearance on conduct that is under scrutiny. (Usually such attempts make the witness appear to worse and not better advantage. Always, they complicate the task of deciding on a balance of probabilities what actually transpired.) I also mention this aspect of the matter for another reason. A prac tice that leads to persons who have taken part in inquiries, as advocates or judges, being grilled subsequently as to precisely what was said, and when, and why, cannot but adversely affect the conduct of such proceedings. The task of a lawyer or judge, or some person playing an analogous role, is sufficiently heavy without having added to it the necessity of putting himself in a position to report, and poss ibly defend, at some subsequent time, each step he takes in a matter. It does seem to me that

cross-examination such as that of the witnesses Clapham and Done in this application is to be deprecated, although I do not presume to indi cate how similar procedures can be avoided in the future.

I can deal relatively quickly with three of the five particulars of failure to observe the princi ples of natural justice relied upon in the appli cants' memorandum of fact and law.

First, with regard to the contention that the procedure adopted by Mrs. Clapham did not follow the procedure set down by the Public Service Commission of Canada, I am of the view that, if in fact Mrs. Clapham did not follow the procedure recommended or suggest ed by the Commission, this is not, in itself, a vice that invalidates her decision. I did not understand counsel for the applicants to rely on this particular as an independent head of inva lidity but rather that they urged it as explaining or demonstrating the vice for which they con tended under other heads.

Second, with regard to the incident when Mrs. Clapham obtained Mr. Done's notes from him and made copies for herself and the depart mental representative, I am not able to under stand how, even if Mr. Done's version be accepted in its entirety, this incident resulted in the applicants not having had a full and com plete opportunity to be heard. It does not involve their not having an opportunity to put forward the facts on which they relied and it does not involve any curtailment on their privi lege to make submissions. It follows that I am relieved of the necessity of forming any opinion as to what actually happened in this connection. I might, however, say that, in my opinion,

(a) a person holding such an inquiry should not attempt to force either side to part with documents in their possession unless they are documents that the tribunal has some legal right to demand, and

(b) if one side supplies a document to the tribunal, it should only be accepted on terms that the other side will also have a copy.

As I understand Mrs. Clapham's evidence, she would agree with these views and had no inten tion to do anything inconsistent therewith.

Third, I do not conclude, after studying the relevant evidence with care, that Mr. Done was required, or could reasonably have thought that he was required, to make his "final" argument on any aspect of the appeals before all the evidence was in in relation thereto. The outline of procedure given by Mrs. Clapham clearly contemplated a final summing up by the parties and there is no indication by Mr. Done that he either asked for or was refused the right to make such a summing up.

That leaves for consideration the question whether the applicants were deprived of an opportunity to make out their case

(a) with regard to the qualifications of Mr. Devine, and

(b) with regard to the statements made by Mr. Freke before the holding of the competition.

These matters cause me great difficulty.

On the one hand, I accept it that Mrs. Clapham at all times intended, in her own mind, that the applicants would be allowed to lead the evidence of the three witnesses concerning the statements made by Mr. Freke and that she would consider their evidence in relation to all the appeals. I also accept it that she at all times intended to permit the representative of the applicants to question the appropriate officers on the qualifications of Mr. Devine. In addition, I may say that I have no sympathy with the manner in which Mr. Done conducted the case for the applicants before the appeal tribunal. On his own evidence, he was, at certain times at least, something less than polite and coopera tive. Those of us who have had experience with hearings of a judicial nature know that such

conduct is calculated to lead even the most experienced of judicial officers into error.

With reference to the qualifications of Mr. Devine, it should be noted that Mr. Done admits quite frankly that he had no facts to put before the Appeal Board. He was relying on an oppor tunity to cross-examine witnesses produced by the Department. A submission might have been made on behalf of the respondent that the onus was on the appellants before the Appeal Board to make out any attack that they might have to make on the appointments and that, if they had no facts to offer, that was an end to the particu lar attack. Fortunately, that position was not taken by the respondent as it might have raised difficult questions with reference to this class of appeal. As I understand the respondent's position in this Court, it was her position throughout that the appellants would have an opportunity to cross-examine on the qualifica tions of Mr. Devine and, while Mr. Done was not permitted to do so on their behalf at the opening stage of the hearing, full opportunity was in fact given to him to do so on the second day of the hearing. The evidence on this ques tion is conflicting. However, I have reached the conclusion that full opportunity to cross-exam ine on this aspect of the matter was given to Mr. Done. In considering the evidence, it must be borne in mind that Mr. Done's position was that the departmental witnesses did not deal with the question of Mr. Devine's qualifications except in Mr. Coffin's summing up or the "ar- gument" part of his presentation. It seems to me that the frankest and most straightforward evidence on this question is that of one of the applicants Charles Ralph Chaytor. He said, under cross-examination:

Q. I see. Do you recall what happened then?

A. Well then, Mr. Coffin presented the management's side.

Q. Let me ask you this: do you recall a request made by Mr. Coffin to the Chairman that rather than have Mr. Coffin asking the questions and making statements, perhaps Mr. Freke and Mr. Devine should ask ques tions and make statements?

A. No, I don't.

Q. You don't recall such a request? A. No.

Q. Did Mr. Coffin start off with asking the questions?

A. No, I don't believe he did. He started off, if my memory serves me correctly, with a description of Mr. Devine's qualifications.

Q. I see. And subsequent to that, Mr. Freke gave

evidence?

A. Yes.

Q. And subsequent to that, Mr. Devine gave evidence? A. Yes.

Q. And then Mr. Coffin spoke again, did he? A. I believe so.

Q. Now do you recall whether these witnesses, that is, Freke, Kew, Devine and Galoway, whether they were cross-examined by Mr. Dunn?

A. Not to my knowledge. Well, Mr. Dunn cross-examined Mr. Freke to a certain extent, but not Mr. Galoway or Mr. Kew.

Q. Or Mr. Devine?

A. Yes, I believe he asked a few questions of Mr. Devine.

Q. Did he ask Mr. Devine about his qualifications?

A. No, he didn't, because Mr. Coffin had just stated that.

Q. But Mr. Devine also made some statement about his own qualifications, didn't he?

A. Yes, he made some statements as to his own qualifica tions and I believe Mr. Coffin embellished on them somewhat.

This evidence leads me to the conclusion that the balance of probability is that evidence was given by Mr. Coffin and Mr. Devine about Mr. Devine's qualifications before Mr. Done was given an opportunity to cross-examine them and that no limitation was placed on his cross- examination at that time.

I come now to the complaint that the appel lants were refused an opportunity to present their case in so far as the statements made by Mr. Freke concerning the competition for pro motions from Auditor 1 to Auditor 2 in the Toronto office are concerned.

It is very difficult to get this matter in perspective.

