A-110-74
K. Q. Ahmad (Applicant)
v.
Appeal Board established by the Public Service
Commission (Respondent)
Court of Appeal, Jackett C.J., Cattanach and
Pratte JJ.—Ottawa, November 26, 27, 1974.
Judicial review—Public Service—Release of employee for
incompetence—Objections to jurisdiction and procedure—
Release upheld—Public Service Employment Act, R.S.C.
1970, c. P-32, ss. 6(5), 31—Federal Court Act, s. 28.
A recommendation that the applicant be released from the
public service as incompetent was made under the Public
Service Employment Act. An appeal to a board established
by the Public Service Commission was dismissed. A section
28 application to set aside the Board's decision was based
on three grounds: (1) There was no recommendation by the
Deputy Head of the Department, under section 31(1) of the
Act, that the applicant be released, before notice was given
to the applicant or appeal by the applicant, and there was
therefore no "appeal" in respect of which the Board had
jurisdiction; (2) there was no valid recommendation from
the Department to the Commission, because the Deputy
Head had not personally formed the opinion that the
employee was "incompetent"; (3) the Board erred in law in
failing to decide, on the merits of the case, that the recom
mendation for the applicant's release should not be carried
out.
Held, the application should be dismissed on all grounds:
(1) The sequence of proceedings was that the Department
had notified the employee that a recommendation would be
made by the Commission; the employee appealed; and the
Deputy Heed then communicated his recommendation to
the Commission. Looked at as a legal proceeding, there was
no "appeal" under section 31, because there was no recom
mendation to appeal from, when the document of appeal
was sent to the Commission. However, this was not a legal
proceeding, but a part of departmental administration. A
decision to recommend the release was communicated to the
employee, who appealed from it and obtained the appeal
granted by section 31; there was substantial compliance
with the section. (2) Within his powers under section 6(5) of
the Public Service Employment Act, the Deputy Head had
validly authorized the Director, Personnel Branch, to per
form his duties under section 31 of the Public Service
Employment Act. That was adequate authority for the
Director to form an opinion of the employee's competence
under section 31. (3) An appeal board established under
section 31 would not be justified in deciding that a deputy
head's recommendation should not be acted upon, unless it
had material before it to satisfy it, as a matter of fact, that
the deputy head was wrong in forming the opinion that the
person in question was incompetent in performing the duties
of his employment.
Mungoni v. Attorney General of Northern Rhodesia
[1960] A.C. 337, considered. Carltona Ltd. v. Comrs. of
Works [1943] 2 All E.R. 560, applied.
JUDICIAL review.
COUNSEL:
Y. A. G. Hynna for applicant.
R. W. Côté for respondent.
SOLICITORS:
Gowling & Henderson, Ottawa, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered orally in English by
JACKETr C.J.: This is a section 28 application
to set aside a decision of a board established by
the Public Service Commission to conduct an
inquiry as a result of an appeal by the applicant
against a recommendation that he be
"released", under section 31 of the Public Ser
vice Employment Act, because "in the opinion
of the deputy head" he was "incompetent".
Section 31 reads as follows:
31. (1) Where an employee, in the opinion of the deputy
head, is incompetent in performing the duties of the position
he occupies or is incapable of performing those duties and
should
(a) be appointed to a position at a lower maximum rate of
pay, or
(b) be released,
the deputy head may recommend to the Commission that
the employee be so appointed or released, as the case may
be.
(2) The deputy head shall give notice in writing to an
employee of a recommendation that the employee be
appointed to a position at a lower maximum rate of pay or
be released.
(3) Within such period after receiving the notice in writ
ing mentioned in subsection (2) as the Commission pre
scribes, the employee may appeal against the recommenda
tion of the deputy head to a board established by the
Commission to conduct an inquiry at which the employee
and the deputy head concerned, or their representatives, are
given an opportunity of being heard,r and upon being notified
of the board's decision on the inquiry the Commission shall,
(a) notify the deputy head concerned that his recommen
dation will not be acted upon, or
(b) appoint the employee to a position at a lower max
imum rate of pay, or release the employee,
accordingly as the decision of the board requires.
(4) If no appeal is made against a recommendation of the
deputy head, the Commission may take such action with
regard to the recommendation as the Commission sees fit.
(5) The Commission may release an employee pursuant to
a recommendation under this section and the employee
thereupon ceases to be an employee.
