A-789-83
Joseph Robert Guy (Applicant)
v.
Public Service Commission Appeal Board
(Respondent)
Court of Appeal, Urie, Hugessen and Stone JJ.—
Ottawa, April 12 and 27, 1984.
Public service — Closed competition — Language require
ments — Candidate not appointed to position as failing to
meet language requirements and as not eligible for exclusion
from language qualification because of s. 4(2)(d) of Exclusion
Order — Applicant's argument s. 4(2)(d) ultra vires as
violating merit principle enshrined in s. 10 of Act rejected as
s. 39 of Act permitting exclusions from operation of Act —
Exclusion Order not allowing Public Service Commission to
entrench upon departmental management functions by deter
mining qualifications for position as Department, not Com
mission, establishing qualifications — Public Service Employ
ment Act, R.S.C. 1970, c. P-32, ss. 5(a), 10, 12(1) (as am. by
S.C. 1974-75-76, c. 66, s. 10), 16(1), 17(1),(3), 39 — Public
Service Official Languages Exclusion Approval Order,
SOR/81-787, ss. 2(1),(2), 4(1)(a),(2)(a),(b),(d).
Judicial review — Applications to review — Public service
— Whether Public Service Official Languages Exclusion
Approval Order ultra vires as violating merit principle
Whether attempt by Public Service Commission to set qualifi
cations for positions — Qualifications set by Department —
Application denied — Public Service Official Languages
Exclusion Approval Order, SOR/81-787, ss. 2(1),(2),
4 ( 1 )(a),( 2 )(a),(b)•(d)•
The applicant applied in a closed competition for a position
in the Public Service rated as "Bilingual non-imperative". His
results were such that he would have been offered the position,
but he did not meet the language requirements. Furthermore,
paragraph 4(2)(d) of the Exclusion Order denied him eligibility
for exclusion from language qualification because he had previ
ously taken language training at public expense and had then
achieved the required level of competency, which he has since
lost. The applicant now invokes section 28 of the Federal Court
Act to have the Appeal Board decision dismissing his attack
against the selection of another candidate set aside on the
grounds that paragraph 4(2)(d) of the Exclusion Order is ultra
vires. He argues that it violates the merit principle entrenched
in section 10 of the Public Service Employment Act and
represents an attempt by the Public Service Commission to
define or set qualifications for positions, something which it is
not authorized to do.
Held (Stone J. dissenting), the application should be
dismissed.
Per Hugessen J. (Urie J. concurring): The Exclusion Order is
made pursuant to section 39 of the Act which permits exclu-
sions from the operation of the statute, hence from the merit
principle enshrined in section 10. As for the argument that the
Exclusion Order allows the Commission to entrench upon the
functions of departmental management by determining the
qualifications for a position, the reality is that it is the Depart
ment, not the Commission, which has established, amongst
other things, the language qualification for the position.
Per Stone J. (dissenting): Paragraph 4(2)(d) of the Exclusion
Order does not constitute a new and additional qualification for
the position. It is only concerned with whether a person who is
otherwise qualified should be appointed if he has attained
through language training, but failed to maintain, the required
level of language proficiency. In this case, the applicant did
possess the required qualifications.
Paragraph 4(2)(d) violates the principle of "selection accord
ing to merit" enshrined in section 10 of the Act and is therefore
ultra vires. Section 39 authorizes the Commission to open up to
persons the opportunity of appointment to positions which
would otherwise be foreclosed to them, it does not permit the
Commission to disregard the merit principle when making a
selection from among persons qualified for appointment includ
ing those benefitting from exclusion under subsection 4(1) of
the Exclusion Order. It would take the authorization of Parlia
ment to deny, as paragraph 4(2)(d) does, appointment to the
best-qualified person because of failure to maintain proficiency
in the second official language. Section 39 does not expressly
confer that authority and, considering the overall scheme of the
Act, it should not be interpreted as doing so because this would
mean permitting the merit principle, a fundamental feature of
the Act, to be overriden. Paragraph 4(2)(d) was therefore not
validly made and the respondent erred in applying it.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Bambrough v. Appeal Board established by The Public
Service Commission, [1976] 2 F.C. 109 (C.A.); The
Queen v. Ricketts, judgment dated October 31, 1983,
Federal Court, Appeal Division, A-807-82, not yet
reported; Delany v. Public Service Commission Appeal
Board, [1977] 1 F.C. 562 (C.A.); R. v. Belanger (1916),
54 S.C.R. 265; Minister of Health v. The King, [1931]
A.C. 494 (H.L.).