To begin with, it is to be recalled that Mrs. Clapham had outlined a procedure for the con duct of the hearing, the relevant parts of which I repeat here for convenience:

(b) The Department will explain the procedure followed by the rating Board, and the reasons for the failure of the Appellants;

(d) The Appellant's representative will advance his argu ments and case;

(e) The Department's representative may then ask ques tions. If the Appellant was called in person then both the Department and I may ask questions from the Appellant;

(f) The Department may then comment or rebut the points raised by the Appellants.

(g) If the Department has introduced new evidence then the Appellants play introduce evidence in rebuttal to these new points;

(h) Either side may sum up;

This procedure was laid down as though there were a single appeal to be heard, but there were in fact appeals by six different appellants who were represented by a single representative. All appeals were, against the same appointments and all, therefore, were attacking the same Rating Board selection. The several appeals apparently were the subject of some discussion at the opening stages of the hearing because there seems to have been an understanding that Mr. Done would proceed in the first instance with the general grounds of complaint common to all appeals and with Mr. Nanda's "case" and that he would then put in the "case" of each of the other appellants in turn.

What happened was that, when Mr. Done, as representative of the applicants, was advancing his arguments and case concerning the general grounds of complaint common to all appeals and Mr. Nanda's "case", he sought to have Mrs. Clapham hear the evidence of three wit nesses who had personal knowledge of what I might call the Freke statement, reference to which had been made in a general way by Mr. Nanda who had no personal knowledge of the incident, and he was refused leave to have those witnesses testify at that time.

I think that it is, to say the least, unfortunate that Mrs. Clapham refused to hear those wit nesses at that time, which would appear to have been the appropriate time to hear them, but, in my view, that is not .a ground for complaining that the applicants were not given a full oppor tunity to be heard. This was a single hearing of several appeals and, as has been emphasized, it

was a hearing of a very informal nature. 9 There are no technical requirements. The only basis for attack, as far as these proposed witnesses are concerned, is that there was, in effect, a refusal to hear them at any time during the hearing. Mrs. Clapham was conducting the hearing and it was not the right of one party or the other to dictate to her how she was to do so. The sole question that has to be answered is whether the witnesses were not heard because of conduct on the part of Mrs. Clapham that is reasonably to be regarded as a refusal to hear them.

My first reaction to that question is that that was not the reason why these witnesses were not heard. Mr. Done was fully aware that, before the end of the hearing of the appeals, Mrs. Clapham would hear all the appellants including these three proposed witnesses. This appears from the following extracts from his cross-examination:

Q. Were you not advised that if you have either contrary evidence or a contrary statement to make, you would be allowed to lead evidence or make those statements at a subsequent time?

A. No. I have told you what the Chairman said.

Q. Did you understand this to be the case? That you

could do that?

A. MR. WRIGHT: Do what?

Q. MR. WHITEHALL: To lead evidence to contradict what Mr. Coffin said, or make statements to con tradict what Mr. Coffin said?

Q. It was my understanding that at the later time I would be privileged to lead whatever evidence I chose on any matter that touched directly upon this, yes.

Q. I suggest that had you called any of the other Appel lants after you reached a point in the proceedings where you considered Mr. Nanda's case closed, it may well have been that the other Appellants may have been able to give evidence.

A. It wouldn't help, because I wasn't going to call them.

Q. Well, you were going to call them for a specific point to give evidence on Mr. Freke's case.

A. That was all part of Mr. Nanda's case. You said, after Mr. Nanda's case was over. I was going to call them to give evidence on part of Mr. Nanda's case, that is what I was going to do.

Q. I suggest to you that that case was also—the points they were going to give evidence on was also germane to their own case.

A. Yes. That particular point, yes.

Q. So, there is no reason why after you completed Mr. Nanda's case you could not have then called the other Appellants to give evidence on that one point alone.

A. I didn't want any of those other witnesses to testify to anything at that point. That is my privilege. I didn't want them to testify, I didn't want them open to cross examination. I had made that decision.

Q. Would that be open to cross examination? A. On that point, I had no objection.

Q. You mean to say—this is your understanding, that if you called any of the other Appellants during Mr. Nanda's case and during the case common to all the Appellants, and they gave evidence on that one point, they could not be cross examined on anything else pertaining to this case?

A. It is my understanding that if I called any one, or all of those three witnesses and if I lead evidence from them on the specific point of this alleged meeting with Mr. Freke, that they would not then be open to cross examination on a variety of things to do with the merits of their own cases. As I said, it is my under standing, for what it is worth, that the purpose of cross examination, the object of cross examination is to give you an opportunity to examine a witness on evidence that he has given in direct examination so that you can test the truth of those statements and expand upon them if necessary. I don't think that they would then be open to an examination, perhaps, of their professional qualifications, their years of experi ence, their confidential reports, the difficulties that they may or may not have with the managers of their various firms.

From this it is clear that Mr. Done was aware of the fact that he could have led the evidence of these three witnesses before the end of the hearing. Furthermore, he deliberately elected not to call them. This appears from the evi dence of the applicant Chaytor who was one of the proposed witnesses, and from Mr. Done's own evidence concerning the decision of the applicants to walk out of the hearing, which reads, in part, as follows:

Q. After Mr. Coffin spoke, did you speak again? A. No.

Q. After Mr. Coffin spoke, what happened next? A. When Mr. Coffin finished?

Q. Yes.

A. Well, to the best of my recollection—I don't profess to have any clear recollection on this point. To the best of my knowledge—you know—what happened at that time was, that I asked for an adjournment and I went outside.

Q. Do you mean a short adjournment? A coffee adjournment?

A. A short adjournment, yes. Twenty minutes. I went outside with all of the Appellants and—I'm not too sure how long the adjournment lasted really, it might have been a longer time, come to think of it. At any rate, we adjourned.

Q. Right.

A. I think it might have been lunch time, because we eventually got all of these people together and we had a meeting. I was instructed by the Appellants, both individually and collectively, that it was their opinion that the Chairman was not competent to hear this appeal and there would be no point in arguing the merits of any other case. I came back, and at the outset, when we reconvened after the adjournment, I said so.

When one party to a proceeding has the arro gance to decide that the presiding officer was "not competent" and withdraws from the hear ing on the basis of that decision, he cannot subsequently, in my view, take the position that he was denied the opportunity of presenting his case. It might be otherwise if the ground for withdrawal was that the presiding officer was refusing to give him a hearing. The circum stances would, however, in my view, be rare where withdrawal is, in fact, consistent with a complaint about not having had an opportunity to be heard.

There is, however, another side to the matter. It appears, not only from the evidence of Mr. Done but from the evidence of the witnesses whose affidavits were filed by the respondent, that the various persons concerned with the hearing were proceeding on the view that the hearing had been divided into separate parts and there is no doubt in my mind that Mr. Done deduced from this fact and from a view, errone ously held by him, that there were certain tech nical rules applicable to such a hearing, of which he was entitled to take advantage, that he was entitled to regard a refusal to hear the three witnesses at a certain stage of the hearing as a refusal to hear them at all. I do not think that Mr. Done was justified in taking that position and I would not regard his erroneously held view of the matter as a basis for holding that the applicants did not have an opportunity of presenting their case. To the extent, however, that it arises from the confusion that arose out of the conduct of the case on the basis that the grounds common to all cases would be dealt

with along with Nanda's case, it is a matter that must be considered.