The section 28 application is based on attacks
that, in effect, in my view, amount to three
contentions, viz:
(a) there was no recommendation by the
Department to the Commission, under section
31(1), that the applicant be "released" before
notice was given to the applicant of such a
recommendation and the applicant had
appealed therefrom, and there was therefore
no "appeal" in respect of which a "board"
established under section 31 had jurisdiction
to conduct an inquiry or in respect of which
such a board had jurisdiction to give the deci
sion that is the subject of this section 28
application;
(b) alternatively, there was no valid recom
mendation by the Department to the Commis
sion under section 31(1) because the deputy
head had not personally formed the "opinion"
that the applicant was "incompetent in per
forming the duties of the position" that he
occupied; and
(c) in the further alternative, the Board erred
in law in not deciding on the merits of the
case that the recommendation that the appli
cant be released should not be carried out.
Dealing with the last of these attacks first, it
is, in my view, based on a misconception. In the
absence of arbitrary standards laid down by
law, competence or incompetence is not some
thing that can, or must, be determined, as a
matter of law, by application of a rule. Whether
or not a person is competent or incompetent for
a post is a matter of opinion, and, in the absence
of any special legal direction, all that the law
can imply with regard thereto is that it must be
honestly formed, and that it must, in the first
instance at least, be based upon the observation,
by those under whom he works, of the manner
in which the person whose competence is in
question carries out his duties. In particular
circumtances, rough and ready rules of thumb
may be adopted by such persons as an aid to the
formation of the required opinion; but, in my
view, in the absence of
(a) some failure to apply properly some spe
cific statutory or other legal direction, or
(b) proof of bad faith on the part of those
whose observations and judgment are in
question,
a board of review established under section 31
would not be justified in deciding that a deputy
head's recommendation should not be acted
upon unless it had before it material that satis
fied it, as a matter of fact, that the deputy head
was wrong in forming the opinion that the
person in question was "incompetent in per
forming the duties of the position he occupies."
The portion of the Board's decision that deals
with this third attack reads as follows:
The Appeal Board is satisfied with the Department's
replies to the appellant's allegations. There is no evidence to
give the Appeal Board any reason to conclude that the
appellant's work performance was ever assessed on the
basis of any factors other than merit. With respect to the
quality of the appellant's work output, the evidence shows
that Father Pagano based his opinion on the quality of the
appellant's work on a review of only four translations sub
mitted to him by the appellant. On the other hand, the
Department has presented evidence, in the form of reports
from several of the appellant's superiors and reports from
the Advisory Committee on Quality to show that the quality
of the appellant's overall work performance throughout his
seven years' service in the Department did not meet mini
mum acceptable standards. On the basis of this material, the
Appeal Board cannot conclude that Father Pagan's assess
ment of the appellant's work can be held to refute the
Department's thoroughly documented contention that the
appellant fails to meet the quality standards required of a
TR 1 level employee.
Moreover, the appellant has presented no evidence to give
the Appeal Board any reason to conclude that the members
of the Advisory Committee on Quality for the September to
December, 1973, rating period were incapable of evaluating
the quality of the type of translations that the appellant was
primarily working on at that time. In any case, the evidence
shows that the report of this committee is quite consistent
with the reports of earlier committees whose competence
has not been challenged in this case.
With respect to the quantity of work produced by the
appellant, there is no evidence to give the Appeal Board any
reason to conclude that the appellant was required to pro
duce at a rate that was anything more than the minimum
which the Department had a right to expect from an
employee in the appellant's position.
The evidence presented in this case leaves the Appeal Board
with no doubt that the appellant is incompetent within the
meaning of Section 31 of the Public Service Employment
Act to perform the duties of the position at the TR1
level ... .
Since the appellant has not shown that his unsatisfactory
performance is due to matters within his control or that his
performance is likely to improve, the Appeal Board consid
ers that the Department is justified in taking action to have
the appellant released pursuant to Section 31 of the said
Act.
The submissions made on behalf of the appli
cant in connection with this attack are fairly
represented by his "Memorandum of Points of
Argument" in this Court. In Part II of his
"Memorandum of Points of Argument", the
applicant states the "Points in Issue" in this
connection as follows:
(c) The Appeal Board misdirected itself as to what stand
ards it had to determine in making a finding as to the
competence of the Applicant, and specifically, erred in
accepting as a minimum standard the requirement to
produce an average of 2,500 words (weighted) per day.
(d) The Appeal Board erred in law in holding that stand
ard of 2,500 words per day (weighted) imposed specifical
ly on the Applicant was the standard applicable generally
to employees at the TR-1 level.
