Lo v. Canada ( Public Service Commission Appeal Board )
T-32-96
Gibson J.
21/2/97
11 pp.
Application for judicial review of PSC Appeal Board decision allowing applicant's appeal, with respect to FI-04 competition, against appointment of candidate Wilson and determining "no further action will be taken" with respect to two other candidates-Applicant did not meet language requirement "bilingual non-imperative"-Earlier F.C.T.D. decision allowed application for judicial review, set aside Appeal Board's decision on basis latter allowed improper use of selection standard to qualify candidates to competition, when those candidates did not possess educational qualifications stated on competition poster and when reasons for decision did not otherwise address such qualifications, and referred matter to PSC for establishment of new Appeal Board and for rehearing and redetermination of applicant's appeal-Between time of Appeal Board's first decision and Board's hearing resulting in second decision, one candidate transferred to another position in Public Service and later retired-Board therefore concluded appeal from appointment of retired candidate moot but allowed appeal against candidate Wilson on basis appointment contravened merit principle-Board found Selection Board had appropriately concluded applicant did not meet language profile for positions-Application allowed with respect to determination appeal from retired candidate's appointment moot-Appeal Board erred in law on this point-New PSEA, s. 21(3) providing where Appeal Board determining defect in selection process, Commission may take such measures as considers necessary to remedy defect-Appeal Board, bound by F.C.T.D. finding in this regard, would have been obliged to find defect in selection process and to utilize Act, s. 21(3) to take such measures as necessary to remedy defect-However, no error in Appeal Board's finding applicant unqualified for positions in competition by reason of language requirement issue-Also, Board did not err by taking into consideration evidence not properly before it: impugned statement did not form part of considerations leading to Appeal Board's decision and no reasonable person reading Appeal Board's decision as whole would conclude possibility or likelihood of prejudice against applicant-Public Service Employment Act, R.S.C., 1985, c. P-32, s. 21 (as am. by S.C. 1992, c. 54, s. 16; 1996, c. 18, s. 15).