Neil Lawrence Currie (Applicant)
v.
Attorney General of Canada (Respondent)
Court of Appeal, Jackett C.J., Thurlow J. and
Cameron D.J.—Ottawa, November 30, 1972.
Public Service—Promotion—Appeal by unsuccessful can-
didate—Judicial review of Appeal Board's decision—
Grounds of appeal considered by Appeal Board—Whether
candidate unfairly prejudiced by material before Board—
Public Service Employment Act, R.S.C. 1970, c. P-32, s. 21.
JUDICIAL review.
J. C. Hanson, Q.C., for applicant.
J. E. Smith for respondent.
The judgment of the Court was delivered by
JACKETT C.J. (orally)—This is an application
under section 28 of the Federal Court Act to set
aside a decision of a board established under
section 21 of the Public Service Employment
Act to hear an appeal by the applicant against
the promotion or proposed promotion of certain
other persons.
Section 21 provides, in effect, inter alia, that
where a person is appointed or is about to be
appointed and the selection of the person for
appointment was made from within the Public
Service, without competition, a person whose
opportunity for advancement has been prejudi-
cially affected may appeal against the appoint
ment to a board established by the Commission
to conduct an inquiry. The section provides that
the person appealing and the deputy head con
cerned have a right to be heard and it provides
that the Commission shall, on being notified of
the board's decision, confirm or revoke the
appointment (or make or not make the appoint
ment) "accordingly as the decision of the board
requires" but it gives no indication of the
grounds upon which it may decide that the
appointment should not be proceeded with. The
Appeal Board, however, by its decision in this
case, indicates the grounds upon which it
regarded itself as competent to act, namely,
(a) violation of any of the provisions of the
Act or regulations,
(b) unfair treatment of the appellant in the
selection process, and
(c) the giving to another candidate of an
unfair advantage over the appellant.
These would seem to be obvious grounds for
such an appeal and it has not been contended in
this case that there are any others that should
have been invoked in this case.
The principal ground for the appeal was the
contention that the applicant had been unfairly
prejudiced by reason of the fact that the selec
tion process was based on an examination of
the candidates' personal files stripped of certain
material irrelevant to the selection process and
there had been left on the applicant's file a
memorandum recording a complaint from his
superior made in 1968 on which there was a
handwritten notation reading, "He also feels
Currie needs psychiatric or psychological
attention".
Whether or not this notation resulted in any
unfairness to the applicant in the selection pro
cess was a question of fact for the Appeal
Board. The Appeal Board considered this ques
tion and came to the conclusion that it had not
had any such effect. That was a conclusion that
was open to the Appeal Board on the evidence
that was before it. We can find no basis in
section 28(1) of the Federal Court Act for inter
fering with that decision.
The only other submission that was made on
behalf of the applicant was that he should have
been notified of the recommendation by the
selection board of a list of persons for appoint
ment, if occasion arose, in lieu of any of the
persons selected for appointment so that he
could have appealed against their proposed
appointment at the same time. The short answer
to this submission, even if it would otherwise
serve as a ground for setting aside the Appeal
Board's decision, is that there is no evidence
before us that any person on that supplementa
ry list was about to be appointed within the
sense of those words in section 21.
The application must, in our view, be
dismissed.
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.