A-92-78
Edward P. Irwin (Applicant)
v.
Appeal Board of the Public Service Commission
(Respondent)
Court of Appeal, Heald, Urie and Ryan JJ.—
Ottawa, May 25 and July 28, 1978.
Judicial review — Public Service — Rating board decided
qualified applicant for position not meriting appointment —
Qualifications for position not established by rating board
according to the letter of selection standards Appeal dis
missed by Appeal Board as qualifications established by rating
board not shown to be inadequate — Whether or not Appeal
Board erred in law — Public Service Employment Act, R.S.C.
1970, c. P-32, s. 21 — Public Service Employment Regula
tions, SOR/67-129, s. 6, SOR/69-592, ss. 7 and 12 — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
This is a section 28 application to review and set aside a
decision of the Public Service Commission Appeal Board in
respect of an appeal brought by applicant from a finding of a
rating board, made as a result of an oral examination, that he
did not merit appointment. The allegation made before the
Appeal Board was that "The qualifications of the candidate
had not been properly assessed because the Rating Board had
failed to assess them in accordance with the appropriate selec
tion standards as required by subsection (4)(a) of Section 7 of
the Regulations ...." The Appeal Board, although it con
sidered it imprudent for the rating board to fail to establish the
qualifications for the positions according to the letter of the
selection standards, concluded that the qualifications estab
lished by the rating board were not shown to be inadequate,
unreasonable or lacking having regard to the duties of the
position.
Held, the application is allowed. A rating board has no au
thority to establish qualifications for positions. Its function is to
assess the relative merits of qualified candidates as a basis for
the making of appointments by the Commission. Its assessment
of merit must be carried out on the basis of qualifications
properly established by others and in accordance with selection
standards prescribed by the Commission. This assessment was
carried out on the basis of qualifications established by the
rating board itself. The result was that the selection process was
not performed in accordance with law; there was a basic
departure from the system established by the Regulations. The
Appeal Board erred in law in not so finding and in not allowing
the appeal. Although it is not necessary to decide whether the
failure of the responsible staffing officer to ensure a written
statement of qualifications was available before the rating
board proceeded to assess merit would have in itself been fatal
to the process, there was a duty to have such a statement
prepared.
Brown v. Public Service Commission [1975] F.C. 345,
applied.
APPLICATION for judicial review.
COUNSEL:
William J. Simpson for applicant.
Michael A. Kelen for respondent.
SOLICITORS:
Binks, Chilcott & Simpson, Ottawa, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
RYAN J.: This is a section 28 application to
review and set aside a decision, dated February 14,
1978, of a Public Service Commission Appeal
Board, chaired by Mrs. M. J. Mercier-Savoie. The
decision was made in respect of an appeal brought
by the applicant, Edward P. Irwin, under section
21 of the Public Service Employment Act', which
provides:
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 Commis
sion to conduct an inquiry at which the person appealing and
the deputy head concerned, or their representatives, are given
an opportunity of being heard, and upon being notified of the
board's decision on the inquiry the Commission shall,
(c) 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.
The section 21 appeal was brought by Mr. Irwin
against the selections made for appointment as a
result of a selection process designed to fill posi
tions classified at the PM -7 level in the Ministry of
' R.S.C. 1970, c. P-32, as amended.
State for Urban Affairs. Seven selections for
appointment were subject to the appeal, six as
project officers and one as Director, Atlantic
Region.
The application raises a question concerning the
authority of a rating board, appointed by the
Public Service Commission to conduct interviews
and examinations in a process of personnel selec
tion under subsection 7(1), subparagraph (b)(i) of
the Public Service Employment Regulations, to
determine that a person being considered for
appointment lacks the qualifications for appoint
ment. It also raises questions concerning the au
thority of such a board to establish qualifications
for the positions to be filled. And, finally, there is
in this case the question whether the selections
were made by means of an assessment of the
candidates in accordance with prescribed selection
standards and whether the making of selections in
the absence of a written statement of qualifications
for the positions was itself fatal to the process.
I may say that the disposition of this case is
dependent on the Public Service Employment
Regulations as they were before certain amend
ments, including amendments to section 7, became
effective 2 . The selection process was conducted
and the appeal brought by Mr. Irwin was heard
pursuant to the Regulations as they were prior to
the amendments.
During the relevant period, Mr. Irwin was an
employee of the Ministry of State for Urban
Affairs at the PM-7 level. In September 1977, a
reorganization of the Department was announced.
