T-1427-89
T-1201-90
Public Service Alliance of Canada (Plaintiff)
v.
Her Majesty The Queen in Right of Canada as
represented by the Attorney General of Canada
and the Public Service Commission (Defendant)
INDEXED AS: PSAC V. CANADA (PUBLIC SERVICE
CoMMissron) (T.D.)
Trial Division, Rouleau J.—Ottawa, January 8 and
30, 1992.
Public Service — Selection process — Merit principle —
Governor in Council approving Public Service Commission
Order exempting lateral transfers from competition and
appeals — Whether ultra vires — Transfers "appointments"
within Act — Public Service Employment Act, s. 41 permitting
Commission to exempt persons or positions with approval of
Governor in Council — Merit principle not to be avoided eas
ily — Orders under s. 41 to be made in strict compliance with
provisions — Because of excessive breadth, Order not in com
pliance.
This was an application for a declaration that certain statu
tory instruments purporting to be made under the authority of
the Public Service Employment Act, the Transfer Exclusion
Approval Order and Transfer Regulations, are ultra vires.
On March 15, 1990, the Governor in Council, upon the rec
ommendation of the Public Service Commission, approved a
Transfer Exclusion Approval Order which removed lateral
transfers from the normal requirement of appointment by com
petition: any person already at the level at which a position was
classified could, if otherwise qualified, be appointed to that
position without right of appeal.
Held, the application should be allowed.
The merit principle for appointment to and within the Public
Service is enacted by section 10 of the Public Service Employ
ment Act. Section 21 gives every person whose opportunity for
advancement has been prejudicially affected by an appoint
ment the right to appeal that appointment. A lateral transfer
constitutes an appointment. Section 41 of the Act permits the
Commission, with the approval of the Governor in Council, to
exclude any person or position from the operation of the Act.
The Order would permit an employee to be transferred to a
job in another department without being determined to be the
best qualified for the job. This could prejudicially affect the
opportunities of others, since a transfer can constitute a posi
tive career move. The Order departs substantially from the
merit principle, since the basis for selection is not whether the
candidate is "the best qualified", but only whether the candi
date is qualified. Sections 10 and 21 of the Act, specifically
legislated for the maintenance of the merit principle, cannot be
easily avoided. An Order made pursuant to section 41 must be
made in strict compliance with its provisions. The impugned
Order is directed at a type of appointment, and could, in the
ory, apply to every public servant who belonged to the same
occupational group, regardless of department. Because of their
potentially broad application, the Order and Regulations do not
comply with section 41 and are therefore ultra vires.
The Commission does in some instances require more flexi
bility, but that is a problem for Parliament, not for the Com
mission or the Court.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Public Service Employment Act, R.S.C., 1985, c. P-33, ss.
10, 21, 37(1), 41.
Public Service Official Languages Exclusion Approval
Order, SOR/81-787, s. 4.
Transfer Exclusion Approval Order, SOR/90-181.
Transfer Exclusion Order, SOR/89-305.
Transfer Regulations, SOR/89-305.
Transfer Regulations, SOR/90-181.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Guy v. Public Service Commission Appeal Board, [1984]
2 F.C. 369; (1984), 8 D.L.R. (4th) 628; 55 N.R. 105
(C.A.).
CONSIDERED:
Wilkinson v. Canada (Public Service Commission Appeal
Board), A-490-84, Hugessen J.A., judgment dated
29/11/84, F.C.A., not reported.
REFERRED TO:
Attorney General of Canada v. Greaves, [1982] I F.C.
806; (1982), 40 N.R. 429 (C.A.); leave to appeal to S.C.C.
refused [1982] 1 S.C.R. v; (1982), 42 N.R. 176.
COUNSEL:
Andrew J. Raven for plaintiff.
Edward R. Sojonky for defendant.
SOLICITORS:
Soloway, Wright, Ottawa, for plaintiff.
Deputy Attorney General of Canada for defen
dant.