COUNSEL:
Roger R. Mills for applicant.
R. P. Hynes for respondent.
SOLICITORS:
McInnes & MacEwen, Morrisburg, Ontario,
for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HUGESSEN J.: This is a section 28 application to
review and set aside a decision of an Appeal Board
established pursuant to section 21 of the Public
Service Employment Act [R.S.C. 1970, c. P-32].
The applicant had applied in a closed competi
tion for a position in the Public Service rated as
"Bilingual non-imperative". In the jargon of the
Public Service, such a position is one whose duties
require a knowledge and use of both official lan
guages which
2.(1)...
... has been identified ... as not requiring, at the time of the
appointment, occupation by a person qualified in the knowl
edge and use of both official languages. [Emphasis added.]
(Public Service Official Languages Exclusion
Approval Order, subsection 2(1), SOR/81-787.)
At the risk of oversimplifying, a unilingual candi
date can only be appointed to such a position on
the condition that he or she is eligible to obtain
training so as to acquire bilingual capacity within
a reasonably short time.
The applicant had, prior to the date of the
competition, taken language training at public
expense and had achieved the required level of
competency. However the _ passage of time had
caused him to lose some of his ability in his second
language, with the result that when he was tested
for the purposes of the competition he did not meet
the standards required for the position. The suc
cessful candidate also did not achieve the required
results in the language test. However the success
ful candidate was eligible for exclusion from the
language qualification under the provisions of sec
tion 4 of the Public Service Official Languages
Exclusion Approval Order. The applicant, for his
part, was not so eligible because of paragraph
4(2)(d) of that Order. That paragraph denies
eligibility for exclusion to anyone who has at
public expense previously obtained language train
ing and attained a level of language proficiency at
least equal to that required for the position sought.
The policy underlying paragraph 4(2)(d) is evi
dently that persons once trained at public expense
to a certain level of language proficiency who
subsequently fall below that level should not be
entitled to exclusion from the language require
ments of a position while they obtain further lan
guage training at public expense.
Before this Court, the applicant contends that
paragraph 4(2)(d) of the Public Service Official
Languages Exclusion Approval Order is ultra
vires in that it violates the merit principle and
represents an attempt by the Public Service Com
mission to define or set qualifications for positions,
something which it is not authorized to do. In my
view, these contentions do not withstand examina
tion.
There is no doubt that the merit principle
underlies the Public Service Employment Act and
is specifically enshrined in section 10. The Exclu
sion Order, however, is made pursuant to section
39 of the Act, which in terms permits exclusion of
positions or persons from the operation of the
statute. The words could not be clearer:
39. In any case where the Commission decides that it is not
practicable nor in the best interests of the Public Service to
apply this Act or any provision thereof to any position or person
or class of positions or persons, the Commission may, with the
approval of the Governor in Council, exclude such position or
person or class of positions or persons in whole or in part from
the operation of this Act ... [Emphasis added.]
As regards the argument that the Exclusion
Order allows the Public Service Commission to
entrench upon the functions of departmental man
agement by determining the qualifications for a
position, it is simply not in accordance with reality.
The Department, through its deputy head, has
established , the qualifications for the position here
in question. Amongst those qualifications is the
language qualification of "Bilingual non-impera
tive". Those words have a clear meaning under the
Public Service Official Languages Exclusion
Approval Order: to qualify a candidate must either
have the required language skills or be eligible for
exclusion under the Order. That is the Depart
ment's determination of the , qualifications
required, not the Commission's. The applicant did
not qualify and was not eligible for exclusion. The
successful candidate was so eligible and was in
consequence appointed.
I would dismiss the application.
URIE J.: I concur.
