A-753-88
Attorney General of Canada (Applicant)
v.
Edward Pearce (Respondent)
INDEXED AS: CANADA (ATTORNEY GENERAL) V. PEARCE (CA.)
Court of Appeal, Pratte, Mahoney and Desjardins
JJ.A.—Ottawa, March 16 and April 3, 1989.
Public service — Selection process — Merit principle
Employee temporarily assigned to position subsequently suc
cessful candidate in competition to permanently staff position
— Public Service Appeal Board allowing appeal from pro
posed appointment — Board correctly holding merit principle
compromised when temporary assignment in combination with
selection process conferring unfair advantage — Although
Board erred in holding temporary assignment required to be
based on merit, not ground to set aside decision.
This was an application to set aside the Public Service
Appeal Board's decision allowing an appeal from a proposed
appointment. An employee who had been temporarily assigned
to a position was the successful candidate in the subsequent
competition to permanently staff the position. The proposed
appointment was appealed on the ground that there was an
element of preselection. The Appeal Board held that the merit
principle had been compromised, since it was not clear that it
had been applied in making the temporary assignment.
Held (Pratte J.A. dissenting), the application should be
dismissed.
Per Mahoney J.A. (Desjardins J.A. concurring): The Board
correctly held that a temporary assignment in combination with
a selection process that gave an unfair advantage to the candi
date assigned to the position could compromise application of
the merit principle. The conclusion that in the particular cir
cumstances the merit principle had been compromised was a
finding of fact which was open to the Board to make. Although
the Board erred in law in holding that the assignment had to be
made on the basis of merit, since the temporary assignment was
not an appointment within the contemplation of the Public
Service Employment Act, section 10, its decision was not
subject to being set aside on a section 28 application based on
the second ground.
Per Pratte J.A. (dissenting): The Board erred in considering
the basis of the temporary assignment on an appeal from the
proposed permanent appointment. If the temporary assignment
was an appointment it had to have been made on the basis of
merit, and as it had been made without competition it could be
challenged under the Public Service Employment Act, section
21. Such an appeal would be distinct from an appeal against
the permanent appointment. A Board established to rule on an
appeal against a permanent appointment is not entitled to
determine the validity of the temporary assignment that
preceded that appointment. Any advantage gained by the tem
porary assignment was irrelevant to the Board's decision as to
whether the competition violated the merit principle. If the
temporary assignment was not an appointment, it was not
subject to the merit principle and it did not-matter whether the
assignment was part of the selection process.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED:
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Public Service Employment Act, R.S.C. 1970, c. P-32, ss.
10, 21.
CASE JUDICIALLY CONSIDERED
CONSIDERED:
Doré v. Canada, [1987] 2 S.C.R. 503.
COUNSEL:
Yvonne E. Milosevic and M. Turgeon for
applicant.
Andrew J. Raven for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for respondent.
The following are the reasons for judgment
rendered in English by
PRATTE J.A. (dissenting): This section 28 [Fed-
eral Court Act, R.S.C. 1970 (2nd Supp.), c. 10]
application is directed against a decision of a
board established by the Public Service Commis
sion allowing an appeal brought by the respondent
under section 21 of the Public Service Employ
ment Act [R.S.C. 1970, c. P-321.
In 1987, a position of Investigations/Concilia-
tion Officer (PE-04) with the Investigations Direc
torate of the Public Service Commission in Van-
couver, B.C., became vacant. Soon afterwards,
steps were taken to fill that position temporarily
until a competition was held. In late June, one
Mrs. Scholefield was given that temporary assign-
ment. This, apparently, was not considered by the
Commission to be an "appointment" within the
meaning of the Public Service Employment Act
since none of the requirements of the Act relating
to appointments were complied with. For instance,
no public notice was ever given and the criteria
according to which Mrs. Scholefield was deter
mined to be qualified for that assignment are
unknown. The Board stated in its decision that
Mrs. Scholefield had been "chosen to assume those
duties on a `secondment' basis" and this, according
to the Board, "meant that she would perform the
duties that she was able to perform and receive
training to perform additional duties as she
became familiar with the demands of the
position."'