The following are the reasons for judgment ren
dered in English by
ROULEAU J.: The Public Service Commission of
Canada (hereinafter referred to as "the Commission")
approved certain "transfer exclusion legislation"
designed to provide more flexibility for transfers
within the Public Service. The plaintiff attacks this
Order and the amending Regulations on the grounds
that they are too broad in so far as they deprive too
many public servants of an opportunity for advance
ment based on merit as well as seriously curtailing
their right of appeal.
Two actions were initiated on behalf of the plain
tiff seeking a declaration that the Transfer Exclusion
Approval Order and the Transfer Regulations (P.C.
1990-513, SOR/90-181) are contrary to section 41 of
the Public Service Employment Act, R.S.C., 1985, c.
P-33, and are therefore ultra vires.
Initially, on June 8, 1989, the Governor in Council,
acting on the recommendation of the Commission,
approved Transfer Exclusion Order and the Transfer
Regulations (P.C. 1989-1093, SOR/89-305), which
came into force June 12, 1989. On July 11, 1989, the
Public Service Alliance commenced its first action in
this Court (Court file no. T-1427-89), seeking a dec
laration that this Order and the accompanying Regu
lations were ultra vires the Governor in Council and
the Commission.
Because of the plaintiff's initiative, the defendant
revoked this Order and the Regulations, and on
March 15, 1990, approved an amended Transfer
Exclusion Approval Order and Transfer Regulations
(SOR/90-181). The purpose and intent of the new
Order and Regulations was the same as the ones they
replaced, the only difference being that the new
Order provided "technical precision" lacking in the
previous legislation. The Alliance commenced this
second action on May 4, 1990. Since the 1989 Order
and Regulations were expressly revoked, the first
action in this matter is now moot, however the issues
presented are technically the same. This Order reads
as follows:
PUBLIC SERVICE EMPLOYMENT ACT
Transfer Exclusion Approval Order
Transfer Regulations
P.C. 1990-513 15 March, 1990
Whereas the Public Service Commission has decided that it
is not practicable nor in the best interests of the Public Service
(a) to apply section 10 of the Public Service Employment
Act, in relation to qualifications other than language skills,
to any position to which a person is to be or is appointed on
an indeterminate basis from within the Public Service and
the appointment does not or will not result in a change of
tenure or occupational group or sub-group or in an increase
in level of the person; and
(b) to apply section 21 of the Public Service Employment
Act to all persons who, but for this Order, would have a
right to appeal against the appointment or proposed appoint
ment on an indeterminate basis of any person to a position
where the appointment does not or will not result in a
change of tenure or occupational group or sub-group or in
an increase in level of the person;
Therefore, His Excellence the Governor General in Council,
(a) on the recommendation of the Secretary of State, is
pleased hereby pursuant to subsection 41(2) of the Public
Service Employment Act, to approve the revocation by the
Public Service Commission of the order excluding employ
ees, other than employees in the management category, from
the operation of section 10, except to the extent that lan
guage skills are a basis of assessment in selections for
appointment, and section 21 of the Public Service Employ
ment Act on their appointment for an indeterminate period
where such appointments do not result in a change in tenure
or in occupational group or sub-group or in an increase in
level of those employees approved by Order in Council P.C.
1989-1903 of June 8, 1989 (SOR/89-305, 1989 Canada
Gazette Part II, p. 3017) and in consequence thereof to
revoke the said Order in Council; and is pleased hereby pur
suant to subsection 41(1) of the Public Service Employment
Act, to make in substitution therefor the annexed Order
approving the exclusion by the Public Service Commission
of certain positions from the operation of section 10 in rela
tion to qualifications other than language skills, and of cer
tain persons from the operation of section 21 of the Public
Service Employment Act; and
(b) on the recommendation of the Secretary of State and the
Public Service Commission is pleased hereby pursuant to
subsection 37(1) of the Public Service Employment Act, to
revoke the Regulations respecting the appointment of
employees, other than employees in the management cate
gory, on their appointment for an indeterminate period
where such appointments do not result in a change in tenure
or occupational group or sub-group or in an increase in level
of those employees, P.C. 1989-1903 of June 8, 1989
(SOR/89-305, 1989 Canada Gazette Part II, p. 3017); and is
pleased hereby pursuant to subsection 37(1) of the Public
Service Employment Act, to make in substitution therefor
the annexed Regulations respecting the appointment or pro
posed appointment on an indeterminate basis of a person to
a position where the appointment does not or will not
result... .
