Appointments and the Public Service Employment Act
| Author | Christopher Rootham |
| Pages | 553-623 |
553
Appointments and the Public
Service Employment Act
A. INTRODUCTION
This chapter aims to set out the rules governing “employment” or “sta-
ing” of employees whose appointment and employment are governed
by the Public Service Employment Act (PSEA).1
In most labour law texts, including texts dealing with public ser-
vice labour law, there is no need to distinguish between “labour” and
“employment” law. In the private sector, “labour law” refers to the laws
governing unionized employees, and “employment law” refers to the
laws governing all employees, regardless of whether they are members
of a union. Hence, in Ontario, there is a Labour Relations Act for
unionized employees, and an Employment Standards Act setting out
minimum standards that govern unionized and non-unionized employ-
ees alike. In the federal public service, “employment” law refers largely
to appointments to the core public administration. While the PSEA also
governs political activities of public servants and layos, those powers
have already been addressed in previous chapters. The core of “employ-
ment law” in the federal public service is about appointments — or, to
use jargon common to the federal public service, “stang.”
There was nothing requiring the federal government to isolate sta-
ing into a dierent statutory or legal regime from collective bargaining.
In Ontario, for example, where there is no statutory “merit principle,”
allegations about promotions that are not made according to merit
1 Public Service Employment Act, SC 2003, c 22, ss 12 & 13 [PSEA].
554 | LABOUR AND EMPLOYMENT LAW IN THE FEDERAL PUBLIC SERVICE
(and seniority) are dealt with by way of grievance like any other com-
plaint.2 The Fryer Report recommended some level of integration of the
“labour” and “stang” areas, although not a full-scale integration, as
is the case in Ontario. The Federal Public Sector Labour Relations Act
(FPSLRA)3 does go some way toward that integration by permitting
grievances about deployments, a subject matter that (under the old
Act) was dealt with exclusively by the Public Service Commission on
the “stang” side of the divide. However, for the most part, the federal
government has decided to deal with appointments through a specific
statutory regime rather than permit the parties to negotiate aspects of
the promotional process.
The cornerstone of “employment law” in the federal public service
is the “merit principle.” This principle was first enshrined in the 1908
Civil Service Act4 and then extended to employees outside of Ottawa
in the 1918 version of the Civil Service Act.5 As discussed in the his-
torical overview in Chapter 2, the principle of appointment according
to merit evolved throughout the latter half of the nineteenth century
and the early part of the twentieth century due to an emerging con-
sensus that appointments to the federal civil service should be based
on merit instead of patronage. However, despite that consensus, the
term “merit” was not defined by legislation. Instead, a rich body of
jurisprudence developed (particularly after employees gained the right
to appeal against promotions and transfers), defining and then refining
the merit principle.
On 1 April 2005, the old PSEA was repealed and replaced by a
new Act of the same name. The new PSEA made wholesale changes
to the merit principle, including a statutory definition of “merit” and
a more limited right of appeal against appointments that are alleged to
be contrary to merit. However, as explained below, the old jurispru-
dence about the merit principle — now almost twenty years old — is
still relevant to interpreting the new Act and should not be discarded
out of hand.
Finally, it is worth examining why the PSEA and the merit princi-
ple were amended in 2005, and whether those amendments were truly
2 Timothy Hadwen & David Strang, Ontario Public Service Employment &
Labour Law, 2e (Toronto: Irwin Law, 2024) at 18–21.
3 Federal Public Sector Labour Relations Act, SC 2003, c 22, s 2 [FPSLRA].
4 The Civil Service Amendment Act, 1908, 7-8 Edward VII, c 15 (1908).
5 The Civil Service Act, 8-9 George V, c 12 (1918).
Appointments and the Public Service Employment Act | 555
necessary. The purpose behind the amendments to the merit principle
and the appointments process was to permit greater flexibility in mak-
ing appointments to and within the federal public service. The minister
responsible for the Act testified before the Standing Committee on Gov-
ernment Operations and Estimates as follows:
We have all heard the complaints about the current stang system: it
is too cumbersome, too slow and too focused on unnecessary red tape.
It is an obstacle course. We need to fix this if we want to compete with
more agile employers.
The provisions of the bill are designed to promote increased flex-
ibility in stang. They will improve the way we achieve results for
Canadians by ensuring our continued ability to put the right people
in the right place at the right time.6
The federal public service was rife with anecdotal evidence about
the glacial pace of the appointments process and the inevitable frustra-
tion this caused. Nowhere is this better demonstrated than in Sampson
v Canada (Attorney General).7 Mr. Sampson had been employed on a
term basis as an immigration counsellor with the Immigration Depart-
ment since 1990. He won a competition for an indeterminate position
in July 1993. Unfortunately for Mr. Sampson, one of the unsuccessful
candidates in that competition appealed against his appointment. The
Public Service Commission Appeal Board allowed that appeal in Feb-
ruary 1994. The government applied for judicial review but lost that
application at first instance in June 1995 before being successful in May
1997. The Federal Court of Appeal returned the matter to the appeal
board for redetermination on the basis that the original appeal must
be dismissed. However, when Mr. Sampson asked to be appointed to
the position he had won, he was informed that due to anticipated sta
reductions he would not be appointed to that position, and he was in
fact released from the public service in March 1998 upon the expira-
tion of his last term contract. Mr. Sampson applied to Federal Court to
force the federal public service to appoint him, but, although expressing
sympathy for him, the Court concluded that the government was not
6 House of Commons, Standing Committee on Government Operations and
Estimates, Evidence, 37-2 (27 February 2003) at 9:15 (Hon Lucienne Robil-
lard), online: https://www.ourcommons.ca/DocumentViewer/en/37-2/OGGO/
meeting-12/evidence.
7 Sampson v Canada (Attorney General), [1999] FCJ No 1030.
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