A-55-75
H. A. Bambrough (Applicant)
v.
Appeal Board established by The Public Service
Commission (Respondent)
Court of Appeal, Pratte, Ryan and Le Dain JJ.—
Ottawa, October 9 and November 7, 1975.
Judicial review—Public service—Data Stream Screening
Board adding qualifications to those stated by Department—
Eliminating applicant—Personal files not examined Basing
decision on personal knowledge of applicant Board member
dying and new member taking over—Whether Screening Board
had authority to add qualifications—Whether process should
be terminated and recommenced on basis of new statement
Whether Selection Board fairly assessed applicant's merit
Whether Selection Board properly constituted—Appeal Board
rejecting appeal Whether Board erred—Public Service
Employment Act, R.S.C. 1970, c. P-32, ss. 5(a), 8, 10, 12, 21
and Regulations, s. 7.
Using qualifications of the department involved, the Public
Service Commission initiated a Data Stream search, and a
Screening Board considered the 48 employees so found, for
mulating additional qualifications, and retaining seven candi
dates. Personal files were not examined, but one member of the
Board had personal knowledge of applicant's background.
Applicant was eliminated. Soon after, the Chairman of the
Board died, and was replaced. Applicant's appeal was rejected.
He now claims that: (1) the Board was without authority to set
qualifications; (2) if qualifications are established or amended
after selection has begun, the process must be terminated, and
recommenced on the basis of the new qualifications; (3) the
Board did not assess his merit, or if it did, it did not do so fairly
and equally; and (4) the Board was not properly constituted.
Held, the application is dismissed. Candidates were identi
fied in two Stages, and there is nothing to prohibit this. It is not
beyond the Commission's implied powers to participate in the
elaboration of qualifications for a position, particularly where it
is done with the approval and participation of an officer of the
department concerned. The Commission must have the power
to assure that the specified qualifications are those called for by
the position, and that the statement of such qualifications
affords a sound basis for selection according to merit. Where
the effect of a change in qualifications is to narrow the range of
potential candidates, there is no adverse effect on the merit
principle, nor prejudice to an eliminated candidate. Applicant
did not have, merely by virtue of identification, a vested right to
be assessed for merit in relation to additional qualifications.
There is no suggestion that the qualifications were changed to
give any candidate an unfair advantage. The Appeal Board was
correct in finding that the additional qualifications were
reasonable, and that applicant was treated fairly and equally.
There is no reason to conclude that the Screening Board did not
have sufficient knowledge of pertinent information in the inven
tory data relating to applicant to justify his elimination. Nor is
there any reason to conclude that in eliminating him on the
basis of the personal knowledge of the Board member, the
Board treated him unfairly. Since he was validly eliminated,
changes in the composition of the Board afterward are of no
consequence.
Griffon v. Attorney General of Canada [1973] F.C. 670;
Cleary v. Public Service Appeal Board [1973] F.C. 688;
Barnes v. Attorney General of Canada (A-197-73) and
Brown v. Appeal Branch, Public Service Commission
[1975] F.C. 345, applied.
JUDICIAL review.
COUNSEL:
Y. A. G. Hynna for applicant.
P. B. Annis for respondent.
SOLICITORS:
Gowling & Henderson, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
LE DAIN J.: This is an application under section
28 of the Federal Court Act to set aside a decision
of an appeal board under section 21 of the Public
Service Employment Act dismissing the appli
cant's appeal against the selection by the Public
Service Commission of one J. André Vézina for
appointment to the position of Chief, Engineering
Division, in the Department of the Environment.
The request by the Department to the Public
Service Commission to make the required appoint
ment contained the following statement of the
qualifications for the position:
Demonstrated (Chemistry or Chemical-Eng/Tech or Metal-
Skills: lurg/Eng/tech or Environment Eng/Tech)
with Air Pollution and (Pyrometallurgy or
Fuels or Environmental or Extract-Metallur
gy or Chemical Engineering or Hydrometal-
lurgy) with (Researching-Applied or
Researching-Pure) or (Project-Managing or
Managing).
Education: Bachelor
Salary: employees who occupy a position the max
imum of which exceeds $17,000 or the mini
mum of which is less than $25,000.
