A-190-78
Donald E. Perry (Applicant)
v.
Public Service Commission Appeal Board
(Respondent)
Court of Appeal, Pratte, Urie and Ryan JJ.—
Ottawa, January 17 and 23, 1979.
Judicial review — Jurisdiction — Public Service — Appeal
Board allowing appeal against proposed appointment of appli
cant — Sound judicial administration requiring rejection of
argument that Board failed to observe principle of natural
justice in allowing appeal against applicant's appointment
without affording him an opportunity to be heard — Appli
cant's name was merely appearing on eligible list — Necessary
to establish applicant not about to be appointed — Application
dismissed — Public Service Employment Act, R.S.C. 1970, c.
P-32, s. 21 — Public Service Employment Regulations, SOR/
67-129, s. 7(1)(a) — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
Maurice W. Wright, Q.C. and D. G. Ravin for
applicant.
Walter L. Nisbet, Q.C. for respondent.
SOLICITORS:
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This is a section 28 application to
review and set aside a decision of an Appeal Board
under section 21 of the Public Service Employ
ment Act, R.S.C. 1970, c. P-32, allowing an appeal
against the proposed appointment of the applicant
to a position in the Public Service following a
closed competition held pursuant to section
7(1)(a) of the Public Service Employment Regu
lations, SOR/ 67-129.
The applicant's only ground of attack is that the
Board failed to observe a principle of natural
justice in allowing the appeal against his appoint
ment without giving him any opportunity to be
heard. An identical attack against a similar deci
sion of a section 21 Appeal Board was rejected by
this Court in Dumouchel v. Appeal Board, Public
Service Commission [1977] 1 F.C. 573; for that
reason, the applicant's contention must also, in my
view, be rejected. Sound judicial administration
requires that the Court, save in exceptional cases,
follow its previous decisions.' Even though I enter
tain serious doubts as to the correctness of our
decision in Dumouchel, this is not a case where we
should depart from the rule.
This does not dispose of the matter, however,
since counsel for the respondent, while opposing
the applicant's argument, took the position that
the Board's decision had to be set aside on another
ground. His contention was based on the text of
section 21 which gives a right of appeal only
"Where a person is appointed or is about to be
appointed" and on the view that the record shows,
not that the applicant was such a person, but
merely that his name appeared on an eligible list;
it follows, said counsel, that the appeal against the
applicant's appointment should have been dis
missed as premature. In order to dispose of this
argument, it is not necessary to determine whether
it is founded on a correct interpretation of section
21. The question whether or not the applicant was
"about to be appointed" is a question of fact to be
resolved on the basis of the record. That record
shows that the applicant's name was on the eligible
' In Murray v. Minister of Employment and Immigration
[1979] 1 F.C. 518, Jackett C.J. had this to say on the subject
[at pages 519-520):
In my view, such a recent decision of this Court, which is
directly in point, should be followed even if, had the members
of this Division constituted the Division of the Court by
whom it was decided, they might have decided it differently.
In saying this, I am not applying the principle of stare
decisis, which, in my view, does not apply, as such, in this
Court. I am following what, in my view, is the proper course
to follow from the point of view of sound judicial administra
tion when a court is faced with one of its recent decisions. It
would, of course, be different if the recent decision had been
rendered without having the point in mind or, possibly, if the
Court were persuaded that there was an obvious oversight in
the reasoning on which it was based.
See, also, the decision of the House of Lords in Davis v.
Johnson [1978] 2 W.L.R. 553.
list and does not disclose any other reason for
believing that he was about to be appointed. It
does not show, however, what had to be established
in order for counsel's argument to succeed,
namely, that the applicant was not about to be
appointed. The factual basis of counsel's argument
is therefore not established and, for that reason,
the argument must be rejected.
I would dismiss the application.
* * *
URIE J.: I agree.
* * *
RYAN J.: I agree.
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.