Danielle Fredette and Gerald Leblanc (Appli-
cants)
v.
Public Service Commission (Respondent)
Court of Appeal, Thurlow and Cattanach JJ.,
Cameron D.J.—Ottawa, September 29, 1972.
Public Service—Closed competition—Appeal by unsuc
cessful candidate—Whether right of appeal lapses on termi
nation of candidate's employment—Public Service Employ
ment Act, R.S.C. 1970, c. P-32, s. 21.
Under section 21 of the Public Service Employment Act,
R.S.C. 1970, c. P-32, an unsuccessful candidate in a closed
competition for employment in the Public Service does not
lose his right to appeal from an unfavourable decision
because his employment in the Public Service has terminat
ed before the appeal is heard.
JUDICIAL review of decisions of Appeal
Board under Public Service Employment Act.
M. W. Wright, Q.C. for applicants.
J. E. Smith for respondent.
THURLOW J.—The question that arises in
these applications is whether a person who has
been a candidate in a closed competition for
employment under the Public Service Employ
ment Act and who has regularly launched an
appeal under section 21 of the Act loses his
right to have that appeal heard and determined
when his employment in the public service ter
minates before the appeal comes on for hearing.
In the case of each of the applicants, a closed
competition was announced while the applicant
was an employee, the employee regularly
became and was a candidate, was subsequently
notified of the decision on the competition and
of his right of appeal therefrom and thereupon
appealed therefrom all while he continued to be
an employee. In each case, however, the Appeal
Board dismissed the appeal on the ground that
at the date of the hearing the appellant was no
longer an employee and was therefore no longer
entitled to take advantage of section 21 of the
Act.
The position taken by counsel in support of
these decisions was that on the proper interpre
tation of the provisions of the Public Service
Employment Act a person who is no longer
employed in the Public Service is no longer
eligible for appointment as a result of a
"closed" competition and that accordingly his
right of appeal lapses on the termination of his
employment, even though he had a right of
appeal at the time when the appeal was
launched. For this proposition counsel relied on
sections 11 and 13(b) and the definition of
"closed" competition in section 2(1). These
provisions are as follows:
2. (1) In this Act
"closed competition" means a competition that is open only
to persons employed in the Public Service;
11. Appointments shall be made from within the Public
Service except where, in the opinion of the Commission, it
is not in the best interests of the Public Service to do so.
13. Before conducting a competition, the Commission
shall
(b) in the case of a closed competition, determine the
part, if any, of the Public Service and the occupational
nature and level of positions, if any, in which prospective
candidates must be employed in order to be eligible for
appointment.
Section 21 of the Act by which a right of
appeal is provided reads as follows:
21. Where a person is appointed or is about to be
appointed under this Act and the selection of the person for
appointment was made from within the Public Service
(a) by closed competition, every unsuccessful candidate,
or
(b) without competition, every person whose opportunity
for advancement, in the opinion of the Commission, has
been prejudicially affected,
may, within such period as the Commission prescribes,
appeal against the appointment to a board established by the
Commission to conduct an inquiry at which the person
appealing and the deputy head concerned, or their repre
sentatives, are given an opportunity of being heard, and
upon being notified of the board's decision on the inquiry
the Commission shall,
(c) if the appointment has been made, confirm or revoke
the appointment, or
(d) if the appointment has not been made, make or not
make the appointment,
accordingly as the decision of the board requires.
It will be observed that there is nothing in this
appeal provision which restricts the right of
appeal to persons employed or still employed in
the Public Service. Nor does this provision pur
port either to define who may be appointed or
to restrict the right of appeal to persons eligible
or still eligible for appointment. The right is
given, in the case of a closed competition, to
"every unsuccessful candidate". There is there
fore in my view no reason to doubt that the
applicants had a right of appeal and that it
continued after their employment terminated.
It also appears to me that a person becomes a
candidate for appointment when he enters the
competition and that his eligibility is determined
by the facts as they exist at that time. If he is
then eligible to be a candidate in my opinion he
remains eligible until the competition is con
cluded and until any appeals therefrom have
been determined.