The appointment in this case was to be made,
not by open or closed competition, but as provided
in section 7(1)(b) of the Public Service Employ
ment Regulations', by "other process of personnel
selection" from among qualified employees in
respect of whom there was a record or "inventory"
of pertinent data. The Public Service Commission,
acting through the responsible staffing officer, O.
L'Esperance, caused searches to be made of the
Data Stream, or computer inventory of data con
cerning employees, using the foregoing statement
of qualifications as search criteria. These searches
were completed on September 10, 1974. A Screen
ing Board composed of L'Esperance as chairman
and Dr. T. R. Ingraham, Acting Director of the
Technology Development Branch in the Depart
ment of the Environment, reported that as a result
of these searches forty-eight employees, including
the applicant, were identified as candidates for the
position. The Screening Board met on September
13, 1974 to review the Data Stream printouts of
information concerning the candidates. On that
day L'Esperance and Ingraham formulated addi
tional essential qualifications for the position,
which are set out, with the reasons therefor, in the
report of the Screening Board as follows:
' Section 7 of the Public Service Employment Regulations
reads:
7. (1) Every appointment shall be in accordance with selec
tion standards and shall be made
(a) by open or closed competition; or
(b) by other process of personnel selection
(i) from among employees in respect of whom data is
recorded in an inventory, which employees meet the
qualifications for the appointment, or
(ii) where no employee referred to in subparagraph (i) is
qualified and suitable for the appointment, from among
applicants who are not employed in the Public Service in
respect of whom data is recorded in an inventory, which
persons meet the qualifications for the appointment.
(2) Notwithstanding subsection (1) where the responsible
staffing officer is of the opinion that a competition or other
process of personnel selection referred to in paragraph (1)(b)
would not result in the identification of a candidate who is
better qualified than a person who is willing and able to accept
the appointment, the responsible staffing officer may appoint
that person.
(Continued on next page)
In order to make a careful assessment of each candidate, the
Board used the following additional criteria and the rationale
for incorporating them are as follows:
1. Publications. A candidate for the position of a research
manager must have done research and published it in high
quality scientific journals in order to develop the necessary
rapport to understand and appreciate the work and approaches
of a research scientist, and to work with them in a position of
leadership.
2. Doctorate degree or sufficient research to indicate that an
equivalent intellectual and scientific status had been achieved.
3. Air Pollution oriented pure or applied research (chemistry,
chemical engineering, metallurgy or metallurgical engineering)
is an essential qualification for a research manager of a division
having a primary responsibility for the development and
demonstration of new environmental control technology.
4. Management ability and/or the capability of project
management.
The Screening Board reviewed the Data Stream
printouts in the light of these additional qualifica-
(Continued from previous page)
(3) For the purposes of paragraph (b) of subsection (1)
(a) employees who meet the qualifications for an appoint
ment shall be identified as candidates by a review of the data
referred to in subsection (6) recorded in an inventory of all
employees who would have been eligible to compete if a
competition had been conducted; and
(b) applicants who are not employed in the Public Service
shall be identified as candidates by a review of that data
recorded in an inventory in respect of applicants who have
met the minimum qualifications for an appointment but who
have not been appointed.
(4) The relative merit of employees or applicants identified
as candidates from an inventory shall be determined
(a) by assessing the candidates in accordance with the
appropriate selection standards prescribed by the Commis
sion; and
(b) subject to subsection (5), where the candidates . are
employees, by taking into account the results of the employee
appraisal described in section 13.
(5) Paragraph (b) of subsection (4) shall not apply to
employees in any group until such time as the Commission by
order prescribes that that paragraph applies to employees in
that group.
(6) Inventory data used in the selection process shall include
that pertaining to:
(a) education and other training;
(b) language skills;
(c) occupational skills and work history;
(d) performance assessment referred to in section 13; and
(e) statutory priorities for appointment.