There is a further matter to be considered in connection with this branch of the case and that is the reasons given by Mrs. Clapham for not hearing the three witnesses at the point when she refused to hear them. Leaving Mr. Done's evidence aside, it seems to me that the balance of probability on Mrs. Clapham's evidence is (a) that she took the position that the evidence of the three witnesses was unnecessary and that that is why she would not hear it when she was hearing evidence on the general grounds, and (b) that she continued throughout the hearing, when the question arose, to take the position that the evidence was unnecessary. It seems to me that the reason she gave Mr. Done for her decision on the first day was that she "had accepted the evidence that had been brought forward, and the fact that this conversation had taken place". Even though she also said that "since each Appellant was to testify in turn . . . they could re-emphasize this point since they were a witness to this conversation", the overall effect seems to me to be that she took the position that she would not hear the evi dence at the appropriate time because she did not regard it as having any real bearing on what she had to decide. That some such attitude was probably in her mind and indicated by her at the time is suggested by the fact that, in her affida vit, she says that she "did not consider this conversation relevant". My conclusion is there fore that, the balance of probability is that, when Mrs. Clapham refused to hear the three witnesses the first day and when the matter was discussed the second day, what she said about the matter was such that it was reasonably to be regarded as a refusal to hear them in full at any time on the matter of the Freke statement and that it was so understood by Mr. Done.

The question of relevancy is the final aspect of the matter of the three proposed witnesses. Even if the applicants were refused an oppor tunity to present their evidence, if their evi dence would have been irrelevant to any ques tion before the appeal tribunal, that refusal would not, in my view, be a refusal of a full hearing.

On this question of relevancy, we have on the one hand Mrs. Clapham's conclusion based on Mr. Nanda's hearsay evidence and Mr. Freke's evidence that Mr. Freke had, during the course of "some casual coffee break conversation" made a remark, taken "out of context" (see the appeal decision) that it would be in the interest of the Department if some of the positions were filled by outsiders "if very clever 'hot shots' could be found" (see Mrs. Clapham's affidavit). I find it very difficult to torture out of this any condition of mind that could be regarded as making it impossible for Mr. Freke to consider all the candidates on their merits as they appeared during the competition. 10 On the other hand, we have the story that the respondents hoped to establish that, at a meeting deliberate ly called, Mr. Freke made a statement, presum ably after careful consideration, the effect of which was that no more than two, or possibly three, of the Auditor l's would be accepted on a competition as qualified to be Auditor 2's. If such a statement were made in such circum stances, I should have thought that it would have called for some investigation and consider ation by the Appeal Board as to whether Mr. Freke had so firmly set his mind against certain of the candidates before the decision that he could not really participate in a selection according to merit on the information and material that would be developed during the competition. I cannot say at this stage that the proposed evidence was not relevant."

On balance and with great hesitation, I con clude that the decision of the Appeal Board should be set aside.

This brings me to the question as to precisely what judgment should be given if the Appeal Board's decision is set aside on the conclusions that I have reached. In this connection, refer ence should be made to section 52 of the Feder al Court Act, which reads in part:

52. The Court of Appeal may

(d) in the case of an application to review and set aside a decision of a federal board, commission or other tribunal, either dismiss the application, set aside the decision, or set aside the decision and refer the matter back to the board, commission or other tribunal for determination in accordance with such directions as it considers to be appropriate.

In my opinion, this is not a situation where this Court should merely "set aside the decision". If a decision were set aside because of lack of jurisdiction to make it that would be an appro priate judgment. Here, however, there has been a failure on the part of the Appeal Board with reference to only one question out of many that had to be considered. It would not be right or proper to require that the inquiry be completely carried out again. There is only one small area in which the hearing was defective. That defect should be remedied with all speed compatible with due deliberation and the matter should be brought to a conclusion as soon as possible. In my view, our judgment should be such as to require

(a) that the hearing be reopened after proper notice to all concerned;

(b) that the further hearing should be restrict ed to a full inquiry into the incident involving the statements alleged to have been made by Mr. Freke; and both the appellants and the Department should have full opportunity to put forward evidence with regard thereto, and to make submissions in the light of all infor mation and evidence obtained by the Appeal Board on the subject;

(c) that the Appeal Board should then write a supplementary report on the question wheth er such information and evidence has estab lished that Mr. Freke had a condition of mind at the time of the selection process that was incompatible with his forming a genuine judg ment in the process of making a selection of the candidates "according to merit"; and

(d) that that supplementary report should then be attached to the decision that is set aside and the joint document should be com municated to the Commission as the Appeal Board's decision on the inquiry under section 21 as the result of the appeals.

To accomplish this, my present thought is that the judgment of this Court might be some what as follows:

The decision of the respondent referred to in the application under section 28 of the Federal Court Act by which these proceed ings were instituted is set aside; and it is hereby directed that the hearing of the

appeals of the applicants against the appoint ments of P. H. Thomas and D. S. Prinsloo as Auditor 2's be reopened for the purpose only of an inquiry into the incident involving state ments alleged to have been made by Mr. John Freke concerning the ultimate appointments before he became a member of the Rating Board for Public Service Competition 71- DSS-CC-7, and that the respondent reconsid er her decision on the appeals in so far as it may be affected by that further inquiry.

* * *

THURLOW J. (orally)—I have had the advan tage of reading the reasons for judgment which have been given by the Chief Justice and I am relieved thereby of the need to make any detailed review of the facts or of the applicable provisions of the Public Service Employment Act and the regulations made thereunder. I agree with his opinion that none of the three grounds of attack on the Board's decision which he discussed first, that is to say, (1) alleged failure of the Board to follow the procedure set out in the Guide to the Public Service Appeals System; (2) the incident respecting Mr. Done's notes; and (3) the alleged requirement of final argument from Mr. Done before the whole of the evidence was in, affords, in the circum stances related, a basis for setting aside the Appeal Board's decision.

Moreover, while I think it would have been preferable to afford Mr. Done the opportunity to question Mr. Devine as to his qualifications to judge the merits of the candidates at the time when he sought to do so on the first day of the hearing, so that he might satisfy himself and those he represented of the competence of Mr. Devine to assess their merits, I do not think it has been established that Mr. Done did not have a subsequent opportunity to question Mr. Devine on the subject. I would therefore agree that this ground of attack fails as well.

With respect to the remaining ground of attack—the alleged denial of the right to call witnesses to describe the meeting of Mr. Freke with members of his staff and what he said on that occasion—I shall begin with some prelimi nary observations on the rights which appear to

me to accrue to the parties concerned in an appeal under section 21 of the Public Service Employment Act.

