A-465-80
Attorney General of Canada (Applicant)
v.
Appeal Board established by the Public Service
Commission (Respondent)
Court of Appeal, Heald and Le Dain JJ. and Hyde
D.J.—Ottawa, October 27, 1981.
Judicial review — Public Service — Applicant seeks to set
aside Appeal Board's decision — Board found that Depart
ment had sufficient evidence upon which to conclude that
employee had the qualifications required to perform the duties
of the position under appeal — Whether Board, appointed to
determine whether selection was according to merit, had juris
diction to substitute its opinion for that of the Department —
Application allowed — Public Service Employment Regula
tions, C.R.C. 1978, Vol. XIV, c. 1337, as amended, s. 5(c)(i) —
Public Service Employment Act, R.S.C. 1970, c. P-32, ss. 10,
21 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
David Olsen for applicant.
No one appearing for respondent.
Catherine MacLean for intervener Heather
MacArthur.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
No one appearing for respondent.
Nelligan/Power, Ottawa, for intervener
Heather MacArthur.
The following are the reasons for judgment of
the Court delivered orally in English by
HEALD J.: We are all of the opinion that the
respondent Board, having found (Case, page 124):
. that the Department had sufficient evidence upon which to
conclude that Mrs. McArthur had the qualifications required
to perform the duties of the position under appeal...
exceeded its jurisdiction in proceeding to substitute
its opinion for the opinion of the Department to
which the Public Service Commission had delegat
ed the authority to determine whether a competi
tion would or would not be in the best interests of
the Public Service pursuant to subparagraph
5(c)(i) of the Public Service Employment Regula
tions, C.R.0 1978, Vol. XIV, c. 1337, as amended.
The function of an Appeal Board appointed
pursuant to section 21 of the Public Service
Employment Act, R.S.C. 1970, c. P-32, is to deter
mine, after inquiry, whether the selection made in
the instant case was a "selection according to
merit" pursuant to section 10 of that Act. The
Appeal Board has a right and duty to satisfy itself
that the opinion required by subparagraph 5(c)(i)
of the Regulations, supra, was in fact formed but
it cannot review the reasonableness of the opinion
so long as there was some basis for it. The opinion
formed would have to be so unreasonable that no
reasonable person could form that opinion. The
Appeal Board is not entitled to substitute its opin
ion for that of the Department exercising the
delegated authority to form that opinion. The
question whether there has been the required opin
ion formed is relevant to the application of the
merit principle, but as to the reasonableness of
such opinion, an Appeal Board should be bound by
the same limits as a court exercising judicial
review or sitting on a statutory appeal. In our view,
on the facts of this case, there was ample evidence
upon which the Department could reach the con
clusion which it did, namely, that it was necessary
to transfer Mrs. MacArthur for humanitarian or
compassionate reasons. On this basis, the Appeal
Board was not entitled to substitute its opinion for
that of the Department and thus, exceeded its
jurisdiction.
Having concluded that the respondent Board
exceeded its jurisdiction and that its decision
herein cannot be allowed to stand, it becomes
unnecessary to decide whether or not the proposed
lateral transfer of Mrs. MacArthur was "an
appointment" within the meaning of sections 10
and 21 of the Public Service Employment Act as
submitted by counsel for the applicant in his sub
missions to us. Furthermore, the record before us
does not establish with sufficient particularity the
facts necessary to a determination of this question.
This is undoubtedly because in the proceedings
before the Appeal Board, no question was raised
by anyone as to whether Mrs. MacArthur's lateral
transfer was "an appointment" as that term is
used in sections 10 and 21. Thus, understandably,
the Board proceeded on the basis that it was "an
appointment". Accordingly, "jurisdictional facts"
essential to a determination of this question are
not found on the record.
Accordingly, assuming, but without deciding
that the respondent Board had jurisdiction to con
duct the inquiry contemplated by section 21 of the
Public Service Employment Act, it is our view for
the reasons advanced supra, that the section 28
application should be allowed and the decision of
the Appeal Board should be set aside.
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.