Douglas H. Langtree (Applicant)
v.
Appeal Board established by the Public Service
Commission (Respondent)
Court of Appeal, Jackett C.J., Thurlow and
Pratte M.—Ottawa, December 13, 1973.
Judicial review—Public Service—Competition for training
program leading to promotion—Whether "position" estab
lished, the appointment from which appeal may be taken—
Public Service Employment Act, R.S.C. 1970, c. P-32, s. 21.
The applicant was an unsuccessful candidate in a competi
tion in the Public Service for participation in a six months'
training program, the successful completion of which would
be a prerequisite to being considered for promotion. The
Appeal Board dismissed the applicant's appeal on the
ground that section 21 of the Public Service Employment
Act provides for appeals only against selections made for
positions which are to be filled and not for selections made
for training.
Held, the Appeal Board's decision is set aside and the
matter is referred back to the Public Service Commission to
take whatever steps are necessary to have the appeal dealt
with on the merits. In the circumstances, there appears to be
no factual material on which the Appeal Board could base
its conclusion that "no specific appointments are to be made
as a result of this competition", and that being so, the appeal
falls to be determined on the basis that there were appoint
ments to be made.
JUDICIAL review.
COUNSEL:
J. P. Nelligan, Q.C., for applicant.
R. G. Vincent for respondent.
SOLICITORS:
Nelligan and Power, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondent.
The judgment of the Court was delivered by
JACKETT C.J. (orally)—This is a section 28
application to set aside a decision of an appeal
board under section 21 of the Public Service
Employment Act.
The applicant was an unsuccessful candidate
in a competition held by the Post Office Depart
ment among its employees for participation in a
six months' training programme, the successful
completion of which would be a prerequisite to
being considered for promotion to "General
Supervisor".
The competition was advertised and subse
quent proceedings were taken in all respects as
though it were a competition for a promotion to
a position in the Public Service and the poster
was worded as though a successful candidate
would be placed in a special training position
from which he would "revert to the position he
occupied prior to applying for this competition"
in the event that he did not "complete the
course to the satisfaction of management".
By the letter informing him that he was
unsuccessful in the competition, the applicant
was informed that he had a right to appeal to the
Public Service Commission. The right of appeal
referred to is that conferred by section 21 of the
Public Service Employment Act, which confers
a right of appeal "to a board established by the
Commission" where "a person is appointed or is
about to be appointed" under the Act.
The applicant did appeal, the Public Service
Commission established an appeal board con
sisting of Anna Stevenson and, in due course,
she gave a judgment the substantive part of
which reads as follows:
According to the Department, the purpose of the competi
tion was to select qualified candidates to take part in a
Developmental Training Program which, upon successful
competition, might lead to appointment to positions of Gen
eral Supervisor. An intensive course of approximately six
months' duration, consisting of both classroom and on-the-
job training, would be given to the successful candidates.
Those who successfully completed the course would be
assessed by a Rating Board to determine whether they were
qualified for appointment to General Supervisor at PO Level
8, PO Level 9 or PO Level 10.
Section 21 of the Public Service Employment Act does
not provide for a right of appeal against selections made for
training. There is a right of appeal only against selections
made for positions which are to be filled. In this case, it is
not even clear at what level the positions are classified.
Since no specific appointments are to be made as a result of
this competition and since the eligible list does not show any
order of merit, the Appeal Board has no jurisdiction to hear
these appeals.
The appeals are accordingly dismissed.
In our view, training programmes may be
provided in a government department either
(a) for employees who continue to carry on
the duties of their operational positions, or
(b) for employees who are recruited to posi
tions established for the purpose either from
within the service or outside the service.
If the training is provided for employees who
continue to carry on in their operational posi
tions, there will be no appointment under the
Public Service Employment Act. If, however,
training positions are established, the persons
chosen for training must be appointed thereto
under that Act.
In this case, there is no material before us,
and there was apparently no material before the
Appeal Board, to show that there were no posi
tions to which appointments had been or were
to be made for the training programme. On the
other hand, it seems clear that the Department,
which must have known whether there were
such positions, carried out the competition in a
manner that would only have been appropriate
if there were positions to which successful can
didates would be appointed and the Public Ser
vice Commission established the Appeal Board
presumably after satisfying itself that the appeal
was in respect of appointments made or about
to be made under the Act.
In the circumstances, there would appear to
be no factual material on which the Appeal
Board could base its conclusion that "no specif
ic appointments are to be made as a result of
this competition", and, that being so, the appeal
fell to be determined on the basis that there
were appointments to be made.
In our view, the decision of the Appeal Board
should be set aside and the matter should be
referred back to the Public Service Commission
so that it may take whatever steps are necessary
to have the appeal dealt with 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.