(7) An employee has a right to review the inventory data
that pertains to him, and a transcript of such data shall be
supplied to an employee for that purpose at least once in every
twelve-month period.
tions, eliminated forty-one of the candidates,
including the applicant, and retained seven of
them for further consideration. In eliminating can
didates at this stage of the selection process, the
Screening Board did not examine their personal
files. The reason assigned for the elimination of
the applicant was "Insufficient experience in pollu
tion oriented pure or applied research". This con
clusion was based not solely on an examination of
the applicant's Data Stream printout, but also, to
some extent, on Ingraham's personal knowledge of
the applicant's professional background and
experience. Ingraham had seen the applicant's per
sonal file several months previously and had direct
knowledge of his work in his current position.
The chairman of the Screening Board, L'Esper-
ance, died a few days after the completion of this
process of elimination. He was replaced several
weeks later as responsible staffing officer and
chairman of the Screening Board by another offi
cer on the staff of the Public Service Commission,
Y. Lemieux, who reviewed the Data Stream print
outs of the original forty-eight candidates in order
to familiarize himself with their qualifications.
The Screening Board then reviewed the personal
files of the seven candidates who had been retained
for further consideration, eliminated five of them,
and selected Vezina and another candidate to be
interviewed. They were interviewed by a board
composed of Lemieux as chairman, Ingraham, and
two additional members. This board, which is
referred to as the Selection Board, rather than the
Screening Board,' selected Vezina.
Before the Appeal Board, the applicant contend
ed that the Selection Board was without authority
to establish additional qualifications for the posi
tion; that he had not been treated by the Selection
Board in a fair and equal manner in relation to the
other candidates in that he had been eliminated
2 It will be convenient to make general use of the term
"Selection Board" when referring to the body that carried out
the selection process, however it was composed at various
stages, since this is the designation used by the Appeal Board
throughout its decision and by the parties for the most part in
their submissions.
from further consideration, not on the basis of the
Data Stream printouts alone, but on the basis of
the personal knowledge of Ingraham; that the
procedure of the Board was further irregular in
that Lemieux, who had replaced L'Esperance as
chairman, had not reviewed the basis on which the
applicant had been eliminated from further con
sideration, but had relied on the decision made by
L'Esperance and Ingraham; that the Selection
Board was in error in not referring to the personal
files of candidates before eliminating them from
further consideration and that, if they had done so,
they would have learned of information concerning
the research background of the applicant that
would have supplemented the information on the
Data Stream printout to his advantage.
The Appeal Board rejected these contentions. It
held that there was nothing in law to prohibit the
establishment of qualifications for a position at
any stage of the selection process; that the qualifi
cations in this case were reasonable; that there was
nothing in law to prevent the members of a selec
tion board from using their personal knowledge of
candidates as a basis of assessment; that it was not
necessary that a selection board be made up of the
same members throughout the selection process;
that Lemieux was entitled to rely on the decision
made by L'Esperance and Ingraham with respect
to the elimination of the applicant; and that it was
not necessary for the Selection Board to consult
the personal files of the candidates at this stage of
the selection process.
The applicant contended in this Court that the
Appeal Board erred in law in failing to find
1. that the Selection Board was without author
ity to establish essential qualifications for a
position;
2. that if essential qualifications are established
or amended after a selection process has com
menced, the selection process should be ter
minated and recommenced on the basis of a new
statement of qualifications;
3. that the Selection Board did not assess the
merit of the applicant, or alternatively if it did
so, it did not do so on a fair and equal basis in
relation to the other candidates, and in particu
lar to the successful candidate;
4. that the Selection Board was not properly
constituted in that a board composed of the
same persons did not consider the relative merit
of the applicant and the successful candidate.
What occurred in this case was an identification
of the candidates for the position in two stages.
The applicant was eliminated as a candidate on
the ground that he lacked an essential qualifica
tion, namely, the necessary experience in pollution
oriented pure or applied research. His qualifica
tions do not appear to have been assessed for
merit, at least on the same basis and to the same
extent as those of the candidates who were
retained for further consideration. What is in
issue, therefore, is whether the applicant could be
validly eliminated in this way once he had been
identified as a candidate by the Data Stream
search.
