A-654-77
Jacqueline Duplessis, Noël Maheu and Léo
Jodoin (Applicants)
v.
Public Service Commission Appeal Board
(Respondent)
Court of Appeal, Jackett C.J., Pratte and Le Dain
JJ.—Ottawa, April 14 and 24, 1978.
Judicial review — Public Service — First appeal from
competition considered only one of several grounds for appeal
— Second selections made with initial evaluations and list
identical to first list, with exception ordered by first Appeal
Board — Second appeal made but Appeal Board decided it
was not competent to hear appeal — Judicial review sought of
second Appeal Board's decision — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, s. 28 — Public Service Employment
Act, R.S.C. 1970, c. P-32, s. 21.
The Public Service Commission, following an Appeal Board's
decision to declare one candidate in a competition ineligible,
and to disallow the grounds of appeal involving the other
successful candidates, requested the selection board to re-evalu
ate all candidates. The normal course would have been to
appoint the proposed candidates remaining. The selection
board, exercising its option to use initial evaluations, produced
an identical list except for the candidate declared ineligible. A
second Appeal Board decided it was not competent to hear
applicants' second appeal; this section 28 application concerns
that decision.
Held, (Le Dain J. dissenting) the application is dismissed.
The error committed by the Public Service Commission in
acting in this manner rather than following the normal course,
does not give applicants the right to appeal again. Applicants
would not have had this right had the Commission acted as it
should have done. The second Appeal Board was correct in
holding that, following the first selection, applicants had
already unsuccessfully exercised their right to appeal the pro
posed appointments, other than the excluded candidate. Their
first appeal, which was against all proposed appointments, had
been allowed against the excluded candidate only, but dis
missed with respect to the other appointments.
Per Le Dain J. dissenting: The first Appeal Board in dealing
with only one ground of appeal did not impliedly reject the
other grounds. The procedure adopted by the Commission
induced the applicants to assume there would be a further right
to appeal the grounds that had not been considered by the first
Appeal Board. Inasmuch as the selection board did reconvene
and did publish a new eligibility list based on its previous
evaluations there was something against which the applicants
had a right to appeal on the grounds they had previously
asserted. If the second Appeal Board's decision is upheld the
result of the approach to the issues adopted by the first Appeal
Board and Commission is that the applicants have been effec
tively deprived of a right of appeal.
APPLICATION for judicial review.
COUNSEL:
John D. Richard, Q.C., for applicants.
Paul Plourde for respondent.
SOLICITORS:
Gowling & Henderson, Ottawa, for appli
cants.
Deputy Attorney General of Canada for
respondent.
The following is the English version of the
reasons for judgment delivered orally by
PRATTE J.: This application, which is made
pursuant to section 28 of the Federal Court Act, is
against the decision of a Board established by the
Public Service Commission, which decided it did
not have authority to rule on the appeal made by
applicants under section 21 of the Public Service
Employment Act'.
In the spring of 1977, applicants were unsuc
cessful candidates in a competition held in accord
ance with the provisions of the Public Service
Employment Regulations to select persons quali
fied for the position of Customs Superintendent
(PM-2) in the Department of National Revenue
(Customs and Excise) in Montreal. They subse
quently appealed, under section 21 of the Public
Service Employment Act, against all the proposed
appointments resulting from the competition. The
Appeal Board set up by the Public Service Com
mission held that only one of the grounds of appeal
put forward by applicants was valid, namely that
one of the successful candidates, Serge Lafrance,
was not entitled to participate in the competition.
The Appeal Board therefore allowed the appeal:
[TRANSLATION] The Appeal Board therefore allows the
appeals of Mrs. Jacqueline Duplessis, Mr. Noël Maheu and
Mr. Léo Jodoin against the proposed appointment of candidate
Serge Lafrance.
It should be pointed out that while the Board's
decision mentions that applicants had appealed
' R.S.C. 1970, c. P-32.
against all the proposed appointments and had put
forward several grounds of appeal, it discusses only
that ground concerning the ineligibility of Serge
Lafrance.
In my view the effect of this decision was simply
to prevent the Public Service Commission from
appointing Serge Lafrance. The decision did not
relate to the other proposed appointments, and
normally the Commission would have made them.
However, rather than proceeding in this way, the
Commission asked the selection board that had
already evaluated the candidates to re-evaluate all
of them except Lafrance. However, the Board was
given the option of simply using its initial evalua
tions. The Board chose to do this: it merely drew
up a new eligible list identical to the first one
except that Lafrance's name did not appear.
