Judgments

[1993] 2 F.C. 473

A-1299-91

Dr. Dale Leckie, Dr. Arthur R. Sweet and Dr. Tomas Jerzykiewicz (Applicants)

v.

Her Majesty the Queen (Respondent)

Indexed as: Leckie v. Canada (C.A.)

Court of Appeal, Heald, Décary and Robertson JJ.A.—Ottawa, April 1 and 8, 1993.

Public Service — Selection process — Merit principle — Applicants holding incumbent-oriented positions, i.e. position level changed when incumbent meets criteria for next level — Although met criteria for promotion, not promoted because of departmental quota — Numerical quotas on promotions of holders of incumbent-oriented positions not offending merit principle — Merit principle applies only after Treasury Board authorizing promotion and providing necessary funds — Quota system not affecting relative merit, merely circumscribing scope of opportunities for promotion — Appeal board lacking jurisdiction in absence of appointment.

This was an application to set aside the P.S.C. Appeal Board’s decision dismissing appeals against appointments made without competition of thirteen research scientists to positions at the SE-RES-3 level within the Department of Energy, Mines and Resources (EMR). The applicants were SE-RES-2 research scientists at EMR. Classification levels in that sub-group are defined in terms of the achievement and productivity of incumbents of positions, and promotion to the next level is based on the individual’s productivity and demonstrated capability to function at the higher level as defined in the criteria therefor. Treasury Board authorizes a specific number of promotions. The incumbents who best meet the criteria for the next higher level are promoted and the levels of the positions they occupy are then changed accordingly. In 1990 the number of RES-2 incumbents who met the criteria for a promotion exceeded the departmental quota. EMR conducted and participated in a selection process for possible promotion should there be vacancies in the Public Service-wide quota. There were five levels of assessment. Those who were eliminated at the divisional level never had a chance to compete against members of other divisions. At the interdepartmental level, an advisory committee decided whether to accept the recommendations for promotion, and accepted thirteen. The applicants argued that their promotions were denied because of a departmental quota. They submitted that the imposition of quotas with respect to incumbent-oriented positions offended the merit principle. They argued in the alternative that the multi-level process set up by EMR for the selection created the real possibility that more meritorious ones were passed over while less meritorious ones were promoted. They argued that the holder of an “incumbent-oriented” position has a vested right to a promotion to a higher level as soon as he meets the criteria for that next higher level. The issue was whether the imposition of numerical quotas on promotions of holders of incumbent-oriented positions offends the merit principle.

Held, the application should be dismissed.

The merit principle means that when there is an opportunity for promotion, the most meritorious person should be promoted. It is applied after the Administration decides to authorize a promotion and provide the necessary funds. The imposition of quotas by Treasury Board is a managerial prerogative, unrelated to the merit principle, and may affect incumbent-oriented positions as well as position-driven ones. The quota system does not affect the relative merit of the scientists found qualified for consideration for promotion and promoted; it simply circumscribes the scope of their opportunities for promotion.

Public Service Employment Act, section 21 gives a right of “appeal against the appointment”. An appeal board has no jurisdiction where no appointment has been or is about to be made. The applicants’ argument would result in an appeal board hearing an appeal to protect one’s rights to a promotion, not a challenge to a promotion.

As an appeal board’s main duty is to satisfy itself that the best persons possible were appointed, an applicant should demonstrate that there was a real possibility that the best persons possible were not appointed. The applicants did not argue that the scientists selected were less qualified than themselves. The Appeal Board could only find as a fact that the best persons were appointed, and that therefore the appointments were made in accordance with the merit principle.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Federal Court Act, R.S.C., 1985, c. F-7, s. 28.

Financial Administration Act, R.S.C., 1985, c. F-11, ss. 7 (as am. by S.C. 1991, c. 24, ss. 2, 49), 10.

Public Service Employment Act, R.S.C., 1985, c. P-33, ss. 10, 21.