Under sections 8 and 10 of that Act the authority to make appointments to the Public Service of Canada is given to the Public Service Commission and it is provided that appoint ments to or from within the service are to be based on selection according to merit as deter mined by the Commission. Section 21 provides:

21. Where a person is appointed or is about to be appointed under this Act and the selection of the person for appointment was made from within the Public Service

(a) by closed competition, every unsuccessful candidate, or

(b) without competition, every person whose opportunity for advancement, in the opinion of the Commission, has been prejudicially affected,

(d) if the appointment has not been made, make or not make the appointment,

accordingly as the decision of the board requires.

The regulations made by the Commission under the authority of section 33 of the Act include the following:

(2) Every appeal document shall state whether the appeal is to be presented in the English language or in the French language.

46. The board established to conduct the inquiry men tioned in section 45 shall give at least three days' notice to the person appealing and to the deputy head concerned, or their representatives, of the time and place fixed by it to conduct the inquiry.

While these provisions do not expressly describe the sort of inquiry to be conducted, nor the procedure for it, they do appear to me to show, particularly in the requirements of an appeal document setting out grounds and a subsequent notice of the time and place for the inquiry, that the inquiry is intended (1) to be of a judicial nature to determine whether the appointment attacked has been made in accord ance with the law; and (2) to be conducted in the presence of the Deputy Minister and the person appealing or their representatives, if they see fit to attend. The rights of the Deputy Minister and the person appealing are thus in my opinion not necessarily the minimum rights which common law principles of natural justice might afford. I would, moreover, be inclined to the view that under these provisions the right to be heard includes the right to call witnesses. However, it is unnecessary, as I see it, to resolve this question since the procedure fol lowed by the Appeal Board included the calling of witnesses. I should add that in my opinion the rights of the Deputy Minister and those of the appealing party before the Board are equal and, while I think it is wrong to treat the inquiry as a trial or to treat it as if trial practices apply, an opportunity to be heard at the inquiry which included the right for one of them, but not for the other, to call witnesses could hardly be regarded as fair.

I turn now to the particular situation.

At the outset of the proceedings, with one or more persons present representing the Deputy Minister and six or seven appellants and their common representative, Mr. Done, present as well, the Chairman of the Board outlined the procedure which she proposed to follow. I quote from paragraph 4 of her affidavit:

(a) That I, as Chairman, will read certain documentary evidence which I have which then will be entered into evidence;

(b) The Department will explain the procedure followed by the Rating Board, and the reasons for the failure of the Appellants;

(d) The Appellant's representative will advance his argu ments and case;

(e) The Department's representative may then ask ques tions. If the Appellant was called in person then both the Department and I may ask questions from the Appellant;

(f) The Department may then comment or rebut the points raised by the Appellants.

(g) If the Department has introduced new evidence then the Appellants may introduce evidence in rebuttal to these new points;

(h) Either side may sum up;

(i) I will then review the evidence, and advise in due course the representatives of the Appellants and the Department of my decision.

It is common ground that steps (a), (b) and (c) were carried out and that it was in the course of

(c) that Mr. Done sought and was disallowed the opportunity to question Mr. Devine with respect to his qualifications. It seems to me to be apparent that up to this point the inquiry involved the hearing of the appeals of all the appellants as I think it is inconceivable that it could have been intended to repeat steps (a), (b) and (c) for seven separate appellants particular ly since all seven were represented by the same person. Moreover, the proceeding was, I think, an inquiry as to the legality of the appointments which resulted from the competition rather than seven separate inquiries into the same matter.

At the next stage of the proceedings, under

(d) of Mrs. Clapham's list, the appellant, Nanda was called as a witness by Mr. Done and he gave evidence and was subsequently questioned (I avoid the word cross-examined as it appears to me to suggest trial procedure) by Mr. Freke or Mr. Coffin. In the course of his evidence Mr. Nanda cited a story he had heard of a meeting at which Mr. Freke had allegedly made certain statements which Mr. Done proposed to submit showed that Mr. Freke had had preconceived ideas affecting his capacity to judge the candi dates on their merits and at the conclusion of Mr. Nanda's evidence Mr. Done sought to call as witnesses three of the appellants who had been present at the meeting and had heard what Mr. Freke said. To my mind that was the proper time to call those witnesses under the procedure which Mrs. Clapham had ordained and that, as I see it, holds true whether what was going on at the time is regarded, as having been simply the hearing of Nanda's appeal, which included what has been referred to as the three points common to all appellants, or as a general inqui-

ry into the legality of the appointments which resulted from the competition, or yet again if it could be regarded as two separate inquiries going on at the same time that is to say one in respect of the three points applicable to all the appellants and the other in respect of Nanda's own appeal.

It is common ground that the Chairman declined to hear the proposed witnesses at that stage. Mr. Done says the Chairman declined to hear them on the ground there would be no point in hearing three more witnesses say the same thing. Mrs. Clapham said in cross-exami nation:

156. Q. Now, I understand there was an incident—I am moving on to another subject—there was an incident at the hearing. Possibly "incident" is not the right word. At any rate, Mr. Done had Mr. Nanda testify?

A. Yes, he commenced it with

157. Q. And Mr. Nanda, in the course of this evidence, referred to a certain meeting which had been held that Mr. Freke attended and which Mr. Freke is alleged to have made certain statements.

A. Yes, that is correct.

158. Q. And is it not a fact that in the course of his evidence Mr. Nanda stated that he was not present there when this occurred, and made it clear that what he was talking about was really hearsay, as far as he was concerned?

A. Yes, but I accepted what Mr. Nanda said.

159. Q. You accepted what Mr. Nanda said. Did you accept it as true?

A. Yes, I did. I accepted what Mr. Nanda stated. I accepted his evidence.

160. Q. What did Mr. Nanda say? A. I will have to refer to my notes.

161. Q. Yes.

A. On this particular point I do not have the exact words of Mr. Nanda. It was during Mr. Nanda's testifying that the question was brought up, or the incident was brought up about this conversation that Mr. Freke had with his staff. At this point in the hearing they wished to bring witnesses to testify as to the actual conversa tion that had taken place. I told Mr. Done at this point that since each Appellant was to testify in turn, and because I had accepted the evidence that had been brought forward, and the fact that this conversation had taken place, and ' since these Appellants were testifying then they could reemphasize this point since they were a witness to this conversation.

Even so, as I see it, in the procedure which Mrs. Clapham had prescribed this was the

appropriate time to hear these witnesses if they were to be allowed to add anything to what Mr. Nanda had said on the subject or indeed if they were to be heard on it at all. On the other hand if they were not to be permitted to add anything to what Mr. Nanda had already said, as Mrs. Clapham's statement suggests, it appears to me that the matter was being prejudged with respect to what Nanda had said and that all of the appellants were being denied the right to add to it.

