T-754-83
Patrick Archibald, Bruce Bailey and Vince Ben-
nett (Plaintiffs)
v.
Attorney General of Canada, Tom Dent, Sandy
Thompson and Joyce Bleakney (Defendants)
Trial Division, Walsh J.—Vancouver, March 28
and April 7, 1983.
Public service — Investigation revealing irregularities in
assessment of candidate improperly disqualified — Order of
merit affected — Public Service Commission proposing to
re-interview candidates including plaintiffs and to establish
new selection board — Motion for permanent injunction and
declaratory relief on quia timer basis to prevent further inter
views and to declare purported revocation of appointments null
and void — Interlocutory injunction to issue — No formal
finding as to declaratory relief — Plaintiffs establishing prima
facie case — S. 6(3) of Public Service Employment Act
applicable to one plaintiff appointed from within Public Ser
vice — Revocation of appointments not authorized either by
Act or Regulations — Implied power of Commission to right
mistakes insufficient to confer authority — Statute conferring
power to be interpreted strictly — Presumption against creat
ing or enlarging powers — Ss. 6, 21, 31 and 32 of Act not
applicable — Commission required to act fairly — Irreparable
harm established — Balance of convenience in favour of
plaintiffs — Public Service Employment Act, R.S.C. 1970, c.
P-32, ss. 5(d), 6, 21, 28, 29, 31, 32 — Public Service Employ
ment Regulations, C.R.C., c. 1337 — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 18.
Practice — Proceedings commenced by statement of claim
— Immediately thereafter plaintiffs moving for permanent
injunction and repeating claim for declaratory relief — R. 603
providing certain relief available upon action or motion — No
authority for granting declaratory relief on interim basis upon
motion for injunction merely incident in action for declaratory
relief — Plaintiffs conceding merits of injunction depending on
facts and law giving rise to declaratory relief claims —
Interlocutory injunction granted — Federal Court Rules,
C.R.C., c. 663, R. 603 — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 18.
This is a motion for a permanent injunction on a quia timer
basis to prevent the defendants from conducting further inter
views and from revoking plaintiffs' appointments to the Public
Service, and for a declaration, also on a quia time[ basis, that
the purported revocation is null and void. Following a com
plaint with respect to a competition, an investigation was held
and irregularities were found in the conduct of the competition
as to the assessment of a candidate who was improperly dis
qualified. This affected the relative order of merit of the
candidates. As a result, the Public Service Commission pro
posed to re-interview all the candidates, including the plaintiffs,
other than those who were screened out, withdrew from the
competition or failed to attend for an interview. A new selection
board was to be set up, composed of the three individuals
named as defendants herein.
Held, an interlocutory injunction is to issue and to remain in
effect until the action seeking declaratory relief has been
decided.
Plaintiffs have established a prima facie case. Subsection
6(3) of the Act applies with respect to one of the plaintiffs
whose appointment was from within the Public Service, so that
his appointment could only be revoked upon the recommenda
tion of a board established to conduct an inquiry at which the
employee and the deputy head concerned are given an opportu
nity of being heard. Plaintiff Bailey has been given no such
opportunity. Moreover, there is no specific section in the Act or
the Regulations which gives the Commission the authority to
revoke the appointments, and it is not sufficient to rely on an
implied power of the Commission to right mistakes made in
establishing the original eligibility list. A statute conferring
power must be interpreted strictly and there is a presumption
against creating new or enlarging existing powers. Sections 6,
21, 31 and 32 of the Act, all referred to in paragraph 5(d),
which provides for the powers and duties of the Commission, do
not apply. Whether the Commission has the authority to revoke
the appointments or not, it is, nevertheless, required to act
fairly within the principles set out in Nicholson v. Haldimand-
Norfolk Regional Board of Commissioners of Police, [1979] 1
S.C.R. 311. As to the issue of irreparable harm, if the plaintiffs
were to lose their present employment, that would cause them
damages which would be difficult to calculate. The balance of
convenience is in favour of the plaintiffs: it would be more
inconvenient for the plaintiffs to be forced to undergo the risk
of a new competition than for the defendants to be prevented
from correcting an error.
