A-202-75
Merrill C. Blagdon (Applicant)
v.
The Public Service Commission, Appeals Board
and A. R. Barrie (Respondents)
Court of Appeal, Thurlow and Pratte JJ. and Kerr
D.J.—Halifax, October 14, 1975; Ottawa, Novem-
ber 7, 1975.
Judicial review—Public service—Selection Board conclud
ing that applicant did not have good safety record—Whether
Board acted illegally in relying on personal knowledge con
cerning accidents involving applicant—Whether Board acted
illegally in considering applicant's involvement in accidents
without allowing him to give his version of incidents—Whether
Board acted illegally in inferring applicant's record not as
good as that of selected candidate—Whether decision of
Appeal Board should be set aside due to failure to provide
complete transcript—Federal Court Act, s. 28—Federal Court
Rule 1402.
Applicant seeks to set aside the decision of an Appeal Board
which dismissed his appeal from the decision of a Selection
Board. He alleges: (1) that the Selection Board acted illegally
in relying on personal knowledge concerning accidents in which
he had been involved; (2) that the Board acted illegally in
considering such involvement without allowing him to present
his version; (3) that the Board could not, assuming it could
consider the accidents, infer from those facts that his safety
record was not as good as the chosen candidate's; and (4) that
the decision of the Appeal Board should be set aside due to its
failure to provide a complete transcript.
Held, the appeal is dismissed. (1) In general, a selection
board may rely on personal knowledge; there is no reason to
disallow such reliance where the known facts could justify
disciplinary measures, as alleged; (2) the Selection Board was
not bound by the audi alteram partem rule, but only by the
merit principle; there is no inference that the selection was not
by merit; (3) while different conclusions could have been
drawn, there is no proof that the inference was wrong; and, (4)
assuming that without a complete transcript, it is impossible to
review the decision of the Appeal Board, the application must
be dismissed. A decision cannot be set aside under section 28
unless it can be shown to be bad for one of the reasons in the
section; a decision that cannot be reviewed cannot be set aside.
Also, per Thurlow J.: Essential qualifications included a
"good safety record." The process was neither judicial, quasi-
judicial nor disciplinary. There was no legal reason why the
Board could not proceed on personal knowledge. While appli
cant, on appeal, was entitled to show that the Board's opinion
was without foundation, he did not give evidence, or attempt to
dispute the occurrence of the incidents, or put forth any reason
why they should not be considered. While it may seem unjust
that a less experienced candidate was selected, it is not unrea
sonable. There is no onus on the Public Service Commission to
keep a verbatim record. Where tapes or notes exist, the Com
mission is not obliged, simply as a result of a section 28
proceeding, to produce a transcript. Applicant is entitled to
invoke the Courts' aid to have a transcript produced at his
expense. If not sufficient, applicant can apply to add evidence
of facts on which he relied. This he did.
MacDonald v. Public Service Commission [1973] F.C.
1081, applied. Senior v. Holdworth [1975] 2 W.L.R. 987,
discussed.
JUDICIAL review.
COUNSEL:
J. G. Godsoe, Jr. for applicant.
A. R. Pringle for respondents.
SOLICITORS:
Stewart, MacKeen & Covert, Halifax, for
applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
THURLOW J.: I agree that the application fails
for the reasons given by Mr. Justice Pratte but
there are some comments which I wish to add.
The central issue on the appeal to the Public
Service Appeal Board, as well as on the applica
tion to this Court, was the applicant's attack on
the conclusion of the Selection Board that the
applicant did not have a good safety record. That
attack was mounted on a number of grounds,
including the use by the Board of personal knowl
edge rather than acceptable evidence, the lack of
acceptable evidence to prove that the applicant did
not have a good safety record and the failure of the
Selection Board, when interviewing the applicant,
to raise the question of his involvement in and
responsibility for (1) the stranding of the Cygnus,
and (2) the collision of the Cygnus with the Mar-
garee, and to give him an opportunity to show that
they did not indicate that his safety record was not
a good one.
It may be noted, first, that the notice of the
holding of the competition for the position in
question, that of Master of CGS Chebucto, includ
ed under the heading "Essential Qualifications"
the following:
Personal suitability
Candidates must demonstrate that they possess the following
factors of personal suitability:
good safety record.
