A-610-86
Donald Eric Lucas (Applicant)
v.
Public Service Commission Appeal Board
(Respondent)
INDEXED AS: LUCAS V. CANADA (PUBLIC SERVICE COMMIS
SION APPEAL BOARD)
Court of Appeal, Heald, Hugessen and Mac-
Guigan JJ.—Ottawa, June 4 and 22, 1987.
Public service — Selection process — Whether acting
assignment an "appointment" — Application to review and set
aside Public Service Commission Appeal Board's decision that
no jurisdiction to hear appeal — Board erred in holding acting
"assignment" not "appointment" within Public Service
Employment Act, s. 21 — Board erred in holding issue not
whether assignment authorized under Public Service Employ
ment Act or any other Act — Parliament not intending depart
ment to create and fill positions at will on "assignment" basis,
thereby avoiding provisions of Act, such as merit principle and
opening door wide to abuse — Board also erred in holding
tenure not acquired in acting position — Public Service
Employment Act, R.S.C. 1970, c. P-32, ss. 8, 10, 21, 22, 24
Public Service Employment Regulations, C.R.C., c. 1337, s. 25
(as am. by SOR/81-716, s. 2; SOR/86-286, s. 1).
Construction of statutes — Whether Public Service staffing
action characterized as "acting assignment" an "appointment"
within Public Service Employment Act, s. 21 — Word
"appointment" not defined in Act — Words of Act to be read
in context, in grammatical and ordinary sense harmoniously
with scheme and object of Act and intention of Parliament —
Dictionaries treating "appointment" and "assignment" inter
changeably — Whether intention of Parliament, as expressed
in Act, requiring different interpretation of "appointment" —
Management cannot subvert intention of Parliament by decla
ration it was not intended staffing action be "appointment" —
To allow departments to create and fill positions on assign
ment basis would abrogate protection afforded by provisions of
Act and such construction opens door wide to abuse — Public
Service Employment Act, R.S.C. 1970, c. P-32, s. 21.
This is an application to review and set aside the Public
Service Commission Appeal Board's decision that it lacked
jurisdiction to hear the applicant's appeal pursuant to section
21 of the Public Service Employment Act. While the incum
bent of the Collections Enforcement Clerk position was on a
training program, a Ms. Morrison was requested and agreed to
perform the duties of the position, for which she was entitled to
receive acting pay. A position was created for acting pay
purposes. The Department regarded the staffing action as an
"assignment" not an "appointment" so that section 21 of the
Public Service Employment Act did not apply. Section 21 gives
a right of appeal to certain persons against "appointments"
made under the Act. The Board agreed.
Held, the application should be allowed.
Notwithstanding the possibility that this application had
become academic, it was appropriate that it be heard on its
merits in that numerous pending section 28 applications and
appeals pending before Public Service Commission Appeal
Boards raise the same issue and because there exists a conflict
of opinions on this question on the part of Appeal Board
members.
The acting assignment constitutes an appointment within the
meaning of section 21. The contemporary canons of statutory
interpretation require that the words of an Act be read in their
entire context and in their grammatical and ordinary sense
harmoniously with the scheme of the Act, the object of the Act
and the intention of Parliament.
On the basis of dictionary definitions, taken by themselves,
"appointment" and "assignment" have substantially the same
grammatical and ordinary meaning.
The Board concluded that the context of various other
provisions of the Act required that a different interpretation be
placed on "appointment". It held that it followed from sections
8, 10, 22, 24 and 25 that an appointment confers and defines
tenure, and is made by or on behalf of the Commission with the
knowledge that these are the intended consequences. It held
that an acting assignment does not have these attributes. The
Board erred in law in concluding that the issue could not be
determined by deciding whether the assignment was authorized
under the Public Service Employment Act or any other statute.
