Pierre Griffon (Applicant)
v.
Attorney General of Canada (Respondent)
Court of Appeal, Jackett C.J., Choquette and
St.-Germain D.JJ.—Ottawa, June 19, 1973.
Public service—Appeal—Promotion competition for trans-
lator—Notice of competition not stating linguistic require-
ments—Requirements implicit from nature of position—
Appeal dismissed.
An unsuccessful candidate in a public service competition
for the promotion of a translator from class 3 to class 4
applied to set aside the decision of an Appeal Board dismiss
ing his appeal. Applicant complained that section 14(2) of
the Public Service Employment Regulations was violated in
that the notice of the competition did not contain a state
ment of qualifications for the position nor indicate where
such a statement could be obtained and did not mention the
linguistic requirements for the position. The Appeal Board
found that this information was implicit from the description
of the position and that the selection board was competent
to make a selection on merit.
Held, the Appeal Board's opinion on the matters com
plained of should be accepted. In particular, the failure to
comply with the regulation as to linguistic requirements
should only be held to have invalidated an appointment if
the Appeal Board concludes that there was a real possibility
that compliance with the regulation might have brought
about a different result.
JUDICIAL review.
COUNSEL:
J. C. Hanson, Q.C., for applicant.
J. P. Evraire for respondent.
SOLICITORS:
Heron, Hanson and Carleton, Ottawa, for
applicant.
Deputy Attorney General of Canada for
respondent.
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, dismissing the applicant's
appeal against a proposed appointment of the
successful candidate in a competition in which
the appli giant was an unsuccessful candidate.
This Court can only set aside such a decision
on a ground that falls within one of the classes
of grounds set out in paragraphs (a), (b) and (c)
of section 28(1) of the Federal Court Act. The
only such ground relied on in support of this
application is that the Appeal Board erred in law
in not holding that the proposed appointment
was invalid because, it is alleged, there had been
a failure to comply with section 14(2) of the
Public Service Employment Regulations, which
reads as follows:
(2) Every notice of a proposed competition given pursu
ant to paragraph (a) of subsection (1) shall provide such
information as, in the opinion of the responsible staffing
officer, is necessary to enable all eligible persons to deter
mine whether they may be suitable for appointment and,
without restricting the generality of the foregoing, every
such notice shall provide the following information, namely:
(a) the place where the statement of qualifications for the
position, as mentioned in section 6, may be obtained, if
the notice does not contain that statement;
(b) where knowledge in both the English language and the
French language is an essential qualification for the posi
tion, that such knowledge is essential;
(c) where knowledge of the English language is an essen
tial qualification for the position, that such knowledge is
essential;
(d) where knowledge of the French language is an essen
tial qualification for the position, that such knowledge is
essential; and
(e) where knowledge of either the English language or the
French language is sufficient to qualify for the position,
that such knowledge is sufficient.
The complaints based on Regulation 14(2), as
put forward on behalf of the applicant before
the Appeal Board, were summarized by the
Appeal Board in its decision as follows:
3. The notice of the competition did not comply with the
provisions of section 14(2)(a) of the Public Service Employ
ment Regulations. Although the notice clearly specified the
duties of the position, it did not indicate the abilities and
qualifications required of the candidates. No mention was
made of the place where this information could be obtained.
4. The notice of the competition did not comply with the
provisions of section 14(2)(b) to (e) of the Public Service
Employment Regulations because it did not indicate the
language requirements for the position to be filled.
The Department's answer to those complaints,
as summarized in the Appeal Board's decision,
was as follows:
3. The statement of knowledge and abilities required to
fill the position was contained by inference in the detailed
description of the duties of the position.
4. By the very nature of the occupational group of trans
lators, it is obvious that the position to be filled required a
knowledge of both official languages.
The Appeal Board's decision, after detailing
the appellant's complaints and the Department's
answers thereto, concludes as follows:
On the whole, the Appeal Board is satisfied with the
Department's replies to the applicant's allegations. Although
the poster did not clearly state the language requirements, it
is obvious, according to the explanations provided by the
Department, that bilingualism is an essential requirement
when a competition is open to the translator group at level
three to fill a position at level four.
The role of the Appeal Board is limited to carrying out an
investigation to ensure that the selection for an appointment
was made "on merit". After a thorough examination of the
facts brought forward during the hearing, it appears that the
selection board possessed sufficient valid information to
assess the qualifications of the applicant adequately, and
that the spirit of the Act was respected.
With reference to the complaint that the
notice of the competition did not meet the
requirements of Regulation 14(2)(a) because it
did not indicate the , place where the statement
of qualifications for the position to be filled
might be obtained, it is to be noted that this
requirement only applied where the notice itself
did not contain that information and the Appeal
Board accepted the Department's explanation
that the Notice did contain that information by
inference from the detailed description of the
duties of the position. If that is so, and it is a
question on which the Appeal Board's opinion
should normally be accepted, there was no fail
ure to comply with Regulation 14(1)(a).
Concerning the failure to comply with the
requirements in Regulation 14(2)(b) to (e),
which require that the language qualifications
for the post be stated in the poster, I agree with
the Appeal Board that it was not in the circum
stances a ground for setting aside the result of
the competition. In my view, a failure to comply
with such a regulation should only be held by
the Appeal Board to have invalidated an
appointment if it concludes that there is a real
possibility that compliance with the Regulation
might have brought about a different result. As
the Appeal Board has indicated here, it was
obvious from the fact that the competition was
for promotion from one translator group to
another that bilingualism was an essential
requirement for the position.'
I am of the view that the application should
be dismissed.
* * *
CHOQUETTE and ST. -GERMAIN D.E. con
curred.
' See Cleary v. Appeal Board Established by the Public
Service Commission pursuant to the Provisions of section
5(d) of the Public Service Employment Act [1973] F.C. 688.
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.