A-492-80
France Allard (Applicant)
v.
Public Service Commission, Marcel Bénard,
Chairman of the Appeal Board, Public Service
Commission and Pierre Piché (Respondents)
Court of Appeal, Pratte and Le Dain JJ. and
Lalande D.J.—Montreal, December 4; Ottawa,
December 23, 1980.
Judicial review — Public Service — Application to set aside
Appeal Board's decision on the ground that the Board lacked
jurisdiction over the matter because the appeal was not com
menced within the prescribed time limit — Notice of appeal
was signed on April 15, sent to the Commission on April 17,
but not received until April 28 — Fourteen-day appeal period
prescribed by Public Service Employment Regulations expired
on April 22 — Whether time limit is a strict limit — Whether
it applies to date on which notice was sent or to date on which
notice was received — 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. 21 — Public Service
Employment Regulations, C.R.C. 1978, Vol. XIV, c. 1337,
s. 41.
APPLICATION for judicial review.
COUNSEL:
France Allard for herself.
James M. Mabbutt for respondent Public
Service Commission.
SOLICITORS:
France Allard, Montreal, for herself.
Deputy Attorney General of Canada for
respondent Public Service Commission.
The following is the English version of the
reasons for judgment rendered by
PRATTE J.: Applicant is seeking to have a deci
sion of an Appeal Board, created by the Public
Service Commission, vacated pursuant to
section 28 of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10. By that decision, the Board
allowed an appeal by respondent Piché pursuant to
section 21 of the Public Service Employment Act,
R.S.C. 1970, c. P-32.
Applicant first argued that the Board which
handed down the decision a quo lacked jurisdiction
over the matter because the appeal before it had
not been commenced within the prescribed time
limit.
Section 21 of the Public Service Employment
Act provides that an appeal like that in question
here must be brought within such period as the
Public Service Commission prescribes. Section 41
of the Public Service Employment Regulations,
C.R.C. 1978, Vol. XIV, c. 1337, Regulations
adopted by the Commission, sets the length of this
appeal period of 14 days from the day on which
notice of the appointment in question was given.
The record established that in the case at bar
the 14-day appeal period expired on April 22,
1980; that respondent Piché's notice of appeal did
not reach the Commission until April 28; and that
the notice was dated April 15 and had apparently
been sent (by means which the record does not
mention) on April 17, 1980.
Respondent Piché's notice of appeal accordingly
reached the Commission after the 14-day period
prescribed by the Commission in the Regulations
had expired. Applicant therefore concluded that
the appeal had not been duly submitted and that
the Board could not legally hear it. Counsel for the
Commission argued that this irregularity was
insignificant, first, because the 14-day time limit is
not a strict limit, and second, because the notice of
appeal appeared to have been sent to the Commis
sion before the time limit expired.
In my view these two arguments of counsel for
the Commission are without foundation. Section
21 of the Public Service Employment Act is so
worded that it necessarily follows that the right of
appeal conferred by that section cannot be exer
cised once the time limit prescribed by the Com
mission has expired. The time limit in question is
accordingly a strict limit. I do not consider that
the date on which the notice of appeal was sent is
relevant. An appeal is not brought merely by
signing a notice of appeal addressed to the Com
mission, or by giving such a notice to a messenger.
In my opinion, so long as the notice has not
reached the Commission an appeal has not been
made.
For these reasons, I would allow this application
and quash the decision a quo.
* * *
LE DAIN J.: I concur.
* * *
LALANDE D.J.: I concur in this judgment.
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.