T-3829-77
Donald Ashby MacKay (Plaintiff)
v.
Attorney General of Canada, Edgar Gallant and
Pierre Pronovost (Defendants)
Trial Division, Walsh J.—Ottawa, June 22 and 26,
1978.
Public Service — Closed competition — Competition
restricted to "employees ... in ... Quebec and Atlantic Prov
inces" — Plaintiff employed and resident in Ottawa
Informed that not eligible for competition — Interpretation of
advertisement — Whether or not place of employment was
confused with and substituted for area of residence — Public
Service Employment Act, R.S.C. 1970, c. P-32, ss. 2, 13.
Plaintiff, a public servant resident and employed in Ottawa,
unsuccessfully applied for two closed competitions, one open to
"employees ... in . .. Ontario and at Headquarters," and the
other open to "employees ... in ... Quebec and Atlantic
Provinces." This action is launched with respect to the latter
competition, where plaintiff was informed that he was not
eligible because of his not being employed in Quebec or the
Atlantic Provinces. The problem arises from the interpretation
of the advertisement and whether in fact place of employment
was not confused with and substituted for area of residence
which would not be permissible under the Act.
Held, the action is dismissed. Plaintiffs appeal is a highly
technical one. The advertisement for the competition restricted
to Quebec and the Atlantic Provinces would clearly have
excluded him even though it does not use the words "residing in
Quebec and Atlantic Provinces" as it might well have, as he
neither resided nor worked there. The proper competition for
him to apply for was the Ontario competition to which he was
directed; he suffered no prejudice by having his application
restricted to that competition. While there may be some
ambiguity in the wording of the notice, it is not possible to
conclude that plaintiff was in any way dealt with unfairly or on
a discriminatory basis.
Fredette v. Public Service Commission [1972] F.C. 1343,
referred to. Griffon v. Attorney General of Canada [1973]
F.C. 670, referred to. Brown v. Public Service Commission
[1975] F.C. 345, referred to.
ACTION.
COUNSEL:
William A. Garay for plaintiff.
Duff Friesen for defendants.
SOLICITORS:
Piazza, Allard, Ottawa, for plaintiff.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for judgment
rendered in English by
WALSH J.: This action was tried on the basis of
a revised agreed statement of facts wherein it was
agreed that paragraph 1 of the defence filed by the
Deputy Attorney General of Canada accurately
sets out the material facts, except that:
(a) The competitions referred to in paragraph
(c) thereof were closed competitions within the
meaning of the definition of that phrase in
subsection 2(1) of the Public Service Employ
ment Act;
(b) The plaintiff does not agree that the deter
mination referred to in paragraph (e) thereof
was "in accordance with s. 13 of the Public
Service Employment Act ..." and
(c) The letter dated August 29, 1977 from the
defendant Pierre Pronovost referred to in para
graph (f) of the defence filed herein informed
the plaintiff that:
Unfortunately, we are unable to consider your candidacy
for this competition as only the employees of the province of
Quebec and Atlantic provinces are eligible.
In the agreed statement of facts it was further
stated that:
The Canada Employment and Immigration Commission (or its
predecessor in the conduct of the competitions) gave notice of
the competitions and of the said determinations by way of
posters and otherwise, all in accordance with s. 14 of the Public
Service Employment Act.
The paragraph 1 of the statement of defence
referred to in the revised agreed statement of facts
reads as follows:
1. In answer to the Statement of Claim as a whole, the Deputy
Attorney General of Canada says that:
(a) The Plaintiff is employed by Her Majesty the Queen in
right of Canada as represented by the Treasury Board, and
has been so employed at Ottawa, Ontario for more than 4
years and resides in the Province of Ontario;
(b) The Defendant Edgar Gallant is the Chairman of the
Public Service Commission established under the Public
Service Employment Act, R.S.C. 1970 c. P-32;
(c) At the times material to this action the Canada Employ
ment and Immigration Commission, established under the
Employment and Immigration Department and Commission
Act, S.C. 1976-77, c. 54, was conducting competitions for the
positions of Adjudicator PM-4 under competition numbers
77-M &I-CC -IMM-H8, 77-M &I-CC-IMM-H9 and
77-M&I-CC-IMM-H10, the authority to do so having been
delegated to the Chairman of the said Commission in accord
ance with subsection 6(1) of the Public Service Employment
Act;
(d) There were 3 selection boards constituted to select and
place the highest ranking candidates in the said competitions
on eligible lists, as necessary to provide for the filling of
vacancies across Canada for the positions of adjudicator, and
the Defendant, Pierre Pronovost, was the Chairman of the
selection board constituted to select and place the highest
ranking candidates on eligible lists, as necessary to provide
for the filling of vacancies in competition number 77-M&I-
CC-IMM-H10 for the positions of adjudicator in Quebec
and the Atlantic Provinces;
(e) In accordance with section 13 of the Public Service
Employment Act, the Canada Employment and Immigration
Commission (or its predecessor in the conduct of the said
competitions) determined that the persons eligible for
appointment through the competition numbered 77-M&I-
CC-IMM-H10 must be:
Employees of M&I, UIC and the IAB in the Quebec and
Atlantic Provinces occupying positions having a maximum
yearly salary from $19,123 to $21,299.
