Jean O. Bauer (Applicant)
v.
Appeal Board of the Public Service Commission
(Respondent)
Court of Appeal, Jackett C.J., St.-Germain and
Bastin D.JJ.—Ottawa, May 28 and 31, 1973.
Public service—Appointments—Bilingualism made a basic
requirement for position—Requirement not determined by
Public Service Commission—Public Service Employment
Act, R.S.C. 1970, c. P-32, section 20.
In May 1972 applicant failed to qualify in a public service
competition for a manpower counsellor in the Department
of Manpower and Immigration because she did not meet one
of the basic requirements for the position, viz. proficiency in
French. Her appeal to an appeal board was dismissed. She
applied to this Court to set aside the decision on the ground
that the determination that French was a basic requirement
for the position had been made not by the Public Service
Commission, as required by section 20 of the Public Service
Employment Act, but by the Department or the Treasury
Board.
Prior to the competition, the Public Service Commission
had by regulation assigned to deputy heads of departments
the responsibility for providing a sufficiency of employees
qualified in English and French and had laid down guide
lines for determining the proportions of employees profi
cient in English and French. This regulation was, however,
revoked in April 1972, the Official Languages Act having by
then come into effect, on the ground that responsibility for
bilingual staffing had been assumed by the Treasury Board
and government departments.
Held, section 20 of the Public Service Employment Act
did not operate to invalidate the appointment.
Per Jackett C.J. and St.-Germain DJ.: Even assuming
(without deciding) that the Public Service Commission had
failed in its statutory duty under section 20 with respect to
the determination of language requirements for the adver
tised position, its failure did not deprive others having the
duty to staff the public service of their power and responsi
bility to continue staffing operations and, for that purpose,
to determine the basic language requirements.
Per Bastin D.J.: The effect of the revocation of the
regulation relieved deputy heads of the duty of observing
the regulation's requirements respecting language, but this
did not diminish but actually enlarged the powers of the
deputy heads.
APPLICATION.
COUNSEL:
M. W. Wright, Q.C., and J. L. Shields for
applicant.
D. H. Aylen and R. G. Vincent for
respondent.
SOLICITORS:
Soloway, Wright, Houston, Killeen and
Greenberg, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondent.
JACKETT C.J. (orally)—This is a section 28'
application to review and set aside the decision
of an Appeal Board under section 21 of the
Public Service Employment Acte dismissing the
applicant's appeal from the appointment of the
successful candidate in Competition 72-M&I-
CC-ATL-28 for a "Senior Manpower Counsel
lor" as a "PM 3" at the Canada Manpower
Centre, Moncton, N.B.
As appears from the announcement, which
was dated May 17, 1972, of a number of com
petitions for Senior Manpower Counsellors,
including Competition 72-M&I-CC-ATL-28,
that competition was open to "Employees of the
Department of Manpower and Immigration in
the Atlantic Region" and one of the "Basic
Requirements" for it was that "candidates .. .
be qualified in the knowledge and use of both
the English and French languages".
The applicant failed to qualify in that compe
tition because she failed to pass the examination
administered to determine proficiency in the
French language. The successful candidate was
another anglophone who passed that examina
tion.
The applicant appealed under section 21 of
the Public Service Employment Act, S.C. 1966-
67, c. 71,s. 1, by a letter reading in part:
I wish to base my appeal on the unreasonable bilingual
requirement on this position and that I have not been
properly considered.
It is unnecessary, in this Court, to examine
the reasons given by the Appeal Board for dis
missing the appeal because, in this Court, the
application was based on a ground that is quite
different from the ground on which the appeal
was based. The ground on which the section 28
application in this Court was based is set out in
Part IV of the applicant's Memorandum of
Points of Argument, as follows:
It is clear that the decision concerning the "basic require
ment" as to knowledge and use of the. French language in
the case at bar was decided possibly by the Department of
Manpower and Immigration and possibly by the Treasury
Board; not by the Public Service Commission. Since the
extent to which knowledge and use of the French language
is required, either in the Applicant's Department, or in her
portion or part thereof, was not determined by the Public
Service Commission, as required by Section 20 of the Public
Service Employment Act, it follows that the Applicant was
improperly required to comply with a "basic requirement"
for which there was no lawful authority.
The Public Service Appeal Board's decision should, there
fore, be set aside and the Appeal Board should be directed
to allow the appeal of the Applicant for the reason that the
"basic requirement" as to the knowledge of the French
language was not determined in accordance with the provi
sions of Section 20 of the Public Service Employment Act.
