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A-109-80
George Schwartz, Ken Parsons, Walter Peters, Shelley Koral, Nancy Lam, P. Chip Kwong, Michael Yee, Don Miller, Andrea Ligsay-Tibay- an, A. R. Saldanha, T. E. L. Grant, D. J. H. White, M. Somani, Noel Gotha, J. Takeda, Z. Iandman and Jack Lee (Applicants)
v.
The Queen as represented by the Public Service Commission, Department of National Revenue, Taxation, and Minister of National Revenue (Respondents)
Court of Appeal, Heald and Urie JJ. and Kelly D.J.—Toronto, June 2, 1980.
Judicial review — Public Service — Whether successful candidates in a competition held pursuant to s. 7(1)(a) of the Public Service Employment Regulations are entitled to a hearing in an appeal under s. 21 of Public Service Employment Act — Application allowed — Applicants entitled to notice of a hearing and to be heard by Appeal Board — Public Service Employment Regulations, C.R.C. 1978, Vol. XIV, c. 1337, as amended, s. 7(1)(a) — 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.
Perry v. Public Service Commission Appeal Board [1980] 1 S.C.R. 316, applied. Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police [1979] 1 S.C.R. 311, applied. Dumouchel v. Appeal Board, Public Service Commission [1977] 1 F.C. 573, referred to.
APPLICATION for judicial review. COUNSEL:
R. Dexter for applicants.
T. L. James for respondents.
SOLICITORS:
Axton & Dexter, Toronto, for applicants.
Deputy Attorney General of Canada for respondents.
The following are the reasons for judgment of the Court rendered in English by
HEALD J.: We are all of the opinion that the decision of the Chairman of the Appeal Board cannot be allowed to stand. As a result of the decision of the Supreme Court of Canada in the
case of Perry v. Public Service Commission Appeal Board [1980] 1 S.C.R. 316, the decision of this Court in the case of Dumouchel v. Appeal Board, Public Service Commission [1977] 1 F.C. 573 appears to be no longer applicable.
While the facts in this case are not identical to those in the Perry case they are not, in our view, sufficiently diverse so as to render the rationale of that case inapplicable.
It seems clear to us that, as a matter of proce dural fairness,' successful candidates in a closed competition held pursuant to section 7(1)(a) of the Public Service Employment Regulations, C.R.C. 1978, Vol. XIV, c. 1337, as amended, are entitled to notice of a hearing of an appeal under section 21 of the Public Service Employment Act, R.S.C. 1970, c. P-32, and to be heard at that hearing.
Accordingly, the section 28 application is al lowed, the decision of A. H. Rosenbaum, Chair man, Appeal Board dated February 18, 1980 is set aside and the matter is referred back to the Public Service Commission Appeal Board for a new hear ing. It is further directed that all of the successful candidates in subject competition be given notice of such hearings and be given an opportunity to be heard thereat.
' See Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police [1979] 1 S.C.R. 311.
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