A-435-82
Attorney General of Canada (Applicant)
v.
Lise Landriault (Respondent)
Court of Appeal, Pratte, Heald and Ryan JJ.—
Ottawa, November 10 and December 13, 1982.
Public Service — Application to review and set aside deci
sion of Public Service Commission Appeal Board allowing
appeal by respondent under s. 21 of Public Service Employ
ment Act against appointment made in connection with Public
Service competition — Commission limited eligibility to
"Employees of Transport Canada, Canadian Air Transporta
tion Administration, occupying a position at Dorval"
Respondent's application refused on ground that although,
pursuant to administrative arrangement, she worked at Dorval
under direction of Department of Transport and duties were
closely related to those of vacant position, she was technically
employed by Health and Welfare — Respondent successfully
brought s. 21 appeal on ground area of competition did not
reflect organizational interaction within civil aviation and
made mockery of merit principle — Applicant contending
Appeal Board erred first, in deciding respondent had right of
appeal under s. 21 and second, in overruling decision of
Commission under s. 13 to limit competition to employees of
only one Department — Meaning of word "candidate" within
context of s. 21 — Applicability of merit principle to Commis
sion's exercise of authority to determine area of competition
under s. 13 — Appeal allowed in part — Public Service
Employment Act, R.S.C. 1970, c. P-32, ss. 2(1), 10, 11,
13(a),(b), 16, 17, 21, 42 — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 28.
This is a section 28 application to review and set aside the
decision of the Public Service Commission Appeal Board allow
ing an appeal by the respondent under section 21 of the Public
Service Employment Act against the appointment of a success
ful candidate in a competition held by the Public Service
Commission. The Commission, pursuant to section 13 of the
Act, had limited eligibility for the competition to "Employees
of Transport Canada, Canadian Air Transportation Adminis
tration, occupying a position at Dorval". When the competition
was held the respondent was employed by the Department of
National Health and Welfare, but in accordance with an
administrative arrangement, was actually working at Dorval
under the direction of the Department of Transport. Although
her duties were closely related to those of the vacant position
the Commission refused to consider her application on the
ground that the competition was open only to employees of the
Department of Transport. The Appeal Board determined first
that the respondent had a right to appeal under the section even
though she had been found ineligible for the competition, and
second, that the respondent had been wrongly excluded from
the competition because, given the circumstances, the Commis
sion had determined the area of competition under section 13 of
the Act without due regard for the merit principle. The appli
cant attacks the decision of the Appeal Board on the grounds
that the Board erred first, in deciding that the respondent had a
right of appeal under section 21 and second, in overruling the
decision made by the Commission under section 13 to open the
competition solely to employees of the Department of
Transport.
Held, the appeal is allowed in part. Section 21 creates a right
of appeal against appointments in the Public Service when the
selection of the person to be appointed is made from within the
Public Service. If the selection is made by "closed competition"
this right is given to "every unsuccessful candidate". The
meaning of the word "candidate" as it is used in this context is
not clear nor is it made any clearer by examining the other
sections of the Act in which it is used. In some sections
"candidate" refers to persons who have participated in a com
petition and who are eligible for appointment while in others it
refers to persons who take part in a competition whether they
are eligible for appointment or not. In these circumstances,
"candidate" as used in section 21 should be given its normal
meaning which would include any person who had applied for
the job. This conclusion is in harmony with the decision of the
Supreme Court of Canada in Bullion v. Her Majesty The
Queen et al., [1980] 2 S.C.R. 578, which implies that a person
employed in the Public Service who has applied to participate
in a closed competition and whose application has been sum
marily rejected because he was not within the area of competi
tion as defined by the Commission pursuant to paragraph 13(b)
of the Act, may appeal under section 21 in order to contest the
legality of the determination made by the Commission pursuant
to that paragraph. Based on this the Appeal Board's finding
that the respondent was entitled to appeal is upheld.
