T-2086-75
Jean-P. Desrochers (Plaintiff)
v.
The Queen in right of Canada and André Lavery
(Defendants)
and
Antoine Archambault (Mis - en - cause)
Trial Division, Marceau J.—Montreal, March 2,
1976; Ottawa, March 12, 1976.
Public Service—Plaintiff filling position on acting basis—
Position reclassified and competition held—Plaintiff failing to
meet requirements—Plaintiff claiming that because he had
occupied position satisfactorily for over 2 1 / 2 years he was
automatically entitled to fill it permanently, and that competi
tion was inapplicable and of no effect—Seeking judgment that
he had held position permanently since May 1972 or, alterna
tively, damages—Public Service Employment Act, R.S.C.
1970, c. P-32, ss. 8, 21, 27—Public Service Terms and Condi
tions of Employment Regulations, s. 84(2)—Public Service
Employment Regulations, ss. 27, 41.
Plaintiff was acting assistant director of Cowansvillc Peniten
tiary from March 1972 to March 1973. He was reappointed
until March 1974, then to March 1975, and finally to July
1975. In May of 1974, the position was reclassified. A competi
tion was held, and although plaintiff was invited to enter, he
failed to meet the requirements. His appeal was rejected, and
he sought a judgment that since 1972 he had held a permanent
position, or, alternatively, $100,000 damages. His argument
was that, as he had filled the position satisfactorily in an acting
position for over two and one half years, he was automatically
entitled to fill it permanently, and that the competition which
he was forced to enter was not applicable, and of no effect.
Held, the action is dismissed. Nowhere does the Public
Service Employment Act provide that mere length of tenure
can replace the power of the Public Service Commission to
make indeterminate appointments by changing a temporary
assignment into a permanent one. To do so would thwart the
basic purpose of the Public Service Employment Act. And,
sections 27 and 41 of the Public Service Employment Regula
tions are intended to protect eligible candidates who are dissat
isfied with an appointment. Plaintiff cannot use them in his
favour. Nor can he use the argument that for some time he was
paid a salary corresponding to the reclassified position. Neither
time spent in the position, nor favourable recommendations by
his supervisor entitled him to the job, and the Commission was
justified in holding the closed competition.
ACTION.
COUNSEL:
P. Langlois for plaintiff.
J. P. Belhumeur for defendants and
mis -en-cause.
SOLICITORS:
Cutler, Langlois & Castiglio, Montreal, for
plaintiff.
Deputy Attorney General of Canada for
defendants and mis -en-cause.
The following is the English version of the
reasons for judgment rendered by
MARCEAU J.: In his action plaintiff is seeking to
obtain a judgment from this Court that [TRANS-
LATION] "since May 13, 1972, he has held a
permanent position as assistant director at
Cowansville Penitentiary in the Province of Que-
bec." "Alternatively" (that is, if his principal
action is not allowed, as his counsel explained at
the hearing), he is asking that defendants—Her
Majesty the Queen in right of Canada, who is
responsible for the said penitentiary and the Public
Service Commission, and André Lavery, both per
sonally and in his capacity as director, organizer
and administrator of the Canadian Penitentiary
Service—be ordered to pay him damages in the
amount of $100,000.
Such a combination of remedies, sought "alter-
natively" in an action such as this one, raises
difficulties with regard to both the proceedings
and their logical connection with the facts alleged
in the statement of claim. I do not think it neces
sary to dwell on this. It will be sufficient for me to
answer the only question of substance raised in the
proceedings: did plaintiff permanently acquire the
position to which he claims he is entitled, and
which is being denied him?
Plaintiff entered the Canadian Penitentiary Ser
vice, which is part of the Public Service of Canada,
in 1965, to take up a position as clerk at Cowans-
ville Penitentiary, and was subsequently director of
secretarial services and then a personnel officer. In
March 1972 he was invited to fill the temporary
vacancy created by the departure of the penitenti-
ary's assistant director, which he accepted. He was
then appointed to that position in an acting capaci
ty on March 13, 1972 and was paid the minimum
salary prescribed for such a position in the
administrative services category at the CR-3 level.