At this point the Chairman asked Mr. Done for argument as to why the decision of the rating board in Nanda's case should not be upheld and after such argument had been heard went on to stage (f). It seems, however, to have been stage (f) only with respect to Nanda's appeal including what had been said so far on the three points common to all appellants. It was said that it had been understood that the cases of the several appellants would be pre sented separately in a particular order and that Nanda's case which included the three points common to all the appeals would be heard first and that the three points though included in the other appeals would not be repeated when they were being heard, but in these circumstances, if it be accepted that what was happening was that Nanda's appeal was being heard separately it appears to me that he, and the others as well, were being denied the right to complete the testimony which he wished to offer in his own case and which was to apply in the other cases and that the Chairman was further telling Mr. Nanda and the others that she accepted as fact what he had related respecting the particular incident. It becomes apparent, however, from her decision that she had not accepted what he and his representative had related but in fact accepted a different version of the incident related by Mr. Freke who had been permitted to call on Mr. Galoway or Mr. Kew to support his version. On the whole of what was presented the Board's conclusion may not have been an unreasonable one but the conclusion does not appear to be consistent with the Chairman having accepted as true what Mr. Nanda had said.

There is also evidence given by Mr. Done that when the subject had been spoken to by

Mr. Freke in stage (f), Mr. Done again raised the question of his right to call the three wit- nesses—a point on which he is to some extent corroborated by Mr. Coffin—and that a discus sion of some five minutes duration ensued in the course of which he was again refused the right to call them.

At that point the reason given for refusal is said to have been that there was no conflict. It seems clear therefore that at least in so far as the Nanda portion of the inquiry was concerned Mr. Done and the persons he represented were denied the right to call the witnesses in question.

Moreover, the only matter that appears to me to weigh against the conclusion that Mr. Done was denied the right to call these witnesses in the proceeding as a whole is the fact that he appears to have understood that he could call each of them in his turn when the merits of his particular appeal were being dealt with and that he and all the appellants withdrew before that stage was reached and thus abandoned the opportunity that might then have been afforded to them to speak of the incident in question. Having regard to what seems to have been reluctance on the part of the Chairman to permit the issue to be explored and the reasons which she gave for declining to permit the call ing of the witnesses, both when they were first proposed and when they were proposed again, it is not apparent to me that the witnesses would ever have been permitted to tell more of the incident than had already been told by Mr. Nanda. But, be that as it may, it seems to me that having refused to permit the calling of the witnesses at the appropriate stage in the proce dure which she had prescribed and having been party to the sepàration of the inquiry into what were in effect separate hearings of the appeals of the several appellants with the three points common to all to be dealt with in the course of the hearing of the Nanda appeal, it was in my opinion incumbent upon her, if the hearing was to be fair in respect of the incident in question, to hear all that the appellants had to say on the subject while it was being dealt with in the Nanda hearing, especially since that was the scope of the opportunity to reply on the subject

which was afforded to the representative of the Deputy Minister.

I am also of the opinion, notwithstanding the submission of Mr. Whitehall to the contrary, that the subject of alleged bias on the part of Mr. Freke was relevant to the inquiry before the Board and I further think that it was highly important from the point of view of maintaining the confidence of public servants and of the public in both the selection and the appeals systems that such a matter when raised should be explored.

I would set aside the dismissal of the appeals of the applicants and refer the matter back to the Board as proposed by the Chief Justice.

KERR J. (dissenting) (orally)—The Chief Jus tice has outlined and indicated comprehensively the nature of the application before this Court and its background and attendant circum stances, and the issues raised, and consequently it is possible for me to deal with the matter relatively briefly.

The main ground of appeal is that the Chair man of the Appeal Board failed to observe principles of natural justice in various specified ways. The Chairman was Mrs. Irene G. Clap- ham. She had been acting in the capacity of a chairman of appeal boards under the Public Service Employment Act since October 1, 1970, and prior to the date on which she held the inquiry in this instance she had presided as a chairman on an average of 12 hearings a month. There was no suggestion before this Court that she was not a capable or competent person to serve as a chairman or that she had any bias or prejudice against any of the appellants, or their cause, or that she did not act in good faith. Which, of course, does not rule out a possibility that in this particular appeal she may have failed to observe principles of natural justice.

As pointed out by the Chief Justice in his reasons for judgment, we are being asked to reach a conclusion on the basis of the evidence of the participants, which, in addition to being very sketchy, is not restricted to an objective statement of what was actually said and done during the hearing, but is a small proportion of

what was in fact said and done mixed with a large proportion of current recollections of what was intended to be said and of ex post facto rationalization and explanation. Neverthe less, despite the deficiencies, we must do the best we can on what is before us.

Coming now to the five contentions of failure to observe the principles of natural justice, as set forth in the memorandum of facts and law submitted to this Court on behalf of the applicants.

One of the contentions is that the Chairman set down the procedure to be followed but did not follow the procedure set down by the Public Service Commission in its Guide to the Public Service Appeals System. For convenience of comparison, the procedure set down by the Chairman and the corresponding procedure in the Guide are set forth as follows:

Chairman's procedure Procedure in Guide

(a) That I, as Chair- 2. The chairman ex-

man, will read certain doc- plains the pertinent pro-

umentary evidence which visions of the Public

I have which then will be Service Employment Act

entered into evidence; and Regulations as well as

(b) The Department will the procedure that will be

explain the procedure fol- followed.

lowed by the Rating 3. The chairman reads

Board, and the reasons for the department's letter

the failure of the Appel- notifying the appellant of

lants; his right of appeal, and the

the Department; 4. In the case of an

(d) The Appellant's rep- appeal against selection for

resentative will advance his appointment, the depart-

arguments and case; ment's representative is

(e) The Department's then asked to explain the

representative may then steps that were taken by

ask questions. If the Ap- the department leading to

pellant was called in person the selection.

then both the Department If the selection was

and I may ask questions made by closed competi-

from the Appellant; tion, this statement should

(f) The Department may include first a description

then comment or rebut the of the poster, with the

points raised by the Ap- duties and required quali-

pellants. fications. The department's

(g) If the Department representative may then

has introduced new evi- call on the chairman or

dence then the Appellants other member of the rating

may introduce evidence in board to describe the pro-

rebuttal to these new cedure followed by the

points; rating board in the assess-

(h) Either side may ment of the candidates and

sum up; to explain the results of

(i) I will then review the competition and the

the evidence, and advise in reasons for the appellant's

due course the represen- lack of success.

tatives of the Appellants 5. The appellant (or his

and the Department of my representative) is then

decision. asked to present his case

and to show why the re sults of the competition or the proposed selections should not be accepted. In presenting his case, the ap pellant may produce any document relevant to the issues, or any witnesses he wishes to call. The depart ment's representative may cross-examine each of these witnesses at the end of his testimony.