and that the persons eligible for appointment through the
competition numbered 77-M&I-CC-IMM-H9 must be
Employees of M&I, UIC and IAB in the Province of
Ontario and at Headquarters occupying positions having a
maximum yearly salary from $19,123 to $21,299.
(f) The Plaintiff submitted applications for competition
numbered 77-M&I-CC-IMM-H9 and 77-M&I-CC-IMM-
H10 but was informed by way of a letter dated August 29,
1977 from the Defendant Pierre Pronovost that he was not
eligible for appointment through the competition numbered
77-M&I-CC-IMM-H10 because the Plaintiff was not
employed in Quebec or the Atlantic Provinces;
(g) The Plaintiff's application in the competition numbered
77-M&I-CC-IMM-H9 for the positions of adjudicator in
Ontario was considered by the selection board constituted to
select and place the highest ranking candidates in that
competition but his name was not placed on the eligible list
because he failed to meet the qualifications for the position.
(h) The qualifications for the positions of adjudicator in the
competition numbered 77-M&I-CC-IMM-H9 in Ontario
were the same as the qualifications for the positions of
adjudicator in the competition numbered 77-M&I-CC-
IMM-H10 in Quebec and the Atlantic Provinces, and the
basis for assessment of the candidates' qualifications for the
positions was the same;
(i) The competition numbered 77-M&I-CC-IMM-H10 is
concluded in that:
(i) the eligible list with respect to the positions of
adjudicator PM-4 in Quebec and the Atlantic Provinces
was established with 12 successful candidates;
(ii) the period within which unsuccessful candidates had
the right under section 21 of the Public Service Employ
ment Act to appeal against the appointment of the persons
identified on the said eligible list expired on November 29,
1977; and
(iii) There were no successful appeals and there are no
outstanding appeals against the appointment of the per
sons identified on the said eligible list.
It is common ground that plaintiff was
employed in the Public Service in Ottawa and
resided in the Province of Ontario at the times
material to the action. The issue arises because
plaintiff was informed by defendant Pierre Prono-
vost that he was not eligible for appointment
through the competition numbered 77-M &I-CC-
IMM-H 10 (hereinafter conveniently referred to as
H10) because he was not an employee of Quebec
or the Atlantic Provinces. He originally came from
Halifax and was educated at Dalhousie University
and it was his wish and desire to return to Halifax
or the Maritime area. However he did apply for
the competition under number 77-M &I-CC-
IMM-H9 (hereinafter referred to as H9) for
Ontario but in that competition his name was not
placed on the eligible list because he failed to meet
the qualifications for the position and as indicated
in the statement of defence the basis for assess
ment of the candidates' qualifications for the posi
tion were the same. The delay in which unsuccess
ful candidates in the H10 competition could
appeal has expired but this has no significance in
any event since he was not allowed to participate
in that competition.
Section 13 of the Public Service Employment
Act' reads as follows:
13. Before conducting a competition, the Commission shall
(a) determine the area in which applicants must reside in
order to be eligible for appointment; and
(b) in the case of a closed competition, determine the part, if
any, of the Public Service and the occupational nature and
level of positions, if any, in which prospective candidates
must be employed in order to be eligible for appointment.
The competition was a closed competition which is
defined in section 2(1) of the Act as follows:
"closed competition" means a competition that is open only to
persons employed in the Public Service;
While plaintiff based one of his arguments on the
fact that in the case of a closed competition the
Commission may only determine the part, if any,
of the Public Service and the occupational nature
' R.S.C. 1970, c. P-32.
and level of positions, if any, in which the prospec
tive candidates must be employed in order to be
eligible for appointment, in accordance with sec
tion 13(b) of the Act and cannot otherwise impose
any limitation on the eligibility for appointment of
the prospective candidates, there is no doubt that
this does not exclude the operation of paragraph
(a) of section 13 which is followed by the word
"and" so that the right to determine the area in
which applicants must reside in order to be eligible
for appointment in paragraph (a) applies generally
to both open and closed competitions, in addition
to which in the case of a closed competition further
requirements can be imposed pursuant to para
graph (b), as was done in this case.