Applicants again appealed against the proposed
appointments, claiming that their knowledge and
abilities had not been properly evaluated by the
selection board. A second Appeal Board was set
up, but it decided that it was not competent to
hear the case. The main points of this decision
were expressed as follows:
[TRANSLATION] Having examined both the Department's
and appellants' arguments, it is my view that appellants were
not entitled to appeal and that I am not competent to hear their
case on its merits. The facts indicate that appellants had
already exercised their right of appeal against the proposed
appointments under section 21 of the Act and that after an
appeal against Mr. Lafrance's appointment had been upheld, a
repeat selection process had produced the same results, that is,
the staffing officer had issued the same eligible list minus only
Mr. Lafrance's name.
It would therefore appear that appellants have already exer
cised their right of appeal against the same proposed appoint
ments and that it is not for me to interfere in a decision already
rendered, which limited the confirmation of the appeal to only
one proposed appointment, although appellants had appealed
against all of them. I therefore find that appellants were not
entitled to appeal and that I am, therefore not competent to
hear them.
No decision on the merits will be rendered in this case.
Applicants are seeking to have this decision of
the second Appeal Board set aside. They maintain
that it deprives them of the right of appeal granted
in section 21.
In my opinion, applicants' claim cannot be
considered.
Following the decision of the first Appeal Board,
the Commission, under section 21(d), would nor
mally have made the proposed appointments, with
the exception of Lafrance, without consulting the
selection board a second time. No doubt by mis
take, the Commission did not proceed in this
manner: it consulted the selection board again, and
the latter decided to stand by its original decisions
regarding the candidates other than Lafrance. I do
not think that the error committed by acting in
this manner gives applicants the right to appeal
again; they would not have had this right had the
Commission proceeded as it should have.
I would have concluded in the same way if this
were a case in which the Commission,?ather than
repeating a selection process that an Appeal Board
had found irregular, decided to repeat only those
phases of the process in which the Board had
found defects. In a case of this type, candidates
who are eliminated after the second selection pro
cess and who want to complain about an
irregularity in a phase of the process that was not
repeated do not always have the right to appeal
under section 21. In my opinion, such candidates
do not have the right to appeal if they have already
exercised this right unsuccessfully after the first
selection process, or if they waive this right either
implicitly or explicitly. In the case at bar I think
that the second Appeal Board was correct in hold
ing that, following the first selection, applicants
had already unsuccessfully exercised their right to
appeal against the proposed appointments other
than that of Lafrance. The fact is that their first
appeal, which was against all the proposed
appointments, had been allowed against the
appointment of Lafrance only. In other words, the
appeal was dismissed with respect to the other
appointments.
For these reasons, I would dismiss the
application.
* *
JACKETT C.J. concurred.
* * *
The following are the reasons for judgment
delivered orally in English by
LE DAIN J. (dissenting): With respect, I am
unable to agree with the disposition of the present
section 28 application proposed by my brother
Pratte. In my opinion the case is indistinguishable
in principle from that of Boucher v. Public Service
Commission Appeal Board [1978] 2 F.C. 204. I
cannot agree that the first Appeal Board impliedly
rejected the other grounds of appeal. In my opin
ion it dealt with only one ground of appeal—that
affecting the candidacy or prospective appoint
ment of Lafrance—and only with the consequence
of that ground. In this respect I distinguish its
decision from the commentary on its decision
(Case, p. 18). This understanding of the scope and
effect of the first Appeal Board's decision is re
flected by the Commission's decision to reconvene
the selection board [TRANSLATION] "to re-evalu
ate all candidates except Mr. Serge Lafrance".
The applicants were induced by the procedure
adopted by the Commission, including the instruc
tion to the selection board to publish a new list of
eligibility and its assumption that there would be a
further right of appeal, to assume that there would
be an opportunity on the second appeal to assert
the grounds of appeal that had not been considered
by the first Appeal Board. It is asking too much of
the applicants, I think, to conclude in effect that
they should have "second-guessed" the Commis
sion and chosen to attack the decision of the first
Appeal Board, which was in some measure favour
able to them, on the ground that it did not deal
with the other grounds of appeal. Inasmuch as the
selection board did reconvene and did publish a
new list of eligibility based upon its previous
evaluations there was something against which the
applicants had a right to appeal on the grounds
they had previously asserted. If the decision of the
second Appeal Board is upheld the result of the
approach to the issues adopted by the first Appeal
Board and the Commission is that the applicants
have been effectively deprived of a right of appeal.
For these reasons I would allow the section 28
application and refer the matter back to the
Appeal Board for determination of the applicants'
appeals.
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.