6. After the appellant (or his representative) has completed the presenta tion of his case, the de partment's representative is asked to reply to the allegations made by the appellant and to present the department's side of the case, using the doc uments and calling wit nesses as he sees fit. The appellant (or his represen tative) may cross-examine each of the department's witnesses as soon as the witness has finished giving his evidence.

7. The appellant (or his representative) may sum up the arguments on his side, and then the depart ment's representative may sum up the arguments for the department.

8. The hearing is then closed.

This Guide was considered by Mr. Justice Pennell in Re O'Byrne and Bazley [1971] 3 O.R. 309, where he said at page 318:

... A dispute arose as to the procedure and in the result the applicant and his counsel withdrew. Why a dispute should have arisen is difficult to follow. It will be seen that the effect of the Act and Regulations is to provide for a considerable degree of latitude in procedure. For example, witnesses may not be sworn and the admissibility of any evidence is left to the discretion of the Appeal Board. The "Guide to the Public Service Appeals System" reflects the informal nature of the procedure and the appeal should not be treated as though it were a formal hearing in a Court of law. The procedure, nevertheless, must be in accordance with the rules of natural justice and the appellant must be afforded every opportunity to present his "case" by way of examining and cross-examining witnesses and addressing argument to the Appeal Board on the whole of the case. There is no need to add that the Appeal Board must act in good faith and fairly listen to both sides.

There are many such appeals. The Guide is useful, but it is not a Regulation that must be strictly complied with. I think that there is a leeway for departure from it and that if there is a failure to follow the Guide's procedure it does not necessarily follow that the resulting deci sion is ipso facto invalid. The objective of the Act and Regulations in this respect is, I think, an inquiry that will be conducted as informally and expeditiously as the circumstances and con sideration of fairness will permit, with a built-in right of the persons appealing and the deputy head concerned, or their representatives, to have an opportunity of being heard. I do not consider that there is any great difference in substance between the procedure set down by the Chairman and the procedure in the Guide.

Another contention is that the Chairman erred in making available to the representative of the Department a copy of the personal notes of Mr. Done, the representative of the appel lants. It may be that this was helpful to the Department's representative, at least it saved him the necessity of making notes of Mr. Done's lengthy submission. But it did not pre vent Mr. Done or any of the appellants from being heard or curtail or limit their opportunity to submit reasons or evidence in support of their appeals, and looking at it in any light I am not able to conclude that it constituted a breach or denial of natural justice.

Another contention is that the Chairman directed the representative of the appellants to

make his final argument before hearing the evi dence put in on behalf of the Department.

I do not think that the evidence and material before this Court warrants a conclusion or an inference that the Chairman gave any such direction. The procedure outlined by the Chair man in her affidavit, which she explained to all present at the outset of the hearing, contemplat ed first an explanation by the Department of the procedure followed by the rating board and the reasons for the failure of the appellants, follow ing which the appellants' representative could question the Department; then the appellants' representative would advance his arguments and case and the Department's representative could ask questions' ; the Department could then comment or rebut the points raised by the appellants, and if the Department introduces new evidence the appellants could introduce evidence in rebuttal; and, finally, either side could sum up.

In her affidavit the Chairman said that after Mr. Nanda had finished giving his evidence she "asked Mr. Done to advance his arguments why the decision of the rating board should not be upheld". In the transcript of her cross-examina tion by Mr. Wright on her affidavit the follow ing question and answer appear in this connection:

52. Q. So, what you say is, there would be two summing ups? There would be two opportunities to sum up, is that the idea? Once under paragraph 4 and a second time under paragraph 4(h). Is that what you are saying?

A. You may call it summing up, I call it presenting his argumentation, or his contentions, or his allegations, whichever term may be used, it is all one and the same thing. The summation is the final conclusion, and either side may sum up as I have stated in (h). So, they have two opportunities to make argument.

Looking at the matter objectively I do not think that Mr. Done, as a reasonably intelligent man not unfamiliar with proceedings of appeal boards under the Act, had grounds for thinking at any time that he was being denied an oppor tunity to make a final summing up after further evidence had been presented. There was further evidence on the morning of the second day of

the hearing by Mr. Freke and other persons at a time when Mr. Done was present and he ques tioned at least some of them. To me it is incred ible that he thought at that time that he would have no further opportunity to deal with their evidence in a final summing up. In fact he made no final summing up, not because a right to make a final summing up was denied him, for there was no such denial, but because he and the appellants withdrew from the inquiry and left it to the chairman to continue with it in their absence.

Another contention is that the Chairman denied the representative of the appellants the right to cross-examine Mr. Devine, the chair man of the rating board, with respect to his qualifications to sit on the rating board.

The evidence in that respect is conflicting. There is no doubt that Mr. Done went to the hearing with a firm intention to question the qualifications of Mr. Devine to be a member of the rating board. And he did so question them. He said that on the first day he asked Mr. Devine a question as to his qualifications, but that the Chairman told Mr. Devine not to answer. I am satisfied to accept that the Chair man gave that direction at that time. In her affidavit she said:

12. During the cross-examination of Mr. Devine, by Mr. Done, Mr. Devine was asked about his qualifications. I disallowed this question, because as I have stated at the Hearing, at this point the procedure followed at the Rating Board Hearing was being considered and not the qualifications of the Rating Board Members.

13. That I explained to Mr. Done that if he wished to question Mr. Devine's qualifications he may do so later, and then the Department would have to answer his assertions.

I think I appreciate the Chairman's reason for so doing. She was inquiring into a number of appeals in which there were certain issues common to all, as well as issues relating only to an individual appellant, and she wanted to have the hearing conducted and the issues dealt with in a manner and sequence that in her view would be most conducive to an orderly and fair hearing. Looking now at the situation, with the benefit of hindsight, one might conclude that the more appropriate time to allow Mr. Devine to answer questions asked by Mr. Done as to

his qualifications was at the time when Mr. Done first began to ask such questions. In any event the Chairman, in the exigency of the situation, ruled in favour of a later time. The situation, as remembered by Mr. Coffin, was indicated in his answers to cross-examination by Mr. Wright, as follows:

78. Q. Is it not a fact that Mr. Done then proceeded to

cross examine Mr. Devine?

A. Hm-hmm, yes.

79. Q. Is it not a fact he then called into question Mr.

Devine's qualifications?

A. I recall that.

80. Q. And Mr. Landriault's qualifications?

A. I don't recall him questioning Mr. Landriault, but he

certainly did question Mr. Devine's qualifications.

81. Q. Was he given an opportunity to complete his

cross examination as to their qualifications?

A. At that time?

82. Q. At that time.

A. No, it was not pursued at that time. It was discussed

later.

83. Q. Why was it not pursued at that time?

A. It was clear that there was going to be an opportunity later where this type of discussion could better fit into the proceedings.

84. Q. How was that made clear, and by whom? A. By the Board Chairman.

92. Q... I put it to you that when Mr. Done started to question Mr. Devine as to his qualifications, that he was stopped by the Chairman, that his questions were disallowed. What do you say to that?

