A-188-73
Telesphore Demers (Applicant)
v.
Attorney General of Canada (Respondent)
Court of Appeal, Jackett C.J., Pratte J. and
Cameron D.J.—Ottawa, February 18 and 19,
1974.
Judicial review—Public service—Appointment without bi
lingual qualification—Appeal Board affirming—Bilingual
qualification not prescribed before decision of Appeal
Board—No error in law—Federal Court Act, s. 28—Official
Languages Act, R.S.C. 1970, c. O-2—Public Service
Employment Act, R.S.C. 1970, c. P-32, ss. 10, 12, 20, 21;
Public Service Employment Regulations, s. 7.
An Appeal Board, established under section 21 of the
Public Service Employment Act, dismissed the appeal of the
applicant against the proposed appointment of the success
ful competitor. In an application under section 28 of the
Federal Court Act for review of the decision, it was con
tended that an essential qualification for the position in
question was that the employee be bilingual and that this
qualification was lacking in the successful competitor.
Held, the language requirement for the position, when the
request for appointment was made by the Deputy Minister
under section 10 of the Public Service Employment Act, was
either French or English. No change in that requirement had
been made prior to the decision of the Appeal Board in this
`case. Although a policy directive from the Treasury Board
had laid down principles which, if applied when the Depart
ment was framing the qualifications for the position here,
would have made the position bilingual, this policy directive
had no statutory authority and its mere existence had no
operative effect.
The appointment was not invalidated by section 20 of the
Public Service Employment Act and no provision in the
Official Languages Act would make a particular position
bilingual in the absence of departmental sanction. As no
error in law had been shown under section 28(1) of the
Federal Court Act, the application was dismissed.
Moreau v. Public Service Appeal Board [1973] F.C.
593, distinguished; Bauer v. Appeal Board of the Public
Service Commission [1973] F.C. 626, applied.
APPLICATION.
COUNSEL:
The applicant on his own behalf.
R. G. Vincent for respondent.
SOLICITORS :
The applicant, Ottawa, on his own behalf.
Deputy Attorney General of Canada for
respondent.
JACKETT C.J. (orally)—This is a section 28
application to review and set aside a decision
delivered by Mr. G. E. Swanson, as Chairman
of an appeal board under section 21 of the
Public Service Employment Act, on October 31,
1973, whereby he dismissed an appeal by the
applicant against the proposed appointment of
R. J. L. Read to a newly created position as
"Unit Head, Technical Interpretations Division"
in the Legislation Branch of the Department of
National Revenue and Taxation.
A poster entitled "Opportunity for Promo
tion" with reference to the competition for the
position was published under date of August 7,
1973. This poster referred to the position as
AU 5 —Head Office
Unit Head, Technical
Interpretations Division
Legislation Branch,
stated that the competition was open to
employees of the Department, set out the salary
range and duties of the position and then, under
the heading "Qualifications", after giving as the
"Basic Requirements" that "Candidates must be
classified in the Auditor Group or be qualified
for entry to that Group" and that "Knowledge
of either the English or French language is
essential", spelled out in detail "Essential" and
"Desirable" qualifications.
The applicant and Read were among the can
didates in the competition. A selection board
made a report on September 4, 1973, declaring
Read to be the successful candidate.
By a letter dated September 18, 1973, the
appellant appealed against the prospective
appointment of Read. On October 31, 1973, Mr.
Swanson, Chairman of the Appeal Board, dis
missed the appeal.
The appeal against the proposed appointment
was under section 21 of the Public Service
Employment Act, which 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 section 28 application to this Court is an
application, under section 28(1) of the Federal
Court Act, that the decision dismissing the
appeal be set aside, and can only be granted on
a ground that falls in one of the classes
described in section 28(1). Applying section
28(1) to the circumstances of this case, this
section 28 application can only be granted if, in
making its decision, the appeal tribunal erred in
law.