Plaintiff's principal contention rests on the argu
ment that in advising him that he could not be
considered as a candidate for the H10 competition
for Quebec and the Atlantic Provinces this exclu
sion was based on the area in which he was
employed rather than on the area in which he
resides, the latter being a criterion which the
Commission may use pursuant to section 13(a) of
the Act, whereas nowhere in the Act is there any
authority to use the place where he is employed as
a criterion, and that this is particularly so in the
case of a closed competition pursuant to section
13(b) which in defining the criteria specifically
authorized in the case of a closed competition
makes no reference to the area in which a candi
date must be employed in order to enter such a
competition.
Certainly residence and place of employment
are not necessarily synonymous although in most
cases they will be. However in the case of plaintiff
he could not claim to be resident elsewhere than in
Ontario where he was also employed. One can
readily foresee, however, problems of interpreta
tion which could arise in the case of an applicant
resident in Hull but employed in the Public Ser
vice in Ottawa or conversely, and it is plaintiff's
contention that even if he cannot claim to have
personally been in such an ambiguous category
nevertheless, if the Commission in advertising a
competition erroneously bases one of the qualifica
tions on place of employment rather than on area
of residence as it is entitled to do, then the entire
competition is invalid as defendants exceeded their
jurisdiction and had no authority to impose any
restriction on eligibility on any of the candidates
based upon the geographic area in which they
might be employed at the date of their
applications.
It appears that the Commission may have fore
seen and attempted to overcome the difficulty with
respect to an employee residing in Hull and
employed in Ottawa or conversely in that whereas
the restriction imposed in the advertisement for
competition H10 read as follows:
Employees of M&I, UIC and the IAB in the Quebec and
Atlantic Provinces occupying positions having a maximum
yearly salary from $19,123 to $21,299,
whereas that for competition H9 read:
Employees of M&I, UIC and the IAB in the Province of
Ontario and at Headquarters occupying positions having a
maximum yearly salary from $19,123 to $21,299.
Apparently employees employed at Headquarters
would be expected to apply in the Ontario compe
tition H9 and would be able to do so even though
they resided in Hull or elsewhere on the Quebec
side of the provincial border. One might wonder
what would have been done if an employee at
Headquarters residing in the Province of Quebec
preferred to apply in the Quebec and Atlantic
Provinces competition H10. In such a case the
Commission if it refused this and directed the
applicant to the Ontario competition would cer
tainly be unable to argue that the restriction was
based on the area of residence pursuant to section
13(a) unless the whole of the Outaouais Region is
considered as an "area" rather than considering an
area as the Province in which the applicant was
resident at the time of the application. All this is
hypothetical however since in the case of plaintiff
he not only was employed in the Public Service in
Ontario but also resided in Ontario, so in his case
the two were synonymous and it is only common
sense that he should have been directed to the
Ontario competition. His willingness and even his
desire to reside in the Atlantic Provinces should he
be successful in the competition would have been
entirely irrelevant if it had been clear that the
competition was restricted to persons in the
employ of the Public Service and subject to limita
tions of section 13(b) and also limited to those
residing in Quebec or the Atlantic Provinces pur
suant to the provisions of section 13(a), as the Act
gives the Commission the power to impose these
qualifications.
The problem in the present case arises from the
interpretation of the advertisement and whether in
fact place of employment was not confused with
and substituted for area of residence which would
not be permissible under the Act.
The wording of the advertisement "OPEN TO:
Employees of M&I, UIC and the IAB in the
Quebec and Atlantic Provinces" can certainly be
read in one interpretation as referring to persons so
employed in those provinces wherever they may
reside, and in such event the restriction would not
be one authorized by the Act. On the other hand
defendants contend that the use of the word "of"
followed by the three departments whose
employees are eligible (within the salary limita
tions) has the effect of dealing with the question of
employment and the word "in" followed by the
words "the Quebec and Atlantic Provinces" must
therefore refer to the place where they are residing
and hence the restriction validly comes within
section 13(a). The wording of the advertisement
for Ontario competition H9 does not help defend
ants since the word "Headquarters" clearly cannot
designate a residential area and hence the restric
tion in connection with that advertisement cannot
be held to have been based on area of residence
pursuant to section 13(a). However, it is not the
competition H9 which plaintiff seeks to set aside in
the present case, so this advertisement can only be
referred to in an attempt to interpret the advertise
ment in connection with competition H10.