The respondent's argument that in making its determination
of the conditions for eligibility the Commission ignored the
requirements of paragraph 13(b) fails. That paragraph does not
require that the Commission determine both the part of the
Public Service and the occupational nature and level of posi
tions in which prospective candidates must be employed. As to
the applicability of the merit principle to the making of a
determination under section 13, section 10 of the Act requires
that merit be the only criterion applied in the selection of
persons to be appointed to the Public Service. However, making
a determination as to the terms of eligibility for a competition
does not involve the Commission in selecting the persons to be
appointed. The Appeal Board's decision that the merit principle
applied to such a determination was based on a misconception
of that principle. Further, the merit principle does not require
that every available person be considered for appointment nor
does it mean that all those who are equally qualified for a
position must be given the same opportunity to participate in a
closed competition. If it did section 11 which provides that
appointments are normally to be made from within the Public
Service, and section 13, which imposes on the Commission the
unqualified right to limit the area of competition, would con
tradict the merit principle.
Per Heald J. dissenting in part: The decision of the Appeal
Board confirming the respondent's right to appeal under section
21 is upheld. As regards the Commission's determination of the
criteria restricting eligibility in respect of the competition in
question under section 13 of the Act, the Commission adopted
criteria not authorized under that section. The reasoning
applied by the Court in the Bullion case in interpreting section
13 applies here. When section 13 refers to the "part ... of the
Public Service ...", it necessarily contemplates, because of the
merit principle set out in section 10 of the Act, that the
restriction imposed thereby must "... bear some relationship to
the nature of the particular position to be filled, having regard
to the qualifications required and duties and functions to be
performed". In this case the restriction imposed by the Com
mission bears no logical relationship to the nature of the
position to be filled. During the period prior to the posting of
the competition the Departments of National Health and Wel
fare and Transport were studying administrative changes which
would effectively link the two in the area of civil aviation
medicine. In some areas employees of the Department of
National Health and Welfare, like the respondent, were work
ing very closely with employees of the Department of Trans
port. The respondent, in fact, while not officially an employee
of Transport, actually performed her duties within that Depart
ment under the responsibility of its departmental officials.
Because her duties and responsibilities were closely connected
with those of the position under competition she had valuable
experience related to it. Given this, the preclusion of the
respondent from applying for this position not only shows a lack
of regard for the principle of merit selection but a frustration of
that principle. This is also true in respect of employees of other
departments who may have been equally well-qualified but
prevented from competing for the position.
Per Ryan J.: The decision of the Appeal Board confirming
the respondent's right to appeal under section 21 is upheld. As
to the Commission's exercise of its authority under paragraph
13(b), that paragraph authorizes the Commission, in connec
tion with a closed competition, to determine the part of the
Public Service in which employees must be employed in order
to compete. This authority is neither specifically nor impliedly
limited even when the paragraph is read together with section
10 of the Act or with paragraph 13(a), and it may be exercised
even if, as a consequence, some employees who have the
essential qualifications for a position under competition are
rendered ineligible. To this extent the paragraph authorizes
limiting the range of potential candidates in a way that may
result in excluding otherwise meritorious employees. Therefore,
while the determination made by the Commission may have
been unwise it was within its authority under paragraph 13(b).
CASES JUDICIALLY CONSIDERED
APPLIED:
Bullion v. Her Majesty The Queen et al., [1980] 2
S.C.R. 578, reversing (sub nom. Bullion v. Public Service
Commission Appeal Board) [1980] 2 F.C. 110 (C.A.).
REFERRED TO:
Delanoy v. Public Service Commission Appeal Board,
[1977] 1 F.C. 562 (C.A.).
COUNSEL:
Jean-Marc Aubry for applicant.
Maurice W. Wright, Q.C. for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for respondent.
C. E. Leclerc for Public Service Commission
Appeal Board.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This section 28 application is direct
ed against a decision of an appeal board estab
lished by the Public Service Commission allowing
an appeal made by the respondent, Miss
Landriault, under section 21 of the Public Service
Employment Act, R.S.C. 1970, c. P-32.
