Beatrice Hunt (Applicant)
v.
Public Service Appeal Board (Respondent)
Court of Appeal, Jackett C.J., Thurlow J. and
Cameron D.J.—Ottawa, May 22, 1973.
Public service—Appointments to public service—Appli-
cant found unqualified by Rating Board—Decision affirmed
by Appeal Board—Judicial review—No evidence of unfair
ness or illegality in conduct of competition.
APPLICATION.
COUNSEL:
James Shields for applicant.
Paul J. Evraire for respondent.
SOLICITORS:
Soloway, Wright, Houston, Killeen and
Greenberg, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondent.
JACKETT C.J. (orally)—This is an application
under section 28 of the Federal Court Act to set
aside a decision of an appeal board under sec
tion 21 of the Public Service Employment Act'
against the appointment of certain pay coding
clerks for the staff of the Unemployment Insur
ance Commission.
The applicant, who was a candidate in the
competition as a result of which the appoint
ments appealed against were made, was found
by the Rating Board not to be qualified for the
position because she did not have the knowl
edge required for the position.
On the appeal, the applicant did not contend
that she was, in fact, qualified for the position
nor did she challenge the qualification of the
persons whose appointments she appealed
against.
The appellant's case before the Appeal Board
was that some employees had been selected for
a special two-week training course to equip
them to fulfil the duties of the position in ques
tion, that she had requested such training and
her request had been refused, and that the ques
tions asked by the Rating Board on the oral
interview were such that only those candidates
who had undergone the special training or who
were already doing the job could have answered
such questions with any degree of accuracy. On
these allegations of fact, the applicant had relied
upon an appeal board decision in another case.
The answer of the Department (i.e., of the
"deputy head concerned") to this case as put
forward by the applicant before the Appeal
Board was that
(a) the training referred to was only given to
employees who had been hired on a casual
basis to fulfil the duties of the position in
question;
(b) no intensive training was given to any
employee outside the unit where the positions
were located;
(c) the questions posed by the training board
could be answered equally well by employees
who had not been performing the duties of
the position and who had not undergone train
ing, and
(d) the answers to all the questions posed at
the interview were to be found in a depart
mental manual that was available to all inter
ested candidates.
The Appeal Board dismissed the appeal on
the basis of a conclusion that the Department
had provided a satisfactory reply to the appli
cant's "allegation". The Chairman said that
"Since there is no evidence of unfairness or
illegality in the conduct of this competition, the
Appeal Board has no reason to intervene in this
case".
There has been no attack on the correctness
of any of the statements of fact made by the
Department before the Appeal Board in its
answer to the applicant's case. In any event
there has been no material put before this Court
on the basis of which this Court could hold that
the Appeal Board erred in accepting the Depart
ment's statements of the relevant facts. Accept
ing those facts as correct, as we must in the
absence of an attack of the kind contemplated
by section 28 of the Federal Court Act, there is
no ground upon which the Appeal Board can be
said to have erred in law in not allowing the
appellant's appeal. Her appeal was based on the
contention that she was treated unfairly in that
she was not given special training when the
situation was that, without that training or
experience on the job, she could not qualify for
the position. The unchallenged facts are, how
ever, that no training was given except to per
sons on the job and that persons not on the job
could have become qualified with the material
available to them. On those facts (even if the
case as put forward by the applicant would
have, if made out, supplied the Appeal Board
with a basis for allowing the appeal, a question
concerning which I have doubts) there was no
basis on which the appeal could be allowed.
However, this application is based, not on a
contention that the Appeal Board was guilty of
any error in law or any error in a finding of any
fact pertinent to the validity of the appoint
ments appealed against, but on a contention that
the decision of the Appeal Board should be set
aside by reason of an inaccurate comment made
by the Chairman of the Appeal Board concern
ing a previous decision of an appeal board on
which the applicant relied as authority for the
case put forward by her before the Appeal
Board. It must be obvious, even to a layman,
that an inaccuracy occurring in reasons for a
decision of a tribunal that has a statutory auth
ority to decide something does not invalidate
that decision unless the inaccuracy leads the
tribunal into error. As I have already indicated,
on the facts found by the Appeal Board, which
have not been challenged in this Court, the
decision of the Appeal Board must have been
against the applicant (even if her case were
sound in principle on the facts as originally
alleged by her). In addition, I have doubts as to
whether the previous appeal board decision
relied on by the applicant was sound in law.
Furthermore, I should like to say that, in my
view, when section 28 of the Federal Court Act
refers to an "erroneous finding of fact" as a
possible basis for setting aside a decision of a
tribunal, it is referring to an erroneous finding
with reference to the facts that are relevant to
the matter that it has to decide and that does not
include an incorrect understanding of what was
involved in some other matter that is relied on
as indicating the principles that should be
applied to the relevant facts when ascertained.
THURLOW J. and CAMERON D.J. concurred.
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,
(e) 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.
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.