Ian V. MacDonald (Applicant)
v.
Appeal Board established by the Public Service
Commission (Respondent)
Court of Appeal, Jackett C.J., Thurlow and
Pratte JJ.—Ottawa, October 16, 1973.
Public Service—Appeal board—Whether Public Service
Commission may appoint one of its officers to hear an
appeal—Public Service Employment Act, R.S.C. 1970, c.
P-32, s.21.
The mere fact that the Public Service Commission
appoints one of its officers as the board required by section
21 of the Public Service Employment Act, R.S.C. 1970, c.
P-32, to hear an appeal against an appointment to the Public
Service is not sufficient to invalidate its decision.
APPLICATION.
COUNSEL:
J. D. Richard and George Hynna for
applicant.
Peter Mclnenly for respondent.
SOLICITORS:
Gowling and Henderson, Ottawa, for
applicant.
Deputy Attorney General of Canada for
respondent.
JACKETT C.J. (orally)—Two section 28
applications by the same applicant have been
heard together. In each case the applicant seeks
to have set aside a decision of a board estab
lished for the purposes of section 21 of the
Public Service Employment Act to hear an
"appeal" of the applicant against appointments
about to be made as the result of a competition
in which the applicant was an unsuccessful
candidate.
Section 21 of the Public Service Employment
Act reads as follows:
21. Where a person is appointed or is about to be appoint
ed 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,
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,
(c) if the appointment has been made, confirm or revoke
the appointment, or
(d) if the appointment has not been made, make or not
make the appointment,
accordingly as the decision of the board requires.
The sole fact on which the applicant bases his
section 28 applications is that, in each case, the
Public Service Commission, acting by the Direc
tor of its Appeal Branch, appointed an officer of
the Public Service Commission as the "Board"
required by section 21 to conduct an "inquiry".'
Based on that fact, the applicant, by his
Memorandum of Points of Argument in this
Court, makes the following submissions:
1. he says that the sole member of the appeal
"board" in each case was "disqualified by
reason of interest and likelihood of bias
because he was an officer or employee of the
Public Service Commission"; and
2. he says that "it is inherent" in section 5 of
the Act that appeal boards established to hear
section 21 appeals be independent of the
Public Service Commission, that the Commis
sion's powers in relation to these "appeals" is
confined "to establishing the board" and that
"it necessarily follows that the Commission
may not appoint its own officers or
employees to sit on such appeals and render
decisions thereon".
The applicant's arguments in support of these
submissions are as follows:
It is a principle of common law that no man may be judge in
his own cause. Although Parliament is competent to make a
person judge in his own cause, it is necessary that legislation
intended to do so be clear and unambiguous. It is submitted
that Section 5(d), far from being able to bear such a con
struction, clearly is intended to set up an independent board.
The Courts will uphold the common law tradition against
making a man a judge in his own cause by declining to
accept such a construction of a statute if its wording is open
to another construction.
In my view, the submissions of the applicant
misconceive the nature of the proceedings
under section 21 of the Public Service Employ
ment Act and, indeed, are based on a lack of
appreciation of the general scheme of the Act
and of the constitution and duties of the Public
Service Commission. Before considering the
applicant's submissions, therefore, it is neces
sary to review the relevant parts of the Act.
The Public Service Commission is an
independent commission. See section 3 of the
Act, which reads in part as follows:
3. (1) There shall be a Commission, to be called the
Public Service Commission, consisting of a Chairman and
two other members to be appointed by the Governor in
Council.
(2) Subject to this section, a commissioner holds office
during good behaviour for a period of ten years, but may be
removed at any time by the Governor in Council upon
address of the Senate and House of Commons.
To this independent commission is assigned the
exclusive authority to make appointments to the
various parts of the Public Service. See section
8, which reads as follows:
S. 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.
The fundamental objective of this method of
appointment is to establish and maintain what is
commonly referred to as the "merit" system.
See section 10, which reads, in part:
10. Appointments to or from within the Public Service
shall be based on selection according to merit ... .
The Commission is given almost a complete
discretion as to how to accomplish its statutory
task. Refer again to section 10, the relevant part
of which reads:
10. Appointments ... shall be made by the Commis
sion ... by competition or by such other process of person
nel selection designed to establish the merit of candidates as
the Commission considers is in the best interests of the
Public Service.
