Aplin et al. v. Canada (Attorney General) et al., (2004) 252 F.T.R. 208 (FC)

• Judge: Mosley, J.
• Court: Federal Court (Canada)
• Case Date: May 06, 2004
• Jurisdiction: Canada (Federal)
• Citations: (2004), 252 F.T.R. 208 (FC);2004 FC 691

Aplin v. Can. (A.G.) (2004), 252 F.T.R. 208 (FC)

MLB headnote and full text

Temp. Cite: [2004] F.T.R. TBEd. MY.055

Robert J. Aplin and Bruce Clark (applicants) v. Attorney General of Canada and David Coupar (respondents)

(T-1025-03; 2004 FC 691)

Indexed As: Aplin et al. v. Canada (Attorney General) et al.

Federal Court

Mosley, J.

May 11, 2004.

Summary:

The applicants appealed pursuant to s. 21(1.1) of the Public Service Employment Act from the appointment of Coupar to a position with Human Resources Development Canada without a competition. A Public Service Commission Appeal Board dismissed the applicants' appeals. The applicants applied for judicial review of the Appeal Board's decision.

The Federal Court allowed the application, set aside the decision and remitted the matter to the Appeal Board for redetermination.

Labour Law - Topic 9290

Public service labour relations - Job selection without job competition - Selection process - Appeals - The applicants appealed pursuant to s. 21(1.1) of the Public Service Employment Act from an appointment to a position with Human Resources Development Canada without a competition - The selection board assessed the applicants for the position with the understanding that in doing so it was acting in compliance with the decision in Canada (Attorney General) v. Greaves et al. (F.C.A.) - The selection board found that the applicants did not meet the experience requirements for the position - The Federal Court held that the selection board did not err in assessing the applicants' qualifications after they had initiated their appeals - However, the court stated that the decision in Greaves was not to be read as mandating that after-the-fact assessments "must be" conducted in every case where there was appointment without competition and individuals launched appeals under s. 21(1.1) - See paragraph 41.

Labour Law - Topic 9290

Public service labour relations - Job selection without job competition - Selection process - Appeals - The applicants appealed pursuant to s. 21(1.1) of the Public Service Employment Act from an appointment to a position with Human Resources Development Canada without a competition - The selection board assessed the applicants for the position and found that they did not meet the experience requirements - In light of allegations raised in the applicants' appeals, one of the applicants submitted additional information - The selection board considered that additional information and confirmed its earlier assessment of the applicants - A Public Service Commission Appeal Board dismissed the applicants' appeals - The Appeal Board held that the selection board did not contravene the merit principle in assessing the applicants' qualifications for the position after they had launched their s. 21 appeals - The applicants applied for judicial review - The Federal Court allowed the application - The selection board did not err in assessing the applicants' qualifications after they initiated their appeals - However, the selection board's second post-appeal assessment of further information that was submitted based on allegations raised in the applicants' appeals, was not done in accordance with the PSEA or the Regulations - Such a practice effectively usurped the Appeal Board's role to determine whether the merit principle was respected - See paragraphs 41 to 43.

Labour Law - Topic 9290

Public service labour relations - Job selection without job competition - Selection process - Appeals - The Federal Court stated that "when proceeding with an appointment without competition, the selection board's function is to assess and compare the merits of candidates brought to its attention, even if this occurs subsequent to the initiation of appeals by individuals not previously identified. This function terminates upon the identification of such appellants and the selection board's decision to either compare their qualifications to the selected individual or to determine that such assessment is not necessary in order to comply with the merit principle. Moreover, where such a subsequent assessment is done, the applicant's right to appeal would continue and the Commission must ensure that the disclosure requirements with regards to the appeal are met with regards to any new evaluation or assessment completed by the selection board. If a newly identified individual is found to be more meritorious than the originally selected person, new appeal rights would come into existence and a new Notice of Appeal would have to be posted" - See paragraphs 39 to 40.

Cases Noticed:

Canada (Attorney General) v. Greaves, McNeill, Morris and Waddy, [1982] 1 F.C. 806; 40 N.R. 429 (F.C.A.), leave to appeal denied (1982), 42 N.R. 176 (S.C.C.), consd. [para. 7].

Greaves v. Public Service Commission Appeal Board (Can.) - see Canada (Attorney General) v. Greaves, McNeill, Morris and Waddy.

Blagdon v. Canada (Public Service Commission Appeal Board), [1976] 1 F.C. 615 (F.C.A.), refd to. [para. 14].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 17].

Boucher et al. v. Canada (Attorney General) (2000), 252 N.R. 186 (F.C.A.), refd to. [para. 18].

Bambrough v. Public Service Commission Appeal Board (Can.), [1976] 2 F.C. 109; 12 N.R. 553 (F.C.A.), refd to. [para. 19].

Buttar v. Canada (Attorney General) et al. (2000), 254 N.R. 368 (F.C.A.), refd to. [para. 19].

Charest v. Canada (Attorney General), [1973] F.C. 1217 (F.C.A.), refd to. [para. 19].

Laplante et al. v. Canada (Attorney General) et al. (2003), 234 F.T.R. 143 (T.D.), affd. (2004), 318 N.R. 304; 2004 FCA 39, refd to. [para. 24].

Lai (S.M.) v. Canada (Attorney General) et al. (2001), 208 F.T.R. 67 (T.D.), refd to. [para. 26].

MacDonald v. Public Service Commission, [1973] F.C. 1081 (F.C.A.), refd to. [para. 39].

Authors and Works Noticed:

Caron, Renée, Employment in the Federal Public Service (2003), pp. 2-59, 2-60 [para. 33].

Counsel:

James Cameron, for the applicants;

Michael Roach, for the respondent.

Solicitors of Record:

Raven, Allen, Cameron & Ballantyne, Ottawa, Ontario, for the applicants;

Morris Rosenberg, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on May 6, 2004, at Ottawa, Ontario, before Mosley, J., of the Federal Court, who delivered the following decision on May 11, 2004.