A-205-81
Attorney General of Canada (Applicant)
v.
Mohammed Hassan and Susan H. Tak (Respond-
ents)
Court of Appeal, Thurlow C.J., Heald and Ryan
JJ.—Ottawa, January 19 and 25, 1982.
Judicial review — Applications to review — Public Service
— Application to review and set aside decision of Public
Service Commission Appeal Board that Selection Board failed
to apply "knowledge" factor in assessment of respondents
"Knowledge" factor essential according to selection standards
— "Qualifications" set out in notice of competition, but
"Knowledge" not listed in statement of qualifications —
Whether the Department involved had right to determine
qualifications required of applicants for position to be filled
— Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 —
Public Service Employment Act, R.S.C. 1970, c. P-32, ss. 10,
12(1), 21 — Public Service Employment Regulations, C.R.C.
1978, Vol. XIV, c. 1337, s. 5.
Application to review and set aside the decision of the Public
Service Commission Appeal Board allowing the respondents'
appeal against selections for appointment with respect to vacan
cies in the Department of Supply and Services. The Appeal
Board held that the Selection Board which examined the
candidates failed to apply a "knowledge" factor which the
selection standards prescribed by the Public Service Commis
sion described as being essential. The factors "Abilities" and
"Personal Suitability" were listed under the heading "Rated
Requirements" in the "Statement of Qualifications"; the factor
"Knowledge" was not. However, the requirement described as
"Education" which appeared under the heading "Basic
Requirements" was stated in the same terms as the "Qualifica-
tions" specified in the notice of competition. The issue is
whether the Department had the right to determine the qualifi
cations required of applicants for the position to be filled.
Held, the application is dismissed. The part of the "State-
ment of Qualifications", appearing under the heading "Rated
Requirements", constitutes an attempt to limit the assessment
of merit of those who meet the qualifications for the position, as
stated in the notice of competition, to some only of the stand
ards prescribed by the Commission in the selection standards.
Such limitation is ineffective, and the Selection Board erred in
proceeding to assess merit in accordance with the said part and
not in accordance with the standards prescribed by the Com
mission in the selection standards.
Irwin v. Appeal Board of the Public Service Commission
[1979] 1 F.C. 356, referred to. Moreau v. Public Service
Appeal Board [1973] F.C. 593, referred to.
APPLICATION for judicial review.
COUNSEL:
Leslie S. Holland for applicant.
M. W. Wright, Q.C. and A. J. Raven for
respondents.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for respondents.
Public Service Commission Appeal Board on
its own behalf.
The following are the reasons for judgment
rendered in English by
RYAN J.: This is a section 28 application to
review and set aside the decision of A. H. Rosen-
baum, Chairman of the Appeal Board established
by the Public Service Commission, made on April
8, 1981, allowing the appeal of the respondents
against the selections made for appointment in
competition 80-DSS-FSP-CC-476, PG-1 (Pur-
chasing and Supply Officer), Department of
Supply and Services, Richmond and Victoria, Brit-
ish Columbia.
The competition was held to establish an eligible
list to fill present and expected vacancies in the
position PG-1, Purchasing and Supply Officer.
The respondents were unsuccessful candidates and
appealed under section 21 of the Public Service
Employment Act, R.S.C. 1970, c. P-32.
The Appeal Board allowed the appeal on the
ground that the assessment of the candidates had
not been made in accordance with the selection
standards prescribed by the Public Service Com
mission ("the Commission") which relate to the
position under competition. The Selection Board
which examined the candidates had not applied a
"knowledge" factor which the selection standards
describe as being essential.
The applicant submitted that, in allowing the
appeal on this ground, the Appeal Board erred in
law. It was submitted that the Department had
determined that the "knowledge" factor was nei
ther a basic nor a "rated" requirement; in so
determining, the Department had, it was argued,
decided that satisfying the "knowledge" factor,
stipulated in the selection standards, was not to be
a qualification for the position. And it was submit
ted that, in so proceeding, the Department had
exercised a right vested in it, the right to deter
mine the qualifications required of applicants for
the position to be filled.
A notice of the competition had been issued,
dated November 3, 1980, inviting applications for
a position in Supply and Services called Purchas
ing and Supply Officer—PG-1. In the notice, the
"QUALIFICATIONS" for the position were stated in
this way:
Successful completion of secondary school or equivalency AND
achievement of a satisfactory score on the Public Service
Commission's General Administrative Ability Test,
(G.A.A.T.).
Another document was, however, relied on by
counsel for the applicant. This document is headed
"STATEMENT OF QUALIFICATIONS". It is signed
by a person described as a staffing officer and
approved by another person whose position is not
identified. Under a heading, "BASIC REQUIRE
MENTS", there appears a requirement, described
as "Education", stated in precisely the same terms
as are the "QUALIFICATIONS" specified in the
notice calling for applications. There is also a
heading "RATED REQUIREMENTS" with two sub
headings: "Abilities" and "Personal Suitability";
"Knowledge" is not listed.
It was the submission of the applicant that the
"STATEMENT OF QUALIFICATIONS" was a depart
mental document which amounted to a determina
tion by the Department of the qualifications for
the position advertised, qualifications which
excluded "knowledge" as that term is used in the
selection standards. It was argued that the Selec
tion Board had, therefore, acted properly in not
examining the candidates on the basis of
"knowledge".
As I read the pertinent material in this case, the
qualifications required of candidates for the posi
tion were those set out in the notice soliciting
applications for the position, the November 3rd
notice. As I construe the part of the "STATEMENT
OF QUALIFICATIONS", appearing under the head-
ing "RATED REQUIREMENTS", it constitutes an
attempt to limit the assessment of merit of those
who meet the qualifications for the position, the
qualifications stated in the invitation for applica
tions, to some only of the standards prescribed by
the Commission in the selection standards. Such
limitation is ineffective, and the Selection Board
erred in proceeding to assess merit in accordance
with it and not in accordance with the standards
prescribed by the Commission in the selection
standards'.
I would therefore dismiss the application.
THURLOW C.J.: I agree.
HEALD J.: I concur.
' Section 10 and subsection 12(1) of the Public Service
Employment Act provide:
10. Appointments to or from within the Public Service
shall be based on selection according to merit, as determined
by the Commission, and shall be made by the Commission, at
the request of the deputy head concerned, by competition or
by such other process of personnel selection designed to
establish the merit of candidates as the Commission consid
ers is in the best interests of the Public Service.
12. (1) The Commission may, in determining pursuant to
section 10 the basis of assessment of merit in relation to any
position or class of positions, prescribe selection standards as
to education, knowledge, experience, language, residence or
any other matters that, in the opinion of the Commission, are
necessary or desirable having regard to the nature of the
duties to be performed, but any such selection standards shall
not be inconsistent with any classification standard pre
scribed pursuant to the Financial Administration Act for
that position or any position in that class.
Section 5 of the Public Service Employment Regulations,
C.R.C. 1978, Vol. XIV, c. 1337, provides in part:
5. Every appointment pursuant to section 10 of the Act
shall be made, in accordance with selection standards.....
And see Irwin v. Appeal Board of the Public Service Commis
sion [1979] 1 F.C. 356, particularly at p. 363; and Moreau v.
Public Service Appeal Board [1973] F.C. 593.
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.