CASES JUDICIALLY CONSIDERED

APPLIED:

Shannon v. Canada (Attorney General), [1993] 1 F.C. 331 (C.A.); Charest v. Attorney General of Canada, [1973] F.C. 1217; (1973), 2 N.R. 288 (C.A.).

REFERRED TO:

Brown v. Public Service Commission, [1975] F.C. 345; (1975), 60 D.L.R. (3d) 311; 9 N.R. 493 (C.A.); Attorney General of Canada v. Greaves, [1982] 1 F.C. 806; (1982), 40 N.R. 429 (C.A.); Nanda v. Public Service Commission, [1972] F.C. 277; (1972), 34 D.L.R. (3d) 51 (C.A.).

APPLICATION to set aside decision of Public Service Commission Appeal Board dismissing appeals against appointments made without competition of research scientists in incumbent-oriented positions. Application dismissed.

COUNSEL:

Steven H. Waller for applicants.

Dogan Akman for respondent.

SOLICITORS:

Nelligan/Power, Ottawa, for applicants.

Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment rendered in English by

Décary J.A.: This application for judicial review raises a novel issue of some importance to the Public Service: does the imposition of numerical quotas on promotions of holders of incumbent-oriented positions offend the merit principle?

The applicants were all SE-RES-2 research scientists at the Institute of Sedimentary and Petroleum Geology (a division of the Geological Survey of Canada Sector of the Department of Energy, Mines and Resources (EMR)) located in Calgary, Alberta. The classification plan for the Research Scientist sub-group, unlike those for most other occupational groups in the Public Service, is “incumbent-oriented”, not position-driven; the four classification levels in the sub-group are defined in terms of the achievement and productivity of incumbents of positions and promotion of an incumbent to the next higher level is based on the individual’s cumulative productivity and demonstrated capability to function at the higher level as defined in the criteria for the higher level.

Consequently, the RES promotion process reverses the normal staffing process, whereby the duties of the position are defined, the classification level established, and a selection process conducted to identify the best person to carry out those duties. In the RES promotion process, a specific number of promotions (the so-called quota system) is authorized by Treasury Board, the incumbents who best meet the criteria for the next higher level are promoted and the levels of the positions they occupy are then changed accordingly. Treasury Board ordinarily maintains a Public Service-wide quota, and a departmental sub-quota for each department that employs research scientists.

Yearly promotion exercises are conducted subject to the constraints imposed by the quota system. In any given year, if a particular department has its sub-quota at full strength and if promotions to the RES-3 level cannot be made without exceeding the departmental quota, such promotions may nevertheless be made on the basis of vacancies which may exist elsewhere in the Public Service-wide quota. This was the situation in EMR and in the system for the 1990 promotion exercise. The number of those RES-2 incumbents who met the criteria for a promotion to the RES-3 level exceeded the quota allowed EMR by the Treasury Board, with the result that EMR conducted and participated in a selection process for the possible promotion, should there be vacancies in the Public Service-wide quota, of its most meritorious RES-2 level research scientists.

Briefly put, the selection process set up by EMR was the following. It involves five levels of assessment: the divisional level, the branch level, the sectorial level, the departmental level and the interdepartmental level. It is an eliminating process, rather than a round-robin. Those, like the three applicants, who are eliminated in their own division, never have a chance to compete against members of the other divisions. At the last level, the Interdepartmental Advisory Committee for the Scientific Research Group (IAC)[1] examines the recommendations for promotion submitted by the various departments and makes a final decision on whether or not to accept the recommendation. Thirteen recommendations were accepted, resulting in thirteen promotions which, for all practical purposes, are equivalent to appointments. The terms “promotions” and “appointments” will be used interchangeably in these reasons.