Shortly after Mrs. Scholefield's temporary
assignment, notice was given that a competition
would be held to fill the position on a permanent
basis. The closing date for the receipt of applica
tions was October 5, 1987, and those who took
part in that competition were assessed by a selec
tion board primarily on the basis of their answers
to a series of preset questions during individual
interviews. Among the 14 participants were the
respondent and Mrs. Scholefield who was ulti
mately chosen as the best qualified candidate. The
respondent appealed against her proposed appoint
ment pursuant to section 21 of the Public Service
Employment Act. One of his grounds of appeal
was stated in the following terms in his notice of
appeal:
An element of preselection took place as the successful candi
date Mrs. W. Scholefield was on assignment to the position for
several months prior to the selection board ....
The Appeal Board allowed the appeal on that
ground for reasons stated in the following passages
of its decision:
I see the principle of making selections for appointment on
the basis of merit, the cornerstone of the system of promotion
In order to fully understand certain of the passages of the
Board's decision, it is necessary to know that, at approximately
the same time, an employee from the Department of National
Health and Welfare was also seconded to the Investigations
Directorate so that she could receive training as an Investiga-
tions/Conciliation Officer. This fact is not otherwise relevant to
the issues to be decided in this case.
in the Public Service, as a daily working principle and not one
that operates in a vacuum separate from the working environ
ment. By that I mean that the merit principle is not suddenly
pulled out of a hat when a notice of competition is posted and
locked away in a cupboard once an eligible list is established. It
is a principle which should be acknowledged when staffing
actions are taken to address operational problems. Operational
problems are not always resolved by making indeterminate
appointments. Sometimes they are resolved by acting appoint
ments or by appointments made for training purposes allowing
persons to develop skills not specifically required for the
performance of the position that an employee occupies but for a
position to which an employee might aspire. In such cases, the
merit principle cannot simply be ignored. The merit principle
has application in the broad area of personal development for
promotion. That is not to say that I see the merit principle
demanding that all employees have exactly the same opportu
nity for development and promotion. Luck and happenstance
are facts of life. The merit principle is therefore not always
compromised by advantages gained by "being in the right place
at the right time". Whether the merit principle has been
applied in a given case must obviously be determined on the
facts of the case itself.
In this case, 1 am of the view that the opportunities afforded
to the trainees and Mrs. Scholefield in particular go beyond
luck and happenstance. Consequently, I am of the view that the
principle of making selections for appointment on the basis of
merit can be seen to have been compromised ....
In the circumstances of this case, I find it difficult to
convince myself when the task of selecting someone for
appointment actually began and actually finished. The notice of
competition certainly did not start the search for someone to
carry out the duties of the position of Investigations/Concilia-
tion Officer. The search was started when the operational
requirements demanded attention and when the opportunity to
create training assignments was identified. The search was
limited to a small group of known employees. The ultimate
selections were not shown to have been made on the basis of
merit. The employees selected were invited to perform what
duties of the position they could and trained to perform addi
tional duties. Then a notice of competition was prepared and
distributed and other persons invited to apply for appointment.
Candidates were required to respond to a series of preset
questions. It might well be that it was not necessary to perform
the duties of the position in order to be able to successfully
respond to those questions. However, a review of the questions
leads me to believe that actually having performed the duties
would allow a person the opportunity to respond to those
questions more completely than someone who had not per
formed the duties ....
... In the circumstances, it is difficult to know the extent to
which the opportunity given to the two trainees resulted in the
selection of one of them for appointment. Had the merit
principle been applied in making the selections for training, I
could accept the contention that the selection for appointment
could be seen to have been based on merit in as much as the
most meritorious trainee had developed her skills to good
advantage. However, since it is not clear that the merit princi
ple was applied when the search to identify someone for
appointment began in the first instance, I cannot conclude
whether the person selected for appointment from among those
who responded to the notice of competition was indeed the best
qualified or whether the specific training that she had received
simply allowed her to better answer a series of questions related
to duties she had been allowed to perform under direction. In
other words, the validity of the responses to a series of preset
questions as a basis for evaluating the real value of the candi
dates' qualifications is a contentious issue in the circumstances
of this case.
To summarize my views, I believe that the principle of
making selections for appointment on the basis of merit would
be ill-served if the proposed appointment was allowed to stand.