The sole question in this Court is, therefore,
what effect, if any, section 20 of the Public
Service Employment Act had on the validity of
the appointment appealed against by the
applicant.
The statutory law governing the organization
and operation of the Public Service has become
so complicated that it becomes necessary, for
the purpose of considering the effect of a provi
sion such as section 20 to recall so much of the
present and past statutory law as is necessary to
put the provision that has to be interpreted in
perspective.
Each of the Canadian government depart
ments has been created by a statute, which
statute defines the functions to be performed by
the department and also places at the head of
the department a Minister of the Crown who is
vested by the statute with "the management and
direction" of the department. 3 It is worthy of
note that, in the absence of any other limiting
provision, those words—management and direc-
tion—would embrace all the authority necessary
to determine what numbers and kinds of
employees should be in the department and to
select, and employ, the appropriate persons to
work in the department. There are, however,
various statutes that carve exceptions out of,
and impose limitations on, the very broad
powers of management conferred by the depart
mental Acts. Apart from the constitutional
requirement (section 106 of the British North
America Act, 1867) of obtaining appropria
tions from Parliament of the monies necessary
to operate the department, the most important
of such exceptions and limitations in Canada
has been the removal from the Minister's auth
ority of
(a) the power to determine the number and
kind of employees in the department and their
remuneration, and
(b) the power to select and employ the per
sons to work in the department.
It is the statutes that create these exceptions
from a Minister's management powers in which
appear the provisions that give rise to the dis
pute that has been raised by this application.
Prior to the enactment of the Public Service
Employment Act, the Public Service Staff Rela
tions Act and certain amendments to the Finan
cial Administration Act (c. 71, c. 72 and c. 74 of
the Statutes of 1966-67), these exceptions from,
and limitations on, the ministerial power to
manage departments appeared all together in a
readily understood way in Parts II and III of the
Civil Service Act, c. 57 of the Statutes of 1960-
61. The particular importance of these provi
sions, in relation to the present problem, is, as it
seems to me, that they indicate quite clearly
what has been meant by the three words "clas-
sification", "appointment" and "position",
which words have, as I read the statutes enacted
in 1967, continued to be used in such statutes
unchanged in meaning? To ascertain the mean
ing of "classification", "position", and
"appointment" in this context, it is sufficient to
read, from the Civil Service Act as it was at that
time, the following provisions:
Classification
9. (1) The Commission shall divide the civil service into
classes of employment and shall classify each position
therein.
(2) The Commission may subdivide each class into two or
more grades, but where a class is not so subdivided it shall
for the purposes of this section constitute a grade.
(3) The Commission shall define each grade by reference
to standards of duties, responsibilities and qualifications,
and shall give it an appropriate title.
APPOINTMENT
20. (1) Except as otherwise provided in this Act or the
regulations, the Commission has the exclusive right and
authority to appoint persons to positions in the civil service.
The next step, in an attempt to obtain an
over-all understanding of the statute law that
constitutes the context for the provisions that
have to be considered to dispose of this applica
tion, is to investigate what happened to the
functions of "classification" and "appointment"
when the Civil Service Act was replaced in
1967.
In so far as "classification" is concerned, the
power seems to have fallen back under the
general management power vested in the Minis
ters subject to the very general power vested in
Treasury Board by section 7(1) of the Financial
Administration Act, as amended by chapter 74
of 1966-67, to "provide for the classification of
positions and employees in the public service".
Nothing specific is to be found in the legislation
concerning the defining, in respect of any par
ticular position, of "standards of duties, respon
sibilities and qualifications"; but a power to do
so would seem to be inherent in management.
The employer must be able to define the qualifi
cations and duties of a position before he seeks
for a person to fill that position. Exactly how
the classification function was carried out in
practice at the relevant time is not clear on the
material before the Court, but, having regard to
the basis on which the matter was argued, it is
irrelevant for the purposes off this section 28
application.
In so far as appointment is concerned, that
power is continued, after the 1966-67 legisla
tion, in the Commission that is now called the
Public Service Commission. See Part II of the
Public Service Employment Act, R.S.C. 1970, c.
P-32. While this statute does not deal with clas
sification and says nothing, therefore, with ref
erence to "standards of duties, responsibilities
and qualifications", it introduces what would
seem to be a new concept, namely, "selection
standards", which may be prescribed by the
Commission as to education, knowledge, experi
ence, language,' age, residence or any other
matter that, in the opinion of the Commission, is
necessary or desirable having regard to the
duties to be performed. See section 12.