In the circumstances of this case, the Public Service Employ
ment Act determines the rights of management and this appli
cant. Appointments must be made by the Commission, at the
request of the Deputy Head, by a process of selection according
to merit. These principles apply to acting appointments. Man
agement cannot supersede the clear intention of Parliament by
a declaration that it was not "intended" that the staffing action
be construed as an "appointment". Parliament never intended
that a department could, at its will, fill and create positions on
an "assignment" basis, thus eliminating the protection afforded
by the various provisions of the Act. The power to determine
the number and kind of employees in the department and their
remuneration has been restricted by the Financial Administra
tion Act, and the power to select employees has been restricted
by the Public Service Employment Act which authorizes the
Commission to perform this function.
The Board also erred in determining that the "tenure deter
mining position" was Ms. Morrison's permanent position so
that she did not acquire tenure in the acting position which she
still holds. When she agreed to carry out the duties of the
acting position she clearly acquired tenure in that she was
entitled to the rate of pay that went along with the new duties.
CASES JUDICIALLY CONSIDERED
APPLIED:
Victoria City v. Vancouver Island Bishop, [1921] 2 A.C.
384 (P.C.); Bauer v. Public Service Appeal Board,
[1973] F.C. 626 (C.A.).
DISTINGUISHED:
R. v. St-Hilaire, judgment dated December 17, 1985,
Federal Court of Appeal, A-1493-84, not yet reported.
REFERRED TO:
International Brotherhood of Electrical Workers, Local
Union 2085 et al. v. Winnipeg Builders' Exchange et al.,
[1967] S.C.R. 628; Howard v. Stony Mountain Institu
tion, [1984] 2 F.C. 642; (1985), 57 N.R. 280 (C.A.);
Eaton v. Government of Canada (1982), 43 N.R. 347
(F.C.A.).
COUNSEL:
Andrew J. Raven and N. J. Schultz for
applicant.
Duff F. Friesen, Q.C. and Margaret N. Kin-
near for respondent.
SOLICITORS:
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is a section 28 [Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10] application
to review and set aside the decision of J. H. Giffin,
as Chairwoman of a Public Service Commission
Appeal Board (the Board) wherein the Board held
that it was without jurisdiction to hear the appeal
of the applicant herein pursuant to section 21 of
the Public Service Employment Act [R.S.C. 1970,
c. P-32].'
The applicant is a federal public servant
employed within the Department of National
Revenue (Taxation) at Sydney, Nova Scotia. On
August 29, 1985, Ms. Brenda Morrison, a fellow
employee, was appointed in an acting capacity to
the position of Collections Enforcement Clerk
(CR-4) with that Department at Sydney. How
ever, on March 20, 1986, a Public Service Com
mission Appeal Board allowed an appeal by this
applicant against that appointment because, in the
view of the Board "there was no evidence to
support the Department's contention that Ms.
Morrison met the basic requirements of the posi
tion being staffed". This acting appointment had
been made pursuant to section 25 of the Public
Service Employment Regulations [C.R.C., c.
1337, as am. by SOR/81-716, s. 2]. That Regula
tion was repealed effective April 1, 1986
[SOR/86-286, s. 11. 2 Ms. Morrison was removed
from the position shortly after the Board's decision
was received. The competition to staff the position
' Section 21 reads:
21. Where a person is appointed or is about to be appointed
under this Act and the selection of the person for appointment
was made from within the Public Service
(a) by closed competition, every unsuccessful candidate, or
(b) without competition, every person whose opportunity for
advancement, in the opinion of the Commission, has been
prejudicially affected,
may, within such period as the Commission prescribes, appeal
against the appointment to a board established by the Commis
sion to conduct an inquiry at which the person appealing and
the deputy head concerned, or their representatives, are given
an opportunity of being heard, and upon being notified of the
board's decision on the inquiry the Commission shall,
(c) if the appointment has been made, confirm or revoke the
appointment, or
(d) if the appointment has not been made, make or not make
the appointment,
accordingly as the decision of the board requires.