Nor in my opinion is there in any of the
provisions cited any justification for the view
that eligibility for appointment as a result of or
following the holding of a "closed" competition
is dependent upon the successful candidate con
tinuing to be an employee up to the time of the
appointment.
I would set aside the dismissal of the appli
cants' appeals and in each case refer the matter
back to a board established by the Public Serv
ice Commission under section 21 of the Public
Service Employment Act with a direction that
the appeal of the applicant be heard and deter
mined on the basis that he is not disqualified as
a candidate in the competition or from appoint
ment by reason of his having ceased to be a
public employee pending the hearing and deter
mination of his appeal.
* * *
CATTANACH J.—I am in complete agreement
with the conclusions reached by my brother in
the chair and I have expressed those identical
views in slightly different language.
These are separate applications pursuant to
section 28 of the Federal Court Act, by the
applicants, Danielle Fredette and Gerald
Leblanc for the review of decisions of Appeal
Boards established under the provisions of the
Public Service Employment Act, R.S.C. 1970, c.
P-32.
Both applicants were temporary or casual
employees in the Public Service on a term basis.
Both were candidates for positions advertised
in closed competitions which, as defined in sec
tion 2(1) of the Act, are limited to persons
employed in the Public Service.
It is agreed that at the times of the respective
competitions each applicant was a person
employed in the Public Service and as such was
eligible to enter the competition. Both appli
cants entered and were considered by rating
boards at which times both applicants were
eligible candidates. Both applicants were unsuc
cessful candidates. Both applicants were so
advised and in the same letters they were also
advised of their right of appeal under section 21
of the Act. Both applicants lodged such appeals.
In the intervals between the lodging of the
appeals and the hearing of the appeals the
employment of each of the applicants was ter
minated so that at the times of the hearings of
the appeals neither applicant was employed in
the Public Service.
The decisions which are subject to review are
to the effect that since the applicants' employ
ment was terminated, they were no longer eli
gible to be candidates, that they could not be
appointed to the positions advertised in the
competitions therefor because they were no
longer employees and that accordingly the
Appeal Boards had no jurisdiction to hear their
appeals.
The position taken by counsel for the
respondent was that as a matter of law upon an
interpretation of the Public Service Employment
Act a person no longer employed in the Public
Service is not eligible for appointment as a
result of closed competition in which that
person had been previously eligible to enter.
Expressed another way, the position of counsel
for the respondent is that since the applicants
ceased to be employees they ceased to be eli
gible candidates and since they were not candi
dates they did not have any right to appeal.
I do not accept that submission.
Mr. Justice Thurlow has read section 21(a) of
the Act which is "Where a person is appointed
or about to be appointed under this Act and the
selection of the person for appointment was
made from within the Public Service (a) by
closed competition, every unsuccessful candi
date" may appeal.
In my view both applicants were candidates,
both were "unsuccessful candidates" and as
such under the clear and unequivocal language
of section 21 are entitled to a right of appeal
and that right continues despite the subsequent
termination of the employment of the applicants
prior to the hearing of their appeals. A careful
consideration of other sections of the Act, par
ticularly sections 2(1), 11, 12, 13, 17, 18 and 29
all of which were read by Mr. Justice Thurlow,
does not dictate a contrary conclusion by neces
sary implication or otherwise.
It therefore follows that the Appeal Boards
were possessed of jurisdiction to hear and
determine the appeals on their respective merits
which jurisdiction the Appeal Boards declined
to exercise.
It was submitted further by counsel for the
respondent that this Court should exercise a
discretion and dismiss the applications because
to set aside the decisions of the Appeal Boards
and refer the matters back would be abortive. I
assume the first ground for such submission to
be that the applicants are not now employees in
the Public Service and no longer eligible for
appointment even if their appeals were success
ful. Mr. Justice Thurlow has specifically stated
that the applicants would be eligible for
appointment with which conclusion I am in
agreement. Presumably the second ground for
exercising a discretion adversely to the appli
cants is that no different result would follow.