On January 21, 1982 the Public Service Com
mission announced that a closed competition
would be held to fill a position described as
"Senior Personnel Licensing Clerk (CR-04)". It
was specified that the competition was open to
"Employees of Transport Canada, Canadian Air
Transportation Administration, occupying a posi
tion in Dorval".
At that time, Miss Landriault, the respondent
herein, held a position in the Department of Na
tional Health and Welfare. However, pursuant to
an administrative arrangement between that
Department and the Department of Transport, she
was actually working at Dorval under the direction
of officials of the Department of Transport; the
duties of her position were closely related to those
of the vacant position of "Senior Personnel Licens
ing Clerk (CR-04)". Miss Landriault applied to
participate in the competition. By letter dated
February 19, 1982, she was notified that, as she
was an employee of the Department of National
Health and Welfare, her application could not be
considered since the competition was open solely to
the employees of the Department of Transport.
The competition was thereafter held without
Miss Landriault's application being given any fur
ther consideration. Ultimately, one Mrs. Nadeau
was found to be the best qualified candidate. Miss
Landriault then appealed against her proposed
appointment pursuant to section 21 of the Public
Service Employment Act. Her ground of appeal
was expressed in the following terms in a letter
sent to the Commission on April 14, 1982.
I am appealing the nomination of Mrs. Nadeau because I feel
that the area of the competition does not reflect the organiza
tional interaction within Civil Aviation, therefore; [sic] allow
ing injustice, discrimination and making a mockery of the merit
principle which exists within the Public Service.
The Board established by the Commission to
hear that appeal found in favour of Miss
Landriault. First, it rejected a preliminary objec
tion raised by the representative of the Depart
ment of Transport who had contended that Miss
Landriault had no right of appeal under section 21
since she was not entitled to participate in the
competition; second, the Board held that Miss
Landriault had been wrongly excluded from the
competition because the determination of the area
of competition pursuant to section 13 of the Act
had been made without due regard for the merit
principle. The conclusion of the Board on this last
point was expressed as follows:
... appellant, although not officially an employee of Transport
Canada, actually performed her duties within the Department
of Transport and under the responsibility of officials of the
Department. Moreover, her duties and responsabilities [sic]
were closely connected with those of the position under compe
tition and therefore, she should have been considered as a
prospective candidate eligible for the appointment.
These facts were uncontradicted by the Department's repre
sentative who relied on the legality of the area of competition
determined in accordance with Section 13 of the Act and the
policy of the Public Service Commission. While in ordinary
circumstances I would not hesitate to render a decision in favor
of the Department, I am of the view that, because of the special
circumstances of the present case, my intervention is warranted
because I consider that the determination was not made with
due consideration of the merit principle affirmed in Section 10
of the Act. In my view, an area of competition must bear some
relationship with the nature of the position to be filled and the
field of employees where potential candidates may be found. In
the present case, I am of the opinion that the Department never
questioned itself as to where potential candidates were to be
found and merily [sic] determined the area of competition
without regard for potentially good candidates in its own
services that might be excluded because of an administration
incongruity that required an employee to work in one Depart
ment while officially employed by another Department.
Consequently, I consider that the determination of the
instant area of competition was not made in keeping with merit
and the appeal of Mrs. [sic] Landriault is hereby allowed.
Counsel for the applicant attacked that decision
on two grounds. First, he said that the Board erred
in deciding that Miss Landriault had the right to
appeal under section 21 of the Public Service
Employment Act; second, he argued that the
Board also erred in allowing the appeal for the
reason that it considered inappropriate the deci
sion made under section 13 of the Act to open the
competition solely to the employees of the Depart
ment of Transport.
