Peet v. Canada ( Attorney General )
T-738-95
Rouleau J.
18/1/96
10 pp.
Judicial review of PSC Appeal Board decision confirming promotion, reclassification of incumbent based individuals-Applicant research scientist, located at Pacific Forestry Centre for Forestry Canada-Member of incumbent-based research scientists group-Incumbent-based individuals not having defined duties-Instead individual's duties, performance defining position, classification-Generally promoted on individual merit within department-Applicant appealing promotion of three scientists within group pursuant to Public Service Employment Act, s. 10(2), Public Service Employment Regulations, s. 4(2)(b)(iii)-Arguing authority delegated by Public Service Commission to Department to appoint without competition deficient-Public Service Employment Act, s. 10(2) permitting selection according to merit based on competence of person being considered for appointment rather than as measured against competence of other persons-Regulations, s. 4(2)(b)(iii) providing selection referred to in s. 10(2) may be made where employee to be appointed to employee's reclassified position and no other similar positions in same occupational group and level within same part of organization-S. 4(2)(c) providing selection referred to in s. 10(2) may be made where employee to be promoted within occupational group in which positions classified according to qualifications of incumbents-Delegation of authority stating Deputy Minister can promote employee based on assessment against standard of competence in case of reclassification of standard of competence of employee's own position-Appeal Board holding s. 4(2)(b)(iii) properly used to promote incumbent-based candidates-Whether research scientists should only be reclassified under s. 4(2)(c)-Delegation of authority deficient-Reclassifications, promotions void ab initio- Delegation of authority for reclassification under Act, s. 10(2) directed to reclassification, promotion under Regulations, s. 4(2)(b), and not including s. 4(2)(c)-Specific direction in memorandum concerning annual promotion exercise emphasizing if research scientist to be promoted to next higher classification, while remaining in same position, "position classification . . . will be adjusted . . . to ensure classification coincide between incumbent and the position"-French version of s. 4(2)(c) concise: "les postes sont classifiés selon les qualités des titulaires"-S. 4(2)(b) depending only on tasks performed by employee while s. 4(2)(c) depending on qualifications as well as performance of incumbent-Under s. 4(2)(b) only one of three events enumerated must occur for position-based employee to be promoted-Use of "or" in s. 4(2)(b)(ii) clear indication of Parliament's intention only one of provisions of subparagraphs must be met to promote employee-Public Service Employment Act, R.S.C., 1985, c. P-33, s. 10(2) (as am. by S.C. 1992, c. 54, s. 10)-Public Service Employment Regulations, 1993, SOR/93-286, s. 4(2)(b)(iii).