(e) The Appeal Board made erroneous findings of fact
without regard to the materials before it in finding that the
Applicant had not met the minimum standards applicable
to his level. In doing so, the Appeal Board disregarded the
only evidence before it as to standards of general applica
tion to the TR-1 level, namely, the performance pay rating
system.
In Part III of his "Memorandum of Points of
Argument", the applicant developed several
points in this connection as follows:
4. Under Sections 10 and 12 of the Public Service Employ
ment Act, selection standards are established by the Public
Service Commission. Implicit in this, and in the system of
collective bargaining established under the Public Service
Staff Relations Act, is that the standards so established may
not be arbitrarily and unilaterally changed for any position
by the employer. Much less can the employer, or the
immediate superiors of an employee impose special stand
ards in respect of a particular employee.
5. In this case, neither the selection standards for the posi
tion of a TR-1 level employee (Casebook, p. 21) nor other
evidence before the Board established any specific mini
mum standards of general application. It was the duty of the
Appeal Board in its enquiry to determine what such mini
mum standards were in order to make a finding on whether
the Applicant should be released for incompetence in the
performance of duties at his TR-1 level. The Appeal Board
erred in law in not making a finding as to standards of
general application even though there was evidence before
him relevant to the issue.
6. The Appeal Board erred in law in finding that the Appli
cant was incompetent because he did not meet the standards
imposed on him specifically as to quantity and quality
production. As a matter of law, the Appeal Board's findings
are untenable on the evidence before him, even if the
additional evidence before this Court is not considered. The
Appeal Board erred in that it in effect made a finding as to
departmental standards of general application to TR-1
employees based on what the employee's immediate supe
riors had set as special standards for the Applicant. The
Appeal Board erroneously applied the standard of quantity
of 2,500 words per day (weighted) set by the superiors, in
the face of evidence that the minimum standards for a TR-1
could not reasonably be taken to be in excess of the quantity
and quality standards for performance pay increases estab
lished between the employer and employee as part of the
collective bargaining process. ,
As the applicant himself says, there are no
such things as "minimum standards of general
application" with regard to competency appli
cable to the position involved in this case. (I
find it inconceivable that there could be such
standards in the case of a professional person.)
As it seems to me, the Board approached the
matter in the proper way, having regard to the
views that I have already expressed with refer
ence to its duty in such a case, and I can see no
ground for saying that its decision can be set
aside under section 28(1 )(b) or (c).
There remain the two other points, each of
which raises the question whether there ever
was a recommendation under section 31, the
1 I make no reference to the paragraphs relating to ma
terial that was not before the Board and of which there is no
reason to think that the Board knew or should have known
when it gave its decision. Failure to find such evidence in
the course of its inquiry, if, as a reasonable matter, it should
have found it, might be a valid ground of attack but not
taking into account material that did not come to its atten
tion cannot be a ground for setting its decision aside under
section 28(1)(b) or (e).
existence of which was a condition precedent to
a board having jurisdiction to give a "decision"
under that section.
The first of these two points sufficiently
appears from the following portion of Part III of
the applicant's Memorandum in this Court:
2. Specifically, the recommendation was made by the Direc
tor of Personnel Administration purporting to act by virtue
of an Instrument of Delegation of powers by the Deputy
Head (Casebook, pgs. 211-214 and p. 283).
Section 31(1) places the duty and function of formulating
an opinion as to the competence of the employee in the
deputy head. While section 6(5) of the Public Service
Employment Act authorizes the delegation by the deputy
head of his powers, functions and duties to persons under
his jurisdiction, the deputy head by his Instrument of Dele
gation authorized the Director of Personnel Administration
to exercise and perform his powers only.
In the absence of specific delegation of the functions and
duties to the Director of Personnel Administration, the duty
and function to formulate an opinion remained with the
deputy head.
There was no evidence before the Board that the deputy
head had ever considered the matter; rather the letter from
the Director (Casebook, p. 211 and 283) and evidence of
departmental officials clearly show that the matter was
considered only at the level of the Applicant's immediate
superiors and the Director of Personnel Administration.
