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A-602-79
Zoltan Melkvi (Applicant)
v.
Deputy Attorney General of Canada (Respondent)
Court of Appeal, Thurlow C.J., Heald J. and Kerr D.J.—Ottawa, February 7, 1980.
Judicial review — Public Service — Application to review decision of Public Service Commission Appeal Board not to interfere with selection board's decision finding applicant not qualified — Applicant not asked all five questions to test knowledge and ability — Selection board criticized by Appeal Board — Decision of Appeal Board not to interfere based on applicant's failure of personal suitability — Failure of appli cant to challenge this before Appeal Board — Whether Appeal Board should have raised this question — Whether Appeal Board misinterpreted evidence and erred in law in resting on selection board's assessment — In absence of challenge by applicant, Appeal Board did not err in law — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review. COUNSEL:
Paul Saint-Denis for applicant. Hunter W. Gordon for respondent.
SOLICITORS:
Paul Saint-Denis, Ottawa, for applicant. Deputy Attorney General of Canada for himself.
The following are the reasons for judgment of the Court delivered orally in English by
THURLOW C.J.: We have not been persuaded that the Public Service Commission Appeal Board failed to exercise its jurisdiction or that it erred in law in dismissing the applicant's appeal.
The applicant was found by a selection board to be not qualified for a position for which he had applied. On his appeal, the Appeal Board found that the applicant had not been asked all five of the questions to be put to the candidates to test
their knowledge and abilities, and it criticized the selection board for failing to provide the applicant with a full and fair opportunity to answer all the questions and to display his knowledge in relation to them.
The Appeal Board, however, declined to inter fere as the selection board, besides finding the applicant not qualified in respect of his knowledge and abilities, had also found him not qualified in respect of his personal suitability for the position.
Though this finding was by itself sufficient to disqualify the applicant, personal suitability being one of the requirements, it was not challenged before the Appeal Board. We were invited first to hold that it was incumbent on the Appeal Board to raise the question and that by not doing so, the Appeal Board failed to exercise its jurisdiction. In our opinion, the applicant had a full and fair opportunity to challenge the finding before the Appeal Board and not having done so, it was not incumbent on the Appeal Board to investigate it.
We were also invited to hold that the Appeal Board misinterpreted the evidence and therefore erred in resting its decision on the selection board's assessment of the applicant's personal suitability for the position. In the absence of any challenge by the applicant to the finding in question, in our view, it cannot be said that the Appeal Board erred in law in adopting the finding.
The application therefore fails and is dismissed.
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