A-388-79
Terrick Bullion (Applicant)
v.
Public Service Commission Appeal Board
(Respondent)
Court of Appeal, Pratte and Le Dain JJ. and Kerr
D.J.—Ottawa, October 17 and 19, 1979.
Judicial review — Public Service — Application to review
and set aside Public Service Appeal Board decision dismissing
appeal brought pursuant to s. 21 of the Public Service
Employment Act — Applicant had been excluded from com
petition because he occupied a position in which the maximum
rate of pay was less than the minimum prescribed in the
competition — Whether or not eligibility for a closed competi
tion in the Public Service may be restricted by reference to a
minimum salary level without duties and functions to be
performed — Whether or not the Board erred in finding that
applicant occupied a post in which the maximum rate of pay
was less than the amount prescribed — Application dismissed,
Le Dain J. dissenting — Public Service Employment Act,
R.S.C. 1970, c. P-32, s. 13(b) — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
M. W. Wright, Q.C. for applicant.
D. T. Sgayias 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
delivered orally in English by
PRATTE J.: This is a section 28 application to
review and set aside a decision of an Appeal Board
established under the Public Service Employment
Act, R.S.C. 1970, c. P-32. By that decision, the
Board dismissed an appeal brought by the appli
cant pursuant to section 21 of the same Act.
In the spring of 1979, the Department of Indian
Affairs and Northern Development held a closed
competition for the position of Engineering and
Works Manager (EG-ESS 9) (English). The com
petition poster provided that the competition was:
OPEN TO: Employees across Canada occupying positions in
which the maximum rate of pay is not less than $22,600 per
annum.
The applicant applied in the manner prescribed
in the poster but was not allowed to participate in
the competition on the ground that he occupied a
position in which the maximum rate of pay was
less than the prescribed minimum of $22,600.
The applicant contends that he was wrongfully
excluded from the competition and that, as a
consequence, no appointment should be made as a
result of that competition. He rests his contention
on two submissions, namely:
(1) that the provision limiting the right to par
ticipate in the competition to employees holding
a position with a maximum rate of pay of at
least $22,600 was invalid and contrary to the
merit principle; and
(2) that, in any event, the Appeal Board had
erred in finding that he occupied a position in
which the maximum rate of pay was less than
$22,600.
The sole real question raised by the first submis
sion is whether the area of competition was, in this
case, determined in accordance with paragraph
13(b) of the Public Service Employment Act. If it
was, it matters not that this determination may
seem to conflict with the merit principle.
Paragraph 13(b) reads as follows:
13. Before conducting a competition, the Commission shall
(b) in the case of a closed competition, determine the part, if
any, of the Public Service and the occupational nature and
level of positions, if any, in which prospective candidates
must be employed in order to be eligible for appointment.
Under that section, as I read it, if the Commis
sion chooses to limit the area of a closed competi
tion, it must do it before conducting that competi
tion and by imposing limitations that are not
different from those that the section authorizes. It
is clear, however, that the Commission is under no
obligation to limit the area of a competition and
has the discretion to determine, in any given case,
what limitations (provided they be authorized by
section 13) are to be imposed.
In the present case, the area of the competition
was limited by reference to the maximum rate of
pay for the positions occupied by the prospective
candidates. This, in my view, was merely a com-
pendious way of limiting the area of the competi
tion to employees occupying positions of such a
nature and level that they were worth a certain
maximum salary. The imposition of such a limita
tion appears to me to be authorized by section 13.
It would be otherwise, however, if the area of the
competition had been limited by reference to a
factor unrelated to the level of the positions
occupied by the prospective candidates as, for
instance, the length of time during which they had
occupied their positions.'
Counsel for the applicant acknowledged during
argument that he would have had no reason to
object to the way in which the area of the competi
tion had been limited in this case if, in addition,
the competition had been restricted to persons
occupying positions whose occupational nature was
similar to that of the position to be filled. This
admission shows that the real grievance of the
applicant is not that the limitation imposed was
illegal but that further limitations should have
been imposed. However, as I have said, the Com
mission is under no obligation to limit the area of a
closed competition.
