A-173-89
C. Justin Griffin (Applicant)
v.
Public Service Commission Appeal Board
(Respondent)
INDEXED AS: GRIFFIN V. CANADA (PUBLIC SERVICE COMMIS
SION APPEAL BOARD) (CA.)
Court of Appeal, Iacobucci C.J., Heald and Stone
JJ.A.—Ottawa, December 5 and 12, 1989.
Public service — Selection process — Competitions — S. 28
application to review and set aside Public Service Commission
Appeal Board's decision dismissing appeal against appoint
ments made following interdepartmental closed competition
conducted pursuant to Public Service Employment Regula
tions for Refugee Hearing Officer positions — Applicant
prepared for competition by studying background material in
French only — Subject matter very technical — Applicant
given examination in English — Did not object, to avoid
antagonizing officials — Applicant eliminated — Appeal
Board found applicant had consented to examination in Eng-
lish — Application allowed — Connection between Act, s. 10,
providing for selection according to merit, and s. 16(2), giving
candidate choice of language for any examination, test or
interview — Board misconstrued Act, s. 16(2) — Where com
petition held, merit shall be assessed by means which respect
candidate's language preference — Corresponding obligation
on those conducting examinations to respect right of linguistic
choice of candidate — Change of language option should be
recognized only when candidate clearly and expressly author
izing change — Incumbent on those conducting examinations
and interviews to establish specific procedures to ensure choice
of language clearly made, confirmed and respected.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Public Service Employment Act, R.S.C., 1985, c. P-33,
ss. 10, 16(2), 21.
Public Service Employment Regulations, C.R.C., c.
1337.
COUNSEL:
Andrew J. Raven for applicant.
Yvonne E. Milosevic for respondent.
SOLICITORS:
Soloway, Wright, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
IACOBUCCI C.J.: This section 28 [Federal Court
Act, R.S.C., 1985, c. F-7] application seeks to
review and set aside a decision, dated March 31,
1989, of an Appeal Board (the "Board") estab
lished by the Public Service Commission following
an appeal brought by the applicant under section
21 of the Public Service Employment Act, R.S.C.,
1985, c. P-33 (the "Act"). The applicant's appeal
was against appointments made following a selec
tion process for positions entitled "Refugee Hear
ing Officer" with the Immigration and Refugee
Board (the "Department") in Montréal. These
appointments were made following an interdepart
mental closed competition conducted pursuant to
the Public Service Employment Regulations,
(C.R.C., c. 1337). The competition was held to
establish an eligible list from which to fill vacant
positions.
The applicant submitted his application on May
4, 1987 in the French language and he assumed
the test of his qualifications would be administered
in French. The nature of the position under com
petition was such that the answers sought to be
elicited in the written and oral examination were
very technical and therefore substantial prepara
tion for the examination was required. The appli
cant prepared for the examination by studying
background material written in French.
When the applicant presented himself in
Toronto for the examination, he was handed an
English version of the examination. Although he
had prepared for the examination in French, and
although he believed he would have performed
better in the French language, the applicant did
not object to the examination given to him as he
apparently did not want to antagonize Departmen
tal officials. The applicant testified that the writ
ten examination included certain technical terms
with which he was familiar in French only. He also
maintained that his level of concentration was
affected by having to respond in English to English
questions.
Following the written portion of the examina
tion, the applicant was asked to an interview which
was conducted in English. There was some diver
gence in testimony as to what was said to the
applicant immediately prior to the interview but
since nothing turns on the applicant's interview, no
more need be said of it for the purposes of his
application.
Notwithstanding the applicant's professed lan
guage difficulties, he was successful in the compe
tition and was one of those proposed for appoint
ment. However, results of the competition were
successfully appealed following which the Public
Service Commission established an advisory com
mittee "to study the appropriate measures to be
taken" to correct the errors made in the conduct of
the competition. On the basis of the committee's
recommendations, the Commission instructed the
Department to eliminate eight questions from the
written examination. The candidates' scores were
then recalculated on the basis of the points award
ed on the remaining questions. Following this reas
sessment, the applicant's score on the abilities
portion of the written examination fell to 13 out of
27, one mark short of the pass-mark. The appli
cant's failure on the abilities portion of the written
examination, which was an important part of the
examination, disqualified him from further con
sideration in the competition. The applicant subse
quently exercised his right of appeal under section
21 of the Act.
In addressing the applicant's arguments respect
ing his right to be examined in French, the Board
concluded as follows:
The other issue raised by the appellant concerns his choice of
official language for the written examination and interview. In
my opinion, the appellant can be considered to have opted for a
written examination and interview in French by reason of his
completing his application in French. Whether or not this is
sufficient, it would have been appropriate for the Department
to seek clarification. However, I do not agree with Mr. Amyot's
assertion that the Department could make the appellant's
choice for him.
In any event, Mr. Amyot was only speculating as to why the
appellant was tested in English. I find more plausible Mr.
Deleu's explanation that the Department made an administra
tive error. The error could have been corrected both for the
written examination and interview if the appellant had brought
the error to the Department's attention. In particular, it should
have crossed his mind to confirm the language of the interview
after what happened at the written examination. His decision in
the end to undergo the examination in English only further
heightened the possibility that the Department would assume
that he wanted to be interviewed in English. Administrative
errors abound in any large bureaucracy and so it was when the
appellant was given the English version of the written examina
tion. He had his reasons for not speaking up then but I must
say this — they were not very good reasons. Furthermore, the
evidence clearly indicates that if the appellant had spoken up,
the Department would have been able to provide him with a
French version of the examination in a matter of minutes at
most.