2 Repealed Regulation 25 reads:
Acting Appointments
25. (1) Subject to subsection (2), where an employee is
required by the deputy head to perform for a temporary period
the duties of a position having a higher maximum rate of pay
(hereinafter referred to as the "higher position") than the
maximum rate of pay for the position held by him, the
employee shall be considered to have been appointed to the
higher position in an acting capacity, and if the temporary
period is four months or more, the employee shall be deemed,
(Continued on next page)
on an indeterminate basis never went beyond the
poster stage because of the identification of four
priority referrals from the Public Service Commis
sion. Two of those candidates met the basic
requirement of having passed the General Intelli
gence Test (PSC GIT-320) and were interviewed.
Ms. Madelaine Greer was offered and accepted
appointment to the position and thereupon com
menced her training program. In order to deal
with the collections work at the Sydney office, the
need for an acting assignment was identified. The
Department identified the applicant and Ms. Mor-
rison as the two employees in the Sydney office
who might be eligible for the acting assignment.
At the time, the applicant held the position of
Supply Mail Clerk at the CR-2 level while Ms.
Morrison held the position of Secretary to the
Director at the SCY-2 level. However, only Ms.
Morrison was able to successfully complete the
GIT examination according to the Department
officials. As a result, she was requested and agreed
to perform the CR-4 Collections Enforcement
Clerk position for the period from May 2, 1986 to
May 1, 1987. Pursuant to the terms of the Collec
tive Agreement, Ms. Morrison was entitled to
receive acting pay at the CR-4 level. In a letter to
the Public Service Commission dated August 29,
1986, the Personnel Manager at Halifax of Reve
nue Canada, Taxation, stated (Case, page 55):
In order to effect acting pay to Ms. Morrison and to minimize
confusion, it was necessary to create a position for acting pay
purposes. The "created" position was beyond that which was
allowed for in Sydney's complement and the intent was not to
effect an appointment, but to create a means by which Ms.
Morrison would receive acting pay.
The District Director at Halifax of the Depart
ment of National Revenue, Taxation, authorized
the staffing action which resulted in Ms. Morrison
(Continued from previous page)
for the purposes of section 40, to have been appointed to the
higher position without competition, effective as of the last day
of the period of four months from the day on which he
commenced to perform the duties of the higher position.
(2) An appointment to a position in an acting capacity shall
not be made for a period of more than 12 months unless
authorized by the Commission in any case or class of cases.
acting in this position. The Department did not
regard this acting assignment process as constitut
ing an appointment appealable under section 21
supra. In the view of the Department, the staffing
action in issue constituted an acting "assignment"
rather than an acting "appointment" and, conse
quently, section 21 of the Public Service Employ
ment Act had no application in the circumstances
of the present case. In its decision, the Board
concluded that the action did not constitute an
"appointment" within the meaning of section 21.
Accordingly, the Board ruled that it was without
jurisdiction to consider the applicant's appeal. It is
this decision which forms the subject-matter of
this section 28 application.
At the commencement of the hearing of this
application, the Court raised with counsel the
question as to whether or not the section 28
application had become academic or moot since
the term of the acting assignment or appointment
was said to be from May 2, 1986 to May 1, 1987.
Both counsel agreed that Ms. Morrison was still
continuing to hold the same position as of the date
of the hearing before us (June 4, 1987) and that,
therefore, the issues raised by this application were
not academic. In any event, both counsel urged the
Court to hear the application on its merits
because, in their view, this was an important test
case in that several other pending section 28
applications raised the same issue. Additionally,
several appeals pending before Public Service
Commission Appeal Boards are concerned with
the same problem. In view of these submissions,
and having regard to the jurisprudence to the
effect that, in such circumstances, a Court is justi
fied in exercising its discretion in favour of hearing
such a matter, we decided to hear the application
on its merits, notwithstanding the possibility that it
had become academic.' Moreover, it is evident
from the reasons of Chairwoman Giffin herein
that various Appeal Board colleagues of hers have
held that acting assignments are indeed appoint
ments within the meaning of section 21 (Case,
pages 77 and 79).
In view of the conflicting opinions of members
of the Appeal Board, this represents another
reason why this Court should not decline to hear
the matter.
The only issue in the application is whether, in
the circumstances of this case, the staffing action
taken by the Department, as above described, con
stitutes, in essence, an "appointment" as that word
is used in section 21 of the Public Service
Employment Act or whether it was merely an
"assignment" as characterized by the Department.