The applicant based his section 28 application
on two contentions in respect of which this
Court did not find it necessary to call on coun
sel for the respondent. The first of these was a
contention that the Appeal Board erred in law in
not holding that the selection board failed to
comply with section 7(4) of the Public Service
Employment Regulations when it made its
report without considering his "Performance
Rating". This contention depended upon section
7(4) applying to the competition in question. In
our view, when section 7(4) is read with section
7(1), it is clear that it does not apply to a
"closed competition", which the competition in
question is, but to "other process of personnel
selection" falling within section 7(lxb). The
other contention to which counsel for the
respondent was not required to reply was that
the Appeal Board erred in law in not holding
that there was a fatal error in the selection
process by reason of the fact that certain rele
vant selection standards adopted by the Public
Service Commission under section 12 of the
Public Service Employment Act had not been set
out in the poster advertising the competition. In
this connection, the applicant relied on the deci
sion of this Court in Moreau v. Public Service
Appeal Board.' In that case, however, the
Appeal Board had held that certain require
ments of the selection standards, with which the
successful candidate did not comply, could be
ignored in that case and this Court held that
such standards, by virtue of section 12, had to
be complied with in making the selection of the
person to be appointed. In this case, the suc
cessful candidate does comply with the selec
tion standards. The only complaint is that the
relevant selection standards should have been
set out in the poster advertising the competition
and were not so set out: There are, however,
regulations governing what must be set out in
the notice of the competition and it is not
alleged that these regulations were not complied
with. In effect, what must be advertised are the
requirements of the department in respect of the
employee to be appointed and not the "selection
standards" set up by the Public Service Com
mission to govern the selection process. 2
I turn now to the contentions put forward by
the applicant in support of his section 28
application concerning which it was necessary
to hear counsel for the respondent. In effect,
the applicant contended that, notwithstanding
the terms of the poster, which, as already noted,
called for "knowledge of either the English or
French language", it was an essential qualifica
tion for the position in question that the
employee be bilingual. It is clear that, if he is
wrong in that contention, there is no basis in law
for his attack on the proposed appointment.
1 [1973] F.C. 593.
2 It must be recognized that some of the so-called "selec-
tion standards" prescribed by the Commission under section
12 so resemble statements of qualifications that a superficial
reading of them makes one wonder whether they are really
"selection standards" within section 12 at all. However, no
opinion need be expressed on that question at this time.
There is no doubt, on the material that has
been put before this Court, that, as the qualifi
cations for the position were framed when the
request for appointment was made by the
deputy minister under section 10 of the Public
Service Employment Act, the language require
ment was either French or English and that no
action had been taken to change that require
ment prior to the decision of the Appeal Board
that is the subject of this section 28
application.' That being so, this branch of the
applicant's attack on that decision must fail.
What caused confusion is that a government
policy directive had been issued in the form of a
Treasury Board circular laying down principles
to be applied by departments in deciding what
positions should be made bilingual; and it
appears to be common ground that, if such
principles had been applied when the depart
ment was framing the qualifications for the
position here in question, it would have been
made a bilingual position. There seems, more
over, to have been some misapprehension on
the part of the departmental officials, and also
on the part of the Chairman of the Appeal
Board, that this policy directive had some oper
ative effect of its own force; and the Chairman,
in his reasons for dismissing the appeal, dis
cusses the matter on the basis that the position
in question may have been bilingual.
In my view, the mere existence of the policy
directive had no operative effect. It does not
appear to have been made under statutory auth
ority. In any event, as framed, it does not pur
port to do more than direct certain action by
departments. Finally, as framed, it would not
appear to have been intended to require any
action in respect of a position in respect of
which a section 10 request had been made to
the Public Service Commission before the
policy directive was communicated to that
department until such time as occasion arose to
initiate new action to have the position filled.
3 There must be some doubt whether one of the essential
requirements for a position can be changed after a competi
tion is launched without cancelling the competition.
I have not overlooked the applicant's reliance
on section 20 of the Public Service Employment
Act and on the Official Languages Act. In so far
as section 20 is concerned, I have nothing to
add to what I said with regard to that section in
Bauer v. Appeal Board. 4 So far as the Official
Languages Act is concerned, I have seen no
provision in it that would operate, of its own
force to make a particular position bilingual in
the absence of departmental action.
In my view, the Chairman of the Appeal
Board, on the material before him, rightly dis
missed the applicant's appeal and this section 28
application should, therefore, be dismissed.
* *
PRATTE J. and CAMERON D.J. concurred.
4 [1973] F.C. 626.
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.