The wording of the letter of defendant Pierre
Pronovost to plaintiff states "only the employees of
the province of Quebec and Atlantic provinces are
eligible" whereas the advertisement uses the words
"in the Quebec and Atlantic Provinces". I do not
believe that there is any significance however in
the use of the word "of" instead of the use of the
word "in". If anything it might be somewhat more
favourable to plaintiff who might possibly have
contended that he is "of" the Atlantic Provinces
his province of origin whereas he certainly was
neither resident nor employed "in" Quebec or the
Atlantic Provinces at the time of the competition.
If plaintiff had only applied for the competition
H 10 and been declared ineligible for it he might be
in a better position to contend that he had been
deprived of his rights or suffered some denial of
natural justice, but as he also applied for H9 and
was in effect directed to take it, which he did and
failed to meet the qualifications, and as it is
conceded that the basis for the assessment of the
qualifications is the same in the two competitions
he cannot claim to have suffered any prejudice.
While his counsel attempted to argue that the
number of candidates might have been greater, or
the qualifications stricter in the Ontario competi
tion than that for Quebec and Maritime Provinces
this would appear to be pure speculation and is in
fact contrary to the admitted facts on which the
action is being tried.
While there may be some ambiguity therefore in
the wording of the notice it is not possible to
conclude that plaintiff was in any way dealt with
unfairly or on a discriminatory basis.
While some jurisprudence was referred to by the
parties no cases are directly in point. In the case of
Fredette v. Public Service Commission 2 it was
held that an unsuccessful candidate in a closed
competition did not lose his right to appeal from
an unfavourable decision because his employment
in the Public Service had been terminated before
the appeal was heard. Cattanach J. sitting with the
Court of Appeal clearly stated at page 1347 that
the fact that no different result would follow even
if discretion were not exercised in favour of the
applicant was not something that he was entitled
to assume. Defendants referred to the case of
Griffon v. Attorney General of Canada 3 in which
the applicant complained that the notice of compe
tition did not contain a statement of qualifications
for the position nor mention any linguistic require
ments. The competition however was for promo
tion from one translator group to another. Jackett
C.J. stated at pages 672-673:
... I agree with the Appeal Board that it was not in the
circumstances a ground for setting aside the result of the
competition. In my view, a failure to comply with such a
regulation should only be held by the Appeal Board to have
2 [1972] F.C. 1343.
3 [1973] F.C. 670.
invalidated an appointment if it concludes that there is a real
possibility that compliance with the Regulation might have
brought about a different result. As the Appeal Board has
indicated here, it was obvious from the fact that the competi
tion was for promotion from one translator group to another
that bilingualism was an essential requirement for the position.
Reference was also made by defendants to the case
of Brown v. Public Service Commission 4 . Jackett
C.J. stated at pages 374-375:
In reaching this conclusion, I think it is important to bear in
mind that the section 21 appeal procedure is an administrative
review of an administrative process and should be conducted
with a view to finding and correcting injustices and not so as
blindly to create technical difficulties and delays. Administra
tive documents should not be read "microscopically" but with a
view to extracting the meaning that must have been intended
by the administrators by whom they were created.
While the statement of facts in that case was
entirely different I am of the view that plaintiff's
appeal in the present is a highly technical one, that
the advertisement for the competition B 10 would
clearly have excluded him even though it does not
use the words "residing in the Quebec and Atlantic
Provinces" as it well might have, as he neither
resided nor worked there, and that the proper
competition for him to apply for was the Ontario
competition to which he was directed, and that he
suffered no prejudice by having his application
restricted to that competition.
In any event the competition was being conduct
ed by the Employment and Immigration Commis
sion established under the Employment and
Immigration Department and Commission Act 5
and not by the Public Service Commission estab
lished under the provisions of the Public Service
Employment Act and since Edgar Gallant was
Chairman of the Public Service Commission no
claim can lie against him so the action would have
to be dismissed with respect to defendant Edgar
Gallant.
Plaintiff's action is therefore dismissed with
costs.
4 [1975] F.C. 345.
5 S.C. 1976-77, c. 54, Part I.
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.