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A-492-80
France Allard (Applicant) v.
Public Service Commission, Marcel Bénard, Chairman of the Appeal Board, Public Service Commission and Pierre Piché (Respondents)
Court of Appeal, Pratte and Le Dain JJ. and Lalande D.J.—Montreal, December 4; Ottawa, December 23, 1980.
Judicial review — Public Service — Application to set aside Appeal Board's decision on the ground that the Board lacked jurisdiction over the matter because the appeal was not com menced within the prescribed time limit — Notice of appeal was signed on April 15, sent to the Commission on April 17, but not received until April 28 — Fourteen-day appeal period prescribed by Public Service Employment Regulations expired on April 22 — Whether time limit is a strict limit — Whether it applies to date on which notice was sent or to date on which notice was received — Application 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, Vol. XIV, c. 1337, s. 41.
APPLICATION for judicial review. COUNSEL:
France Allard for herself.
James M. Mabbutt for respondent Public
Service Commission.
SOLICITORS:
France Allard, Montreal, for herself.
Deputy Attorney General of Canada for
respondent Public Service Commission.
The following is the English version of the reasons for judgment rendered by
PRATTE J.: Applicant is seeking to have a deci sion of an Appeal Board, created by the Public Service Commission, vacated pursuant to section 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10. By that decision, the Board allowed an appeal by respondent Piché pursuant to section 21 of the Public Service Employment Act, R.S.C. 1970, c. P-32.
Applicant first argued that the Board which handed down the decision a quo lacked jurisdiction over the matter because the appeal before it had not been commenced within the prescribed time limit.
Section 21 of the Public Service Employment Act provides that an appeal like that in question here must be brought within such period as the Public Service Commission prescribes. Section 41 of the Public Service Employment Regulations, C.R.C. 1978, Vol. XIV, c. 1337, Regulations adopted by the Commission, sets the length of this appeal period of 14 days from the day on which notice of the appointment in question was given.
The record established that in the case at bar the 14-day appeal period expired on April 22, 1980; that respondent Piché's notice of appeal did not reach the Commission until April 28; and that the notice was dated April 15 and had apparently been sent (by means which the record does not mention) on April 17, 1980.
Respondent Piché's notice of appeal accordingly reached the Commission after the 14-day period prescribed by the Commission in the Regulations had expired. Applicant therefore concluded that the appeal had not been duly submitted and that the Board could not legally hear it. Counsel for the Commission argued that this irregularity was insignificant, first, because the 14-day time limit is not a strict limit, and second, because the notice of appeal appeared to have been sent to the Commis sion before the time limit expired.
In my view these two arguments of counsel for the Commission are without foundation. Section 21 of the Public Service Employment Act is so worded that it necessarily follows that the right of appeal conferred by that section cannot be exer cised once the time limit prescribed by the Com mission has expired. The time limit in question is accordingly a strict limit. I do not consider that the date on which the notice of appeal was sent is relevant. An appeal is not brought merely by signing a notice of appeal addressed to the Com mission, or by giving such a notice to a messenger. In my opinion, so long as the notice has not reached the Commission an appeal has not been made.
For these reasons, I would allow this application and quash the decision a quo.
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LE DAIN J.: I concur.
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LALANDE D.J.: I concur in this judgment.
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