A-29-79
Klaus D. Nenn (Applicant)
v.
The Queen (Respondent)
Court of Appeal, Jackett C.J., Smith and Kerr
D.JJ.—Ottawa, June 14, 1979.
Judicial review — Public Service — Jurisdiction —
Application to set aside a decision of Public Service Commis
sion forming the opinion that applicant's "opportunity for
advancement" had not been prejudicially affected by appoint
ment or proposed appointment against which he desired to
appeal under s. 21 of the Public Service Employment Act —
Jurisdiction of the Court under s. 28 to review a decision of the
Public Service Commission in forming an opinion regarding
advancement opportunities — Administrative operation not
subject to review — 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:
Catherine H. MacLean for applicant.
W. L. Nisbet, Q.C. for respondent.
SOLICITORS:
Nelligan/Power, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is a section 28 application
(i.e., an application under section 28(1) of the
Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10) to set aside a decision of the Public Service
Commission that the applicant "did not have the
right to appeal an appointment" pursuant to sec
tion 21(b) of the Public Service Employment Act,
R.S.C. 1970, c. P-32.
The relevant part of section 21 reads:
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
(b) without competition, every person whose opportunity for
advancement, in the opinion of the Commission, has been
prejudicially affected,
may ... appeal against the appointment ...
The section 28 application is, in effect, an applica
tion that this Court set aside a decision of the
Commission by which it formed the opinion that
the applicant's "opportunity for advancement" had
not been "prejudicially affected" by an appoint
ment or proposed appointment against which he
desired to "appeal" under section 21.
In my view, this Court does not have jurisdiction
under section 28 of the Federal Court Act to
entertain such an application because it is exclud
ed from the class of decisions that may be
reviewed under section 28(1)' as being a "decision
... of an administrative nature not required by law
to be made on a judicial or quasi-judicial basis".
In the first place, it is to be noted that, by virtue
of the Public Service Employment Act, that part
of the management powers of most government
departments and some other government agencies
that has to do with recruiting and promotion of
staff is to a large extent carved out of the statutory
powers of management vested in the respective
ministers or other appropriate authorities and is
vested in the Public Service Commission; and it
seems clear that the employment and promotion
decisions that have to be made in the course of
exercising the powers so vested in the Public Ser
vice Commission are decisions of an administrative
nature and are not expressly or impliedly required
' Section 28(1) reads:
28. (1) Notwithstanding section 18 or the provisions of
any other Act, the Court of Appeal has jurisdiction to hear
and determine an application to review and set aside a
decision or order, other than a decision or order of an
administrative nature not required by law to be made on a
judicial or quasi-judicial basis, made by or in the course of
proceedings before a federal board, commission or other
tribunal, upon the ground that the board, commission or
tribunal
(a) failed to observe a principle of natural justice or
otherwise acted beyond or refused to exercise its
jurisdiction;
(b) erred in law in making its decision or order, whether
or not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of
fact that it made in a perverse or capricious manner or
without regard for the material before it.
by law to be made on a judicial or quasi-judicial
basis. This would obviously be so if they had not
been carved out of the general management
powers and, in my view, their nature is not
changed by virtue of their having been vested in an
independent commission.
What is being attacked here is, however, not
such an employment or promotion decision but an
"opinion" to be formed by the Commission as
contemplated by section 21 of the Act.
Section 21 of the Public Service Employment
Act creates a procedure whereby persons who feel
aggrieved by an employment or promotion decision
may in certain cases have the matter reviewed.
The section contemplates at least two classes of
decision; viz.:
(a) an opinion of the Commission under section
21 (b) as to whether a person feeling aggrieved is
a person whose opportunity for advancement has
been prejudicially affected, and
(b) a decision concerning the validity of the
grievance against the employment or promotion
decision.
In my view, this process of affording a person
feeling aggrieved by the operation of the adminis
trative employment or promotion process an op
portunity of having his grievance reviewed is itself
an administrative operation giving rise to an
administrative decision and, in my view, the
application of the tests as to when the law will
imply a requirement that an administrative deci
sion be made on a judicial or quasi-judicial basis
would not give rise to any such implication in what
is, in effect, an integral part of the process of
employing or promoting the rank and file of gov
ernment employees. Interjection of the judicial
process or something akin thereto into the very
vitals of administration of public departments and
agencies is calculated to interfere so drastically
with the efficient provision of service to the public
that, in my view, it is not to be implied. This is an
area where the balance between the evil of inter
ference with the provision of service to the public
and the advantage of affording individuals who
feel aggrieved by having been passed over in the
choice of those who are to give such service is such
that, in my view, it is for Parliament to provide
expressly for any judicial or quasi-judicial fetters
on efficient administration.
In the case of the two classes of decision under
section 21 referred to, Parliament has indicated
that a decision as to the validity of a grievance is
to be made on a quasi-judicial basis 2 but it has
given no such indication with regard to the Com
mission's opinion as to whether a person's opportu
nity for advancement has been prejudicially affect
ed by an appointment decision. I have, therefore,
concluded that the latter class of decision is a
decision of an administrative nature not required
by law to be made on a judicial or quasi-judicial
basis.
For the above reasons, I am of opinion that this
section 28 application should be dismissed for lack
of jurisdiction.
* * *
SMITH D.J. concurred.
* * *
KERR D.J. concurred.
2 The provision of rights to be heard and the use of the word
"appeal" point sufficiently clearly in this direction.
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.