It was, therefore, in my view, incumbent on the
applicant to satisfy the Selection Board that he
had a good safety record and for that purpose to
raise the question and make his representations
about it to the Board, whether by stating his
position to the Board in writing or orally in the
course of his interview. The applicant could not
fail to have been aware of the two incidents in
question or that they might have an effect on his
record. Nor could he have been unaware that the
members of the Board, or some of them, knew of
these incidents. The Board was neither a court nor
a judicial or quasi-judicial body. Nor was the
matter before it a disciplinary proceeding. It was a
process for the assessment of the qualifications of
the candidates for a position and for the rating of
them according to their respective merits as they
appeared to the Board. There was no legal reason
why, for this purpose, the Board could not proceed
on the knowledge of its members, or some of them,
of incidents affecting the applicant's safety record.
Nor was there need for anything more formal in
the way of evidence before them. And there was no
reason why they could not reach their assessment
and conclusion on the basis of such knowledge as
they had when the applicant failed to raise the
question of his safety record and to demonstrate to
their satisfaction that it was good. I do not think,
therefore, that the conclusion of the Selection
Board that the applicant did not have a good
safety record can be said to have been erroneous
either in law or in fact.
In such a competition the determination of what
constituted a good safety record for the purposes
of qualifying a candidate for the particular
appointment and whether a candidate had such a
record were questions for the judgment of the
Selection Board. However, if the Board's selection
was to be acted upon its conclusions were subject
to review at the instance of an unsuccessful candi
date on an appeal under section 21 of the Public
Service Employment Act.
On such an appeal—which, it should be noted,
is not an appeal from the findings of a Selection
Board but rather an, appeal against the appoint
ment or proposed appointment of a successful
candidate—the essential question for the Appeal
Board is whether the selection of the successful
candidate has been made in accordance with the
merit principle. An unsuccessful candidate,
appealing against the appointment or proposed
appointment of the successful candidate, is entitled
to show, if he can, reasons for thinking that the
merit principle has not been honoured, and in that
context the applicant, on his appeal, was entitled
to show, if he could, that the Selection Board's
opinion that he did not have a good safety record
was without foundation. In an effort to do so he
attacked the knowledge and sources of knowledge
of the Rating Board members, their qualifications
to form a judgment on the subject and their judg
ment itself but he did not give evidence and he
appears to have made no attempt either to dispute
the happening of either of the two occurrences or
to put forward any sound reason why such inci
dents should not have been taken into account in
reaching an opinion as to his safety record.
More particularly, he did not dispute that the
report of an investigation carried out by the
Department of Transport into the circumstances
surrounding the grounding of the Cygnus had
concluded that the grounding was caused by
improper navigation and that the applicant had
been orally reprimanded by his superior in connec
tion with the incident. Nor was it disputed that
following the collision of the Cygnus with the
Margaree a letter had been written to the appli
cant by his superior informing him that as a result
of a summary report of the investigation into the
collision by the Department of Transport and the
Naval Board of Inquiry, the evidence indicated
some degree of blame would have to be accepted
by both vessels and that a copy of the letter would
be placed on the applicant's personal file. It does
not appear that the applicant ever replied or chal-
lenged what was in the letter. In these circum
stances the following comments and findings of the
Appeal Board:
In the opinion of the Appeal Board it was not necessary for
the Rating Board to prove that the appellant was at fault in the
incidents to which it referred. In one case, the Department
submitted evidence to show that an investigation had concluded
that there was "imprudent navigation" in the grounding of the
"Cygnus" which was under the command of the appellant. The
appellant did not deny this and neither did he refute the
Department's conclusion that there was some degree of blame
on the "Cygnus", which was also under his command at the
time of the collision with the destroyer "Margaree".
The appellant has submitted no evidence to show that there was
any illegality or impropriety in the conduct of the competition
and the Appeal Board can find no reason for intervening in this
case.
appear to me to have been warranted on the
material before it and to have involved no error of
law or injustice to the applicant.
What may at first sight seem unjust is that the
applicant's record in command positions over a
period of six years was considered to be not a good
safety record because of these two incidents while
that of the successful candidate, whose command
experience was only a matter of some four months
but included no such incidents, was considered to
be a good safety record. That, however, was pecu
liarly a matter for those charged with the responsi
bility for evaluating such records and in my opin
ion it cannot be said that their conclusion was one
that could not reasonably be reached by them.
I turn now to the applicant's point with respect
to the lack of a satisfactory transcript of proceed
ings before the Appeal Board.