Since the merits of the injunction are dependent upon the
facts and law giving rise to the claims for declaratory relief, the
injunction sought at this stage should not be permanent. Also,
neither the Federal Court Act nor its Rules authorize the
granting of declaratory relief on an interim basis by way of a
motion for injunction which is merely an incident in the action
seeking declaratory relief. It follows that there will be no
formal finding as to the claim for declaratory relief.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Cutter Ltd. v. Baxter Travenol Laboratories of Canada,
Ltd. et al. (1980), 47 C.P.R. (2d) 53 (F.C.A.).
CONSIDERED:
Nicholson v. Haldimand-Norfolk Regional Board of
Commissioners of Police, [1979] 1 S.C.R. 311; 88
D.L.R. (3d) 671; Jarvis v. Associated Medical Services,
Incorporated, et al., [1964] S.C.R. 497; 44 D.L.R. (2d)
407.
COUNSEL:
R. Albert for plaintiffs.
L. Huculak for defendants.
SOLICITORS:
Stewart & McKay, Edmonton, for plaintiffs.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for order ren
dered in English by
WALSH J.: UPON motion dated March 17, 1983
on behalf of the plaintiffs for:
a) A permanent injunction restraining the Defendants from
interfering in any manner with the Plaintiffs' positions and
status as LEAP Project Officers;
b) A permanent injunction restraining the Defendants from
constituting a Selection Board and conducting further
interviews in relation to Competition Number 82-E1C-
OC-ARO-EDM-14;
c) A declaration that the Competition identified by number
82-E1C-OC-ARO-EDM-14, held in or about the months
of April and May, 1982 and the resulting appointments of
the Plaintiffs as LEAP Project Officers were and continue
to be valid;
d) A declaration that any acts of the Defendant purporting to
revoke the appointments of the Plaintiffs as LEAP Project
Officers are ultra vires;
e) In the alternative, a declaration that any acts of the
Defendant purporting to revoke the appointments of the
Plaintiffs as LEAP Project Officers, were an illegal, unrea
sonable or improper exercise of such authority;
f) A declaration that the purported revocation of the appoint
ments of the Plaintiffs was null and void;
g) Such further and consequential relief as this Honourable
Court may deem just in the circumstances.
h) Costs.
REASONS FOR ORDER
As can be seen the motion seeks not only a
permanent injunction but also declaratory relief
against the defendants on a quia timet basis, since
none of the plaintiffs' appointments have yet been
revoked nor have any recommendations been made
to revoke such appointments according to the
affidavit of Lorraine Bazinet, Regional Director,
Alberta and Northwest Territories Region of the
Staffing Branch of the Public Service Commission
of Canada.
Proceedings were instituted by means of a state
ment of claim filed on March 16, 1983 which was
immediately followed by the motion for injunction
which repeats the prayer for declaratory relief.
While this Court has jurisdiction over both injunc
tions and declaratory relief by virtue of section 18
of the Federal Court Act [R.S.C. 1970 (2nd
Supp.), c. 10] and Rule 603 of the Rules of this
Court [C.R.C., c. 663] provides that a proceeding
for declaratory relief may be brought either by
way of a motion or by commencing an action by
way of statement of claim or declaration, there
would appear to be no authority for the granting of
declaratory relief on an interim basis by way of a
motion for injunction which is merely an incident
in the action seeking declaratory relief in which
the merits of this relief will be decided. Further
more, since the plaintiffs concede that the merits
of the injunction are dependent upon the facts and
law giving rise to the claims for declaratory relief,
the injunction sought at this stage of proceedings
should not be a permanent injunction but an inter
locutory injunction to remain in effect until the
action seeking declaratory relief has been decided.
In order to decide at this stage of the proceed
ings whether such an interlocutory injunction
should be granted, however, it is necessary to go to
a considerable extent into the facts and law on the
basis of which the eventual declaratory relief is
sought to determine whether the plaintiffs have a
fairly arguable case and the other requirements for
the issue of an interlocutory injunction.
Affidavits on behalf of all three plaintiffs were
submitted, being substantially identical with only
minor variations. The competition was an open
one—that is to say, applicants need not apply from
within the Public Service. Plaintiffs Archibald and
Bennett were from outside the Civil Service but
plaintiff Bailey applied from within the Civil Ser
vice where he was already employed.