Another departure in the 1966-67 legislation
is that it contemplates the management func
tions in relation to employment of staff, which
are carved out of the general powers created by
departmental statutes, being returned (delegat-
ed) to the departments in whole or in part by
Treasury Board (section 7(2) of the Financial
Administration Act) and by the Public Service
Commission (section 6 of the Public Service
Employment Act) subject to controls and
supervision.
In fact, it would seem that the competition
that gave rise to the present application was
organized and carried on by officials of the
Department of Manpower and Immigration by
virtue of powers delegated by Treasury Board
or the Public Service Commission, or both, to
gether with the powers vested in the Minister 6
that had not been removed from him by the
statutes that I have been discussing.
I turn now to the provisions concerning lang
uage requirements for the employees of a
department.
The 1960-61 Civil Service Act contained the
following provision:
47. The number of employees appointed to serve in any
department or in any local office of a department who are
qualified in the knowledge and use of the English or French
language or both shall, in the opinion of the Commission, be
sufficient to enable the department or local office to per
form its functions adequately and to give effective service
to the public.
The Public Service Employment Act, which
was enacted in 1967, not only authorized the
Public Service Commission (section 12) to pre
scribe selection standards as to, among other
things, "language", but contained a separate
provision re language, viz:
20. Employees appointed to serve in any department or
other portion of the Public Service, or part thereof, shall be
qualified in the knowledge and use of the English or French
language or both, to the extent that the Commission deems
necessary in order that the functions of such department,
portion or part can be performed adequately and effective
service can be provided to the public?
With this provision apparently in mind, the
Public Service Commission adopted regulations,
on March 13, 1967, that contained a general
requirement that "In order that the functions of
a department or other portion of the Public
Service, or part thereof, as the case may be ...,
will be performed adequately and effective ser
vice will be provided to the public, every deputy
head shall take appropriate steps to ensure that
there are employees in every unit who are suf
ficiently proficient in the English language or
the French language or in both languages, as the
case may be, for those purposes" and which
also contained a requirement that every deputy
head take appropriate steps to achieve certain
defined objectives having regard to the language
"mix" of the public served by it.
The Official Languages Act, which was first
enacted by chapter 54 of the Statutes of 1968-
69, contains the following provision:
9. (1) Every department and agency of the Government
of Canada and every judicial, quasi-judicial or administra
tive body or Crown corporation established by or pursuant
to an Act of the Parliament of Canada has the duty to ensure
that within the National Capital Region, at the place of its
head or central office in Canada if outside the National
Capital Region, and at each of its principal offices in a
federal bilingual district established under this Act, members
of the public can obtain available services from and can
communicate with it in both official languages.
(2) Every department and agency of the Government of
Canada and every judicial, quasi-judicial or administrative
body or Crown corporation established by or pursuant to an
Act of the Parliament of Canada has, in addition to but
without derogating from the duty imposed upon it by sub
section (1), the duty to ensure, to the extent that it is
feasible for it to do so, that members of the public in
locations other than those referred to in that subsection,
where there is a significant demand therefor by such per
sons, can obtain available services from and can communi
cate with it in both official languages.'
On April 18, 1972, the Public Service Com
mission revoked the regulations concerning
language that I have already summarized.
Before doing so, a Bulletin was issued by the
Public Service Commission containing the fol
lowing statement:
The Commission will no longer determine how or when
bilingual service must be provided by departments or pre
scribe language requirements for positions in departments as
that function is now being assumed by the Treasury Board
and government departments.
The applicant's position, as I understand it, is,
in effect, that the Public Service Commission
was charged, by section 20 of the Public Service
Employment Act, with the power and responsi
bility of implementing a policy of introducing a
measure of bilingualism into the Public Service,
that, by its action in 1972, the Public Service
Commission abdicated such responsibility, with
the result that, from and after April 18, 1972, no
action was taken by or on behalf of the Com
mission to discharge the Commission's respon
sibilities under section 20, and that, without
some appropriate action by the Commission, or
some person to whom its section 20 powers had
been duly delegated, there could have been,
since that time, no valid requirement of bilingu-
alism in respect of any position to which the
statute applies. 9
It is unnecessary to express any opinion, as I
view the matter, on the question whether there
was an abdication of authority by the Public
Service Commission when it decided to cease
determining how or when bilingual service must
be provided by departments and to cease pro
scribing language requirements for positions in
departments.
