A-356-81
Be Healey (Applicant)
v.
Public Service Commission Appeal Board
(Respondent)
Court of Appeal, Thurlow C.J., Ryan J. and Kerr
D.J.—Ottawa, September 15, 1981.
Judicial review — Public Service — Application to review
and set aside the dismissal of the applicant's appeal against
the proposed appointment of successful candidates by the
Public Service- Commission Appeal Board — Applicant
received a letter which was mailed on April 10, advising him
that the competition in question was subject to appeal and that
the expiry date for receipt of appeals was April 28, 1981 —
Notice of appeal was given on April 27, 1981 — Whether
notice of appeal should have been given within the time
prescribed by the Public Service Employment Regulations i.e.
14 days from notice to unsuccessful candidate — Application
is 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. 21 — Public Service Employment Regulations, C.R.C.
1978, c. 1337, as amended by SOR/78-343, ss. 39, 41.
APPLICATION for judicial review.
COUNSEL:
M. W. Wright, Q.C. for applicant.
J. M. Mabbutt 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
delivered orally in English by
THURLOW C.J.: The issue raised by this
application is whether a notice of appeal given by
the applicant, B. Healey against the proposed
appointment of the successful candidates in a
closed competition under the Public Service
Employment Act, R.S.C. 1970, c. P-32, was given
within the time prescribed by the Public Service
Employment Regulations, C.R.C. 1978, Vol. XIV,
c. 1337, as amended by SOR/78-343.
The notice was given on April 27, 1981, that is
to say some seventeen days after a letter had been
posted to him on April 10, 1981, advising him of
the result of the competition. The letter read as
follows:
Re: Competition No. 81-PW-CR-CC-12, GL-MAM-4 Position
Title: Building Systems Technician Trainee
The interviews for the above noted position have now been
completed. It was determined that those candidates whose
names appear on the attached eligible list were found qualified
for the position.
In accordance with existing regulations, this competition is
subject to appeal. If you intend to appeal these selections for
appointment you may send a completed Form No. 1360
"Notification of Appeal" to the Director Appeals Branch,
Public Service Commission, Ottawa, Ontario K1A 0M7. The
expiry date for receipt of appeals is 28 April 1981. Appeals
must be received by the PSC on or before the expiry date of the
appeal period. Appeals received after the closing date will not
be accepted.
If you require additional information do not hesitate to call me
at 593-6493.
Under section 21 of the Public Service Employ
ment Act the applicant, as an unsuccessful candi
date in the competition, had the right to appeal
"within such period as the Commission prescribes"
to a board established by the Public Service
Commission.
Section 41 of the Public Service Employment
Regulations prescribes the time for the bringing of
such an appeal. It provides:
41. Every appeal under section 21 of the Act by
(a) a person who has been notified pursuant to section 39, or
(b) a person deemed to be prejudicially affected pursuant to
subsection 40(1)
shall be brought within fourteen days after he was notified
pursuant to section 39 or 40.
Section 39, which applies in cases of selection by
competition, provides:
39. Where an employee is appointed or is about to be
appointed to a position by a closed competition, every unsuc
cessful candidate who has responded to notice or been identi
fied by means of an inventory for that competition shall be
notified by notice in writing or by public notice of
(a) his right to appeal under paragraph 21(a) of the Act
within fourteen days;
(b) the name of the employee appointed or about to be
appointed; and
(c) the name and ranking of those candidates on the eligible
list.
In my opinion the notice so required is a notice
to the unsuccessful candidate not merely that he
has a right to appeal but that he has a right to
appeal within fourteen days. The letter sent to the
applicant on April 10, 1981, does not contain that
information and in my view it cannot be regarded
as a notice of the kind referred to in section 40. It
follows, in my opinion, that the applicant's notice
of appeal cannot be regarded as having been given
after the time for appealing had expired.
While there is in my mind some doubt as to
whether the action of the Public Service Appeal
Board amounts to a decision within the meaning of
section 28 of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, both parties have treated it as
being a dismissal of the applicant's appeal and
have suggested that it should be dealt with as such.
Without deciding that the action of the Board
amounts to such a dismissal of the appeal, I would
set aside the disposition of it made by the Board
and refer the matter back to a Public Service
Commission Appeal Board to be dealt with on the
basis that the applicant's appeal was not brought
beyond the time for appealing prescribed by the
Public Service Employment Regulations.
* * *
RYAN J. concurred.
* * *
KERR D.J. concurred.
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.