The effect of this Exclusion Order is described in
the Regulatory Impact Analysis Statement accompa
nying the Order:
The Transfer Exclusion Approval Order and regulations
exclude certain positions and certain persons from certain pro
visions of the Public Service Employment Act. The purpose of
this exclusion is to simplify the approach of moving employees
within their occupational group and subgroup, to new posi
tions that are at the same or lower level. In these instances,
these transfers can be made without the appointments being
subject to appeal by other employees and without having to
demonstrate the relative qualification of one individual over
another. Employees who are transferred must consent to the
move and meet the requirements of the position, including the
applicable language, medical, security and occupational certifi
cation qualifications. [Emphasis added.]
Historically, the merit principle lies at the heart of
the Public Service Employment Act. The Commission
is responsible for staffing the federal Public Service
and, in exercising this function, it acts as Parlia
ment's agent in ensuring that the merit principle is
upheld.
Two sections within the legislation were purposely
enacted to provide safeguards. Section 10 of the Pub
lic Service Employment Act dictates that appoint
ments to or from within the Public Service are to be
based on selection according to merit in order that
the best qualified and most suitable candidate is
selected for appointment. It reads:
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.
Section 21 of the Act gives an employee who feels
that the merit principle was not applied with respect
to any particular appointment a right to appeal. It pro
vides:
21. (1) 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, every
unsuccessful candidate, in the case of selection by closed com
petition, or, in the case of selection 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 Commission to con
duct an inquiry at which the person appealing and the deputy
head concerned, or their representatives, shall be given an
opportunity to be heard.
(Note: The Court of Appeal in Wilkinson v. Canada
(Public Service Commission Appeal Board) (A-490-
84, Hugessen J.A., judgment dated November 29,
1984, unreported) determined that a "lateral transfer"
made in order to fill a vacancy in a position in the
Public Service constitutes an "appointment" within
the meaning of the Public Service Employment Act.)
In addition to sections which provide protection for
public servants, Parliament also saw fit to allow the
Commission certain flexibility and this is achieved
through exclusion orders and regulations authorized
pursuant to sections 37 and 41 of the Act which read
as follows:
37. (1) The Governor in Council, on the recommendation of
the Commission, may make regulations prescribing how posi
tions or persons, wholly or partly excluded under section 41,
shall be dealt with.
41. (1) In any case where the Commission decides that it is
not practicable or in the best interests of the Public Service to
apply this Act or any provision thereof to any position or per
son or class of positions or persons, the Commission may, with
the approval of the Governor in Council, exclude that position
or person or class of positions or persons in whole or in part
from the operation of this Act.
(2) The Commission may, with the approval of the Gover
nor in Council, re-apply any of the provisions of this Act to
any position or person excluded pursuant to subsection (1).
[Emphasis added.]
The plaintiff submits that this Exclusion Order
(SOR/90-181) would allow lateral transfers without
competition and could ignore the "best qualified"
principle and that should a public servant who is
either "qualified" or "best qualified" be overlooked,
he or she would lose the protection of the safeguards
built into the Act pursuant to sections 10 and 21. It is
further suggested that the wording of the Transfer
Exclusion Approval Order is deliberately broad and
vague. In light of section 41, it fails to specifically
delineate "positions" or "persons" or "class of posi
tions" or "persons"; it is in fact an exclusion order
providing the Commission with unrestricted discre
tion.
