A-334-79
The Queen (Applicant)
v.
W. Gowers (Respondent)
Court of Appeal, Pratte and Urie JJ. and Kelly
D.J.—Toronto, October 24; Ottawa, December 3,
1979.
Judicial review — Public Service — Closed competition —
Respondent's application rejected on ground that he occupied
a position in which maximum rate of pay was less than the
prescribed minimum of position — Respondent appealed on
ground of wrongful exclusion from competition — Respondent
was performing duties on temporary basis and receiving acting
pay in position with maximum pay superior to prescribed
minimum — Whether respondent had been appointed to posi
tion he filled temporarily — Whether Appeal Board was right
in deciding respondent was entitled to participate in competi
tion — Public Service Employment Act, R.S.C. 1970, c. P-32,
s. 13(b) — Public Service Employment Regulations, SOR/67-
129, s. 27(1) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, s. 28.
APPLICATION for judicial review.
COUNSEL:
W. L. Nisbet, Q.C. for applicant.
W. Gowers for himself.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
The following are the reasons for judgment
rendered in English by
PRATTE J. (dissenting): This is a section 28
application to review and set aside a decision of a
Board allowing an appeal made under section 21
of the Public Service Employment Act, R.S.C.
1970, c. P-32.
Early in 1979, the Post Office Department
issued a poster announcing that a closed competi
tion would take place to select qualified candidates
for the position of SUPERVISOR, MAIL PROCESS
ING PLANT—PO-SUP-2. The poster specified that
the competition was:
OPEN TO: Postal employees of the Southwestern District who
occupy positions in which the maximum rate of pay
is at least $312.03 weekly.
The respondent, who wanted to participate in the
competition, applied in the manner indicated in
the poster. His application was rejected, however,
on the ground that he occupied a position in which
the maximum rate of pay was less than the pre
scribed minimum of $312.03 weekly. The competi
tion was thereafter held and a qualified candidate
was found. The respondent then appealed under
section 21 of the Public Service Employment Act
on the ground that he had been wrongly excluded
from the competition. This is the appeal that was
allowed by the decision against which this applica
tion is directed.
It is common ground that the respondent's per
manent position in the Public Service was a posi
tion in which the maximum salary was less than
the prescribed minimum of $312.03. It is also
common ground that when the competition was
announced and held, he was, at the request of his
superiors, performing the duties of a position of a
higher level with a maximum pay superior to the
prescribed minimum, and was receiving acting pay
for performing those duties. The sole question
raised by this application is whether the Appeal
Board was right in deciding that the respondent
was entitled to participate in the competition
because he occupied the position that he was filling
on a temporary basis.
Section 13(b) of the Public Service Employ
ment Act prescribes the manner in which the area
of a closed competition may be limited:
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.
It seems clear that, in specifying that the competi
tion here in question would be open only to
employees "who occupy positions" of a certain
level, the Commission wanted to exercise its power
under section 13(b). And I agree with the Board
that the words "who occupy positions" in the
poster are synonymous with the words "who are
employed in positions" which should have been
utilized if the author of the poster had used the
same terminology as section 13(b). In this connec
tion, I merely wish to add that sections 27, 30 and
31 of the Public Service Employment Act use the
verb "to occupy" in exactly the same sense as the
poster.
I also agree with the Board that the respondent
could not be said to be employed in the position he
was filling temporarily if he had not been appoint
ed to that position in conformity with the provi
sions of the Public Service Employment Act. A
mere reading of that Act shows that in order to be
employed in the Public Service, one must first be
appointed in the manner provided in the Act to a
position in the Public Service.
I am unable to agree, however, with the conclu
sion of the Board that the respondent had been
appointed to the position that he was filling tem
porarily, a conclusion which the Board founded on
section 27(1) of the Public Service Employment
Regulations.'
Under the Act, all appointments to positions in
the Public Service must be made, either for an
indeterminate period or for a specified time, 2 on
the basis of merit by the Commission or by those
to whom the Commission has delegated its powers
pursuant to section 6. It is clear, in my view, that
the respondent's so-called "acting appointment"
was not made in that manner. It was not, there
fore, an appointment within the meaning of the
statute. As the power of the Commission to adopt
regulations does not include the power to amend
the statute, the Regulations adopted by the Com
mission cannot, in my view, transform what is not
an appointment under the statute into such an
appointment. I am therefore of opinion that, in
spite of section 27(1) of the Regulations, the
respondent had not been appointed to the position
that he was filling temporarily.
' The relevant part of section 27(1) reads as follows:
27. (1) Subject to subsection (2), where an employee is
required by the deputy head to perform for a temporary
period the duties of a position having a higher maximum rate
of pay (hereinafter referred to as the "higher position"), than
the maximum rate of pay for the position held by him, the
employee shall be considered to have been appointed to the
higher position in an acting capacity, and
2 At the expiration of which, according to section 25, the
employee ceases to be an employee.