1. The right of appeal
Section 21 of the Public Service Employment
Act creates a right of appeal against appointments
in the Public Service when the selection of the
persons to be appointed was made from the Public
Service. If, as in the present case, a selection was
made "by closed competition",' the right to appeal
is given to "every unsuccessful candidate".
According to counsel for the applicant, Miss
Landriault was not an "unsuccessful candidate"
because, as she was not an employee of the
Department of Transport, she was not eligible for
appointment to the position that had to be filled
and, for that reason, was not entitled to participate
in the competition. He argued that an examination
of the various sections of the Act showed that
when a closed competition is held to fill a position,
only those who are eligible for appointment to that
position can be candidates.
In my opinion, no definite conclusion can be
drawn from an examination of the various sections
of the Act where the word "candidate" is used. In
some of them, like sections 16 and 17, the word
"candidate" obviously refers to persons who have
participated in the competition and who are, in
addition, eligible for appointment. In other sec
tions, like sections 13 and 42, the same word seems
to refer to persons who take part in the competi
tion whether they be eligible for appointment or
not. In those circumstances, it would seem wise to
give the word "candidate" in section 21 its normal
meaning which, in my opinion, would include any
person having applied for the job. That conclusion
seems to be in harmony with the decision of the
Supreme Court of Canada in Bullion v. Her
' That expression is defined as follows in section 2 of the Act:
2. (1) In this Act
"closed competition" means a competition that is open only
to persons employed in the Public Service;
Majesty The Queen et a1. 2 which, as I read it,
implies that a person employed in the Public Ser
vice who has applied to participate in a closed
competition and whose application has been sum
marily rejected because he was not within the area
of the competition as defined by the Commission
pursuant to paragraph 13(b) of the Act may
appeal under section 21 in order to contest the
legality of the determination made by the Com
mission pursuant to paragraph 13(b).
For those reasons, I am of opinion that the
Appeal Board correctly held that Miss Landriault
had the right to appeal under section 21.
2. The regularity of the determination made pur
suant to paragraph 13(b)
The determination that the competition would
only be opened to "Employees of Transport
Canada, Canadian Air Transportation Adminis
tration, occupying a position in Dorval" was made
pursuant to paragraph 13(b) of the Act. That
paragraph reads as follows:
13. Before conducting a competition, the Commission shall
(b) in the case of a closed competition, determine the part, if
any, of the Public Service and the occupational nature and
level of positions, if any, in which prospective candidates
must be employed in order to be eligible for appointment.
Counsel for the applicant acknowledged that an
appeal board may, under section 21, set aside the
result of a closed competition on the ground that
the area of competition has not been determined in
accordance with the requirements of the law. That
was impliedly decided by the Supreme Court of
Canada in the Bullion case. His submission was
that an appeal board may not set aside the result
of a closed competition on the sole ground that it
considers that the area of competition as deter
mined by the Commission under section 13 was
not appropriate in the circumstances.
Counsel for the respondent answered that argu
ment by saying that the determination made by
the Commission under section 13 in the present
case was vitiated by two irregularities and that the
Appeal Board was, for that reason, justified in
deciding as it did. The first alleged irregularity
2 [1980] 2 S.C.R. 578.
was that, in making its determination, the Com
mission ignored the requirements of paragraph
13(b) as it was interpreted by the Supreme Court
of Canada in the Bullion case. According to coun
sel, paragraph 13(b), as interpreted by the
Supreme Court, requires that the Commission
determine not only the part of the Public Service
but also the occupational nature and level of posi
tions in which the prospective candidates must be
employed. That first submission of the respondent
is clearly without merit. The text of paragraph
13(b) does not require the Commission to deter
mine both the part of the Public Service and the
occupational nature and level of positions and it is
simply not true that the Supreme Court of Canada
has interpreted that provision in the manner
suggested.