The Public Service Commission has the statu
tory power and duty to appoint qualified persons
to positions in the Public Service on the basis of
merit. Selection according to merit is the dominant
objective and consideration of the Public Service
Employment Act and the essential criterion by
which the exercise of powers under the Act is to be
judged. Fairness may be regarded as an implied
requirement of the Act in so far as it is necessarily
related to selection according to merit, but
appointments should not be set aside for alleged
procedural irregularities when there is no reason to
believe that the selection process has not been
based on merit. This Court has held that failure to
comply with a provision of the statute or regula
tions should only be held by an appeal board to
have invalidated an appointment if the board con
cludes that there is a real possibility that compli
ance with the provision might have brought about
a different result. Griffon v. Attorney General of
Canada [1973] F.C. 670; Cleary v. Public Service
Appeal Board [1973] F.C. 688; Barnes v. Attorney
General of Canada, case No. A-197-73, judgment
rendered on March 5, 1974, as yet unreported.
The Act does not refer explicitly to the authority
to establish the qualifications for a position for
which the Commission has the power to make an
appointment. It is a reasonable inference, however,
from the terms of the Act and the regulations, and
from the extent to which they have qualified the
management powers of the responsible minister
that such authority is primarily vested in the min
ister acting through the department concerned.
One would ordinarily expect the qualifications for
a position in the Public Service to be established
by the department or other branch of the Public
Service concerned before a request is made to the
Public Service Commission for an appointment. In
his reasons for judgment in Brown v. Appeals
Branch, Public Service Commission [1975] F.C.
345, Jackett C.J. set out [at pages 357-358] the
"steps contemplated by law before a promotion
(appointment from within the Public Service) can
be made, in the manner contemplated by regula
tion 7(1) (b)(i), to a vacant position" as follows:
(1) authorization for the position,
(2) classification for the position as provided for by Treasury
Board (if Treasury Board has made a relevant provision requir
ing such a classification),
(3) request from the deputy head to the Public Service Com
mission for appointment to the position pursuant to section 10
of the Public Service Employment Act, which request must,
either expressly or impliedly, state
(a) the qualifications required by the relevant classification,
if any, for positions of that class, and
(b) in addition, qualifications required by the deputy head
for the particular position,
(4) distribution to the Commission, to prospective candidates
and others of a statement in writing "of the qualifications for
the position", as required'by regulation 6,
(5) a decision under regulation 12 as to the part of the Public
Service and the occupational group and level in which prospec
tive candidates have to be employed "in order to be eligible to
compete if a closed competition were held",
(6) from employees ascertained under regulation 12, identifi
cation "as candidates", under regulation 7(3)(a) of those who
meet the "qualifications" for appointment,
(7) determination of the relative "merit" of those identified
under regulation 7(3)(a) as candidates "in accordance with the
appropriate selection standards prescribed by the Commission",
as required by regulation 7(4)(a).
Counsel for the applicant argued that it was a
necessary inference from this passage, as well as
the provisions of the Act and the regulations
referred to therein, that the qualifications for a
position may not be validly established or amended
after a selection process has begun and, further,
that they may not be validly established or amend
ed by the Public Service Commission. This further
contention was made on the assumption that when
L'Esperance and Ingraham formulated the addi
tional essential qualifications for the position, they
did so as the Screening Board, acting as the instru
mentality of the Commission. It would be possible
to take the view, on the agreed statement of facts
and the report of the Screening Board, that what
happened is that Dr. Ingraham, as the departmen
tal representative and supervisor concerned, estab
lished the additional essential qualifications on
behalf of the Department in consultation with
L'Esperance, as the responsible staffing officer in
the Commission, and that the two of them acting
together as the Screening Board applied the addi
tional qualifications to the selection process. But
even if it is necessary to treat the formulation of
these additional qualifications as the act of the
Commission, I do not think it is beyond the
implied powers of the Commission to participate to
this extent in the elaboration of the qualifications
for a position, particularly where, as here, it is
done not only with the approval, but the active
participation of an officer of the department con
cerned. There is no issue here of the Commission
attempting to usurp or override the departmental
authority to establish the qualifications for a
position.
The statutory duty of the Commission to
appoint qualified persons on the basis of merit to
positions within the Public Service must carry with
it at least the implied power to participate with the
department or other branch of the Public Service
concerned in establishing the qualifications for a
position. The Commission must have the power to
assure that the specified qualifications are those
that are called for by the position and that the
statement of such qualifications affords a sound
basis for a process of selection according to merit.