As noted by the Board, "appointment" is not
specifically defined in the Act. Accordingly, the
contemporary canons of statutory interpretation
require that the words of an Act be read in their
entire context and in their grammatical and ordi
nary sense harmoniously with the scheme of the
Act, the object of the Act and the intention of
Parliament. 4 Lord Atkinson stated this principle in
the following quotation from Victoria City v. Van-
couver Island Bishop: 5
In the construction of statutes their words must be interpret
ed in their ordinary grammatical sense, unless there be some
thing in the context, or in the object of the statute in which they
occur, or in the circumstances with reference to which they are
used, to show that they were used in a special sense different
from their ordinary grammatical sense.
The starting point then, is to examine "the
ordinary grammatical" meaning of the words
"assignment" and "appointment". The Living
Webster En. yclopedic Dictionary defines
"appointment" as "the act of appointing". It goes
on to define "appoint" inter alia, as follows:
Compare: International Brotherhood of Electrical Work
ers, Local Union 2085 et al. v. Winnipeg Builders' Exchange et
al., [1967] S.C.R. 628, at p. 636 per Cartwright J.; and
Howard v. Stony Mountain Institution, [1984] 2 F.C. 642, at
pp. 649-650; (1985), 57 N.R. 280 (C.A.), at p. 283 per
Thurlow C.J.
° See: Driedger, Construction of Statutes, Second Edition,
p. 87.
5 [1921] 2 A.C. 384 (P.C.), at p. 387.
To assign authoritatively to a particular use, task or office;
[Emphasis added.]
The same dictionary defines "assignment" inter
alia, as:
A position to which one is appointed. [Emphasis added.]
The Shorter Oxford English Dictionary, Third
Edition, defines "assignment" inter alia, as:
5. Appointment to office; [Emphasis added.]
I think it significant that both dictionaries treat
"appointment" and "assignment" interchangeably
as having substantially the same meaning. Black's
Law Dictionary, (5th Edition, page 91) also
defines "appoint" inter alia, as:
Appoint. .. .
To assign authority to a particular use, task, position or
office. [Emphasis added.]
On the basis of those definitions, I conclude
that, taken by themselves, the words "appoint-
ment" and "assignment" have substantially the
same grammatical and ordinary meaning. The
next question to be determined is whether there is
anything in the scheme and object of the Public
Service Employment Act and the intention of Par
liament as expressed therein which requires that a
different interpretation be placed upon the word
"appointment" as used in section 21. Chairwoman
Giffin concluded that there was such a require
ment based on the context of various other provi
sions of the Public Service Employment Act. She
referred to section 8 (which confers on the Public
Service Commission the exclusive right and au
thority to make appointments within the Public
Service); section 10 (which mandates the Commis
sion to make appointments according to merit);
section 22 (providing that such appointments are
effective on a date specified in the appointment);
section 24 (the provision that tenure is during Her
Majesty's pleasure and for an indeterminate
period, unless some other period is specified); and
section 25 (providing that an employee appointed
for a specified period ceased to be an employee at
the expiration of that period). In her view, it
follows from those provisions: "that an appoint
ment, firstly, confers and defines the nature of an
employee's tenure in the Public Service and,
secondly, is made by or on behalf of the Commis
sion with the knowledge that these are the intend
ed consequences. An acting assignment in general
and this one in particular cannot be characterized
as having these attributes." (Case, page 80.) She
goes on at page 81 of the Case to conclude: "The
issue is not whether an assignment is authorized
under this or any other enactment ... but whether
it is an appointment conferring and defining
tenure and specifically intended to be such by
those acting for or on behalf of the Public Service
Commission."
In my view, the learned Chairwoman erred in
law in concluding that the issue herein could not
be determined by deciding whether subject selec
tion was authorized by the Public Service
Employment Act or some other statute. In my
view, in the circumstances of this case, the Public
Service Employment Act governs and determines
the rights of management and of this applicant.