The second irregularity which, according to the
respondent, vitiated the determination made pur
suant to paragraph 13(b) was that, as found by the
Board, the determination had been made without
regard for the "merit principle" affirmed by sec
tion 10 of the Act. It follows, as I understood
counsel for the respondent, that the decision of the
Board should be upheld since it is common ground
that an appeal under section 21 must be allowed
not only when there has been a violation of a
statutory or regulatory provision governing the
procedure to be followed in the selection of persons
to be appointed to positions in the Public Service
but also when there has been a violation of the
merit principle.
The so-called "merit principle" is affirmed in
section 10 of the Act:
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 considers is in the
best interests of the Public Service.
That principle governs the selection of persons
to be appointed to the Public Service. It requires
that the criterion applied in that selection be merit
and nothing else. The principle, therefore, applies
in the selection of persons to be employed in the
Public Service. As I understand it, the principle
does not require that every available qualified
person be considered for appointment; otherwise,
the rule, stated in section 11, that appointments
are normally to be made from within the Public
Service would contradict the principle; and so
would section 13 which imposes on the Commis
sion the unqualified right to limit the area of
competition. The merit principle does not require
either that all those who are equally qualified for a
position be given the same opportunity to partici
pate in a closed competition. When the Commis
sion makes a determination pursuant to section 13,
it does not select the persons to be appointed to the
Public Service and, in my view, the merit principle,
which is only a criterion of selection, does not
apply. 3
I am of the opinion, therefore, that the decision
of the Board is based on a misconception of the
merit principle and that it must, for that reason, be
set aside. I would refer the matter back to the
Board for decision on the basis that the merit
principle did not require that Miss Landriault be
allowed to participate in the competition.
* * *
The following are the reasons for judgment
rendered in English by
HEALD J. (dissenting in part): I have read the
reasons for judgment herein of Mr. Justice Pratte.
I agree with him that the Appeal Board correctly
held that the respondent had the right to appeal
under section 21 of the Public Service Employ
ment Act. However, I must respectfully disagree
with that portion of his reasons which relates to
the regularity of the determination made by the
Commission pursuant to paragraph 13(b) of the
Public Service Employment Act. 4 In this case, the
3 I would be different if the Commission were to determine
the area of competition in such a way as to ensure that a
certain person be appointed for reasons other than his merit. In
such a case, the Commission would, in effect, be selecting the
person to be appointed.
° Section 13 of the Public Service Employment Act reads as
follows:
13. Before conducting a competition, the Commission shall
(a) determine the area in which applicants must reside in
order to be eligible for appointment; and
(b) in the case of a closed competition, determine the part,
if any, of the Public Service and the occupational nature
and level of positions, if any, in which prospective candi
dates must be employed in order to be eligible for
appointment.
Public Service Commission, pursuant to paragraph
13(b) announced a closed competition to fill the
position of "Senior Personnel Licensing Clerk
Bilingual" with the group and level being
described as "CR-04". The competition was speci
fied as being open to: "Employees of Transport
Canada, Canadian Air Transportation Adminis
tration, occupying a position in Dorval". The
Chairman of the Appeal Board found as a fact
that the respondent: "... although not officially an
employee of Transport Canada, actually per
formed her duties within the Department of Trans
port and under the responsibility of officials of the
Department". He also found that "... her duties
and responsibilities were closely connected with
those of the position under competition ..." (A.B.
p. 49).
The respondent applied for the position. She was
advised by a letter dated February 19, 1982, that
her application could not be considered because
the competition was open to the employees of
Transport Canada only. Thereafter, the competi
tion was completed and a selection for the position
was made without further consideration being
given to the respondent. The Appeal Board Chair
man decided that "... the determination was not
made with due consideration of the merit principle
affirmed in Section 10 of the Act". 5 That section
reads as follows:
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 considers is in the
best interests of the Public Service.
The Chairman went on to state at page 49 of the
case:
In my view, an area of competition must bear some relationship
with the nature of the position to be filled and the field of
employees where potential candidates may be found.
