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A-356-81
Be Healey (Applicant)
v.
Public Service Commission Appeal Board (Respondent)
Court of Appeal, Thurlow C.J., Ryan J. and Kerr D.J.—Ottawa, September 15, 1981.
Judicial review — Public Service — Application to review and set aside the dismissal of the applicant's appeal against the proposed appointment of successful candidates by the Public Service- Commission Appeal Board — Applicant received a letter which was mailed on April 10, advising him that the competition in question was subject to appeal and that the expiry date for receipt of appeals was April 28, 1981 — Notice of appeal was given on April 27, 1981 — Whether notice of appeal should have been given within the time prescribed by the Public Service Employment Regulations i.e. 14 days from notice to unsuccessful candidate — Application is allowed — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 — Public Service Employment Act, R.S.C. 1970, c. P-32, s. 21 — Public Service Employment Regulations, C.R.C. 1978, c. 1337, as amended by SOR/78-343, ss. 39, 41.
APPLICATION for judicial review. COUNSEL:
M. W. Wright, Q.C. for applicant. J. M. Mabbutt 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
THURLOW C.J.: The issue raised by this application is whether a notice of appeal given by the applicant, B. Healey against the proposed appointment of the successful candidates in a closed competition under the Public Service Employment Act, R.S.C. 1970, c. P-32, was given within the time prescribed by the Public Service Employment Regulations, C.R.C. 1978, Vol. XIV, c. 1337, as amended by SOR/78-343.
The notice was given on April 27, 1981, that is to say some seventeen days after a letter had been posted to him on April 10, 1981, advising him of the result of the competition. The letter read as follows:
Re: Competition No. 81-PW-CR-CC-12, GL-MAM-4 Position Title: Building Systems Technician Trainee
The interviews for the above noted position have now been completed. It was determined that those candidates whose names appear on the attached eligible list were found qualified for the position.
In accordance with existing regulations, this competition is subject to appeal. If you intend to appeal these selections for appointment you may send a completed Form No. 1360 "Notification of Appeal" to the Director Appeals Branch, Public Service Commission, Ottawa, Ontario K1A 0M7. The expiry date for receipt of appeals is 28 April 1981. Appeals must be received by the PSC on or before the expiry date of the appeal period. Appeals received after the closing date will not be accepted.
If you require additional information do not hesitate to call me at 593-6493.
Under section 21 of the Public Service Employ ment Act the applicant, as an unsuccessful candi date in the competition, had the right to appeal "within such period as the Commission prescribes" to a board established by the Public Service Commission.
Section 41 of the Public Service Employment Regulations prescribes the time for the bringing of such an appeal. It provides:
41. Every appeal under section 21 of the Act by
(a) a person who has been notified pursuant to section 39, or
(b) a person deemed to be prejudicially affected pursuant to subsection 40(1)
shall be brought within fourteen days after he was notified pursuant to section 39 or 40.
Section 39, which applies in cases of selection by competition, provides:
39. Where an employee is appointed or is about to be appointed to a position by a closed competition, every unsuc cessful candidate who has responded to notice or been identi fied by means of an inventory for that competition shall be notified by notice in writing or by public notice of
(a) his right to appeal under paragraph 21(a) of the Act within fourteen days;
(b) the name of the employee appointed or about to be appointed; and
(c) the name and ranking of those candidates on the eligible list.
In my opinion the notice so required is a notice to the unsuccessful candidate not merely that he has a right to appeal but that he has a right to appeal within fourteen days. The letter sent to the applicant on April 10, 1981, does not contain that information and in my view it cannot be regarded as a notice of the kind referred to in section 40. It follows, in my opinion, that the applicant's notice of appeal cannot be regarded as having been given after the time for appealing had expired.
While there is in my mind some doubt as to whether the action of the Public Service Appeal Board amounts to a decision within the meaning of section 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, both parties have treated it as being a dismissal of the applicant's appeal and have suggested that it should be dealt with as such. Without deciding that the action of the Board amounts to such a dismissal of the appeal, I would set aside the disposition of it made by the Board and refer the matter back to a Public Service Commission Appeal Board to be dealt with on the basis that the applicant's appeal was not brought beyond the time for appealing prescribed by the Public Service Employment Regulations.
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RYAN J. concurred.
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KERR D.J. concurred.
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