A-9-89
Neil H. Keenan and Kimberly Monteith (Appel-
lants)
v.
Public Service Commission (Respondent)
INDEXED AS: KEENAN V. CANADA (PUBLIC SERVICE COMMIS
SION) (C.A.)
Court of Appeal, Heald, Mahoney and Stone
JJ.A.—Ottawa, May 30 and June 1, 1989.
Public service — Selection process — Advancement prejudi-
cially affected — Employee seconded from another depart
ment — Appellants seeking leave to appeal under Public
Service Employment Act, s. 21 — Conditions precedent to
right to appeal: (1) appointment, and (2) where no competition,
opportunity for advancement of proposed appellant, in Com
mission's opinion, prejudicially affected — Commission refus
ing to express opinion as holding secondment not appointment
— Trial Judge refusing certiorari quashing Commission's
refusal and mandamus requiring Commission to render opin
ion — Public Service Employment Regulations, s. 40 requiring
public notice of appointment and of right of any person to
request Commission's opinion as to whether opportunity for
advancement prejudicially affected — Outside Commission's
jurisdiction to decide whether secondment or assignment con
stituting appointment — Matter for appeal board to decide —
S. 21 limiting Commission's authority to rendering opinion as
to whether staffing action prejudicially affecting opportunity
for advancement of person seeking to appeal — Appeal
allowed.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 52(b)(î).
Public Service Employment Act, R.S.C. 1970, c. P-32, ss.
21, 33.
Public Service Employment Regulations, C.R.C., c.
1337, ss. 40 (as am. by SOR/86-286, s. 1), 41 (as am.
idem).
CASES JUDICIALLY CONSIDERED
REVERSED:
Keenan v. Canada (Public Service Commission), [1989] 2
F.C. 117 (T.D.).
REFERRED TO:
Canada (Attorney General) v. Brault, [1987] 2 S.C.R.
489; Doré v. Canada, [1987] 2 S.C.R. 503; Lucas v.
Canada (Public Service Commission Appeal Board),
[1987] 3 F.C. 354 (C.A.).
COUNSEL:
Andrew J. Raven for appelants.
Robert Hynes and Marie-Claude Turgeon for
respondent.
SOLICITORS:
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for appelants.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
MAHONEY J.A.: This appeal is from the refusal
by the Trial Division [[1989] 2 F.C. 117] of
certiorari quashing a decision of the respondent
whereby it refused to express its opinion, as
requested by the appellants, whether or not their
opportunities for advancement had been prejudi-
cially affected by the appointment of another to a
position in the Public Service and of mandamus
requiring the respondent to render that opinion.
The matter arose as a result of the secondment of
an employee from Revenue Canada, Customs and
Excise to a position with the Canada Employment
and Immigration Commission as a result of the
grant of 15 months leave of absence to the incum
bent of that position. The appellants sought to
appeal pursuant to section 21 of the Public Service
Employment Act, R.S.C. 1970, c. P-32.
21. Where a person is appointed or is about to be appointed
under this Act and the selection of the person for appointment
was made from within the Public Service
(a) by closed competition, every unsuccessful candidate, or
(b) without competition, every person whose opportunity for
advancement, in the opinion of the Commission, has been
prejudicially affected,
may, within such period as the Commission prescribes, appeal
against the appointment to a board established by the Commis
sion to conduct an inquiry at which the person appealing and
the deputy head concerned, or their representatives, are given
an opportunity of being heard, and upon being notified of the
board's decision on the inquiry the Commission shall,
(c) if the appointment has been made, confirm or revoke the
appointment, or
(d) if the appointment has not been made, make or not make
the appointment,
accordingly as the decision of the board requires.
Conditions precedent to a right to appeal are,
firstly, there must have been, or be about to be, an
appointment and, secondly, where there has been
no competition as here, the proposed appellant
must be a person whose opportunity for advance
ment, in the Commission's opinion, has been pre-
judicially affected.
The Act provides:
33. Subject to this Act, the Commission may make such
regulations as it considers necessary to carry out and give effect
to this Act.
Pursuant to that, the Public Service Employment
Regulations, C.R.C., c. 1337, have been made.
The following, which came into force March 5,
1986, SOR/86-286, are pertinent.
40. Where a person is appointed or is about to be appointed
under the Act and the selection of the person for appointment
was made from within the Public Service without competition,
public notice shall be given of
(a) the name of the person appointed or about to be appoint
ed; and
(b) the fact that any person may, within fourteen days after
the date the notice is given, request the opinion of the
Commission referred to in paragraph 21(b) of the Act with
respect to whether in its opinion that person's opportunity for
advancement has been prejudicially affected.
41. (1) The person who requested the opinion of the Commis
sion under paragraph 40(b) shall be given written notice of that
opinion.
It may be inferred, in the circumstances, that
the public notice contemplated by regulation 40
was not given but that the appellants, being on the
spot and aware of the secondment, nevertheless
made the request permitted by paragraph 40(b).
The Commission's response, which is the decision
sought to be quashed, in its material part, follows:
In order for the Commission to render an opinion, an appoint
ment without competition must have been effected or be pro
posed. The investigation of this case has concluded that the
secondment of Mr. Thornton does not constitute an appoint
ment pursuant to the Public Service Employment Act. Conse
quently, the Commission has no jurisdiction to render an
opinion in this case.
For purposes of this judgment, it is unnecessary
to attempt to define the terms "secondment",
"assignment" and "appointment" in a comprehen
sive way. The material distinction between the first
two is that a secondment involves the installation,
to adopt a neutral term, of a person from another
department or agency in a position while an
assignment involves a person from within the same
department or agency. The jurisprudence makes it
amply clear that either may, or may not, be an
appointment depending on the particular circum
stances, vid. Canada (Attorney General) v. Brault,
[1987] 2 S.C.R. 489; Doré v. Canada, [1987] 2
S.C.R. 503; and Lucas v. Canada (Public Service
Commission Appeal Board), [1987] 3 F.C. 354
(C.A.). I cite these decisions only to demonstrate
that the question is an arguable one very much
dependent on the circumstances of each case.
In my respectful opinion, the Act does not
authorize the Commission to make that decision.
Its authority, in the relevant circumstances, is
limited by section 21 to the formation and expres
sion of an opinion as to whether the staffing action
taken or proposed has prejudicially affected the
opportunity for advancement of a person seeking
to appeal. If put in issue, the question whether or
not that staffing action was or will be an appoint
ment is a matter to be decided by the appeal
board. If it decides that the staffing action entailed
no appointment, it will have decided that it is
without jurisdiction to proceed but that is its deci
sion to be made after the required hearing, not a
decision to be reached by the Commission follow
ing investigation.
I would allow the appeal with costs here and in
the Trial Division. Pursuant to paragraph 52(b)(î)
of the Federal Court Act [R.S.C., 1985, c. F-7], I
would quash the decision of the Public Service
Commission dated April 29, 1988, and would
remit the matter to the Commission with the
direction that it form and express its opinion as to
whether the secondment in issue has prejudicially
affected the appellants' opportunity for advance
ment.
HEALD J.A.: I agree.
STONE 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.