On February 26, 1973 the regional administrator
wrote the director of the penitentiary to remind
him that plaintiff was on the point of completing
his "one-year period as an O and A", and to
suggest that he "appoint another employee to fill
this position" if the need still existed (Exhibit
D-1). An exchange of correspondence took place
between the regional administrator and the direc
tor, who said that he had no other employee
available, and it was agreed that - plaintiff would
cease to occupy the position for a few weeks and
then be reappointed on an acting basis. In this way
it was sought to avoid making the temporary
assignment last more than twelve months, as this
would have required authorization from both the
Public Service Commission (under section 27 of
the Regulations made pursuant to the Public Ser
vice Employment Act') and the Treasury Board,
as required by section 84(2) of the Public Service
Terms and Conditions of Employment Regula
tions, made pursuant to section 7 of the Financial
Administration Act. 2 A second acting appointment
was made on March 19, 1973, which for the same
reasons and under the same conditions, officially
ended on March 18 of the following year. The
third appointment ran from March 22, 1974 to
March 21, 1975, and was followed by a final one
which terminated on July 14, 1975.
While plaintiff was filling the position of assist
ant administrative director in an acting capacity,
internal reorganization of the Penitentiary Service
was taking place. The result was that on May 1,
1974, the position occupied by plaintiff, which was
to have been abolished in all the institutions, was
instead reclassified at the AS-4 level and given, as
the witness Laferrière explained, "new require
ments and new qualifications". The Public Service
Commission decided to fill it immediately, along
with three other equivalent positions, on the basis
of the results of a competition open only to mem
bers of the Public Service. Plaintiff was invited to
enter the competition because of his experience,
but the selection board found his knowledge to be
insufficient and rejected his candidacy. He
R.S.C. 1970, c. P-32.
2 R.S.C. 1970, c. F-10.
immediately appealed against the board's decision
under section 21 of the Public Service Employ
ment Act, but his appeal was dismissed by a
decision with reasons on January 21, 1975. This
action was brought the following June 19.
Plaintiff claims that the fact that he had
occupied the position in an acting capacity for
more than two and a half years, to the complete
satisfaction of his supervisors, automatically en
titled him to fill the position on a permanent basis,
and that the competition he was forced to enter
was not applicable and therefore could have no
effect. In my opinion, these claims are untenable.
Section 8 of the Public Service Employment Act
is categorical: only the Public Service Commission
has the right to make appointments to indetermi
nate positions. Nowhere in the Act is it stated that
mere length of tenure can replace such action by
changing a temporary assignment into a perma
nent assignment. Otherwise, the essential purpose
of the Act would be thwarted.
Plaintiff alleges that sections 27 and 41 of the
Public Service Employment Regulations were not
complied with in his case. These state that, in the
case of a temporary appointment exceeding two
months, a notice must be published stating the
name of the successful candidate and the right to
appeal of any employee whose opportunity for
advancement has been prejudicially affected as a
result. However, these provisions are intended to
protect eligible candidates who are dissatisfied
with an appointment; I do not see how plaintiff can
use them as an argument in his favour. He has also
attempted to show that between May 1, 1974 and
March 21, 1975, except for a few days, he received
the salary corresponding to the new AS-4 classifi
cation which had just been assigned to the position
he was temporarily occupying. However, the
regional authorities showed that it was not intend
ed that the salary attached to the assignment
should be changed when the position was officially
reclassified and that the previous acting pay was
reinstated as soon as this error was noticed. In any
case, I do not see how this can be used as an
argument by plaintiff.
To the question of substance posed in the pro
ceedings, it seems to me that only one reply is
possible. Plaintiff was not appointed to the position
of assistant director in an indeterminate capacity.
The time he spent in the position as the result of
successive temporary assignments did not entitle
him to the position, nor did the favourable recom
mendations of his immediate supervisor. The
Public Service Commission was justified in holding
a closed competition to fill the reclassified position
permanently. Plaintiff's action is therefore
unfounded and judgment will be rendered
accordingly.
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.