Pursuant to that Act, while the Commission makes
the appointments to the Public Service, they are
made only at the request of the Deputy Head.
They must also be made by a process of selection
according to merit. This necessarily entails a com
petition or some other process designed to establish
the merit of candidates. Those principles apply
equally to an acting appointment as to a perma
nent one. 6 On this basis, management cannot
supersede and subvert the clear intention of Parlia
ment as expressed in the Act by a declaration, as
in this case, that it was not "intended" that subject
staffing action be construed as an "appointment".
I am satisfied that it was never intended by
Parliament that a department of government
could, at its will, create and fill positions on an
"assignment" basis, thus eliminating the protec
tion afforded by the various provisions of the Act
6 Compare: Eaton v. Government of Canada (1982), 43 N.R.
347 (F.C.A.).
referred to supra. Such a construction "opens the
door wide to abuse" as submitted by counsel for
the applicant. As pointed out by Jackett C.J. in the
Bauer case [Bauer v. Public Service Appeal
Board],' the normal power of departments of the
Government of Canada to manage and direct those
departments would include the power to determine
the numbers and kinds of employees in the various
departments as well as the power to select the
appropriate employees but for the fact that those
powers have been restricted by legislation in at
least two important particulars:
(a) the power to determine the number and kind of employees
in the department and their remuneration [as provided in the
Financial Administration Act [R.S.C. 1970, c. F-10] and sub
ject to the control of Treasury Board]; and
(b) the power to select and employ the persons to work in the
department [as provided in the Public Service Employment
Act, which authorizes the Public Service Commission to per
form this function].
To allow this Department to treat the staffing
action herein as other than an acting appointment
would be to condone a patent and obvious attempt
to effect an "end run" around the clear and unam
biguous intent of Parliament as expressed in the
Public Service Employment Act.
I think the Board was also in error in concluding
that since Ms. Morrison's permanent position as
SCY-2 was her "tenure determining position", she
could not be said to have acquired tenure in the
CR-4 position which she continues to hold. I agree
with counsel for the applicant that when she
agreed to and commenced to carry out the duties
of a Collections Enforcement Clerk, she clearly
acquired tenure in the sense that she became
entitled to a clerk's rate of pay as well as to carry
out the duties of a clerk. I agree with his submis
sion that:
In a very meaningful sense, she acquired for the one-year
period in question, tenure as a clerk and lost her tenure as
Secretary.
This view of the matter is supported by the record
since the Organization Chart of the Department
(Case, page 41) shows that as of April 1, 1986,
7 [1973] F.C. 626 (C.A.), at pp. 628 and 629.
Ms. Greer held position No. 1204-00088, as a
Collections Enforcement Clerk whereas it was
agreed that position No. 1204-00122 was being
held by Brenda Morrison, also as a Collections
Enforcement Clerk.
In this respect the present case differs markedly
from R. v. St-Hilaire, judgment dated December
17, 1985, Federal Court of Appeal, A-1493-84, not
yet reported. There, the employee was asked tem
porarily to assume certain additional duties which
were eventually to attach to a new position which
had not yet been created; there was no appoint
ment and no intention to appoint because there
was no position. Here, by contrast, there was a
position and a clear intention that Ms. Morrison
should fill it for a year.
To summarize, I conclude that, in essence,
"appointment" and "assignment" have substan
tially the same grammatical and ordinary mean
ing. I also conclude, for the reasons expressed
supra, that there is nothing in the context of the
Public Service Employment Act which prohibits
ascribing to "appointment" as used in section 21,
its ordinary and usual meaning. It therefore fol
lows, in my view, that the section 28 application
should be allowed, the decision of the Board
should be set aside and the matter remitted back
to the Board with the direction that the acting
assignment of Brenda Morrison in the Collections
Enforcement Clerk position constitutes an appoint
ment within the meaning of section 21 of the
Public Service Employment Act thereby confer
ring upon the Board jurisidiction to hear the appli
cant's appeal.
HUGESSEN J.: I agree.
MACGUIGAN J.: I agree.
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.