The reorganization eliminated Mr. Irwin's and
other positions, and created new positions. A selec
tion process, in which Mr. Irwin participated, was
held to fill seven of the new positions, which were
also classified at the PM-7 level. It was decided
that the appointments to the new positions would
be made in accordance with the selection process
provided in subparagraph 7(1)(b)(i) of the Public
Service Employment Regulations. The relevant
provisions of section 7 of the Regulations [SOR/
69-592] then read:
7. (1) Every appointment shall be in accordance with selec
tion standards and shall be made
2 The Public Service Employment Regulations were amend
ed by SOR/78-343, effective June 1, 1978.
(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, ...
(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; ...
(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; ...
(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.
It had been decided, pursuant to section 12 3 of
the Regulations, and presumably by the designated
staffing officer, that the persons eligible to partici
pate in the selection process would be employees
within the Department who were at the PM-7
level.
A rating board was established by the Public
Service Commission which consisted of a Public
Service Commission officer and three departmen
tal officers. This board examined the candidates
orally.
As a result of the selection process, selections
were made for appointment to the various posi
tions. According to the reasons for decision of the
Appeal Board, Mr. Irwin was found to be unquali-
3 Section 12, revoked with the amendments effective June 1,
1978, of the Regulations provided:
12. Before an appointment is made from within the Public
Service by a process of personnel selection referred to in
paragraph (b) of subsection (1) of section 7, the responsible
staffing officer shall determine the part, if any, of the Public
Service and the occupational group and level, if any, in which
prospective candidates would have to be employed in order to
be eligible to compete if a closed competition were held.
fied both for the Project Officer positions and for
the position of Director, Atlantic Region.
Counsel for the applicant submitted that the
applicant had the qualifications for appointment to
the positions. He was, after all, a PM-7 in the
Department.
It is clear, it seems to me, from section 7 of the
Regulations that the candidates for appointment
should have been identified by a review of the
inventories of the employees who would have been
eligible to compete had there been a competition.
In this case, Mr. Irwin was obviously an eligible
person, so that his candidacy depended upon the
data in his inventory matching the essential
qualifications for the positions. But then, he was in
fact, interviewed as a candidate.
From the reasons for decision of the Appeal
Board, it is clear that Mr. Irwin was found by the
rating board to be unqualified, not on the basis of
an inventory review, but as a result of the oral
examination conducted by the rating board. It may
have been inaccurate for the rating board to
describe Mr. Irwin as "unqualified", at least in the
sense in which the term "qualifications" is used in
section 7 of the Regulations. Their finding, how
ever, as I see it, was not a finding that he was
unqualified as a candidate: he was interviewed as
such. It was in reality a finding that, on the basis
of the interviews of the candidates, including Mr.
Irwin, he did not merit appointment to any of the
positions.
That the result of the examination may, so far
as Mr. Irwin is concerned, have been inaptly
worded, would not, in itself, be ground for
invalidating the selection of the successful candi
dates. Mr. Justice Thurlow (as he then was) in
Blagdon v. Public Service Commission 4 said with
reference to a section 21 appeal that it "... is not
an appeal from the findings of a Selection Board
but rather an appeal against the appointment or
proposed appointment of a successful candidate
[1976] 1 F.C. 615, at p. 618.
But there are other problems to be considered.
These problems appear to me to be in some meas
ure a consequence of confusion between the mean
ing of the term "qualifications" and that of the
term "selection standards", and a blurring of the
respective roles of qualifications and selection
standards in a process of personnel selection. They
are also a consequence of a misunderstanding of
the authority of the departments and of the Com
mission to establish qualifications for positions.
The distinction between the two terms and the role
played by each in the selection process has been
carefully considered by this Court in several cases,
as has the role of the departments, of Treasury
Board and of the Commission in establishing
qualifications 5 .
In the Brown case, in a summary of the steps
contemplated by law for appointment to positions
from within the Public Service in the manner
provided for in subparagraph 7(1)(b)(i) of the
Regulations, Chief Justice Jackett said at pages
357 and 358:
4. To summarize, the steps contemplated by law before a
promotion (appointment from within the public service) can be
made, in the manner contemplated by Regulation 7(1)(b)(i), to
a vacant position are:
(1) authorization for the position,
(2) classification of the position as provided for by Treasury
Board (if Treasury Board has made a relevant provision
requiring such a classification),
(3) request from the deputy head to the Public Service
Commission 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 classifica
tion, 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 candi
dates and others of a statement in writing "of the qualifica-
See, for example, In re Public Service Competition
73-EXT-IV-203-A FS3 [1974] 1 F.C. 432; Brown v. Public
Service Commission [1975] F.C. 345; Bambrough v. Public
Service Commission [1976] 2 F.C. 109 and Delany v. Public
Service Commission Appeal Board [1977] 1 F.C. 562.
tions for the position", as required by regulation 6, 6
(5) a decision under regulation 12 as to the part of the
Public Service and the occupational group and level in which
prospective 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, iden
tification "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 Com
mission", as required by regulation 7(4)(a).