In the case of Archibald, he already had
employment outside the Civil Service and had to
give a month's notice before taking up the Civil
Service appointment given to him as a result of the
competition. Bailey, as already stated, was already
employed within the Civil Service but plaintiff
Bennett was apparently free to take up his duties
on May 10, 1982, immediately after accepting the
position on May 7. There is no suggestion that the
work of any of the applicants since their appoint
ment has been unsatisfactory or that their appoint
ments could be revoked for cause, nor is there any
suggestion that any of their appointments would
be terminated by application of section 28 of the
Act [Public Service Employment Act, R.S.C.
1970, c. P-32] as all three plaintiffs are still within
the probationary period, since this would involve
rejection for cause. Section 21 of the Act does not
apply since this only applies to appointments made
from within the Public Service, either by closed
competition or without competition so no appeal is
available to an unsuccessful candidate with respect
to this competition nor can an appointment be
revoked as a result of any such appeal. Neither is
section 29 applicable, providing for lay-offs for
lack of work or discontinuance of a function, and
as already stated, section 31 dealing with release
of employees for incompetence or incapacity is not
applicable in the present case nor is there any
suggestion of political partisanship which might be
invoked under section 32.
It is the defendants' position that as a result of a
complaint regarding the competition, the Appeals
and Investigations Branch undertook an investiga
tion and found irregularities in the conduct of it
with regard to the assessment of a candidate who
was improperly disqualified which error in assess
ment might have affected the relative order of
merit of candidates on the eligibility list. As a
result of this, it is proposed to re-interview and
re-evaluate all the candidates in the competition
including the three plaintiffs, other than candi
dates who were screened out, withdrew from the
competition, cancelled their interviews or failed to
show for an interview, said re-interviews to be
conducted by a new selection board composed of
the three individuals named as defendants herein.
In effect the Public Service Commission decided
that since the position of the first selection board
had been compromised these candidates should be
re-interviewed and reassessed in order to insure a
fair and objective assessment of all interested can
didates. It is conceded that only the Public Service
Commission can revoke an appointment and only
on the recommendation of the Executive Director
of the Staffing Branch. No steps have been taken
as yet save to set up appointments for re-interviews
of the three plaintiffs which appointments were
cancelled as a result of the present motion for
injunction.
Plaintiffs Archibald and Bailey accepted their
appointments on May 10, 1982, and plaintiff Ben-
nett on May 7, 1982. On May 13, 1982 the
complaint was received by the Investigations
Directorate relating to the competition and on
May 25, 1982 an investigation file was opened and
assigned to one J. M. Millet, Investigations Offi
cer. The investigation was allegedly pursued
actively but the affidavit of Claude O. Morissette,
Director of the Investigations Directorate of the
Appeals and Investigations Branch of the Public
Service Commission, states that Mr. Millet had a
work-load of 30 to 40 cases to investigate in Alber-
ta, British Columbia, Yukon and the Northwest
Territories so that the investigation was not com
pleted until December 20, 1982. This was then
reviewed by his Division Chief and by Mr. Moris-
sette, discussions took place with the Staffing
Branch of the Public Service Commission and
senior officials of the Canada Employment and
Immigration Commission in Ottawa. On January
27, 1983, a letter was sent by C. A. Lafreniere,
Mr. Millet's Division Chief, to H. D. Lindley,
Executive Director of Personnel of the Canada
Employment and Immigration Commission
requesting the Department to re-interview and
re-evaluate all candidates other than those who
had been screened prior to the interview, with
drawn from the competition or failed to show for
an interview. These recommendations had the con
currence of the Staffing Branch of the Public
Service Commission. To the date the affidavit was
taken, March 24, 1983, no other action had been
recommended as the outcome of the reassessment
cannot be foreseen.
Quite aside from the legal issue as to whether
the Commission can legally do what it now pro-
poses to do, it is totally unacceptable that as a
result of alleged pressure of work an investigation
should take ten months to complete and then be
used to the disadvantage of entirely innocent
individuals such as the plaintiffs whose employ
ment record since their employment has been
entirely satisfactory and who, at least in the case
of Archibald, gave up other employment outside
the Civil Service in order to take up this employ
ment, and in the case of Bailey, transferred from
other employment within the Public Service.