I am of opinion that the better view of section
20 is that, in its legal operation, it imposed (on
the various persons who had otherwise the legal
authority to classify positions in the Public Ser
vice, to requisition appointments thereto and to
carry out the appointment process) a legal duty
to carry out those operations in such a way as to
implement any decision by the Commission
under section 20 as to the number of employees
appointed to serve in any department or portion
of the Public Service that must be qualified in
the knowledge and use of the English or French
language or both.
I do not find it necessary to form any opinion
as to whether the Public Service Commission is
bound by section 20 to continue actively to
exercise the powers impliedly conferred on it by
that section at all times. Even if it were so
bound, I should not have thought that section 20
necessarily contemplated that the Commission
carry on a continuing process of forming a view
thereunder at all times concerning all parts of
the Public Service. A more reasonable view, I
should have thought, would be that the Commis
sion is required to form a view concerning
potentially troublesome areas as and when cir
cumstances require. In any event, even if there
were a legal duty on the Commission to form a
view under section 20 with reference to a par
ticular portion of the Public Service at a particu
lar time and it had failed to do so, I am of the
view that its failure to do so, and the conse
quent absence of the condition to the coming
into operation of section 20, would not relieve
the persons whose duty it is to do all the various
things necessary to bring about particular
appointments to the Public Service of their
power and responsibility to continue the staffing
operations necessary to keep the machinery of
government operating.
Indeed, apart from the possible validity of the
regulations adopted in 1968 by the Commission
and revoked by it in 1972, to which I have
already referred, I should have thought that the
way that section 20 was intended to operate was
that, when a question arose as to the adequacy
of the number of employees with a particular
language qualification being appointed to a par
ticular part of the Public Service, the Public
Service Commission would inquire into the
matter and, after giving those concerned an
opportunity of being heard, would reach a con
clusion that would be binding, by virtue of sec
tion 20, on those who have the duty and legal
authority to carry on the staffing operations of
that part of the Public Service.
Whatever is the appropriate way of imple
menting the policy inherent in section 20 of the
Public Service Employment Act, I am of the
view that it does not operate to invalidate a
particular appointment where the basic language
requirement has been determined by those
otherwise entitled to do so even though, in
respect of the particular position involved, there
has been no action by the Public Service Com
mission to bring section 20 of the Public Service
Employment Act into operation so as to be a
factor in that determination.
An alternative view as to the effect of section
20 is based on its presence in Part II of the
Public Service Employment Act, which is en
titled "Appointment", and upon the sentence
structure of section 20 indicated by the words
"Employees appointed ... shall be qualified in
... the English or French language or both
...". This alternative view is that section 20
imposes a duty on those who make appoint
ments to see that each employee "appointed"
has a language qualification designed, along
with the language qualifications of all other per
sons appointed in the particular portion of the
Public Service, to accomplish the result that is
envisaged by section 20. This is a possible
view. 10 If it is the correct view, then, when the
Public Service Commission delegates the power
of appointment in respect of a particular class
of positions, the Commission's power of
appointment will be automatically subject, in
the hands of the departmental officials to whom
it is delegated, to the same legal requirements to
which it was subject by virtue of section 20
when it was being exercised by the Commission
through its own staff.
Whichever is the correct view of section 20, I
am of the view that that section does not oper
ate to invalidate the appointment that the appli
cant appealed against. As the section 28 applica
tion in this Court was based only on the
contention that section 20 has such an effect, in
my view, it must be dismissed.
* * *
ST. -GERMAIN D.J. concurred.
* * *
BASTIN D.J.—The background of this applica
tion has been described in the Reasons of the
learned Chief Justice. I concur in his conclusion
that the application should be dismissed but
deem it useful to set out my reasoning.
It was the contention of the applicant that the
Appeal Board erred in law in making its deci
sion by failing to find that the applicant was
required to have knowledge and use of both the
English and French languages without lawful
authority.
In support of this contention the applicant
argued that the Public Service Commission did
not specifically delegate to the Deputy Minister
of Manpower and Immigration any power to
deal with language qualifications and by its
Bulletin 72-8, dated March 30, 1972, and by the
repeal of Regulation 4, the Commission abdicat
ed the responsibility imposed on it by Parlia
ment. Bulletin 72-8, section 1, reads as follows:
The Commission will no longer determine how or when
bilingual service must be provided by departments or pre
scribe language requirements for positions in departments as
that function is now being assumed by the Treasury Board
and government departments.