As for the interview, it is once again clear that had the
appellant spoken up, so late as at the time of the interview
itself, the Department would have been prepared to proceed
with the interview in French.
I cannot find that the Department contravened subsection
16(2) of the Act. By consenting to an English examination and
interview in English, when he need not have done so, the
appellant effectively changed his option as to the official lan
guage in which he preferred to be tested.
I agree entirely with the Fiorgi and Page decisions which the
appellant's representative has cited. However, these cases deal
with situations where a candidate was in fact prevented from
undergoing examinations in the official language of his/her
choice. This is not the case of the appellant.
For the aforementioned reasons, the appeal of C. Justin
Griffin is dismissed.'
Counsel for the applicant argued before us that
the Board exceeded its jurisdiction and erred in
law when it failed to ask itself the correct question,
namely, whether or not the applicant would have
fared better in the competition and have been
found to be qualified had he undergone his assess
ment in the French language. On the other hand,
counsel for the respondent Board argued that the
threshold question before the Board was whether
the Department had contravened subsection 16(2)
of the Act. In determining that question, the
Board properly inquired whether the applicant had
made an election as to the official language in
which he wished to be examined and interviewed
and, if so, whether he had made his choice known
to the Department. Based on its finding that the
applicant had originally elected to be examined
and interviewed in French but had subsequently
changed his election to English, the Board con
cluded that there had been no contravention of
subsection 16(2) of the Act and properly ended its
inquiry. Accordingly, counsel for the respondent
' Case, vol. 2, pp. 200-201.
argues that the Board had no reason to inquire
whether the applicant would have fared better in
the final competition results had he been assessed
in French.
I agree with the position of counsel for the
respondent that the first question to be asked is
whether or not the provisions of subsection 16(2)
were contravened in the circumstances of this case.
However, I do not agree that the Board was
correct in holding there was no contravention.
Section 10 of the Act provides that appoint
ments to or from within the Public Service must be
based on selection according to merit and, further,
that such appointments shall be made by competi
tion or other process of selection designed to estab
lish the merit of candidates. 2 Subsection 16(2) of
the Act 3 provides that, where an appointment is to
be made by competition, any examination, test or
interview conducted for the purpose of determin
ing the education, knowledge, experience, inter
alia, of a candidate shall be conducted in the
English or French language or both at the option
of the candidate.
There is thus a connection between section 10
and subsection 16(2) of the Act in that, where a
competition is held, merit shall be assessed by
means which respect a candidate's language pref
erence. It follows that the language of assessment
is relevant to the question of whether or not a
candidate's merit has been properly assessed only
if subsection 16(2) of the Act has not been com
plied with.
2 Section 10 of the Act provides 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 consid
ers is in the best interests of the Public Service.
3 Subsection 16(2) of the Act reads as follows:
16....
(2) An examination, test or interview under this section,
when conducted for the purpose of determining the educa
tion, knowledge and experience of the candidate or any other
matter referred to in section 12, except language, shall be
conducted in the English or French language or both, at the
option of the candidate.
Subsection 16(2) provides a candidate with the
right to choose the official language or languages
in which he or she is to be examined or inter
viewed. Correspondingly it can reasonably be
inferred that an obligation is imposed on those who
conduct examinations to respect the right of lin
guistic choice of a candidate. Although the Act is
silent as to how and when a candidate's language
preference is to be determined, the Board found as
a fact that "the applicant can be considered to
have opted for a written examination and interview
in French by reason of his completing his applica
tion in French" and added "whether or not this is
sufficient, it would have been appropriate for the
Department to seek clarification".
Having so found, the Board also went on to
conclude that by "consenting" to an English
examination and interview in English when he
need not have done so, the applicant "effectively"
changed his option.
In my view, the Board misconstrued subsection
16(2) of the Act. As already noted, subsection
16(2) confers a right on the candidate regarding
linguistic choice and because of its connection to
the merit principle set forth in section 10, a change
of language option should be recognized only when
the candidate clearly and expressly authorizes such
a change. I do not think the conduct of the appli
cant in writing the examination amounted to such
a clear expression in the facts of this case when
one considers the accepted testimony of the appli
cant that he prepared for the examination expect
ing a French version, that the examination itself
involved a great amount of legal terminology that
the applicant had learned in French, 4 and the
applicant's reason for writing the examination as
being a wish not to antagonize Departmental offi
cials. Granted silence often implies consent but the
applicant's silence in the context of the pressure of
an examination is not tantamount to the consent
that is required under subsection 16(2) of the Act.
I realize that my interpretation of subsection
16(2) in so far as a change of option is concerned
is rather strict but this is in accord with the
4 See the Board Counsel Written Test, Case, vol. I, p. 55
which goes on for many pages and is quite challenging.
importance of linguistic choice in applying the
merit principle to staff appointments. This view
may mean that those conducting such examina
tions and interviews will wish to establish specific
procedures to ensure choice of language is clearly
made, confirmed and respected but surely that can
only result in greater fairness to all concerned and,
equally importantly, in a greater chance for
respect of the merit principle in staff appoint
ments.
Accordingly the section 28 application will be
allowed, the decision of the Board set aside, and
the matter referred back to the Board on the basis
that subsection 16(2) of the Act was contravened
in the circumstances of this case.
HEALD J.A.: I concur.
STONE J.A.: 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.