Section 6(5) of the Public Service Employ
ment Act provides that a deputy head may
authorize one or more persons under his juris
diction "to exercise and perform any of the
powers, functions or duties of the deputy head"
under that Act. By an instrument dated March
22, 1971, the deputy head in question author
ized inter alia the "Director, Personnel Adminis
tration Branch" to "exercise and perform the
powers and to delegate functions or duties"
conferred upon him by inter alia section 31 of
the Public Service Employment Act. In my view,
while not as aptly worded as it might have been,
this instrument was adequate authority for the
Director to form the opinion of the applicant's
incompetency that was a condition precedent to
a recommendation under section 31. 2 In any
event, quite apart from special statutory author
ization, in my view, this opinion was not one
a Compare Mungoni v. Attorney General of Northern
Rhodesia [1960] A.C. 336.
that required personal attention from the deputy
head and was validly formed by appropriate
departmental officials on the basis of the princi
ples applied in such cases as Carltona, Ltd. v.
Comrs. of Works.' See per Lord Greene M.R. in
that case at page 563:
In the administration of government in this country the
functions which are given to ministers (and constitutionally
properly given to ministers because they are constitutionally
responsible) are functions so multifarious that no minister
could ever personally attend to them. To take the example
of the present case no doubt there have been thousands of
requisitions in this country by individual ministries. It
cannot be supposed that this regulation meant that, in each
case, the minister in person should direct his mind to the
matter. The duties imposed upon ministers and the powers
given to ministers are normally exercised under the author
ity of the ministers by responsible officials of the depart
ment. Public business could not be carried on if that were
not the case. Constitutionally, the decision of such an offi
cial is, of course, the decision of the minister. The minister
is responsible. It is he who must answer before Parliament
for anything that his officials have done under his authority,
and, if for an important matter he selected an official of
such junior standing that he could not be expected compe
tently to perform the work, the minister would have to
answer for that in Parliament. The whole system of depart
mental organisation and administration is based on the view
that ministers, being responsible to Parliament, will see that
important duties are committed to experienced officials. If
they do not do that, Parliament is the place where complaint
must be made against them. 4
It would be quite impossible for the deputy head
of a large modern government department to
give personal attention to all such matters,
important as they may be to individuals con
cerned. That is why departmental administration
is organized as it is and, in my view, there is a
necessary implication, in the absence of some
thing expressly or implicitly to the contrary, that
ministers' powers, and deputy ministers'
powers, are exercised on their behalf by their
departmental organizations as long as they are
of an administrative character. To what extent
officials are allowed or required to do so in
particular cases is a matter of internal arrange
ment and outsiders have no status to question
the authority of an official in a particular case.
3 [1943] 2 All E.R. 560.
4 See also S. A. de Smith's Judicial Review of Administra
tive Action at pages 290-91 of the second edition.
I come now to the first attack made by the
applicant on the Appeal Board's decision, as
those attacks are enumerated above, which
attack I find the most difficult to resolve. Sec
tion 31 contemplates inter alia:
(a) a recommendation by the deputy head to
the Public Service Commission that an
employee be released for incompetency,
(b) a notice in writing to the employee "of a
recommendation that the employee ... be
released,"
(c) within a prescribed period after such
notice, an "appeal" by the employee "against
the recommendation" to a board established
by the Commission "to conduct an inquiry" at
which the employee and the deputy head con
cerned are given an opportunity of being
heard,
(d) a decision by the board at the end of its
inquiry,
(e) action by the Commission,
(i) notifying the deputy head that his
recommendation will not be acted upon, or
(ii) releasing the employee, "according as
the decision of the board requires".
In the ordinary course, one would have expect
ed that the first step would be the recommenda
tion by the deputy head to the Commission but
what happened here was that the Department
first notified the employee that it had been
decided that a recommendation would be made
to the Commission, the applicant then appealed
and the deputy head then communicated his
recommendation to the Commission, Looked at
as a legal proceeding, there was no "appeal"
under section 31 because there was no `recom-
mendation" to appeal from when the appeal
document was sent to the Commission. I must
say that I have great difficulty in resisting that
conclusion. However, on mature consideration,
I have come to the conclusion that it is not the
correct conclusion. The actions in question were
part of the administration of the Department
concerned and not a legal proceeding at all. A
decision had been taken to recommend release
for incompetency and it was communicated to
the employee who appealed from it and was
afforded exactly the relief contemplated by sec
tion 31 in respect of the recommendation of
which he had been given notice. I can see no
disadvantage and great advantage from the
point of view of administration of the Public
Service, in accepting this substantial compliance
with section 31 as falling within the terms there
of and I have accordingly concluded that this
attack also must be rejected.
I am, therefore, of the opinion that the section
28 application should be dismissed.
* * *
CATTANACH J. concurred.
* * *
PRATTE J. concurred.
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.