Counsel for the defendant took the position that the
Transfer Exclusion Approval Order was specific and
met the test of complying with section 41 of the Act.
He argued that statutory interpretation of the word
"any" in the context of section 41 could mean "all" or
"every". In support, he suggests that the Federal
Court of Appeal in Guy v. Public Service Commis
sion Appeal Board, [ 1984] 2 F.C. 369 (C.A.), allowed
the Commission to exclude any person or position
from the application of the Act through an exclusion
order of general application. He submits that for
practical purposes, and for the sake of flexibility, the
Commission should be permitted liberal transfer
authority since it was in the best interest of the Public
Service that this discretion be available.
I cannot agree with the defendant's position either
with respect to flexibility, statutory interpretation or
the suggestion that the Court of Appeal permitted the
Commission such broad authority in its reasons for
judgment in Guy v. Public Service Commission
Appeal Board, supra. It is a well-known principle of
statutory interpretation that in construing a provision
of any Act of Parliament, regard must be had to the
object of the legislation as a whole. If I were to
accept the submission that "any" can mean "all" in
the context of section 41, then I would be defeating
the whole purpose and object of the Public Service
Employment Act which is to ensure that appointments
to the Public Service are made on the basis of merit.
The Commission could then enact one all encompass
ing exclusion order which could amount to abuse of
the merit principle and completely avoid the safe
guards which Parliament intended.
I would now like to refer to what I consider to be
the proper analysis of Guy v. Public Service Commis
sion Appeal Board, supra. In that particular case an
individual had applied by way of closed competition
for a position in the Public Service classified as
"Bilingual non-imperative". The relevant provisions
of the Public Service Official Languages Exclusion
Approval Order [SOR/81-787] applicable in the case
were the following:
4. (1) The following persons are hereby excluded from the
operation of section 10 of the Act in so far as a selection stan
dard based on language skills is a basis of assessment in selec
tions for a non-imperative appointment according to merit,
namely, persons who qualify in the knowledge and use of one
of the official languages at the level of proficiency required for
the bilingual position and who
(a) are eligible for language training and submit to the Com
mission an agreement;
(2) For the purpose of paragraph (1)(a), a person is eligible
for language training for the purposes of a bilingual position if,
(a) he demonstrates to the Commission his potential for
attaining the knowledge and use of the other official lan
guage at the level of proficiency required for the bilingual
position, and
(b) since January 1, 1974, he has received in the aggregate
less than the maximum language training time prescribed,
and if he has not
(d) through language training, attained a similar or higher
level of language proficiency, ... [Emphasis added.]
The applicant had been offered the position, how
ever having failed to meet the language requirements,
he was denied the appointment. He had previously
received language training, had achieved the required
level but subsequently lost his competency. He
sought an order declaring paragraph 4(2)(d) ultra
vires as violating the merit principle. The Court of
Appeal dismissed the application on the grounds that
the Order was validly made pursuant to section 39
[R.S.C. 1970, c. P-321 of the Act (now section 41).
Hugessen J.A., speaking for the majority of the
Court, determined that paragraph 4(2)(d) of the Order
excluded the applicant. He found that the language of
the Exclusion Order intended that a person previously
trained at public expense to meet a level of language
proficiency and who subsequently fell below that
level, should not be entitled to an exclusion from the
language requirement of a position while they
obtained further language training at public expense.
As I read the Court's reasoning, it was because of the
precision in wording of the Exclusion Order that the
Court found that it fell within the parameters of the
then section 39, now section 41 of the Act.
Dozens of exclusion orders were filed in these pro
ceedings and there is no doubt that in all cases they
refer to specific positions or persons which permit the
Commission to approve appointments excluding
them from the operation of the Act.
On reading the present Order, it is clear that it
would permit the Commission to transfer a public
servant from one job to another in a different depart
ment, without having been determined to be the "best
qualified" for the job. No right of appeal would be
available to any other employee nor to anyone believ
ing that his or her opportunities for advancement had
been prejudicially affected. An example given to me
was that of a payroll clerk, a member of the CR
group, employed with the National Energy Board
could conveniently be transferred to the Department
of Revenue.