* * *
The following are the reasons for judgment
rendered in English by
STONE J. (dissenting): In this matter, the appli
cant invokes the provisions of paragraph 28(1)(b)
of the Federal Court Act [R.S.C. 1970 (2nd
Supp.), c. 10] in asking that we review and set
aside the decision of respondent Board which was
established under section 21 of the Public Service
Employment Act.' That decision, dated May 17,
1983, came after a closed competition had been
conducted to fill a position in Ottawa as Senior
Project Officer at the Canadian Government
Expositions Centre in the Department of Supply
and Services. The applicant, and others, had
sought the appointment. He was denied it when
one of the other candidates was selected. The
essence of his complaint is that in deciding not to
intervene the respondent erred because he, and not
the person selected, was best qualified for the
position.
The Public Service Commission received a
request to fill the position in July of 1982, after the
Department had drawn up a statement of qualifi
cations. That statement set forth the qualifications
required of a successful candidate and consisted of
both "rated" and "basic" qualifications. The rated
qualifications were concerned with knowledge,
abilities and personal suitability, while the basic
qualifications were concerned with education, lan
guage and experience. In particular, the language
requirements for the position were laid down as
follows:
A knowledge of both English and French languages is essential
... Bilingual non-imperative (BBBB/BBBB)
The term "Bilingual non-imperative" is not
defined in the statement but it, apparently, refers
' R.S.C. 1970, c. P-32.
to an appointment to a position which the deputy
head had identified as requiring use of both offi
cial languages but where he considered that the
required level of proficiency in both languages
need not be possessed by the appointee at the time
of his appointment. Such an appointment is to be
contrasted with an appointment to a "Bilingual
imperative" position, namely, to one that the
deputy head identifies as requiring a person seek
ing it to possess the required level of proficiency in
both languages before being appointed. For a bi
lingual position, whether imperative or non-imper
ative, the levels of proficiency required in both
languages for each of the skills of reading, writing,
listening and speaking are separately designated,
"C" being the superior level, "B" the intermediate
level, and "A" the minimum level. In a competi
tion of this kind the levels of language skills are
identified by those letters to form a "language
profile". Thus, in the statement of qualifications,
the letters assigned to each skill by the Depart-
ment—"BBBB"—constituted the language profile
for the position in question. In the selection pro
cess, whether a person seeking appointment pos
sesses the required skills for the levels specified is
determined by means of a Language Knowledge
Examination.
The selection process, designed to assess each
candidate in "rated" and "basic" qualifications,
was carried out in two stages. At the first stage, six
candidates, including the applicant, passed both a
written and an oral examination on rated qualifi
cations. The applicant was ranked first on these
qualifications. The candidates were then tested for
language skills by means of the Language Knowl
edge Examination. Here, it was found that only
one of them possessed the "B" level of skills in
reading, writing, listening and in speaking both
official languages. He was therefore ranked first
but, although qualified for the position, he
declined to accept appointment. It thus became
necessary to consider selection of one of the other
candidates. The applicant was found to possess the
required level in the first three skills but not in the
fourth. Although he ranked second over all, he was
not placed on the "eligible list" required to be
established under subsection 17(1) of the Act.
Instead the name of the third-ranked candidate
was placed on that list even though her level of
language skills was found to be inferior to that of
the applicant. The Commission was satisfied that
she possessed the aptitude to learn the second
language at the "B" level within the prescribed
time period.
After the close of the competition, the applicant
attacked the selection before the respondent
Board. It expressed "sympathy" with his "predica-
ment" but ruled against him. It found that the
selection had been made in a regular way in
accordance with the provisions of the Act and of
the Public Service Official Languages Exclusion
Approval Order' (herein referred to as the "Exclu-
sion Order"). At the heart of the attack is the
assertion that in making its decision the respond
ent erred by basing it upon paragraph 4(2)(d) of
the Exclusion Order. He contends that the provi
sions of that paragraph are ultra vires the Com
mission for a number of reasons but chiefly
because they violate the principle of "selection
according to merit" set forth in section 10 of the
Act, and also because they prescribe a "qualifica-
tion" for the position and thereby usurp a manage
ment function exercisable only by the deputy head.
The respondent, for its part, says that it was
correct in its decision. It contends that paragraph
4(2)(d) of the Exclusion Order was validly made
within the statutory mandate conferred on the
Commission under section 39 of the Act. In short,
it says that it correctly decided that the selection
had been carried out in accordance with the Act
and the Exclusion Order.