In order to determine whether the Chairman's
decision is legally correct, it is instructive and
5 See Case, p. 49.
relevant, in my view, to consider the Bullion case. 6
In that case the competition in question was a
closed one for the position of Engineering and
Works Manager (E.G.-ESS 9) (English). The
competition was open to employees across Canada
occupying positions in which the maximum rate of
pay was not less than $22,600 per annum. The
appellant was excluded from the competition on
the ground that he occupied a position in which
the maximum rate of pay was less than the mini
mum prescribed in the competition. The Public
Service Commission Appeal Board dismissed the
appellant's appeal from that decision to exclude
him from the competition. This Court, by a
majority of two to one dismissed the appellant's
appeal from the Appeal Board's decision. Le Dain
J. dissented. The Supreme Court of Canada
allowed the appellant's appeal and set aside the
decision of this Court and of the Appeal Board.
The judgment of the Supreme Court of Canada
was delivered by Martland J.
In discussing the issue as to whether eligibility
for a closed competition in the Public Service may
be restricted by reference to a minimum salary
level without reference to the occupational nature
of positions in which candidates are employed, Mr.
Justice Martland expressed the opinion that the
reasons delivered in dissent by Le Dain J. in
respect of that issue were sound in law and should
be supported. Le Dain J., after quoting the provi
sions of section 13 of the Public Service Employ
ment Act, supra, said at pages 113 and 114:
This section requires the Commission, before conducting a
closed competition, to determine the restrictions, if any, that
should be imposed on eligibility with respect to the area in
which candidates reside, the part of the Public Service in which
they are employed, and the occupational nature and level of the
positions in which they are employed. The Commission need
not impose any such restrictions, but section 13 indicates the
kinds of restriction that it is authorized to impose. In my view,
when section 13 refers to level of position it necessarily contem
plates, by reason of the merit principle affirmed in section 10 of
the Act, level of position in relation to positions of a particular
occupational nature. It is to be assumed that the restrictions on
eligibility which may be imposed by virtue of section 13 are to
bear some relationship to the nature of the particular position
to be filled, having regard to the qualifications required and the
duties and functions to be performed.
6 Bullion v. Her Majesty The Queen et al., [1980] 2 S.C.R.
578; see also the Bullion decision in this Court, [1980] 2 F.C.
110 (C.A.) [sub nom. Bullion v. Public Service Commission
Appeal Board].
I appreciate that those comments on the interpre
tation to be given to section 13 were made in the
factual context of that case which related to one of
the other restrictions on eligibility which the Com
mission is authorized to impose under section 13,
namely, the occupational nature and level of the
positions in which prospective candidates are
employed. However, it is my opinion that the
reasoning therein applies equally to the restriction
imposed in this case, namely, the part of the Public
Service in which prospective candidates must be
employed to be eligible. The eligibility was
restricted to employees of Transport Canada occu
pying a position in Dorval. I believe that when
section 13 refers to the "part ... of the Public
Service ...", it necessarily contemplates, because
of the merit principle set out in section 10 of the
Act, that the restrictions imposed thereby must, in
the words of Le Dain J. supra, "... bear some
relationship to the nature of the particular position
to be filled, having regard to the qualifications
required and the duties and functions to be per
formed." In this case, the facts as found by the
Chairman of the Appeal Board are that this
respondent, while not officially an employee of
Transport Canada, actually performed her duties
within that Department and under the responsibili
ty of officials of that Department and that her
duties and responsibilities were closely connected
with those of the position under competition. In
my view, the restriction herein imposed by the
Commission bears no logical relationship to the
nature of the position to be filled. This respondent
clearly has valuable related experience for the
position. She clearly has the necessary qualifica
tions to perform the functions of the position since
she is presently performing similar functions. The
record establishes that the occupant of this posi
tion is required, inter allia, to review medical
examination reports submitted for the issue of
Student Pilot Permits and for the renewal of Flight
Crew and Air Traffic Controller licences. The
position also calls for the supervision of the Per
sonnel Licensing Section. It is also clear from the
record that during the period prior to the posting
of this competition, a serious study was being
conducted by senior officials in the Civil Aviation
Medicine Branch of the Department of National
Health and Welfare along with senior officials in
the Department of Transport, having as its objec
tive either the transfer of the "total organization"
of Civil Aviation Medicine to the Department of
Transport or possibly more direct liaison between
Civil Aviation Medicine and the Department of
Transport (see Case, pp. 33-37 inclusive). This
confirms my opinion that at least in some areas,
the employees of the Department of National
Health and Welfare were working very closely
with employees of the Department of Transport.
