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A-669-78
Yvon Blais, Renald Couture and Alain Martel (Applicants)
v.
Public Service Commission Appeal Board (Respondent)
Court of Appeal, Pratte, Ryan and Le Dain JJ.— Ottawa, March 30 and May 3, 1979.
Judicial review — Public Service — Application to set aside respondent's dismissal of applicants' appeal against appoint ments made following closed competition held in accordance with Public Service Employment Act — Applicants contend that Board's refusal to "allow appellants' representative to question the representatives of the Department in its presence" not in accordance with Board's duty to conduct inquiry pursu ant to s. 21 — Applicants also argue that Appeal Board unduly limited scope of its inquiry by refusing to require members of selection committee to produce notes taken during interviews with various candidates — Application dismissed — Public Service Employment Act, R.S.C. 1970, c. P-32, s. 21 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review. COUNSEL:
John D. Richard, Q.C. for applicants. J. P. Malette for respondent.
SOLICITORS:
Gowling & Henderson, Ottawa, for appli cants.
Deputy Attorney General of Canada for respondent.
The following is the English version of the reasons for judgment rendered by
PRATTE J.: Applicants are asking that a decision of an Appeal Board, acting pursuant to section 21 of the Public Service Employment Act, R.S.C. 1970, c. P-32, be set aside. By that decision the Board dismissed applicants' appeal against appointments to be made following a closed com petition held in accordance with the provisions of the Public Service Employment Act.
Section 21 of the Public Service Employment Act reads as follows:
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.
Counsel for the applicants submitted two argu ments in support of this appeal.
First, he contended that the Board failed in its duty to conduct an inquiry in accordance with section 21, when it refused to "allow appellants' representative to question the representatives of the Department in its presence".
In order to understand this contention it is necessary to read the first part of the decision a quo, and in particular the following passage:
[TRANSLATION] Following the Department's observations, the chairman of the appeal board asked appellants' representa tive whether he had any questions. He suggested the latter should choose a reasonable number of target questions on the basis of which the inquiry could be developed. Appellants' representative asked for the answers by appellants and the candidate selected to seventeen of the nineteen questions asked at the interview. The chairman of the appeal board said that such an exercise far exceeded the inquiry which he was required to conduct, and told appellants' representative that unless there were specific reasons for doing so, he would not proceed in this manner. The appeal board said that points of information were involved, and adopted the procedure of leav ing appellants and the Department together for an exchange of information, so that the inquiry could be developed on the basis of specific allegations. Appellants' representative objected to this procedure and cited a Federal Court case, without saying which one. The objection was dismissed by the chairman of the appeal board, as no valid reason was submitted. The parties then spent about two hours in this exchange of information, without the appeal board being present.
Allegations:
After examining the Department's observations, appellants' representative set forth the following allegations:
Reading this passage of the decision and placing it in its context, I cannot agree with counsel for the applicants that the Board refused to conduct the inquiry required by the Act. It would seem rather that, in order to shorten the inquiry and avoid needless interrogation, the Board simply required the parties to proceed with an exchange of infor mation, without the Board being present, so that applicants could explain the grounds for their appeal. In the circumstances of the case at bar, I find nothing improper in this procedure.
Applicants' second argument was that the Appeal Board unduly limited the scope of its inquiry, by refusing to require members of the selection committee to produce the notes they had made at the interviews held with the various candidates.
In order to assess the weight of this argument, it must be understood that applicants' representative before the Board had argued that the notes made by members of the committee were too brief, because they contained no summary of the answers given by the various candidates. This brevity, applicants' representative maintained, was incom patible with an assessment based on merit. After the Department's representatives had refused—for reasons difficult to understand—to produce the notes in question, the Board refused to require that they be produced and dismissed applicants' grievance.
In my opinion the Board did not, by deciding in this manner, act unlawfully: I think it is clear that the Board quite properly felt that the fact the notes taken by committee members may have been brief could not have had any effect on its decision.
For these reasons I would dismiss the applica tion.
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RYAN J.: I concur.
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LE DAIN J.: I concur.
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