As I indicated in Brooker v. Attorney General
of Canada [1973] F.C. 327, it must be clear that
Parliament did not have in mind that the Com
mission itself, which consists of only three
members, would personally run every competi
tion and personally carry on the mechanics of
each of the other processes of personnel selec
tion that might be adopted. Obviously, the size
of the Public Service when the Public Service
Employment Act was adopted in 1967 was such
that Parliament must have intended that those
three members utilize the services of a very
large number of other persons in the selection
processes. If this were otherwise in doubt, it is
made clear by section 12 of the Act, which
authorizes the Commission "in determining .. .
the basis of assessment of merit in relation to
any position" to "prescribe selection stand
ards ..." It is clear, I think, that such persons
might be either officers or employees of the
Commission or persons employed by the Com
mission on contract (section 5(c)). Furthermore
the Commission may delegate its appointment
authority to the departments for whom the
appointments are to be made (section 6) and, as
this Court held in the Brooker case (supra) the
persons utilized in the selection process may be
recruited from within or without the Public
Service.
What is envisaged by the Public Service
Employment Act are selections and appoint
ments made, in part, by a large organization
operating under the authority of the Commis
sion and in part by the various departments
under authorizations from the Commission, sub
ject to such directions and standards as are
established by the Commission. It is in the light
of that statutory scheme that consideration must
be given to the requirements of section 21,
which is repeated here, in part, for convenience.
21. Where a person is appointed or is about to be appoint
ed 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,
(c) if the appointment has been made, confirm or revoke
the appointment, or
(d) if the appointment has not been made, make or not
make the appointment,
accordingly as the decision of the board requires.
To appreciate the true legislative purpose of
section 21, the situation in which it operates
must be got into perspective. The independent
Commission whose function is to make the
merit system work is required to organize an
operation in which many different people apply
selection methods and make appointments in all
the different branches of the Public Service
throughout Canada. The actual selection pro
cesses and appointments are not, and in the
nature of things cannot be, carried on by, or
under the immediate supervision of, the three
members of the Commission. There is such a
volume of such operations that there are bound
to be mistakes and any process of investigating
to locate such mistakes must also be on such a
scale that it cannot be carried on by the three
Commissioners personally.
What section 21 contemplates, therefore, is
that an unsuccessful candidate may "appeal"
against an appointment or proposed appoint
ment and that, when there is such an appeal, the
Commission will establish a "board" to "con-
duct an inquiry" with regard thereto. It is clear
from the various applications that have been
made to this Court that, to enable it to discharge
this duty, the Public Service Commission has
set up an organization of Appeals Officers
whose task is to conduct section 21 inquiries. In
my view, that is what is contemplated by the
statute and I see no incompatibility at all
between selection and appointment officers on
the one hand and appeals officers on the other
hand all operating under the authority of the
Public Service Commission. It must be remem
bered that the Commission is an independent
commission established to make the "merit"
system work and that the appointment function
and the appeal function are different stages of
the "merit" system. Under section 21 the sub
ject matter of the inquiry to be made by the
Appeal Board is not an issue between the appel
lant and the Commission, nor is it a lis in
respect of which the Commission has a position
or a decision to defend against the complaint of
the appellant. The Commission's sole interest in
the matter is to ensure that the "merit" system
is working as it ought to work.
I am satisfied, therefore, that the mere fact
that the Boards set up under section 21 are
composed of members of the Public Service
Commission staff is not sufficient to invalidate
their decisions. In the circumstances, it is not
necessary to express any opinion as to whether
the principles concerning "bias" in connection
with judicial and quasi-judicial tribunals have
any application to boards set up under section
21. Compare Franklin v. Minister of Town and
Country Planning [1948] A.C. 87 and B. John-
son & Co. (Builders) Ltd. v. Minister of Health
[1947] 2 All E.R. 395.
I am of opinion that the application should be
dismissed.
* * *
THURLOW and PRATTE JJ. concurred.
' In particular, it should be noted that there is no sugges
tion of actual "bias" in either of these cases.
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.