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A-190-78
Donald E. Perry (Applicant) v.
Public Service Commission Appeal Board (Respondent)
Court of Appeal, Pratte, Urie and Ryan JJ.— Ottawa, January 17 and 23, 1979.
Judicial review — Jurisdiction — Public Service — Appeal Board allowing appeal against proposed appointment of appli cant — Sound judicial administration requiring rejection of argument that Board failed to observe principle of natural justice in allowing appeal against applicant's appointment without affording him an opportunity to be heard — Appli cant's name was merely appearing on eligible list — Necessary to establish applicant not about to be appointed — Application dismissed — Public Service Employment Act, R.S.C. 1970, c. P-32, s. 21 — Public Service Employment Regulations, SOR/ 67-129, s. 7(1)(a) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review. COUNSEL:
Maurice W. Wright, Q.C. and D. G. Ravin for
applicant.
Walter L. Nisbet, Q.C. for respondent.
SOLICITORS:
Soloway, Wright, Houston, Greenberg, O'Grady, Morin, Ottawa, for applicant. Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
PRATTE J.: This is a section 28 application to review and set aside a decision of an Appeal Board under section 21 of the Public Service Employ ment Act, R.S.C. 1970, c. P-32, allowing an appeal against the proposed appointment of the applicant to a position in the Public Service following a closed competition held pursuant to section 7(1)(a) of the Public Service Employment Regu lations, SOR/ 67-129.
The applicant's only ground of attack is that the Board failed to observe a principle of natural
justice in allowing the appeal against his appoint ment without giving him any opportunity to be heard. An identical attack against a similar deci sion of a section 21 Appeal Board was rejected by this Court in Dumouchel v. Appeal Board, Public Service Commission [1977] 1 F.C. 573; for that reason, the applicant's contention must also, in my view, be rejected. Sound judicial administration requires that the Court, save in exceptional cases, follow its previous decisions.' Even though I enter tain serious doubts as to the correctness of our decision in Dumouchel, this is not a case where we should depart from the rule.
This does not dispose of the matter, however, since counsel for the respondent, while opposing the applicant's argument, took the position that the Board's decision had to be set aside on another ground. His contention was based on the text of section 21 which gives a right of appeal only "Where a person is appointed or is about to be appointed" and on the view that the record shows, not that the applicant was such a person, but merely that his name appeared on an eligible list; it follows, said counsel, that the appeal against the applicant's appointment should have been dis missed as premature. In order to dispose of this argument, it is not necessary to determine whether it is founded on a correct interpretation of section 21. The question whether or not the applicant was "about to be appointed" is a question of fact to be resolved on the basis of the record. That record shows that the applicant's name was on the eligible
' In Murray v. Minister of Employment and Immigration [1979] 1 F.C. 518, Jackett C.J. had this to say on the subject [at pages 519-520):
In my view, such a recent decision of this Court, which is directly in point, should be followed even if, had the members of this Division constituted the Division of the Court by whom it was decided, they might have decided it differently. In saying this, I am not applying the principle of stare decisis, which, in my view, does not apply, as such, in this Court. I am following what, in my view, is the proper course to follow from the point of view of sound judicial administra tion when a court is faced with one of its recent decisions. It would, of course, be different if the recent decision had been rendered without having the point in mind or, possibly, if the Court were persuaded that there was an obvious oversight in the reasoning on which it was based.
See, also, the decision of the House of Lords in Davis v. Johnson [1978] 2 W.L.R. 553.
list and does not disclose any other reason for believing that he was about to be appointed. It does not show, however, what had to be established in order for counsel's argument to succeed, namely, that the applicant was not about to be appointed. The factual basis of counsel's argument is therefore not established and, for that reason, the argument must be rejected.
I would dismiss the application.
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URIE J.: I agree.
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RYAN J.: I agree.
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