This probably explains why this respondent was
detached to the Department of Transport. To pre
clude the respondent and possibly others in the
Department of National Health and Welfare pos
sessing similar qualifications and related experi
ence from applying for this position not only shows
a lack of regard for the principle of merit selection
but, as well, a frustration of that principle.' I
mention the employees of the Department of Na
tional Health and Welfare only by way of example
to illustrate the way in which the merit principle
was disregarded in this competition. It was not
intended to be an exclusive illustration. There may
be other employees in other departments equally
well qualified.
1 have thus concluded, for the above reasons,
that the Commission adopted a criterion for re
striction of eligibility under section 13 of that Act
that is not authorized thereunder. Therefore, the
appeal of the respondent herein should have been
allowed on that ground. While not agreeing with
all of the reasons given by the Appeal Board
Chairman, I do agree with his decision to allow the
respondent's appeal. Since, in my opinion, the
result achieved by him is the correct one, it follows
that the section 28 application should be
dismissed.
* *
The following are the reasons for judgment
rendered in English by
RYAN J.: I have had the advantage of reading
the reasons for judgment of Mr. Justice Pratte,
and I agree with his proposed disposition of the
application.
Compare: Delanoy v. Public Service Commission Appeal
Board, [1977] 1 F.C. 562 (C.A.) at pp. 568-569.
I agree that the respondent, Lise Landriault,
had status to appeal under section 21 of the Public
Service Employment Act ("the Act") and with
Mr. Justice Pratte's reasons for so deciding.
I agree, too, that paragraph 13(b) of the Act
does not require the Commission to determine, in
the case of a closed competition, both the part of
the Public Service and the occupational nature and
level of the positions in which prospective candi
dates must be employed in order to be eligible for
appointment. The submission of counsel on this
point is not well founded.
Counsel for the respondent also submitted that
(as the Appeal Board held) the determination of
the part of the Public Service in which prospective
candidates had to be employed in order to be
eligible for appointment to the position under com
petition was made without regard for the merit
principle. But my reading of paragraph 13(b) indi
cates that the Public Service Commission, either
itself or by appropriate delegation, is authorized to
determine, in the case of a closed competition, the
part of the Public Service in which employees must
be employed in order to compete; this authority is
not specifically limited and I do not find an
implied limitation in the sense submitted in the
paragraph itself even when I read it together with
section 10 of the Act; and, I would add, more
particularly when I read the paragraph along with
section 11 and paragraph 13(a) of the Act. The
authority may, as I see it, be exercised even if, as a
consequence, some public employees who have the
essential qualifications for the position under com
petition may be rendered ineligible. To this extent,
the paragraph authorizes limiting the range of
potential candidates in a way that may result in
excluding otherwise meritorious employees. It is
not for me to speculate on the reasons for such an
authorization except to say that it may be justified
by some sound and practical considerations of
personnel management.
It may well be that the decision to limit this
competition to "Employees of Transport Canada,
Canadian Air Transportation Administration,
occupying a position in Dorval" was unwise when
one has in mind that because of it Lise Landriault,
with her experience within the administrative
structure of the Department, became ineligible.
The determination was nevertheless in my view
authorized by paragraph 13(b). I would observe
that there was no showing that the description was
not broad enough to cover a substantial group of
employees who had the essential qualifications for
the position.
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.