A. I think—if I am not answering your question directly, I appreciate your objecting to the way I do, it is by way of recollection. The interruptions which were occurring—perhaps you will object to that word too— but certainly my recollection is that Mrs. Clapham said; "everything in proper time, and you will have a time to bring out any information you wish." This is my recollection.

Which brings us to the second consideration, namely, whether Mr. Done had a later oppor tunity to question Mr. Devine as to his qualifi cations. That would be on the second day of the hearing. Mr. Devine gave evidence during the morning of that day. In cross-examination of

Mr. Done on his affidavit the following ques tions and answers appear:

195. Q. I am putting to you that at the same time—I gave you the other people to establish the time—I also put it to you that also Mr. Devine made some statements.

A. Yes, I think the very first person that Mr. Freke spoke to—called as a witness was Mr. Devine.

200. Q. Did you attempt—I use the word "attempt"—at that time to ask Mr. Devine any questions?

A. No, I didn't. However, I will tell you why. I sincerely hoped that at that time some evidence might be led to show that Mr. Devine's qualifications were what they were purported to be. However, he did not say any thing about his qualifications, he did not say anything. Now, I had already attempted to question him on that point once, and I had been told; "I will hear no evidence on that matter." I assumed, for what it is worth, that is why the Department's rep. stayed away from it. He had been told—the Chairman had already said that she would hear no evidence on it. I couldn't ask him any questions on that in cross examination for the simple reason that I had been reminded by every Appeals Officer in the Public Service, that on cross examination I am privileged only to ask questions the object of which is to examine a witness on statements that have been made in direct examination, to the extent that you can question the truth of the state ments or expand upon them. I could not cross exam ine, because the subject wasn't raised.

207. Q. And you did not ask Mr. Devine on the second day any questions about his qualifications, because of what you presumed to be the rule about cross examination?

A. Not what I presumed, what I had been told by the Chairman the other day in simple words of one syllable.

208. Q. When?

A. The very first day when I asked the question the first time to Mr. Devine. The Chairman said; "Don't answer that question", and she said, "I will not hear any evidence on that point".

209. Q. You remember the Chairman using those words, "any evidence"?

A. I remember the Chairman saying that she would not hear any evidence on that point.

210. Q. Do you remember the Chairman saying "At that time", or "At any time"?

A. I remember that the Chairman said that. She made a blunt unequivocal statement, "Don't answer that ques tion, I will hear no evidence on that point".

211. Q. Now, did the Chairman instruct you about the use of cross examination at that hearing?

A. No.

The evidence that Mr. Devine was a witness and gave direct information on the morning of the second day is corroborated by Mr. Coffin and by one of the applicants, Mr. Chaytor. Mr. Chaytor's recollection was that Mr. Devine made some statements as to his qualifications, that Mr. Coffin embellished on them somewhat, and that Mr. Done asked a few questions of Mr. Devine but not as to his qualifications.

The evidence is conflicting, but my conclu sion is that the balance of probability is that the Chairman's refusal to allow Mr. Done to cross- examine Mr. Devine as to his qualifications on the first day of the hearing was not an absolute refusal effective for the remainder of the hear ing but was limited, in accordance with her overall plan for the hearing, to that particular stage of the hearing, and that Mr. Done had an opportunity to question Mr. Devine in respect of his qualifications on the second day and that the Chairman did not prevent or restrict cross- examination of Mr. Devine on that later occasion.

There remains one final important contention advanced on behalf of the applicants. It relates to a meeting of Mr. Freke and his staff some months prior to the hearing. It was alleged that at that meeting Mr. Freke made statements indicating that he had already reached certain conclusions with regard to the competition. Mr. Done wanted to call 3 of the appellants who had been at the meeting to give evidence in that respect. It is contended on behalf of the appel lants that the Chairman would not allow Mr. Done to lead such evidence, but allowed the representative of the Department to lead evi dence about the meeting, and that the Chairman conducted the appeal hearing in such a manner as to deny the representative of the appellànts an opportunity to make a full and proper pre sentation of the appellants' case in not allowing him to call witnesses with respect to this issue,

but allowing the representative of the Depart ment to call his own witnesses.

On this point, too, there is conflicting evi dence. However, it appears certain that on the first day of the hearing Mr. Done called Mr. Nanda, one of the appellants, to testify. Appar ently after some discussion he was allowed to give evidence, and he gave evidence in respect of what he had been told that Mr. Freke had said at the meeting in question. Mr. Done then proposed to call three of the appellants, who had been present at the meeting, to give first hand evidence in respect of it and what Mr. Freke had there said. The Chairman refused to allow them to give evidence at that time. The following extracts from Mr. Wright's cross- examination of the Chairman are pertinent in that respect:

157. Q. And Mr. Nanda, in the course off this evidence, referred to a certain meeting which had been held that Mr. Freke attended and which Mr. Freke is alleged to have made certain statements.

A. Yes, that is correct.

A. Yes, but I accepted what Mr. Nanda said.

159. Q. You accepted what Mr. Nanda said. Did you accept it as true?

A. Yes, I did. I accepted what Mr. Nanda stated. I accepted his evidence.

160. Q. What did Mr. Nanda say? A. I will have to refer to my notes.

161. Q. Yes.

A. On this particular point I do not have the exact words of Mr. Nanda. It was during Mr. Nanda's testifying that the question was brought up, or the incident was brought up about this conversation that Mr. Freke had with his staff. At this point in the hearing they wished to bring witnesses to testify as to the actual conversa tion that had taken place. I told Mr. Done at this point that since each Appellant was to testify in turn, and because I had accepted the evidence that had been brought forward, and the fact that this conversation had taken place, and since these Appellants were testifying then they could reemphasize this point since they were a witness to this conversation.

Later in the cross-examination the Chairman said that she ruled at this point that since each of the appellants were to be heard in turn they

would then comment on the statement—that any witness Mr. Done would call would have the right to testify and that Mr. Done had every opportunity to put in all of the evidence that he had on a question that went to the issue of bias.

Later on that first day of the hearing Mr. Done made his presentation from his "notes", in the course of which the incident of the Chair man asking for a copy of the notes and passing a copy to Mr. Coffin arose. In those notes a strong objection to Mr. Freke's presence on the rating board, because he was not impartial, was expressed, as follows:

As it happens we particularly object to the fact that Mr. Freke himself was on the Board—not because he is not incompetent but because he was clearly not impartial. As early as January 21, in the presence of at least three of the appellants he had stated categorically that he was going to promote only two—or possibly three—of the present staff. As four positions were open to competition it follows neces sarily that if four employees were found to be qualified they would be entitled to be promoted. But Mr. Freke had already decided that he would not find four employees to be qualified and he had already advertised an open competition to take up the slack. Indeed I submit that even before the Board sat, Mr. Freke had determined which two employees would be the successful candidates with one other applicant in mind as a third possibility. In other words, and without in any way questioning his integrity, we submit that by the time the Board sat Mr. Freke was no longer in a position to be impartial. He had already predetermined the overall outcome of the competition.