Appeals were brought by the three applicants under section 21 of the Public Service Employment Act[2] (the Act) against the appointments made, without competition, of the thirteen research scientists to positions at the SE-RES-3 level within EMR. Their grounds for appeal were that “promotion was denied because of a Departmental Quota”. The applicants had first obtained, as is requested by section 21, an opinion of the Public Service Commission (the Commission) to the effect that their opportunity for advancement had been prejudicially affected by the appointments of their thirteen colleagues. The reasons for the opinion given by the Commission read as follows:

The appointments in question constitute a reasonable opportunity for advancement for the requestors. They are incumbents of SE-RES-02 positions and would be eligible to compete if a competition were held for such appointments. Therefore they are considered to be logical contenders in this situation. Whether they meet the established criteria or whether they are more or less qualified than the proposed appointees are matters of interpretation which fall within the purview of an Appeal Board.

Their appeals were dismissed by Appeal Board chairperson, I. V. Gendron on December 17, 1991. On December 24, 1991, the applicants filed an originating notice under section 28 of the Federal Court Act.[3]

The main argument advanced by the applicants before the Appeal Board was that the imposition of quotas with respect to incumbent-oriented positions offends in itself the merit principle established in section 10 of the Act.[4] Before us, and through a supplementary memorandum of fact and law, they also submitted, in the alternative, that the multi-level process set up by EMR for the selection created the real possibility that more meritorious candidates were passed over while less meritorious candidates were promoted, thereby offending the merit principle.

Counsel for the applicants argues that in view of the alleged uniqueness or distinctiveness of the situation of holders of incumbent-oriented positions, the Court should approach the merit principle under section 10 and the powers of an appeal board under section 21 in a novel way. The public interest in preserving and enhancing the excellence of the scientists working in the Public Service requires, he argues, that no arbitrary quotas be imposed which could hinder their own personal quest, and reduce their incentive, for an always greater excellence. The essence of the applicants’ submissions is that the holder of an “incumbent-oriented” position has a vested right to a promotion to a higher level as soon as he meets the criteria for that next higher level, whether or not the Administration has decided to make such a promotion available by providing the necessary funds. Counsel even suggested that there was a duty imposed on the Administration to find the necessary funds whenever an incumbent, assessed as against himself, was found to meet the criteria. Counsel recognized at the hearing that the appeals were not really made against the appointments of those who had been selected, but were made on a “me too” basis, i.e. that each of the applicants should also have been selected because each of them met the criteria. In other words, in counsel’s view, all scientists who meet the level 3 criteria should have been promoted notwithstanding that quotas had been established by the Treasury Board.

While I am disposed to adapt to new situations the principles developed so far with respect to the merit principle, I simply cannot change these very principles inasmuch as they have been developed in accordance with the legal and factual realities of employment in the Public Service. The merit principle is a statutory creature, and so is an appeal board. They do not exist in a vacuum. For the applicants’ argument to succeed, the merit principle would need to apply before it actually does and the appeal to an appeal board would need to be on an issue of which such a board can simply not be seized.

The “merit principle” does not mean that whenever a public servant is meritorious, he acquires the right to be promoted. It means, rather, that when there is an opportunity for promotion, the most meritorious person should be promoted. It is applied after, not before, the decision is made by the Administration to authorize a promotion and provide the necessary funds. As long as the Treasury Board (the department responsible pursuant to the Financial Administration Act[5] for the general administrative policy in the public service of Canada, the personnel management in that public service and the collection, management and administration of public money) has not authorized the funds needed for a promotion, there can be no promotion, therefore no application of the merit principle and no appeal to an appeal board.[6] The imposition of quotas by the Treasury Board is a managerial prerogative the exercise of which has nothing to do with the merit principle and may affect incumbent-oriented positions as well as position-driven ones. To use the words of counsel for the respondent, the so-called quota system does not affect the relative merit of the scientists found qualified to be considered for promotion and promoted; it simply circumscribes the scope of their opportunities for promotion, i.e. the speed with which they may secure the advancement of their careers from one level to the next at any given point in time.