Moreover, in the case of Bailey whose appoint
ment was from within the Public Service, subsec
tion (3) of section 6 of the Act applies and his
appointment could only be revoked upon the
recommendation of a board established to conduct
an inquiry at which the employee and the deputy
head concerned or their representatives were given
an opportunity of being heard. Bailey has been
given no opportunity to be heard.
While, as defendants' counsel points out, the
appointments of the plaintiffs have not been
revoked and they are continuing to perform their
duties and be remunerated for same that does not
obviate the conclusion that these appointments
might be placed in jeopardy if they had to be
re-interviewed and reclassified along with other
candidates including, most probably, the candidate
who complained and, as a result, possibly ranked
in a different order of merit. Understandably they
object to this and are justified in seeking an
injunction to prevent it even if on a quia timet
basis. This conclusion might not prevail, however,
if the Commission in making an administrative
decision of this nature has the authority to do so,
although even in that event, it appears highly
doubtful whether it could be said that in the event
that the plaintiffs' appointments were revoked on
the grounds of irregularity in the competition and
they were obliged to enter a new competition in
order to retain the positions which they have held
for ten months, they would have been treated
fairly as required by the Nicholson' case in which
Chief Justice Laskin in rendering the decision of
' Nicholson v. Haldimand-Norfolk Regional Board of Com
missioners of Police [[1979] 1 S.C.R. 311]; 88 D.L.R. (3d)
671.
the Court stated at page 324 [Supreme Court
Reports] :
In short, I am of the opinion that although the appellant
clearly cannot claim the procedural protections afforded to a
constable with more than eighteen months' service, he cannot
be denied any protection. He should be treated "fairly" not
arbitrarily. I accept, therefore, for present purposes and as a
common law principle what Megarry J. accepted in Bates v.
Lord Hailsham ([1972] 1 W.L.R. 1373), at p. 1378, "that in
the sphere of the so-called quasi-judicial the rules of natural
justice run, and that in the administrative or executive field
there is a general duty of fairness".
While this conclusion might well be sufficient to
deal with the matter, it is desirable, without
making any final finding in the nature of a
declaratory judgment, to examine briefly the ques
tion of whether the Commission has the legal
authority and power to do what it is attempting to
do. The principle involved is well set out in the
Supreme Court case of Jarvis v. Associated Medi
cal Services, Incorporated, et a1. 2 in which Cart-
wright J. stated at page 502 [Supreme Court
Reports] :
My entire agreement with the reasons of Aylesworth J.A.
includes, of course, the adoption of his statement:
... it is trite to observe that the Board cannot by an
erroneous interpretation of any section or sections of the Act
confer upon itself a jurisdiction which it otherwise would not
have.
Again at page 502 he states:
The extent of the Board's jurisdiction is fixed by the statute
which creates it and cannot be enlarged by a mistaken view
entertained by the Board as to the meaning of that statute. The
governing principle was succinctly stated by my brother Fau-
teux in In re Ontario Labour Relations Board, Toronto News
paper Guild, Local 87 v. Globe Printing Co. ([1953] 2 S.C.R.
18) at p. 41:
The authorities are clear that jurisdiction cannot be
obtained nor can it be declined as a result of a misinterpreta
tion of the law, and that in both cases the controlling power
of superior Courts obtains, notwithstanding the existence in
the Act of a no certiorari clause.
This was the rule applied by the Court of Appeal in the case
at bar. What is complained of by the respondent is not that the
Board has been induced by errors of fact or law, or by both, to
make an order in the exercise of its statutory jurisdiction, but
rather that it has purported to make an order which the Act has
not empowered it to make at all.
Counsel for the defendants was unable to refer
to any specific section in the Act or Regulations
2 [[1964] S.C.R. 497]; 44 D.L.R. (2d) 407.
[Public Service Employment Regulations, C.R.C.,
c. 1337] which would give even the Commission
itself authority to revoke the appointments of the
plaintiffs in the circumstances of this case and was
forced to rely on an implied power of the Commis
sion to right mistakes which may have been made
in establishing the original eligibility list from
which the plaintiffs' appointments were made.