The position, as I see it, is that in proceedings
under section 28 of the Federal Court Act it is for
an applicant to put before this Court the facts
upon which he relies to raise and sustain his
grounds of attack on a tribunal's decision. For that
purpose, if a transcript exists of the proceedings of
a tribunal the applicant is entitled to prove it
before the Court and thus make it evidence of
what transpired before the tribunal. Moreover, if
the tribunal has caused its proceedings to be
recorded and has in its possession a transcript of
them, on an application being made under section
28 to review its decision, the tribunal is required
by Rule 1402 to include such transcript in the
material to be forwarded to the Registry. There is,
however, no statutory or other legal obligation, of
which I am aware, upon the Public Service Com
mission to have a verbatim record made of the
proceedings of its appeal boards, whether by short
hand reporting or by mechanical or electronic
means.' Even where a shorthand note has been
taken or mechanical or electronic means of record
ing has been employed it does not follow that the
Commission is obliged, merely because a section
28 application has been made for review of the
appeal board's decision, to incur the expense of
producing a transcript from such notes or record
ings. On the other hand an applicant's right to put
the contents of such notes or recordings before the
Court as evidence cannot be frustrated by a refusal
by the tribunal either to prepare and return to the
Court a transcript or to make the notes or record
ings available for the production of a transcript.
The applicant is entitled, as I see it, to invoke the
aid of the Court in an appropriate case to have
such notes or records produced and transcribed at
his expense for use at the hearing. 2
Here, however, no such problem arose. An elec
tronic tape recording of the proceedings, or part of
them, had in fact been made and at the applicant's
request a transcript of what was recorded was
produced by the Commission and is included in the
case before the Court. In so far as this was not
sufficient for the applicant's purposes it was open
to him to apply to add to the case evidence of the
facts on which he relied. This, too, was done and
the affidavit of the applicant's solicitor was admit
ted and forms part of the case. It appears to me
therefore that the applicant's contention is without
merit.
I would dismiss the application.
* * *
II express no opinion as to whether, if a verbatim record of
some sort is not kept, there is an obligation on a public service
appeal board to make handwritten notes of the material and
representations put before it at its inquiry and to include such
notes in the material forwarded under Rule 1402. Some such
obligation may conceivably exist but the point does not arise
and was not argued in the present case.
2 See Senior v. Holdworth [1975] 2 W.L.R. 987.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This is a section 28 application to set
aside a decision of a Board under section 21 of the
Public Service Employment Act.
On December 5, 1974, the Department of Envi
ronment announced that a "closed competition"
would be held to determine who would be appoint
ed the Master of the Ship Chebucto. Three persons
applied for the job: the applicant, Mr. Baker and
Mr. McKay. A selection board was set up to assess
the candidates. It found the three of them to be
qualified; it also found that, in order of merit, Mr.
Baker came first, the applicant, second, and Mr.
McKay, third. Mr. Baker was, therefore, selected
for the job. The applicant appealed against that
selection under section 21 of the Public Service
Employment Act.
The inquiry conducted by the Appeal Board
disclosed that the reason why Mr. Baker had been
preferred to the applicant, who had a much longer
experience as the Master of a ship, was that, in the
opinion of the Selection Board, the applicant's
safety record was not good. That opinion was
based on the personal knowledge of two of the
three members of the Selection Board that the
applicant had been involved in two marine acci
dents. It is common ground that, even though the
Selection Board had interviewed each candidate
for more than three hours, the Board had not
raised with them the subject of their respective
safety records.
The applicant's appeal was dismissed by the
Appeal Board. It is that decision, dismissing his
appeal, that the applicant now seeks to have set
aside.
Counsel for the applicant argued that his appeal
should have been allowed for the following
reasons:
1. The Selection Board had acted illegally in
relying on the personal knowledge of some of its
members concerning the two accidents in which
the applicant had been involved.
2. The Selection Board had acted illegally in
considering the applicant's involvement in two
accidents without giving him an opportunity to
present his version of the facts.
3. Assuming that the Selection Board could
take into consideration the involvement of the
applicant in the two accidents in question, the
Selection Board could not, from those facts,
infer that the applicant's safety record was not
as good as Baker's.
Counsel for the applicant finally submitted that, in
any event, the decision of the Appeal Board should
be set aside in view of its failure to make available
a complete transcript of the verbal evidence given
at the Appeal Board hearing.
First, I wish to dispose of this last submission.