In approaching the questions at issue it is neces
sary to examine the scheme of the Act with regard
to selection and appointment of a public servant.
By paragraph 5(a) the power to "appoint or pro
vide for the appointment of qualified persons" is
granted to the Commission and is to be done "in
accordance with the provisions and principles of
this Act". Section 10, as already noted, provides
for "selection according to merit". It reads:
10. Appointments to or from within the Public Service shall
be based on selection according to merit, as determined by the
2 Approved by Order in Council P.C. 1981-2716 (SOR/81-
787), September 30, 1981.
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.
By subsection 12(1) [as am. by S.C. 1974-75-76,
c. 66, s. 10] the Commission may:
12. (1) ... 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, knowl
edge, 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 ....
Subsection 16(1) of the Act requires the Commis
sion to examine and consider all applications
received within the time prescribed for their
receipt and
16. (1) ... after considering such further material and con
ducting such examinations, tests, interviews and investigations
as it considers necessary or desirable, shall select the candidates
who are qualified for the position or positions in relation to
which the competition is conducted.
By subsection 17 (1) the Commission shall, from
17. (1) ... among the qualified candidates ... select and
place the highest ranking candidates on one or more lists, to be
known as eligible lists, as the Commission considers necessary
to provide for the filling of a vacancy or anticipated vacancies.
and in establishing such a list in the case of a
closed competition the Commission is required by
subsection 17(3) to "place the qualified candidates
thereon in order of merit."
Finally, broad powers are delegated to the Com
mission under section 39 of the Act. It reads:
39. In any case where the Commission decides that it is not
practicable nor in the best interests of the Public Service to
apply this Act or any provision thereof to any position or person
or class of positions or persons, the Commission may, with the
approval of the Governor in Council, exclude such position or
person or class of positions or persons in whole or in part from
the operation of this Act; and the Commission may, with the
approval of the Governor in Council, re-apply any of the
provisions of this Act to any position or person so excluded.
In pursuance of its powers under section 39, the
Commission passed the Exclusion Order. It reads
in part:
2. (1) In this Order,
"bilingual position" means a position identified by the deputy
head as having duties that require a knowledge and use of
both official languages;
"Commission" means the Public Service Commission;
"language training" means basic training, at public expense, in
one of the official languages, the nature, duration and loca
tion of which is prescribed on an individual basis by the
deputy head;
"non-imperative appointment" means an appointment for an
indeterminate period, resulting from a request by the deputy
head, to a bilingual position that has been identified by the
deputy head as not requiring, at the time of the appointment,
occupation by a person qualified in the knowledge and use of
both official languages.
(2) For the purposes of this Order,
"agreement" means an agreement in writing by which a person
qualified in the knowledge and use of only one official
language agrees
(a) to demonstrate to the Commission his potential for
attaining through language training the knowledge and use
of the other official language at the level of proficiency
required for a bilingual position,
(b) to undertake to attain, through language training the
knowledge and use of the other official language at the level
of proficiency required for a bilingual position within the
exemption time granted under this Order, and
(e) to be transferred to another position for which he is
qualified in all respects in the event that at the end of the
exemption time he has not attained the knowledge and use of
the other official language at the level of proficiency required
for a bilingual position.
4. (1) The following persons are hereby excluded from the
operation of section 10 of the Act in so far as a selection
standard based on language skills is a basis of assessment in
selections for a non-imperative appointment according to merit,
namely, persons who qualify in the knowledge and use of one of
the official languages at the level of proficiency required for the
bilingual position and who
(a) are eligible for language training and submit to the
Commission an agreement;
(2) For the purposes of paragraph (1)(a), a person is eligible
for language training for the purposes of a bilingual position if,
(a) he demonstrates to the Commission his potential for
attaining the knowledge and use of the other official lan
guage at the level of proficiency required for the bilingual
position, and
(b) since January 1, 1974, he has received in the aggregate
less than the maximum language training time prescribed,
and if he has not
(d) through language training, attained a similar or higher
level of language proficiency, or
I will deal with the two major points advanced
by the applicant in reverse order. I do not think the
provisions of paragraph 4(2)(d) of the Exclusion
Order constitute a new and additional qualifica
tion for the position in question. In my view, the
qualifications spoken of in the statement prepared
by the Department go to fitness for appointment.