That ended the first day's proceedings.

On the second day Mr. Freke was called and gave his version. Mr. Done said in his affidavit that he cross-examined Mr. Freke. He was less definite in that respect when he was cross- examined by Mr. Whitehall. In his affidavit and cross-examination he also stated that after Mr. Freke had given his evidence he asked to be allowed to call the three witnesses whom he had attempted to call on the first day after Mr. Nanda had finished giving evidence—but that the Chairman again refused permission to call them. In her cross-examination the Chairman said that Mr. Done had an opportunity to call witnesses after the presentation of Mr. Freke's evidence, but did not do so. I have found it somewhat difficult to re-construct from her cross-examination just what was said by her, if anything, at the hearing on the second day in

respect of the three witnesses that Mr. Done had intended to call. But considering her affida vit and her answers on cross-examination in the light of the whole of the circumstances, I think that there is a fairly clear indication that she did not refuse absolutely to hear these witnesses but rather that she would be willing to hear them only in their proper turn. She was not willing to be diverted from the orderly course that she had laid down at the start of the hearing.

Mr. Freke was not the only person who spoke on behalf of the Department on the second day. Mr. Coffin spoke first, before Mr. Freke spoke, and again after Mr. Freke, Mr. Devine, Mr. Kew and Mr. Galoway had spoken. It was after Mr. Coffin had spoken the second time on that day that the appellants withdrew from the hear ing. If they had stayed and when called in their turn had attempted to speak as to what Mr. Freke had said at the meeting in question, the picture before us probably would be clearer in that respect.

In my appreciation of the situation on what is before us, I think that the balance of probability is that the Chairman was willing to hear all the witnesses offered by the appellants, but to hear them in their proper turn in accordance with the ground rules of procedure she had laid down at the outset. She must have been aware of the importance that the appellants attached to what Mr. Freke had said at the prior meeting and to their attack on his right to have been a member of the rating board because of alleged bias or pre-determined conclusions relative to the qualifications and selection of candidates for the available positions. The Chairman heard Mr. Freke on that issue. It is difficult for me to conclude that she refused an opportunity to the appellants to offer evidence designed to con tradict Mr. Freke's evidence. I need not conjec ture as to what effect such evidence would have had, if it had been offered and received. The question is whether the Chairman refused to hear it and denied the appellants an opportunity to present it.

In endeavouring to decide the issues before the Court, it is not without significance that the appellants withdrew from the hearing after they

had heard the Department's evidence and sub missions on the general issues the appellants had raised, especially as to the qualifications of the members of the rating board and the alleged bias of Mr. Freke, and that in announcing their withdrawal they did not allege that they were being denied an opportunity to call witnesses and offer evidence in respect of issues they had raised. If they had been denied that opportuni ty, so important to their case, one would think that they would have stated it to the Chairman as a reason for their withdrawal. Instead, they stated incompetence of the Chairman to hear the appeal as their reason for withdrawal.

The appellants withdrew of their own voli tion. Now they ask this Court to set aside the decision of the appeal board, which has been implemented by appointment of the two candi dates who qualified. In effect they are asking this Court to let them get back into an appeal hearing, which is not improper provided that there are adequate grounds.

The evidence and material before the Court fall short, in my view, of showing a balance of probability that the Chairman denied the appel lants the right to a fair hearing of their appeal, or failed to observe the principles of natural justice and the legal principle of audi alteram partem, or did not fairly hear the case put forward by the representative of the appellants, or did not conduct a fair or proper hearing, or that she conducted the hearing in such a manner as to deny the appellants' representative an opportunity to make a full and proper presenta tion of their case.

I think that this is a case in which one may adapt Lord Birkenhead's words, as quoted by Mr. Justice Ritchie in Posluns v. Toronto Stock Exchange [1968] S.C.R. 330 at p. 341 and say that neither the Chairman's good faith nor her mode of procedure nor her conduct of the hear ing has been successfully impugned.

I would dismiss the application to set aside the decision of the appeal board.

JACKETT C.J.

Wrongly referred to in the style of cause as "Appel- lants" instead of as "Applicants".

2 While the document seems to be, appropriately enough, referred to in the application as a single decision, it has been signed and dated by Mrs. Clapham at the end of each section dealing with the matters that related only to an "individual" appeal.

While the appeals are expressed to be against the "selec- tion", the "decision of the Tribunal Board" or against the competition or the results of the competition, it would seem to be common ground that they were appeals under section 21. They must, therefore, be regarded as appeals against the "appointment" or the proposed appointment, as the case may be, of each of the persons who were selected, as that is the only kind of appeal for which provision is made by section 21.

" Paragraph (d) was dropped during argument.

It is also a feature of this statute that the Commission had authority, by section 12, "in determining ... the basis of assessment of merit ...", to "prescribe selection stand ards as to education, knowledge, experience, language, age, residence or any other matters that, in the opinion of the Commission, are necessary or desirable having regard to the nature of the duties to be performed ..." I should have thought that standards so prescribed would be aids to the determining of "merit" in relation to the "duties to be performed" but could not replace the fundamental rule in section 10 that an appointment must be based on "selection according to merit, as determined by the Commission". Our attention has not been drawn to any standards prescribed under section 12 that have any application to the matter before us.

6 I am expressing no opinion as to the manner in which such opportunity to be heard must be given.

7 I think the use of the word "bias" in this connection is misleading. Choosing civil servants is not a task that can be done in a judicial or quasi-judicial way. It is an integral part of the administration of the affairs of executive govern ment. The statutory provisions enacted to establish and protect the merit system must, of course, be honestly applied. The question is, therefore, whether those con cerned did "genuinely" do what the statute directed. Com pare Franklin v. Minister of Town and Country Planning, [1948] A.C. 87, per Lord Thankerton at pages 103-4.

B This particular is not covered by any of the particulars set out in the notice of the application under section 28 quoted above. Counsel for the respondent explains that, for that reason, his affidavit material does not deal directly with this aspect of the matter.

9 See Re O'Byrne and Bazley [1971] 3 O.R. 309, per Pennell, J. at page 321:

I approach the matter upon the basis that Parliament intended that there should be a minimum of formality provided that the requirements of natural justice were met.

Compare Ward v. Bradford Corpn., TIMES N.P.L.R., July 9, 1971, per Denning, M.R.:

So long as they act fairly and justly their decisions should be supported.

'° He is here merely saying that they will select candi dates who are better than those in the Department who are found to be qualified if such better candidates appear in the competition and that it will be in the interest of the Depart ment if such better candidates do appear.

" I have not overlooked the argument that the evidence was not relevant because it was made before the calling of the closed competition. In my view, this fact only goes to the weight of the evidence.

KERR J.

This is very similar in substance and sequence to Rule 5 in the Guide's procedure, ante.

You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.

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