I would infer this power from the Commission's
responsibility for appointment under sections 5, 8
and 10 of the Act,' rather than from its power,
3 Sections 5(a), 8 and 10 of the Act read as follows:
5. The Commission shall
(a) appoint or provide for the appointment of qualified
persons to or from within the Public Service in accordance
with the provisions and principles of this Act;
(Continued on next page)
under section 12, 4 to prescribe selection standards.
As Jackett C.J., observed in the Brown case,
supra, there would appear to be a difference be
tween the qualifications for a position and selec
tion standards, which the terms of section 12
suggest are criteria for assessing merit in respect
of the qualifications. I find nothing in the provi
sions of the Act or the regulations or in the
passage quoted above from the reasons of Jackett
C.J., in the Brown case which necessarily excludes
such an implied power in the Commission.
The applicant further contends, however, that
this passage and the regulations referred to there
in, do support the inference that if the qualifica
tions for a position are changed after a selection
(Continued from previous page)
8. Except as provided in this Act, the Commission has the
exclusive right and authority to make appointments to or from
within the Public Service of persons for whose appointment
there is no authority in or under any other Act of Parliament.
10. Appointments to or from within the Public Service shall
be based on selection according to merit, as determined by the
Commission, and shall be made by the Commission, at the
request of the deputy head concerned, by competition or by
such other process of personnel selection designed to establish
the merit of candidates as the Commission considers is in the
best interests of the Public Service.
4 Section 12 of the Act reads as follows:
12. (1) The Commission may, in determining pursuant to
section 10 the basis of assessment of merit in relation to any
position or class of positions, prescribe selection standards as to
education, knowledge, experience, language, age, residence or
any other matters that, in the opinion of the Commission, are
necessary or desirable having regard to the nature of the duties
to be performed, but any such selection standards shall not be
inconsistent with any classification standard prescribed pursu
ant to the Financial Administration Act for that position or any
position in that class.
(2) The Commission, in prescribing selection standards
under subsection (1), shall not discriminate against any person
by reason of sex, race, national origin, colour or religion.
(3) The Commission shall from time to time consult with
representatives of any employee organization certified as a
bargaining agent under the Public Service Staff Relations Act
or with the employer as defined in that Act, with respect to the
selection standards that may be prescribed under subsection (1)
or the principles governing the appraisal, promotion, demotion,
transfer, lay-off or release of employees, at the request of such
representatives or of the employer or where in the opinion of
the Commission such consultation is necessary or desirable.
process has begun the selection process should be
terminated and begun again on the basis of the
amended qualifications. He relies, moreover, on
the following statement in the "Staffing Manual"
of the Commission:
Once the desirable and essential qualifications have been
determined, they cannot be changed at any time during the
selection process. If they are changed, the competition must be
cancelled or the inventory search begun again.
The Staffing Manual consists of administrative
directives, guidelines and interpretations. It is for
the guidance of the staff of the Commission. It
does not have the force of law and cannot be the
basis for invalidating anything done by or on
behalf of the Commission. The provisions of the
Staffing Manual have not been adopted as regula
tions. The applicant argued that they have the
force of law as an exercise of the Commission's
discretion under section 10 of the Act to determine
the selection process. The power to adopt a selec
tion process that the Commission considers to be
in the best interests of the Public Service is not a
power to establish rules of legally binding effect.
The provision quoted above from the Staffing
Manual may reflect a sound principle of adminis
trative practice but a failure to comply with it is
not a failure to comply with a legal requirement.
Nor do I think that the principle of selection
according to merit calls for as broad and unquali
fied a requirement as that stated in the above
passage from the Staffing Manual. Obviously
where the change in the qualifications would
enlarge the range of potential candidates for a
position, the selection process would have to be
recommenced to afford an opportunity for the
identification of other candidates. But where, as
here, the effect of the change in the qualifications
is to narrow the range of potential candidates,
there is no adverse effect on the principle of merit,
nor is there any prejudice to a candidate who is
eliminated from further consideration on the
ground that he lacks one of the additional qualifi
cations. The applicant did not have, merely by
virtue of identification as a candidate on the basis
of the original qualifications, a vested right to be
assessed for relative merit in relation to those
qualifications. Had the Data Stream search been
initiated with the additional qualification of air
pollution research as one of the search criteria the
applicant might not have emerged at all as a
potential candidate for the position. If he had
emerged he would still have been subject to elimi
nation by the Screening Board on the ground that
he lacked an essential qualification for the posi
tion. In my opinion there is nothing in the Act or
regulations that prevents the identification of can
didates for a position in two stages. The applicant
argued that if the qualifications for a position
could be changed in the course of the selection
process, such change could be a device for giving
one candidate an unfair advantage over others.