For these reasons, I would grant the application,
set aside the decision under attack and refer the
matter back to the Board for decision on the basis
that the respondent did not occupy and was not
employed in the position that he was filling
temporarily.
* * *
The following are the reasons for judgment
rendered in English by
URIE J.: I have had the advantage of reading
the reasons for judgment of Mr. Justice Pratte
and, while I agree with a substantial portion of
what he has said, I regret that I am unable to
agree with his proposed disposition of the section
28 application.
He has sufficiently set forth the facts leading to
the application so that there is no necessity for me
to repeat them.
I am of the opinion that the Appeal Board was
correct when the Chairman had the following to
say in her decision:
The word "occupy" is not defined in the Public Service
Employment Act. Section 13 of that Act which deals with area
of competition only refers to candidates who are "employed".
Section 13 reads 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.
1966-67, c. 71,s. 13.
The word "occupy" must therefore be considered to be synono-
mous [sic] with "employed" as this is the way in which the
Public Service Employment Act has specified that an area of
competition shall be defined. The question then becomes "was
the appellant employed in a PO SUP 3 position?"
Section 27 of the Public Service Regulations deals with the
subject of an employee who has been required to perform the
duties of a position with a higher maximum rate of pay for a
temporary period... .
While there is a vestibule period of four months in the case of a
position in the operational category (which includes a PO SUP
3 position) for purposes of Section 12 (no longer in existence)
and Section 41 (covers appeal rights), Section 27 contains no
minimum time requirements for an employee to "be considered
to have been appointed to the higher position in an acting
capacity". It is only necessary that the employee be required to
perform the duties of a position having a higher maximum rate
of pay than that of the position he normally holds. The appel
lant must therefore be considered to have been appointed to the
PO SUP 3 position in an acting capacity notwithstanding the
fact that the length of his temporary assignment was less than
four months.
Since the appellant was appointed to the PO SUP 3 position
was he also employed in that position? Unfortunately, the word
"employed" is not defined in the Public Service Employment
Act, but, in my view, it would not be reasonable to argue that a
person who is appointed to a position is not employed in that
position. In my opinion, therefore, the appellant meets the area
of eligibility clause of the revised poster, having been employed
and consequently having occupied a PO SUP 3 position at the
time of the competition.
My brother Pratte correctly holds the view that
an appointment in the Public Service must be
made in the manner prescribed by section 10 of
the Public Service Employment Act 3 and that the
respondent's appointment was not made in that
fashion. Moreover, section 27, of the Regulations 4
in his view, as I understand it, is ultra vires the
regulation making power given under the Act and
thus the respondent cannot avail himself of that
section to show that he was, in fact, appointed to
his temporary position and thus, as found by the
Board, had become eligible to participate in the
competition by virtue of his holding that acting
appointment. With great respect, I am unable to
agree with this view of the Regulation for two
reasons:
3 10. Appointments to or from within the Public Service shall
be based on selection according to merit, as determined by the
Commission, and shall be made by the Commission, at the
request of the deputy head concerned by competition or by such
other process of personnel selection designed to establish the
merit of candidates as the Commission considers is in the best
interests of the Public Service.
° 27. (1) Subject to subsection (2), where an employee is
required by the deputy head to perform for a temporary period
the duties of a position having a higher maximum rate of pay
(hereinafter referred to as the "higher position"), than the
maximum rate of pay for the position held by him, the
employee shall be considered to have been appointed to the
higher position in an acting capacity, and
(a) if the higher position is classified in the occupational
category referred to in the Public Service Staff Relations
Act as the operational category and the temporary period is
four months or more,
(b) if the higher position is classified in the occupational
category referred to in that Act as the administrative support
category and the temporary period is three months or more,
or
(Continued on next page)
(1) Section 33 provides the regulation making
power under the Public Service Employment Act.
It reads as follows:
33. Subject to this Act, the Commission may make such
regulations as it considers necessary to carry out and give effect
to this Act.
