A-115-81
Rock Lalancette (Applicant)
v.
Public Service Commission Appeal Board and
Marcel Bénard (Respondents)
Court of Appeal, Pratte, Ryan and Le Dain JJ.—
Ottawa, June 24 and 25, 1981.
Judicial review — Labour relations — Application to set
aside decision of Public Service Commission Appeal Board —
Applicant mailed appeal of appointment prior to expiry of
appeal period provided for under s. 41 of Public Service
Employment Regulations — Board dismissed appeal because
document was not received until after expiry of such period
Whether appeal is made when document is mailed or when it is
received by Commission — Application allowed — Public
Service Employment Act, R.S.C. 1970, c. P-32, ss. 21, 33 —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 —
Public Service Employment Regulations, C.R.C. 1978, Vol.
XIV, c. 1337, as amended, ss. 39, 41, 42, 45.
Allard v. Public Service Commission [1982] 1 F.C. 432,
considered. Ciampa v. Public Service Commission Appeal
Board, not reported, A-545-80, January 30, 1981,
considered.
APPLICATION for judicial review.
COUNSEL:
John D. Richard, Q.C. for applicant.
James M. Mabbutt for respondents.
SOLICITORS:
Gowling & Henderson, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondents.
The following is the English version of the
reasons for judgment delivered orally by
PRATTE J.: Applicant is applying, pursuant to
section 28 of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, to have set aside a decision of
an Appeal Board established by the Public Service
Commission. In that decision, the Board dismissed
applicant's appeal brought under section 21 of the
Public Service Employment Act, R.S.C. 1970, c.
P-32, because the appeal had been brought after
the expiry of the deadline set by the Public Service
Employment Regulations, C.R.C. 1978, Vol. XIV,
c. 1337, as amended.
In examining this case we must first look at the
applicable legislative provisions and regulations.
Section 21 of the Public Service Employment
Act states that the appeal in question must be
brought "within such period as the Commission
prescribes". The Commission, in a regulation
passed under section 33 of the Act,' established an
appeal period of 14 days. Sections 39, 41, 42 and
45 of the Regulations must be read in this regard:
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.
41. Every appeal under section 21 of the Act by
(a) a person who has been notified pursuant to section 39, ...
shall be brought within fourteen days after he was notified
pursuant to section 39 ... .
42. For the purposes of sections 39 to 41, a person shall be
deemed to be notified on the day notice in writing has been sent
to him by mail or delivered to him by hand or the day the
public notice was posted, whichever is the earlier.
45. (1) Every appeal brought under section 21 or 31 of the
Act shall be in writing addressed to the Commission and shall
state the grounds on which the appeal is based, such writing
being hereinafter referred to as the "appeal document".
(2) Every appeal document shall state whether the appeal is
to be presented in the English language or in the French
language.
In the case at bar, applicant is a government
employee who had participated in a closed compe
tition held pursuant to the provisions of the Act
and of the Public Service Employment Regula
tions. On December 12, 1980, he received the
notice provided for under section 39 of the Regula
tions. This notice, mailed on December 3, advised
' 33. Subject to this Act, the Commission may make such
regulations as it considers necessary to carry out and give effect
to this Act.
him that he had to exercise his right of appeal
before December 18. On December 12, applicant
mailed the appeal document mentioned in section
45 of the Regulations to the Commission. The
Commission, however, did not receive the docu
ment until December 18, after the fourteen-day
appeal period provided for under section 41 of the
Regulations had expired.
The Appeal Board held in this case that appli
cant had not exercised his right to appeal within
the time limit provided for by the Act and Regula
tions and that, as a result, his appeal had to be
dismissed. The Board reached its conclusion based
on the decision of this Court in Allard v. Public
Service Commission, 2 in which I stated [at page
433]:
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 exercised once the time limit prescribed
by the Commission 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
Commission, 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.
The first and principal issue raised by Allard is
whether it was correctly decided. I believe so: but I
would add that if I had to render the decision
again I would certainly word it more precisely.
It seems clear that section 21 of the Act grants a
right of appeal only when this right is exercised
within such period as the Commission prescribes.
The Commission thought it proper to fix an appeal
period without allowing for any exceptions. This
lack of flexibility may be regrettable, but in the
circumstances it must be said that the deadline is
an absolute one that neither the appeal boards nor
this Court has the authority to extend. However,
the fact that the Regulations provide for a rela
tively short appeal period, without any possibility
of extension, must not be forgotten when it comes
to interpreting the Regulations. In interpreting
them, we must assume that the Commission did
not want to make the right of appeal provided for
2 Supra, p. 432. This decision was followed in Ciampa v.
Public Service Commission Appeal Board, No. A-545-80, an
unreported decision of January 30, 1981.
by the Act illusory; we should also bear in mind
the actual conditions under which the right of
appeal is generally exercised: I am referring here
to the size of our country and the fact that the
right of appeal may be exercised by persons any
where in Canada and sometimes even outside it.
Under these conditions, it would be usual for one
to mail the appeal document, which must be
"addressed" to the Commission under section 45
of the Regulations; and it would seem fair to me to
consider that an appeal has been brought under
section 41 of the Regulations as soon as the notice
of appeal is mailed. However, I am willing to
accept this solution only in cases in which the
appeal document has been mailed and as such, the
mailing date can be easily proven. In other cases,
such as Allard and Ciampa, in which the docu
ment was sent by a means other than by mail, I
feel that we must continue to say that the appeal
has not been brought until the appeal document is
received by the Commission. Otherwise, there
would be evidence problems and possible abuses.
For these reasons, I would quash the decision a
quo and refer the matter back to the Appeal Board
for it to act on the basis that an appeal is brought
within the meaning of section 41 of the Regula
tions at the time the appeal document addressed to
the Commission is mailed.
* * *
RYAN J. concurred.
* * *
LE DAIN J. concurred.
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.