There is no suggestion in this case that the qualifi
cations were changed for such a purpose. The
Appeal Board found that the additional qualifica
tions were reasonable, having regard to the
requirements of the position, and we see no reason
to question that opinion. Indeed, it would appear
that the additional qualification with respect to air
pollution oriented research was little more than an
elaboration of the research requirement suggested
by the original statement of qualifications.
The applicant complains that, in eliminating
him as a candidate on the basis that it did, the
Screening Board did not treat him in a fair and
equal manner in relation to the other candidates.
He contends that there was no basis on a review of
the Data Stream printouts alone for eliminating
him for insufficient experience in pollution orient
ed research and retaining for further consideration
candidates whose printouts did not disclose any
more in the way of such experience. He asserts
that he was eliminated on the basis of Dr.
Ingraham's personal knowledge of his professional
experience, which was insufficient and out-of-date.
He claims that in considering whether to eliminate
candidates at this stage the Screening Board
should have consulted their personal files, where,
as in the applicant's case, the Data Stream print
out indicated that there was "other information on
file". The applicant contends that had the Screen
ing Board consulted his personal file they would
have found evidence of air pollution research
experience.
The Appeal Board found that there was "no
evidence before the Appeal Board to support the
appellant's claim that Dr. Ingraham's knowledge
of him was not factual or up-to-date", and that
"From the evidence submitted concerning the ma
terial on the appellant's personal file, the Appeal
Board is not convinced that it contained any rele
vant information of which the Selection Board was
unaware or that the information would have
affected the Selection Board's decision as to the
qualifications of the appellant." We see no reason
to question these findings.
Section 7(3) of the Regulations provides that in
the case of a selection pursuant to section 7(1)(b),
"employees who meet the qualifications for an
appointment shall be identified as candidates by a
review of the data referred to in subsection (6)
recorded in an inventory of all employees who
would have been eligible to compete if a competi
tion had been conducted." There is no reason to
conclude from the record that the Screening Board
did not have a sufficient knowledge of the perti
nent information in the inventory data relating to
the applicant to justify his elimination as a candi
date for lack of the essential qualification of pollu
tion oriented research experience. Nor is there
reason to conclude that in eliminating him on the
basis, to some extent at least, of Dr. Ingraham's
personal knowledge, the Screening Board treated
him unfairly in relation to the other candidates,
and in particular, to Vézina. Dr. Ingraham also
had personal knowledge of the qualifications of
Vézina which in the opinion of the Screening
Board justified his retention for further consider
ation. But even if some of the candidates who were
retained for further consideration might have been
eliminated at the same time as the applicant, had
the Screening Board had the same knowledge of
what was contained in their personal files, that
would not make the ultimate selection any less a
selection on the basis of merit.
Since the applicant was validly eliminated as a
candidate by the Screening Board, what happened
after his elimination is of no consequence in so far
as he is concerned. This applies to his contentions
concerning the changes in the composition of the
Selection Board after his elimination.
I conclude, therefore, that in eliminating the
applicant as a candidate for the position there was
not a failure to comply with the Act or the regula
tions. But even if the manner in which he was
eliminated were held to be contrary to the Act or
regulations, it has not been shown that there was
any likelihood that the result would have been
different had the selection process been recom
menced on the basis of the amended qualifications.
For this reason the Appeal Board had no basis for
holding the selection to be invalid, and I find that
it did not err in law in dismissing the appeal and
directing that the appointment be made. I would
accordingly dismiss the application.
* * *
PRATTE J. concurred.
* * *
RYAN J. concurred.
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.