The applicant's second submission is that the
Appeal Board wrongly found that the maximum
salary attached to his position was less than
$22,600. This contention must also, in my view, be
rejected. True, the record shows that the appli
cant's actual salary at the time of the competition
exceeded the prescribed minimum. However, what
the Board had to determine was not the salary
earned by the applicant but the maximum salary
for his position. Counsel has said nothing showing
that the Board had, in this respect, committed an
error that could be reviewed under section 28.
True, it is common ground that the Board made an
error when it stated, at the end of its decision, that
the "inmate training differential", which was
received by the applicant and brought his salary
above the prescribed minimum, was paid by virtue
of Appendix J of the collective agreement. Appen
dix J does not even allude to such a "differential".
It does not follow from that error, however, that
' See: Delany v. Public Service Commission Appeal Board
[1977] 1 F.C. 562.
the Board also erred when it determinated that the
"differential" in question was not part of the
salary of the applicant's position.
For those reasons, I would dismiss the
application.
* * *
KERR D.J. concurred.
* * *
The following are the reasons for judgment
delivered orally in English by
LE DAIN J. (dissenting): The issue in this case is
whether eligibility for a closed competition in the
Public Service may be restricted by reference to a
minimum salary level without regard to the occu
pational nature of positions in which candidates
are employed.
The authority of the Public Service Commission
to restrict eligibility for a closed competition is
conferred by section 13 of the Public Service
Employment Act, R.S.C. 1970, c. P-32, as follows:
13. Before conducting a competition, the Commission shall
(a) determine the area in which applicants must reside in
order to be eligible for appointment; and
(b) in the case of a closed competition, determine the part, if
any, of the Public Service and the occupational nature and
level of positions, if any, in which prospective candidates
must be employed in order to be eligible for appointment.
This section requires the Commission, before
conducting a closed competition, to determine the
restrictions, if any, that should be imposed on
eligibility with respect to the area in which candi
dates reside, the part of the Public Service in
which they are employed, and the occupational
nature and level of the positions in which they are
employed. The Commission need not impose any
such restrictions, but section 13 indicates the kinds
of restriction that it is authorized to impose. In my
view, when section 13 refers to level of position it
necessarily contemplates, by reason of the merit
principle affirmed in section 10 of the Act, level of
position in relation to positions of a particular
occupational nature. It is to be assumed that the
restrictions on eligibility which may be imposed by
virtue of section 13 are to bear some relationship
to the nature of the particular position to be filled,
having regard to the qualifications required and
the duties and functions to be performed. Cf.
Delany v. Public Service Commission Appeal
Board [ 1977] 1 F.C. 562, at pp. 568-569.
In the present case it is contended that by
restricting eligibility to employees "occupying
positions in which the maximum rate of pay is not
less than $22,600 per annum" the Commission has
in fact determined the occupational nature and
level of the positions in which prospective candi
dates must be employed in order to be eligible for
appointment. Although the necessary or incidental
effect of such a restriction is to include positions of
a certain occupational nature and level and to
exclude others, that is not in my opinion the kind
of determination contemplated by section 13. The
Commission has not directed its mind to the level
of position, as it relates to occupational nature, at
all. It has chosen the criterion of a minimum
salary level without regard to the occupational
nature of positions. In doing so it has in my
opinion adopted a criterion for restriction of eligi
bility that is not authorized by the Act, and the
Appeal Board erred in law in not allowing the
appeal on this ground.
In view of this conclusion it is not necessary to
express an opinion concerning the second ground
of attack on the Appeal Board's decision, but I am
of the view that the application should succeed on
that ground as well. It was common ground at the
hearing of the section 28 application that Appen
dix J of the collective agreement, to which the
Appeal Board made reference in its reasons, has
no application or relevance whatever to the inmate
training differential, the nature of which was in
issue. In the circumstances I am of the view that
the Board's conclusion on this issue was based on
error of law and cannot be allowed to stand.
I would allow the application, set aside the
decision of the Appeal Board, and refer the matter
back to be decided upon the basis that the restric
tion imposed on eligibility by the words "in which
the maximum rate of pay is not less than $22,600
per annum" in the competition announcement was
not authorized by the Public Service Employment
Act.
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.