The answer to this argument is that the instru
ment of delegation comprehended the powers,
functions and duties possessed by the Commis
sion to make appointments to be based on selec
tion according to merit subject only to four
limitations of which only two are relevant to the
proceeding, namely,
(b) selection standards prescribed under section 12 of the
Public Service Employment Act;
(c) The Public Service Employment Regulations made
under section 33 of the Public Service Employment Act.
Section 12(1) of the Public Service Employment
Act reads as follows:
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.
The effect of Regulation 4 was to restrict the
wide powers delegated to the Deputy Minister
as it laid down certain guidelines designed to
ensure that the functions of the department
would be performed adequately in relation to
the proficiency of the staff of the department in
the English or French language or both. The
effect of the repeal of the Regulation relieved
the Deputy Minister from the duty of observing
these guidelines and actually enlarged the scope
of the instrument of delegation.
With respect to Bulletin 72-8, it is merely a
policy announcement which has no legal force
so whether it is consistent with the intention of
Parliament as expressed in the Public Service
Employment Act or the Official Languages Act
or not, it does not affect the powers granted by
the Public Service Commission to the Depart
ment of Manpower and Immigration to make a
selection to fill the position in the Moncton
office. To dispose of the application it is not
necessary to decide whether the Commission's
Bulletin 72-8 has correctly interpreted the law,
because if the Public Service Commission has
the responsibility under sections 10 and 12 of
the Public Service Employment Act and section
39(4) of the Official Languages Act to prescribe
language requirements of candidates for
appointment or whether the responsibility has
been imposed on departments by section 9 of
the Official Languages Act, the Deputy Minister
of Manpower and Immigration in either case
had authority to prescribe that a knowledge of
both English and French be possessed by a
candidate for the position in question.
' 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.
2 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,
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.
3 In this case the appropriate statute is the Department of
Manpower and Immigration Act, sections 2, 3 and 4 of
which read:
2. (1) There shall be a department of the Government of
Canada called the Department of Manpower and Immigra
tion over which the Minister of Manpower and Immigration
appointed by commission under the Great Seal shall preside.
(2) The Minister holds office during pleasure and has the
management and direction of the Department of Manpower
and Immigration.
3. The Governor in Council may appoint an officer called
the Deputy Minister of Manpower and Immigration to be the
deputy head of the Department of Manpower and Immigra
tion and to hold office during pleasure.
4. The duties, powers and functions of the Minister of
Manpower and Immigration extend to and include all mat
ters over which the Parliament of Canada has jurisdiction,
not by law assigned to any other department, branch or
agency of the Government of Canada, relating to
(a) the development and utilization of manpower
resources in Canada;
(b) employment services; and
(c) immigration.
4 For use of "classification", see for example section
7(1)(c) of the Financial Administration Act and, for use of
"position", see the same provision and such provisions as
sections 13(b) and 18 of the Public Service Employment Act.
There is at least a superficial difference between "selec-
tion standards as to ... language" and the classification or
definition of a position that calls for a basic requirement of
knowledge of a language adequate for certain purposes.
Selection standards established by the Commission will be
used to determine whether a candidate has an adequate
knowledge of the language that is required by the depart
ment for the particular position. Section 47 of the Civil
Service Act of 1961, and possibly section 20 of the Public
Service Employment Act, deal, on the other hand, with the
number of employees in a portion of the Public Service who
will be required to be qualified in a specified language or
languages.
6 Ministerial powers of this character are exercised, in the
ordinary course of things, by his departmental officers.
See earlier footnote re the difference in character
between "selection standards" re language, the language
requirement for a particular position and the subject matter
of section 47 of the Civil Service Act, and possibly section
20 of the Public Service Employment Act, which seem to be
directed to the determination of the number of employees in
particular units of the Public Service that are required to
have specified language qualifications.
8 It is not necessary to consider here the precise legal
effect of section 9 of the Official Languages Act. It is not
put forward by counsel for either party as having a deter-
minative effect on the outcome of this application. It is,
however, a part of the narrative.
9 If this proposition is true in respect of bilingualism, it
would seem that it is equally true in respect of French or
English unilingualism.
10 It does not seem to me to be the better view because it
would seem to me to be a very awkward, if not an imposs
ible, way to obtain the desired result. Possibly, I am unduly
influenced, as between the two views, because it seems to
me that section 20 was merely designed to carry forward the
substance of section 47 of the Civil Service Act.
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.