A-334-80
The Queen (Applicant)
v.
Christian Larsen (Respondent)
Court of Appeal, Pratte, Ryan and Le Dain JJ.—
Ottawa, September 25 and October 31, 1980.
Judicial review — Public Service — Application to set aside
decision of Appeal Board that Public Service Commission
should appoint respondent to another position — Deputy Head
had recommended respondent's release for incompetence
Whether Board exceeded its authority — Application allowed
— 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.
31(1), (2), (3), (4), (5).
APPLICATION for judicial review.
COUNSEL:
R. W. Côté for applicant.
J. D. Richard, Q.C. for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Gowling & Henderson, Ottawa, for respond
ent.
The following is the English version of the
reasons for judgment rendered by
PRATTE J.: Applicant is asking that a decision
made pursuant to subsection 31(3) of the Public
Service Employment Act, R.S.C. 1970, c. P-32 by
an Appeal Board established by the Public Service
Commission be set aside.'
Respondent was employed by the Department of
Regional Economic Expansion when he was noti
fied that the Deputy Head of the Department had
recommended his release for incompetence, pursu
ant to subsection 31(1) of the Public Service
Employment Act. Relying on his right to appeal
under subsection 31(3), respondent appealed from
this recommendation to a Board established by the
Public Service Commission. At the conclusion of
its inquiry, this Board expressed its findings in a
lengthy decision rendered on May 9, 1980. The
essence of these findings may be summarized as
follows:
(1) The Deputy Head of the Department was
justified in stating that respondent was incompe
tent in performing the duties of his position.
(2) Respondent was, however, capable of per
forming other duties; the Deputy Head never
theless recommended his release rather than a
transfer solely because at that time there were
' Section 31 of the Public Service Employment Act 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 writing
mentioned in subsection (2) as the Commission prescribes,
the employee may appeal against the recommendation 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 oppor
tunity of being heard, 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 there
upon ceases to be an employee.
no vacant positions within the Department that
respondent was competent to fill.
(3) In these circumstances, rather than releasing
respondent, the Commission should appoint him
to another position.
It is this decision that applicant now wishes to
have set aside on the ground that the Board
exceeded its authority in ordering that respondent
be appointed to another position.
The sole issue to be decided is accordingly
whether a board hearing an appeal from a recom
mendation for release has the authority under
section 31 to order that the incompetent employee
be appointed to another position.
The last phrase of subsection 31(3) refers in
directly to the decisions that an appeal board is
authorized to make:
... upon being notified of the board's decision on the inquiry
the Commission shall,
(a) notify the deputy head concerned that his recommenda
tion will not be acted upon, or
(b) appoint the employee to a position at a lower maximum
rate of pay, or release the employee,
accordingly as the decision of the board requires.
In the case at bar the maker of the decision a
quo interpreted this as conferring on it the author
ity to render one of three decisions:
1. to order that the recommendation not be
acted upon,
2. to order that the employee be appointed to
another position, or
3. to order that the employee be released.
This interpretation should not, in my opinion, be
upheld. The last phrase in subsection 31(3) does
not describe the decisions a board may render;
rather it sets forth what must be done by the
Commission following a decision of the board. It
may either allow the appeal or dismiss it. These
are the two possibilities to which paragraphs
31(3)(a) and (b) refer. If the board allows the
appeal, the Commission must, according to para
graph (a), "notify the deputy head concerned that
his recommendation will not be acted upon"; if the
board dismisses the appeal, the Commission must
then, as stated in paragraph (b), act upon the
recommendation made by the deputy head, either
by releasing the employee, or by appointing him to
a lower position, depending on the nature of the
recommendation.
Furthermore, the interpretation given to subsec
tion 31(3) in the decision a quo leads to conse
quences that appear absurd to me. First, this inter
pretation would enable an appeal board to make
orders that would in many cases be impossible to
implement. In effect, the Commission can make an
appointment (and accordingly can transfer an
employee) only where there is a vacant position
that the authorities in the department concerned
are asking it to fill. The Act does not provide that
the Commission may create new positions or fill
those that are vacant as it pleases and of its own
initiative. A further consequence of this interpreta
tion would be that where the board ordered that an
incompetent employee be transferred rather than
released, this employee would, despite his
incompetence, retain his position as long as no
other position had been found for him.
For these reasons I would grant the application,
quash the decision a quo and refer the matter back
to the Board for decision on the basis that, under
section 31 of the Public Service Employment Act,
a board hearing an appeal from a recommendation
for release does not have the authority to order
that the employee concerned be appointed to
another position.
* * *
RYAN J.: I concur.
* * *
LE DAIN J.: I concur.
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.