Counsel said that, because of the failure of the
Appeal Board to provide a complete transcript, "it
is impossible for the Court to properly review the
Appeal Board's decision". Assuming that assertion
to be true, it follows, in my view, not that the
decision of the Appeal Board should be set aside
but, rather, that the section 28 application should
be dismissed. The applicant asks the Court to
review the decision of the Appeal Board; if the
Court cannot accede to that request, the applica
tion must be dismissed. A decision of a tribunal
cannot be set aside under section 28 unless it be
shown to be bad for one of the reasons mentioned
in section 28(1). A decision that cannot be
reviewed cannot be set aside.
Before considering the other arguments put for
ward on behalf of the applicant, certain observa
tions are in order.
First, it should be stressed that this section 28
application is not directed against the decision of
the Selection Board but against the decision of the
Appeal Board. In order for the application to
succeed, therefore, the decision of the Appeal
Board must be shown to be bad for one of the
reasons mentioned in section 28(1).
Second, it should also be borne in mind that
"the appointment function and the appeal function
are different stages of the `merit' system" (Mac-
Donald v. Public Service Commission [1973] F.C.
1081, per Jackett C.J., at page 1086); the function
of a Selection or Rating Board and that of an
Appeal Board must not be confused. A Rating
Board is an instrument used by the Public Service
Commission to perform its duty to select candi-
dates on the basis of merit. Its function is merely
to assess the various candidates and, in doing so, it
performs a purely administrative task. That task
must, of course, be performed fairly and honestly
so as to achieve an assessment on the basis of
merit, but it is not governed by rules, such as audi
alteram partem, applicable to judicial or quasi-
judicial bodies. Speaking broadly, the only general
rule that governs the activity of a Selection Board
is that the selection be made on the basis of merit.
An Appeal Board, under section 21 of the Act, has
a different function. Its duty is not to re-assess the
candidates but to conduct an inquiry in order to
determine whether the selection has been made in
a way consistent with the merit principle; its deci
sion is to be made on "a judicial or quasi-judicial
basis". The mere fact that an Appeal Board could,
had it sat as a Selection Board, have reached a
conclusion different from that reached by the
Selection Board is not a sufficient ground for
allowing the appeal. It must be realized that the
assessment of the merit of various persons, which
is the function of the Selection Board, cannot be
reduced to a mathematical function; it is, in many
instances, a pure matter of opinion. And, there is
no reason why the opinion of an Appeal Board
should be preferred to that of a Selection Board.
I now revert to the various arguments put for
ward by counsel for the applicant.
First, he said that the Selection Board could not
rely on the personal knowledge of two of its mem
bers to conclude that the applicant's safety record
was not good. Counsel did not contest that, gener
ally speaking, a Selection Board may rely on the
personal knowledge of its members. However, he
contended that a different rule applies where, like
in the present case, the facts known to the mem
bers of the Selection Board are such that they
could justify or could have justified the imposition
of disciplinary measures. This distinction, I must
confess, is difficult to understand. At all events,
there is no reason, in my view, why such a distinc
tion should be made. The matter in hand was in no
sense a disciplinary procedure.
Counsel's second argument was that the Selec
tion Board should have given the applicant an
opportunity to answer the charge that he had a
bad safety record. This argument, in my view, also
fails. The Selection Board was not bound by the
rule audi alteram partem. It was bound, however,
by the requirement of the statute that the selection
be made on the basis of merit. In the circum
stances of this case, it cannot be inferred, from the
fact that the applicant was not given an opportu
nity to discuss his safety record, that the selection
of Mr. Baker was not made on the basis of merit.
Finally,, I am unable to find any substance in
this last argument of counsel that, from the facts
known to them, the members of the Selection
Board could not reasonably infer that the appli
cant's safety record was not good. The most that
can be said in favour of the applicant in this
respect is that other persons could perhaps, from
the same facts, have drawn a different conclusion.
But this, of course, does not prove that the Selec
tion Board was wrong.
For these reasons, I would dismiss the
application.
Since writing these reasons, I have had the
privilege of reading the additional comments made
by my brother Thurlow J. I agree with everything
he says.
* * *
The following are the reasons for judgment
rendered in English by
KERR D.J.: I have had the advantage of consid
ering the reasons for judgment of Justices Thurlow
and Pratte. I agree generally with their respective
reasons. I have concluded that the application
should be dismissed.
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.