James L. Cleary (Applicant)
v.
Public Service Appeal Board (Respondent)
Court of Appeal, Jackett C.J., Thurlow J. and
Cameron D.J.—Ottawa, March 5 and June 13,
1973.
Public service—Competition—Test paper not submitted to
Commission—Appeal to Appeal Board—Duty to obtain
documents necessary to test complaint—Public Service
Employment Regulations, s. 16(2).
An unsuccessful candidate in a public service competition
appealed on the ground that a test paper used in the compe
tition had not been submitted to the Commission as required
by Regulation 16(2) of the Public Service Employment
Regulations. The Appeal Board dismissed the appeal with
out examining the test paper.
Held, the decision of the Appeal Board should be set aside
and the matter referred back for a continuation of the
inquiry. On an inquiry under section 21 of the Public Service
Employment Act, the Appeal Board must take necessary
steps to obtain documents and information necessary and
readily available to test the applicant's complaint.
APPLICATION.
COUNSEL:
Maurice W. Wright, Q.C., for applicant.
J. E. Smith 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 set aside a decision of an appeal
board under section 21 of the Public Service
Employment Act.
The appointment attacked was made pursuant
to a competition conducted otherwise by oral
examination but, during which, one group of
questions were answered in writing on a paper
on which the questions were set out.
The applicant appealed and relied on Regula
tion 16(2) of the Regulations made under the
said Act, which reads as follows:
Every examination or test paper that is intended to be
written by a candidate shall be submitted to the Commission
for comments, if any, a reasonable time before the day fixed
for the examination or test.
The appeal 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
(cl) if the appointment has not been made, make or not
make the appointment,
accordingly as the decision of the board requires.
On the appeal, the Appeal Board was not
supplied with a copy of the test paper in ques
tion and did not, by the inquiry conducted under
section 21, learn of its having been used.
In the circumstances, in my view, the inquiry
was not properly carried out. An inquiry under
section 21, in my opinion, calls for the Appeal
Board taking the necessary steps to obtain the
documents and information obviously necessary
to test the appellant's complaints to the extent
that such documents or information are readily
available to it. This was not done in this case
and the matter should go back for a completion
of the inquiry.
However, in view of the fact that the legal
question as to the failure to comply with Regu
lation 16(2), if indeed there was such a failure,
was fully canvassed before us, I think I should
add that, in my view, a failure to comply with
that provision should only be held by the
Appeal Board to have invalidated an appoint
ment if it concludes that there is a real possibili
ty that compliance with the Regulation might
have brought about a different result. On that
view of the matter, the Appeal Board, on the
re-hearing, should take steps to ascertain the
policy of the Commission with regard to exami
nation and test papers submitted under Regula
tion 16(2).
I am of opinion that the decision of the
Appeal Board referred to in the section 28
application should be set aside and that the
matter should be referred back for a continua
tion of the inquiry under section 21 of the
Public Service Employment Act for a new
decision.
* *
THURLOW J. and CAMERON D.J. concurred.
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