The procedures followed in this case honor that principle more
in illusion than reality and I therefore allow the appeal against
the proposed appointment.
As I read that decision, it does not rest on the
finding that the competition which led to Mrs.
Scholefield's proposed appointment was designed
not to estblish the merits of the various candidates
for the position but, rather, to determine who
among them had the most practical experience in
that position. Indeed, the reasons given by the
Board make that clear since they indicate that the
decision would have been different if Mrs. Schole-
field had acquired her practical experience in cir
cumstances that did not lead the Board to think
that she owed that experience to the employer's
favouritism.
The decision, as I read it, is based on three
propositions:
(a) Mrs. Scholefield's temporary assignment
had to be made on the basis of merit because
"the merit principle has application in the broad
area of personal development for promotion";
(b) the respondent's appeal to the Board was
directed against a selection process that included
Mrs. Scholefield's temporary assignment so that
it was the duty of the Board to determine wheth
er that assignment had been made on the basis
of merit; and
(c) the fact that Mrs. Scholefield's temporary
assignment had not been based on merit tainted
the competition that led to her proposed perma-
nent appointment since her temporary assign
ment had given her an advantage over the other
candidates in the competition.
In my view, those propositions are inaccurate.
The so-called "merit principle" is a compendious
reference to the rule stated in section 10 of the
Public Service Employment Act. A mere reading
of that section shows that it applies only to
"appointments ... within the Public Service". It
does not apply to temporary assignments that are
not appointments within the meaning of the Act. 2
If, therefore, Mrs. Scholefield's temporary assign
ment was not an "appointment", it was not subject
to the merit principle and, consequently, it did not
matter whether or not that assignment was part of
the selection process that the Appeal Board had to
examine.
If, however, the temporary assignment was an
appointment, it followed that it was required to be
made on the basis of merit and, as it had been
made without a competition, that it could be chal
lenged by way of an appeal under section 21 of the
Public Service Employment Act if the appeal was
brought by a "person whose opportunity for
advancement, in the opinion of the Commission,
ha[d] been prejudicially affected" by the assign
ment. Such an appeal against the temporary
assignment would, of course, be different from any
appeal brought against the permanent appoint
ment. In fact, there would be no relationship be
tween those appeals save that the making of a
valid permanent appointment would render moot
and academic the appeal against the temporary
assignment. Therefore, a board established by the
Commission to rule on an appeal against a perma
nent appointment is not entitled to determine the
validity of the temporary assignment that preceded
that appointment.
Finally, the fact that Mrs. Scholefield's tempo
rary assignment may have given her an advantage
over the other candidates was not relevant to the
determination that the Board had to make. The
Board had to decide whether the competition
which resulted in Mrs. Scholefield's proposed
2 All temporary assignments are not appointments: Doré v.
Canada, [1987] 2 S.C.R. 503, at p. 511.
appointment violated the merit principle; it could
not inquire into the circumstances in which the
various candidates had acquired their respective
merits.
I would allow the application, set aside the
decision of the Board and refer the matter back to
it for decision on the basis that the manner in
which Mrs. Scholefield was temporarily assigned
or seconded to the position of Investigations/Con-
ciliation Officer (PE-04) with the Investigations
Directorate of the Public Service Commission in
Vancouver must not be taken into consideration in
determining whether her subsequent proposed
appointment to that same position violated the
merit principle.
* * *
The following are the reasons for judgment
rendered in English by
MAHONEY J.A. This application under section
28 of the Federal Court Act seeks to set aside a
decision of an Appeal Board which, pursuant to
section 21 of the Public Service Employment Act,
allowed the respondent's appeal against the deci
sion to appoint Wendy Scholefield to the position
of Investigations/Conciliation Officer in the Inves
tigations Directorate of the Public Service Com
mission in its Vancouver office. The incumbent in
the position resigned early in 1987 and, on May 5,
the office requested a replacement. In late June,
the office recognized an operational need to have
the work of the position done. Mrs. Scholefield,
employed in another position in the office, was
assigned to do the work in late June or early July.
One of the difficulties encountered during argu
ment of this application arose out of the Appeal
Board's use of the terms "assignment", "second-
ment" and "acting appointment" interchangeably.