This I am not entitled to assume.
I would assume, without purporting to decide
the matter, that the basis of counsel's submis
sion in this respect is that the application is in
the nature of certiorari proceedings where there
is a discretion to grant or refuse. Even assuming
that such were so, the circumstances of the
applications are not such as would warrant
exercising a discretion adverse to the
applicants.
Accordingly I would allow both applications,
set aside the decisions of the Appeal Boards
and refer the matters back to the appropriate
authority to be heard and determined upon their
respective merits. I would make no order as to
costs.
* * *
CAMERON D.J.—I am in complete agreement
with the opinions and conclusions just read by
Mr. Justice Thurlow and Mr. Justice Cattanach,
applicable both to this case and to the case of
Gerald Leblanc (Court No. A-121-72). How
ever, having prepared separate opinions, I shall
now read them.
The applicant herein is a party directly affect
ed by the decision of the President of the
Appeal Board established under section 21 of
the Public Service Employment Act, R.S.C.
1970, c. P-32, and this application is taken
under the provisions of section 28 of the Feder
al Court Act, R.S.C. 1970, c. 10 (2nd Supp.).
The facts are not in dispute and may be
stated briefly. The applicant was a casual
employee at the Department of Public Works in
Montreal, having commenced her employment
on or about September 23, 1970. In March
1972, the Public Service Commission of Canada
announced a "closed competition" (i.e., open
only to persons employed in the Public Service)
to fill the position of "Personnel Records
Clerk" in the Quebec region. On March 15,
1972, the applicant entered the competition but
was unsuccessful, being placed fourth on the
eligibility list, and was so advised by letter
dated April 12, 1972. On April 20, 1972, the
applicant gave notice of her appeal to the Board
pursuant to section 21 of the Public Service
Employment Act. On May 5, 1972, her employ
ment with the Department of Public Works was
terminated, the program which she was then
working on having come to an end. On May 25,
1972, the Appeal Board established by the
Public Service Commission pursuant to section
5(d) of the Public Service Employment Act held
its hearing on the applicant's appeal. At the
opening of the hearing, representatives of the
Department of Public Works adduced evidence
to show that the applicant was no longer in the
employ of the Public Service. In the light of
such evidence, the Board decided not to hear
the applicant or consider her appeal on the
merits, but dismissed her appeal on the sole
ground that she was no longer eligible to be
appointed, having ceased to be a member of the
Public Service.
Counsel for the respondent admits that the
applicant was at all times, from the date of her
application throughout the competition and up
to the date of her discharge on May 5, 1972,
fully qualified in all respects as a candidate for
the position; and that if she had not been dis
charged from her employment, she would have
been entitled to have her appeal heard by the
Board.
The sole question for decision, therefore, is
whether the mere fact that at the date of the
Board's hearing she was no longer in the Public
Service disentitled the applicant to a hearing by
the Board.
In my view, the matter may be determined by
a consideration of section 21 of the Public
Service Employment Act which has been read in
full in the judgments just read. It will be noted
that where, as here, the appointment to be made
was by closed competition, "every unsuccessful
candidate ... may appeal".
These words, in my view, are clear and unam
biguous and confer the right of an appeal on
"every unsuccessful candidate", not on "every
unsuccessful candidate who is still employed in
the Public Service", as submitted by counsel for
the respondent. I find, therefore, that the Board
had jurisdiction to hear the appeal.
Accordingly, the application is allowed, the
decision of the Board is set aside and the matter
referred back to a Board established by the
Public Service Commission for a hearing of the
applicant's appeal on the merits.
[Re Gerald Leblanc]
The relevant and essential facts in this case
are similar in all respects to those in the case of
Danielle Fredette (Court No. A-115-72).
For the reasons just given in the application
of Danielle Fredette, this application is also
allowed, the decision of the Board is set aside
and the matter referred back to a Board estab
lished by the Public Service Commission for a
hearing of the applicant's appeal on the merits.
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.