And at page 372 of the Brown case, the Chief
Justice said:
Ordinarily, one would have thought that "qualifications"
required to perform the duties of a particular employment and
the "selection standards" used under regulation 7(4)(a) to
assess "relative merits" of "applicants identified as candidates"
because they have been found to meet those "qualifications"
would be two quite distinct things.
With respect, I would agree, and I would add
that I see nothing in this case to indicate that the
ordinary distinction between "qualifications" and
"selection standards" should not apply.
The effects of a confusion between qualifications
and selection standards, and of a misunderstanding
of the roles of the Department and of the Commis
sion in their establishment, appear in the reasons
for the Appeal Board's decision, particularly as
those reasons relate to what the Appeal Board
describes as the appellant's "second allegation".
This was, in the words of the Board, the allegation
that: "The qualifications of the candidates had not
been properly assessed because the Rating Board
had failed to assess them in accordance with the
appropriate selection standards as required by sub
6 Section 6 of the Public Service Employment Regulations,
SOR/67-129, provides:
6. (1) Except as otherwise determined by the Commission
in any case or class of cases, the responsible staffing officer,
before an appointment is made to a position, shall ensure
that there is available for distribution to the Commission, to
prospective candidates and to other persons who may be
interested in the appointment, upon request, a statement in
writing, in both the English language and the French lan
guage, of the qualifications for the position.
(2) Every statement of qualifications for a position shall
specify and differentiate between those qualifications that
are essential qualifications and those qualifications if any,
that are desirable qualifications for the position.
section (4)(a) of Section 7 of the Regulations
9 7
In respect of this allegation, the Appeal Board
said:
As to the second allegation, the Appeal Board is of the
opinion that although the Rating Board has been most impru
dent in failing to establish the qualifications for the positions
according to the letter of the Selection Standards (i.e. in terms
of Basic Requirements such as Experience, Education, etc. and
in terms of rated requirements such as Knowledge, Abilities
and Personal Suitability) it has not been shown that the
qualifications for the positions established by the Rating Board
were unreasonable or lacking having regard to the duties of the
positions. The Appeal Board is not concerned that the Rating
Board has failed to label the qualifications in the manner stated
in the Selection Standards. The fact remains that since the
Appeal Board has been presented with no evidence to the
contrary, it has no reason to conclude that the qualifications for
the positions established by the Rating Board are inadequate.
It seems to me to be clear that a rating board
has no authority to establish qualifications for
positions 8 . Its function is to assess the relative
merits of qualified candidates as a basis for the
making of appointments by the Commission. Its
assessment of merit must be carried out on the
basis of qualifications properly established by
others and in accordance with selection standards
prescribed by the Commission. In this case,
according to the reasons of the Appeal Board, the
assessment was carried out on the basis of qualifi
cations established by the rating board itself. The
result was that the selection process was not per
formed in accordance with law; there was a basic
departure from the system established by the
Regulations. The Appeal Board, in my view, erred
in law in not so finding and in not allowing the
appeal.
I do not find it necessary to decide whether the
failure of the responsible staffing officer to ensure
that a statement in writing of qualifications was
available before the rating board proceeded to
assess merit would in itself have been fatal to the
7 I was also alleged that the board had failed to take into
account the candidates' performance appraisal reports. The
Appeal Board satisfactorily disposed of this allegation.
8 The implied statutory authority of the Commission to par
ticipate in the elaboration of qualifications in order to protect
the merit principle is not involved in this case. The nature of
that implied authority was considered in the Bambrough case,
[1976] 2 F.C. 109.
process. I do, however, agree with the Appeal
Board that there was a duty to have such a state
ment prepared, and I also agree that the rating
board had "followed a most dangerous and
undesirable practice" in proceeding with its assess
ment of merit without having before it a statement
of the qualifications for the positions.
The error in this case was not merely one of
procedure. It was one of substance going to the
heart of the process. It would, in my opinion, be
mere speculation to consider whether the selections
might have been different had the applicable law
been observed.
I would grant the application and set aside the
decision of the Appeal Board. I would refer the
appeal back to the Appeal Board for redetermina-
tion in accordance with these reasons 9 .
* * *
HEALD J.: I agree.
* * *
URIE J.: I agree.
9 I would note that the applicant in the written submissions of
counsel sought a judgment that, in addition to setting aside the
decision of the Appeal Board, would declare that he met the
qualifications for appointment to the positions. It may thus be
as well to indicate that it is not open to this Court to make such
a declaration: see Federal Court Act, section 52, paragraph (d).
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.