As counsel and the Court agreed, Mrs. Schole-
field's occupation of the position was by virtue of
an assignment. Notice of a competition was pub
lished with a closing date of October 5. Mrs.
Scholefield entered and, on October 26, was
among the eight candidates deemed qualified by
the Selection Board. The Selection Board had not,
at that time, assessed the candidates as to discre
tion and initiative, which were to be assessed on
the basis of information gathered through refer
ence checks. It was, however, satisfied that the
four top-rated candidates could not be replaced by
the bottom four so it directed reference checks
only as to the top four. After the reference checks,
Mrs. Scholefield was identified as the top-ranked
candidate and, following an "enhanced reliability
check", her appointment was proposed. The
respondent appealed.
This application is entirely concerned with
whether, in the circumstances, the merit principle
mandated by section 10 of the Public Service
Employment Act was duly observed in the process
that let to Mrs. Scholefield's selection for appoint
ment to the position to which she had been
assigned.
10. Appointments to or from within the Public Service shall
be based on selection according to merit, as determined by the
Commission, and shall be made by the Commission, at the
request of the deputy head concerned, by competition or by
such other process of personnel selection designed to establish
the merit of candidates as the Commission considers is in the
best interests of the Public Service.
Mr. Justice Pratte has quoted extensively from
Appeal Board's decision. It is unnecessary for me
to repeat that. My appreciation of the bases for the
decision is somewhat different from his. As I read
it, the Appeal Board reached its conclusion on two
discrete bases: firstly, that the merit principle
applied to the assignment of Mrs. Scholefield to
the position because "the merit principle has
application in the broad area of personal [sic]
development for promotion" and, secondly, that
the advantage given Mrs. Scholefield in the com
petition by the combination of her assignment and
the nature of the questions posed by the Selection
Board compromised the merit principle.
I agree with Mr. Justice Pratte that the Appeal
Board erred in law in holding that Mrs. Schole-
field's assignment had to be made on the basis of
merit. The assignment was not an appointment
within the contemplation of section 10. However, I
am also of the view that the decision, based on the
second ground, is not subject to be set aside on a
section 28 application.
In Doré v. Canada, [1987] 2 S.C.R. 503, at
page 511, Le Dain J., for the Court, said:
The ultimate issue in the appeal is whether the assignment of
the mis en cause on a temporary basis to the position of
supervisor of the reception and inquiries section, pending the
classification of the position, was an appointment to the posi
tion within the meaning of s. 21 of the Public Service Employ
ment Act. On this issue, I am of the view that while it must be
possible for the administration to assign a person in the Public
Service to new functions on a temporary basis without giving
rise to the application of the merit principle and the right of
appeal, that reasonable flexibility should no longer be available
where, as in the present case, the assignment is permitted to
become one of such significant and indefinite duration as may
be presumed to place the occupant of the position at a distinct
advantage in any subsequent selection process. In my opinion
the assignment of the mis en cause to the position of supervisor
of the reception and inquiries section on a full-time basis for
some nine months had acquired that character when the appel
lant's appeal was heard by the appeal board in November,
1984. 1 am, therefore, of the opinion that there was an appoint
ment of the mis en cause to a position within the meaning of s.
21 of the Public Service Employment Act and that since, on the
admission of the Department, the appointment was not based
on selection according to merit, as required by s. 10 of the Act,
the appeal board properly revoked the appointment.
That is not, in my respectful opinion, authority, as
the applicant has argued, for the proposition that
the only circumstance associated with an assign
ment which can offend the merit principle is if it
persists for so long as to become an appointment.
It seems to me that other circumstances taken
together with an assignment may equally offend
the merit principle. The merit principle requires
the appointment of the candidate best qualified to
fill a position. That is not necessarily the candidate
best informed about it.
The Appeal Board did not err in law in conclud
ing that an assignment in combination with a
selection process that gave an unfair advantage to
the candidate assigned to the position could com
promise application of the merit principle. The
conclusion that the assignment in combination
with the preset questions asked by the Selection
Board had that result in the present instance was a
finding of fact which cannot be said to have been
erroneous as contemplated by section 28 of the
Federal Court Act.
I would dismiss this section 28 application.
DESJARDINS J.A.: I agree.
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.