A-158-80
Adrien Dubé (Applicant)
v.
Public Service Commission of Canada Appeal
Board (Respondent)
Court of Appeal, Pratte J., Hyde and Lalande
D. JJ.—Quebec City, December 15 and 16, 1980.
Judicial review — Public Service — Application to set aside
Public Service Appeal Board decision dismissing appeal
brought pursuant to s. 21 of Public Service Employment Act
from proposed appointment of another candidate — Whether
Board erred in law by not cancelling result of competition on
the ground that personality test had not first been approved by
Commission — Whether Board erred in law by not requiring
members of selection board to furnish notes taken during oral
tests — Public Service Employment Act, R.S.C. 1970, c. P-32,
s. 21 — Public Service Employment Regulations, C.R.C. 1978,
Vol. XIV, c. 1337, subs. 14(1) — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
Guy Dussault for applicant.
James M. Mabbutt for respondent.
SOLICITORS:
Flynn, Rivard, Cimon, Lessard & LeMay,
Quebec City, for applicant.
Deputy Attorney General of Canada for
respondent.
The following is the English version of the
reasons for judgment of the Court delivered orally
by
PRATTE J.: Applicant is asking this Court, pur
suant to section 28 of the Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, to vacate a deci
sion by an Appeal Board established by the Public
Service Commission. By that decision, the Board
dismissed the appeal made by applicant, pursuant
to section 21 of the Public Service Employment
Act, R.S.C. 1970, c. P-32, from the proposed
appointment, as the result of a closed competition,
of a Mr. Lavoie to a position of regional captain in
the Canadian Coast Guard.
In support of his appeal, applicant made several
arguments. As was observed at the hearing, only
two of these require further consideration.
First, applicant maintained that the Appeal
Board had committed an error of law by not
cancelling the result of the competition on the
ground that subsection 14(1) of the Public Service
Employment Regulations, C.R.C. 1978, Vol. XIV,
c. 1337, had not been complied with, since the
personality test which applicant was required to
take had not first been approved by the
Commission.
Subsection 14(1) of the Regulations reads as
follows:
14. (I) No responsible staffing officer shall use as the basis
of determining the merit of candidates any written examination
or other test that is commonly referred to as a test of personal
ity, interest, intelligence or aptitude or any test of a like nature
unless, in each case, the Commission gives its prior approval
therefor.
This argument has to be rejected because, in our
opinion, applicant was not required, as part of the
competition in which he participated, to take a test
of the type described in subsection 14(1). It
appeared that in this case the members of the
selection board were simply requested to assess the
personality of candidates in light of the observa
tions which they might make in interviews held
with each of them, primarily to determine their
knowledge. This test is not of the same type as a
"test" of interest, intelligence or aptitude, and
therefore subsection 14(1) does not apply.
Secondly, applicant argued that the Appeal
Board had erred in law by not making as thorough
an investigation as the Act requires. More specifi
cally, applicant alleged that the Appeal Board had
not required members of the selection board to
furnish the notes taken by them during the oral
tests given to the various candidates, and had
simply relied on a summary of these notes pre
pared the day before the hearing especially for
submission to the Appeal Board.
This argument is without basis, in our opinion.
The Board's decision indicates that, with the obvi
ous intention of safeguarding applicant's interests,
the Board treated the summary as inaccurate on
all the points whose accuracy applicant had
expressly disputed. What applicant is therefore
alleging the Board did was to give credibility, on
all the points which he had not specifically disput
ed, to a document which had none, since its
accuracy could not be checked. In our view, the
Board in so doing did not commit an error of law;
its function was to rule on the credibility of the
evidence presented to it, and this Court cannot say
that its decision was vitiated by any of the errors
set forth in subsection 28(1) of the Federal Court
Act.
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.