On the other hand, the powers and duties of appeal boards established pursuant to section 21 of the Act have been unequivocally circumscribed by the decisions of this Court, most recently in Shannon v. Canada (Attorney General),[7] where Stone J.A., for the Court, reiterated that a right of appeal under that section is for the purpose of attacking an appointment made or about to be made. Absent an appointment made or to be made, an appeal board has simply no jurisdiction. The “me too” argument advanced on behalf of the applicants would have an appeal board hear an appeal, not for the purpose of challenging a promotion, but for the sole purpose of protecting one’s rights to a promotion. This would fly in the face of the wording of section 21 and of the jurisprudence of this Court, notably Charest v. Attorney General of Canada,[8] quoted in Shannon, supra, where Pratte J.A., for the Court, stated at page 1221:

When an unsuccessful candidate exercises this right, he is not challenging the decision which has found him unqualified, he is, as section 21 indicates, appealing against the appointment which has been, or is about to be, made on the basis of the competition. If a right of appeal is created by section 21, this is not to protect the appellant’s rights, it is to prevent an appointment being made contrary to the merit principle.

Pushing the concept of “uniqueness” or “distinctiveness” to its logical limits would inescapably lead to the conclusion that the merit principle does not apply to holders of incumbent-oriented positions and that an appeal board would have no jurisdiction to hear appeals by such holders against promotions given to colleagues. This is most certainly not the conclusion the applicants want this Court to reach.

I turn now to the applicants’ alternative argument. The Commission’s opinion to the effect that the applicants’ opportunity for advancement had been prejudicially affected cannot but be based on the premise that persons occupying incumbent-oriented positions who seek a promotion are reputed, for the application of section 21, to be competing against their colleagues. They are, to use the words of the Commission, “logical contenders” who are entitled to attack the appointments made and seek to have the promotions given to their colleagues revoked and a new selection process set up.

In order to succeed under section 21 in establishing that the merit principle had been offended, the applicants had to convince the Appeal Board that the method of selection chosen was “such that there could be some doubt as to its fitness to determine the merit of candidates”[9] i.e. as to its fitness to determine whether “the best persons possible”[10] were found. An appeal board’s main duty being to satisfy itself that the best persons possible were appointed, it goes without saying that an appellant, before even embarking on a challenge to the method of selection chosen, should at least allege (and eventually demonstrate) that there was a real possibility or likelihood that the best persons possible were not appointed.

As noted previously, the principal original ground of attack of the applicants before the Appeal Board was the imposition of quotas. They did not argue before the Board that the scientists selected were less qualified than themselves. Indeed their own representative, as noted by the Board, “declined to characterize the appellants as being better qualified than the selected scientists” and consequently did not lead any evidence tending to show that the best persons were not selected.

In these circumstances, the Appeal Board could not but find as a fact that the best persons were appointed and that, therefore, the appointments were made in accordance with the merit principle. This finding of fact, based on admissions made by the applicants before the Appeal Board, cannot now be challenged before this Court.

In any event, the Appeal Board went on to conclude that “it was not demonstrated that in this particular selection process the limitations or guidelines actually resulted in a qualified candidate, be it an appellant or anyone else, who was more qualified than the appointees, being eliminated at an early stage.” While finding “somewhat puzzling that the appellants were deemed to be qualified at various stages of the selection process and then eliminated, especially given the comments in their appraisal documents”, the Appeal Board nevertheless was “inclined to accept the department’s explanation that different qualities are emphasized at the various stages of the process, culminating in the final review of the dossiers by the IAC, which committee has a broader picture of the scientific community.”

Here again the “uniqueness” or “distinctiveness” argument of the applicants appears to have backfired. In what amounts to a finding that more flexibility might be required when trying to compare incomparables, the Appeal Board chairperson Gendron has reached a conclusion that was reasonably open to her on this record.

This application for judicial review should be dismissed.

Heald J.A.: I agree.

Robertson J.A.: I agree.

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