It is obvious to me and clearly was to the
Commission that it is of vital importance to the
efficient operation of the Public Service that, when
an employee permanently appointed to a position
cannot, for any of a myriad of reasons, perform his
duties for a temporary period, a mechanism be
available for his temporary replacement and for
providing the replacement with the benefits which
accrue to the permanent incumbent by virtue of
his appointment. This is what the first portion of
section 27 appears to seek to accomplish. The
second portion deals with appeal rights accruing in
certain circumstances which do not need to be
considered in the circumstance of this case. In
either case I am unable to agree that the section
has the effect of amending the statute and is thus
ultra vires. In my view it falls within the regula
tion making power which section 33 gives the
Commission. It provides only that "the employee
shall be considered to have been appointed to the
higher position ...", not that he has been appoint
ed to that position. [Emphasis added.] To me this
does not appear to be an attempt to circumvent the
requirements of section 10. As a result, the
employee is entitled to enjoy the benefits accruing
through his deemed appointment to the acting
position as though he were formally appointed to
it, for the duration of the period of such employ-
(Continued from previous page)
(c) if the higher position is classified in an occupational
category other than an occupational category mentioned in
paragraphs (a) and (b) and the temporary period is two
months or more,
the employee shall be deemed, for the purposes of sections 12
and 41 to have been appointed to the higher position without
competition, effective as of the last day of,
(d) in the case mentioned in paragraph (a), the period of
four months from,
(e) in the case mentioned in paragraph (b), the period of
three months from, and
(f) in the case mentioned in paragraph (c), the period of two
months from
the day on which he commenced to perform the duties of the
higher position.
(2) An appointment to a position in an acting capacity shall
not be made for a period of more than 12 months unless
authorized by the Commission in any case or class of cases.
ment. I fail to appreciate how this has the effect of
amending the statute. One of the benefits, of
course, is entitlement to participate in competi
tions for which his temporary salary makes him
eligible.
(2) Even if I am in error in holding this opinion,
the section ought not to be effectively struck down
without the benefit of oral argument. Counsel for
the applicant quite understandably did not seek to
impeach one of his client's regulations even when,
during argument, he was questioned about its
validity, nor equally naturally, did the respondent,
who was unrepresented by counsel, seek to either
challenge or uphold its validity. Because the
respondent has no counsel, no purpose would be
served in directing further argument on this point
at this stage so that we must, as I see it, proceed as
though the issue had not been raised.
Accordingly, for all of the above reasons I would
dismiss the appeal.
* * *
The following are the reasons for judgment
rendered in English by
KELLY D.J.: I have had the benefit of reading
the reasons for judgment of Pratte J. and Urie J.
in the former of which are set out sufficiently the
facts so as to make their repetition unnecessary.
I agree that as used in relation to the issues of
this application the word "occupied" and the word
"employed" are synonymous.
The question before this Court as I conceive it to
be, is whether or not the respondent "occupied" or
"was employed" in a position conferring eligibility
for the competition announced in the poster.
While "appointment" is given an explicit mean
ing in the Act, that word is not used in section
13(b): that paragraph contains the word
"employed". On account of the juxtaposition of
the parts of the text in which the two words are
employed, the variation cannot be casual: it indi
cates that Parliament, in using "employed", must
be assumed to have meant a condition different
from "appointed".
Normally a position in the Public Service is
filled by the Commission making an appointment
pursuant to section 10 of the Act. A person so
appointed, undoubtedly occupies or is employed in
that position; in fact a person so appointed has the
security of tenure.
In contrast to this procedure, when a person
appointed to a particular position is absent, in
order that the work of the absent employee may be
performed and continuity of the work of the Public
Service maintained, through power conferred on
the deputy head by the Regulations enacted by the
Commission, and without any confirming action
by the Commission or the conduct of a competition
the deputy head may require an employee (who
has already been regularly appointed to a lower
position) to perform, for a temporary period the
duties of the higher position; the employee during
the time he is performing the duties of the higher
position is assured of the receipt of remuneration
appropriate to the higher position. Such an
employee does not have tenure in the higher posi
tion and may be returned to the position to which
he was appointed when the deputy head so
requires. The employee so required to perform the
duties of the higher position does not cease to be
an employee of the Public Service, that status
flowing from an appointment made by the
Commission.
In turning to consider whether such an employee
is "employed" in the higher position, neither
"occupy" nor "employed" is defined in the Act:
accordingly the meaning to be attributed to each
of these words must be sought in a recognized
dictionary.
By reference to The Oxford English Dictionary
I find that "employ" as a transitive verb is accord
ed the meaning of "To use the services of for some
special business" and "occupy" "to hold (a posi
tion or office)".
The respondent performed the duties of the
higher position as he was regularly required to do,
his services were used by the Government of
Canada for the special business of the higher
position and such performance was recognized by
the payment to him of the remuneration appropri-
ate to the position the duties of which he was
performing.
In my opinion the respondent at the relevant
time was employed in the higher position and
occupied it thereby coming squarely within the
conditions of eligibility for the competition
referred to in the notice.
In the light of the foregoing, I do not find it
necessary to express any opinion as to whether
section 27(1) of the Regulations may be ultra
vires when it provides "the employee shall be
considered to have been appointed to the higher
position in an acting capacity", and I refrain from
so doing.
I would dismiss the application.
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.