Paragraph 4(2)(d), on the other hand, is con
cerned with whether a person who is qualified for
appointment should be appointed if he has
attained through language training, but failed to
maintain, a similar or higher level of language
proficiency to that required by the position. In this
case, as I see it, the applicant did possess the
qualifications required for the position. Indeed, the
respondent itself found that "he would have been
offered an appointment" had it not been for the
fact that paragraph 4(2)(d) prevented it.
The primary attack upon the decision is that
paragraph 4(2)(d) of the Exclusion Order should
not have been applied at all because it violates the
principle of "selection according to merit"
enshrined in section 10 of the Act and is therefore
ultra vires. In brief, the applicant here contends
that as he was found to be the best-qualified
person among all of the available candidates, the
Commission was obliged to select him in prefer
ence to any other candidate. He argues that if
paragraph 4(2)(d) is a barrier to his appointment,
it must give way to the principle of selection
according to merit. The respondent argues that
paragraph 4(2)(d) of the Exclusion Order is valid
as falling within the powers of the Commission
under section 39 of, inter alia, excluding persons
"from the operation" of section 10. As I read
section 39, it authorizes the Commission to open
up to persons the opportunity of appointment to
positions which would otherwise be foreclosed to
them. The normal operation of section 10 requir
ing selection according to merit would, for exam
ple, bar appointment to a bilingual position of any
person who lacked the required level of language
proficiency laid down as a job qualification by the
prospective employer. Under normal circum
stances, that section would oblige the Commission
to make its selection from among bilingual candi
dates only. But, having regard to the overall
scheme of the Act, I do not think that the Com
mission is permitted to disregard the merit princi
ple when making a selection from among persons
qualified for appointment including those benefit
ting from exclusion made in subsection 4(1) of the
Exclusion Order.
The fundamental importance of the merit prin
ciple in the selection process under the Act has
been recognized by this Court. Indeed, it has been
described as "the dominant objective and consider
ation ... and the essential criterion by which the
exercise of powers under the Act is to be judged". 3
That view is in accord with the general scheme of
the Act which requires that selections be made
from among "qualified" persons or candidates on
the basis of merit. Such persons are qualified if
they meet the job qualifications laid down by the
prospective employer. The Commission is to make
its selection on the basis of merit or, as it was
recently described by this Court, it is to select
"from among candidates who have qualifications
required by the department the candidate who is
best qualified for the position and ... to appoint
him to it". 4
In my view, paragraph 4(2)(d) goes beyond the
powers granted to the Commission under section
39. It purports to deny appointment to the best-
qualified person not on the basis that he may lack
the required job qualifications but because of fail
ure to maintain proficiency in the second official
language at least at the level earlier attained at
public expense. However good the reason may be
for introducing into the statutory scheme that
particular bar to appointment, it could only be
done by or with the authority of Parliament. That
authority is not expressly conferred by section 39
and I do not think we should construe that section
so as to include it when, to do so, would permit a
fundamental feature of the Act to be overridden,
namely, the principle of selection according to
merit. 5 In my view, such a result cannot be sanc
tioned unless the language of the statute clearly
requires it.
3 Bambrough v. Appeal Board established by The Public
Service Commission, [1976] 2 F.C. 109 (C.A.), per Le Dain J.
at p. 115.
4 The Queen v. Ricketts, judgment dated October 31, 1983,
Federal Court, Appeal Division, A-807-82, not yet reported,
per Thurlow C.J. at p. 3. And see also Delany v. Public
Service Commission Appeal Board, [1977] 1 F.C. 562 (C.A.),
per Ryan J. at p. 563.
5 R. v. Belanger (1916), 54 S.C.R. 265, at pp. 268, 269;
Minister of Health v. The King, [1931] A.C. 494 (H.L.), at p.
503.
For the foregoing reasons, I think that para
graph 4(2)(d) of the Exclusion Order was not
validly made and that the respondent erred in
applying it. I would refer the matter back to the
respondent on the basis that it reconsider the
applicant's appeal and dispose of it without having
any regard to the provisions of paragraph 4(2)(d)
of the Exclusion Order.
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.