This is not sufficient. A statute conferring power
must be interpreted strictly and there is a pre
sumption against creating new or enlarging exist
ing powers (see Maxwell On The Interpretation of
Statutes, 12th ed. [London: Sweet & Maxwell,
1969], pages 258 and 159 respectively).
Section 5 of the Act dealing with general powers
and duties of the Commission gives it the power
inter alia to:
5....
(d) establish boards to make recommendations to the Com
mission on matters referred to such boards under section 6,
to render decisions on appeals made to such boards under
sections 21 and 31 and to render decisions on matters
referred to such boards under section 32;
but, as already pointed out neither sections 21, 31
nor 32 apply. Section 6 deals with delegation of
authority and paragraph (a) of subsection (2) does
not apply as there is no suggestion that any of the
plaintiffs do not have the qualifications necessary
to perform the duties of the positions they occupy.
Neither would paragraph (b) of subsection (2)
appear to apply, especially in view of the conclud
ing clause of subsection (2) which reads as follows:
6. (2) ...
the Commission, notwithstanding anything in this Act but
subject to subsection (3), shall revoke the appointment or direct
that the appointment not be made, as the case may be, and may
thereupon appoint that person at a level that in the opinion of
the Commission is commensurate with his qualifications.
These sections seem to suggest that if a person has
been appointed to a level that is not commensurate
with his qualifications, it may be revoked and the
Commission "may" appoint that person at a level
that is commensurate with his qualifications.
Without making any decision, therefore, as to
the declaratory relief sought by the plaintiffs in
paragraphs c), d) and f) of the motion, which
should not be decided at this stage of the proceed-
ings, I find that the plaintiffs have a very strongly
arguable case and even a prima facie case for the
issue of an interlocutory injunction until the deci
sion of the action on the merits. The defendants
argue, however, that having reached this conclu
sion it is now necessary to deal with the question of
whether they will suffer irreparable injury if such
an injunction is not granted. Reference was made
to the case of Cutter Ltd. v. Baxter Travenol
Laboratories of Canada, Ltd. et a1. 3 In that case,
as in many patent cases, however, it was found
that any harm suffered by plaintiff could be com
pensated by payment of damages so that a finding
of irreparable harm was not warranted by the
evidence. In rendering the judgment of the Court
of Appeal, Chief Justice Thurlow also found that
consideration should be given to corresponding
irreparable harm which might have been caused to
the appellant by being restrained from promoting
its legitimate interests. The same situation hardly
applies here where the possibility of losing their
present employment if this resulted from being
forced to enter another competition in which they
might be ranked differently, would cause damage
to the plaintiffs difficult to calculate, while on the
other hand the only jeopardy of the defendant, the
Attorney General of Canada, might be a possible
claim by a party who had complained that his or
her qualifications had not properly been con
sidered by the parties conducting the original
competition.
On the question of balance of convenience I
would also find that it would be considerably more
inconvenient for the plaintiffs to be forced to
undergo the risk of a new competition than for the
defendants to be prevented from correcting an
error allegedly originally made in the assessment
of candidates in the original competition by the
holding of a new one.
While it is true as counsel for the defendants
points out that the affidavits submitted on behalf
of the plaintiffs do not specifically make reference
to the prejudice which they would suffer if new
competitions are held, this appears in paragraph 7
of the statement of claim which refers to the
irreparable harm and damage which would result
3 (1980), 47 C.P.R. (2d) 53 [F.C.A.].
from their appointments being wrongfully revoked,
and in any event it is evident that such would be
the case. As has been stated they have not yet been
revoked but there would appear to be no merit in
waiting for such revocation before the institution
of proceedings, and the granting of injunctions on
a quia timet basis in other situations is well
established.
As the defendants concede that no steps have
been taken since the decision to hold the new
competition, it would appear that little, if any,
prejudice will be caused by requiring that matters
be held in status quo until decision in the action
claiming the declaratory relief which the plaintiffs
seek.
ORDER
An interlocutory injunction is issued restraining
the defendants from interfering in any manner
with the plaintiffs' positions and status as LEAP
Project Officers and restraining the defendants
from constituting a selection board and conducting
further interviews in relation to competition
number 82-EIC-OC-ARO-EDM-14 until final
judgment is rendered on the trial of the proceed
ings herein, with costs.
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