J. A. Moreau (Applicant)
v.
Public Service Appeal Board (Respondent)
Court of Appeal, Jackett C.J., Thurlow J. and
Cameron D.J.—Ottawa, May 24, 1973.
Public service—Appointment made contrary to prescribed
selection standards—Appointment set aside—Public Service
Employment Act, s. 12(1).
A competition in the public service for a senior audit
supervisor (AU-3) was declared open only to auditors class
AU-2. The successful candidate was an auditor of the AU-2
class but he did not have the professional and academic
qualifications for the advertised position that had been
prescribed by the Public Service Commission pursuant to
section 12(1) of the Public Service Employment Act. An
appeal by an unsuccessful candidate was rejected by the
Appeal Board.
Held, the appointment was made contrary to the provi
sions of the Public Service Employment Act and the decision
of the Appeal Board must therefore be set aside.
APPLICATION.
COUNSEL:
J. L. Shields for applicant.
I. Whitehall for respondent.
SOLICITORS:
Soloway, Wright, Houston, Killeen and
Greenberg, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondent.
THURLOW J. (orally)—This is an application
under section 28 of the Federal Court Act to
review and set aside the decision of an Appeal
Board established under section 21 of the Public
Service Employment Act which dismissed the
applicant's appeal against the proposed appoint
ment of the successful candidate in public ser
vice competition number 72-NRCE-CC-VAN
38. The basis of the applicant's appeal was that
there had been a failure to comply with Public
Service Employment Regulation 7(1), which
requires that every appointment be in accord
ance with selection standards, in that basic
qualifications for the position at stake in the
competition as advertised did not conform to
prescribed selection standards.
Authority for the establishment of selection
standards is contained in section 12 of the
Public Service Employment Act which provides
that:
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 standards
as to education, knowledge, experience, language, age, resi
dence 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.
Under this provision the Commission had pre
scribed with respect to the position in question,
that of senior audit supervisor (AU-3), basic
qualifications as follows:
— Eligibility for certification as a professional accountant, as
defined on page 7; OR university graduation with an appro
priate concentration in accounting, business administration,
commerce, or finance.
— Demonstrated ability to conduct, under general supervi
sion, audits of a type and complexity relevant to the
assignment.
— Willingness to travel, in some assignments.
Eligibility for certification was defined as:
ELIGIBILITY FOR CERTIFICATION: Successful completion of
the education, examination and experience requirements
prescribed by the Canadian Institute of Chartered Account
ants, the Certified General Accountants' Association, the
Society of Industrial and Cost Accountants, or such other
body as is deemed by one of these organizations to be
equivalent.
The same basic requirements were prescribed
with respect to persons holding an auditor posi
tion (AU-2) and indeed with respect to all seven
classes of the auditing group.
As advertised, the competition in question
was open only to auditors of the class known as
AU-2 and the basic requirements were
described as follows:
QUALIFICATIONS:
Basic:
Knowledge of the English language is essential. Demonstrat
ed ability to conduct, under general supervision, audits of a
difficult and complex nature.
The successful candidate, a long-time
employee of the department in question, was an
auditor of the AU-2 class but did not have the
professional certification or university gradua
tion qualifications referred to in the selection
standards as above quoted.
In dismissing the applicant's appeal the Board
held that since the successful candidate was in a
AU-2 position he was within what was referred
to as the "Area of Competition" and, with
respect to the applicant's contention that the
basic requirements were not'in accordance with
the selection standards for the Auditing Group,
that the responsible staffing officer, in deter
mining the basic requirements, exercised his
judgment in a fair and reasonable manner, that
the Rating Board was required to assess the
candidates on the basis of the specifications
listed in the competition poster and that a
review of the duties and qualifications that
appear on the competition poster indicated "that
the standards required by the Rating Board
were consistent with the appropriate selection
standards."
This decision is attacked on the ground that
the Board erred in law in determining that the
responsible staffing officer had a discretion,
when determining the relevant qualifications for
the position to be advertised, to omit the educa
tional requirements for the position contained in
the selection standards prescribed by the
Commission.
On the face of it there does not appear to be
any answer to the submission that the appoint
ment attacked was illegal as having been made
contrary to the provisions of the Public Service
Employment Act but counsel for the respondent
sought to support it by submitting that on the
proper interpretation of the selection standards
adopted by the Commission the basic education
al qualifications for the position of Auditor
AU-3 as set out therein were intended to be and
were subject to modification in the discretion of
the responsible staffing officer. In my opinion
that document cannot be so interpreted. It fol
lows that the decision of the Appeal Board
should be set aside and the matter referred back
to the Board for reconsideration and redetermi-
nation of the applicant's appeal on that basis.
* * *
JACKETT C.J. and CAMERON D.J. concurred.
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