On the facts and evidence adduced, I am satisfied
that there may very well be employees who feel that
their opportunities may have been prejudicially
affected by such a transfer. It must be remembered
that a transfer can constitute a positive career move
notwithstanding the fact that there is no change in
occupational group, level, term of employment or
remuneration. The Crown's own witness admitted on
cross-examination that a transfer could, in some
instances, "increase the potential for promotion".
The present Transfer Exclusion Approval Order as
I read it, departs substantially from the merit princi
ple. According to the Order, the basis for selection is
not whether or not a candidate is "the best qualified",
but rather whether or not the candidate is "qualified".
It removes the right for anyone in the Public Service
to appeal the appointment.
I am sympathetic with the Commission's attempts
to implement more flexibility in the system. Never
theless, during the past ten years, the Court has been
consistent in upholding merit. It has always main
tained that sections 10 and 21 cannot easily be
avoided, since these provisions were specifically leg
islated for the protection of public servants and for
the promotion and maintenance of the merit princi
ple.
The Commission has been provided with some dis
cretion to exclude certain persons or positions from
the strict requirements of adherence to the merit prin
ciple by virtue of sections 37 and 41 of the Act. It
follows that any order made pursuant to section 41
must be made in strict compliance with its provi
sions. Counsel for the plaintiff submits that the Order
does not comply with section 41 in that it does not
specifically address certain "positions or persons" or
"classes of positions or persons". It is undeniably
directed at a type of appointment, namely "lateral
transfers".
At the present time, when a vacancy occurs, the
line manager decides how that position is to be filled,
with or without competition. In those cases, every
unsuccessful candidate or every person whose oppor
tunities have been prejudicially affected, may appeal.
As a result of this new Transfer Exclusion Approval
Order, if it is pressing to fill a vacancy, and hiring
"the best" is not important, the line manager may
decide to fill the position by way of a lateral transfer.
All he must consider in filling the position is "Is he
or she qualified and are they at the same level?" The
only recourse for a public servant who may feel that
he or she is better qualified, or that their opportunity
for advancement has been curtailed, is to file a griev-
ance or request an investigation, which remedies
were admitted to be generally ineffective.
Counsel pointed out that, because it is the line
manager who generally decides how a vacancy
within his department is to be filled, it is possible that
every opening in the federal Public Service could be
staffed by means of lateral transfer. In theory, the
Transfer Exclusion Approval Order could apply to
every public servant who belonged to the same occu
pational group or level regardless of the department
or ministry.
It is my view that because of the potentially broad
application of the Order, it does not comply with sec
tion 41 and I hereby declare that the Transfer Exclu
sion Approval Order and the Transfer Regulations
(SOR/90-181) are ultra vires the Commission and the
Governor in Council.
Having reached this conclusion, I find it unneces
sary to consider counsel's submission that the effect
of the Order was to subdelegate the authority vested
exclusively with the Commission to the line manag
ers.
Having considered the jurisprudence which is con
sistent in maintaining the merit principle; having had
an opportunity to peruse dozens of exclusion orders
which are specific in nature; having considered the
overall purpose of the enabling legislation and being
satisfied that the Commission does in some instances
require more flexibility, I am convinced that the
problem lies not with the Commission or the Court
but with Parliament.
In so finding, I am reminded of the words of Le
Dain J.A. in the Attorney General of Canada v.
Greaves, [1982] 1 F.C. 806 (C.A.) (leave to appeal to
S.C.C. denied, [1982] 1 S.C.R. v), at page 812:
I am mindful that the conclusion reached in this case may
severely limit the flexibility provided by the power of transfer
in the Public Service, to the extent that a particular transfer
constitutes an appointment within the meaning of the Act, but
if more is required in this regard it should be clearly provided
by the legislation. [Emphasis added.]
Costs to the plaintiff.
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.