Peet v. Canada ( Attorney General )
T-788-94
Noël J.
8/2/95
5 pp.
Application to set aside Appeal Board's dismissal of appeal against Department's decision not to promote applicant -- In response to Department's call, applicant applying for promotion in all three classes of incumbent-oriented positions for research scientists -- Promotion committee approving promotions but not filling quota established for each class -- Refusal to evaluate applicant's application on grounds of form overruled and applicant's promotion to SE-RES-03 level recommended -- Applicant appealing promotions to SE-RES-04 and 05 positions -- Sought to demonstrate his qualifications met or exceeded those of scientists promoted -- Not contending successful candidates not qualified for promotions -- Appeal Board concluding lacking jurisdiction to entertain appeal as complaint not within Public Service Employment Act, s. 21 -- Held purpose of appeal under s. 21 to prevent appointments that should not be made -- Application allowed -- Merit always relevant issue in s. 21 review -- In context of incumbent based promotion, successful candidate must first meet prerequisite qualifications attached to promotion, and then demonstrate he is best qualified amongst those who meet prerequisite qualifications -- When two qualified persons seek same promotion, position ultimately only attributed by reference to their respective merit -- Board misconstrued complaint in holding not challenging promotion of successful candidates -- Fact applicant conceded successful candidates possessed required qualifications for promotion irrelevant -- Fact complaint framed on basis applicant's qualification exceeded those of successful candidates relevant -- Leckie v. Canada, [1993] 2 F.C. 473 (C.A.) distinguished as there appellants not leading any evidence showing best persons not selected -- Board failed to satisfy self best persons possible appointed by declining jurisdiction based on misapprehension of complaint -- Merit principle applicable regardless of whether quotas filled -- While cannot compel employer to extend quotas, can challenge appointments made within quota by reference to merit principle -- Public Service Employment Act, R.S.C., 1985, c. P-33, s. 21 (as am. by S.C. 1992, c. 54, s. 16).