Bauer, Re, (1973) 6 N.R. 183 (FCA)

• Judge: Jackett, C.J., St.-Germain and Bastin, D.J.
• Court: Federal Court of Appeal (Canada)
• Case Date: May 31, 1973
• Jurisdiction: Canada (Federal)
• Citations: (1973), 6 N.R. 183 (FCA)

Bauer, Re (1973), 6 N.R. 183 (FCA)

MLB headnote and full text

Re Bauer

Indexed As: Bauer, Re

Federal Court of Appeal

Jackett, C.J., St.-Germain and Bastin, D.J.

May 31, 1973.

Summary:

This case arose out of a job competition for an appointment of a Senior Manpower Counseller in the Department of Manpower and Immigration. A requirement of the job was stated to be a "knowledge and use of both the English and French languages". The grievor failed an examination respecting proficiency in the French language and thereby did not qualify for the job. The grievor appealed the appointment of the successful candidate pursuant to s. 21 of the Public Service Employment Act. The grievor claimed that the Department of Manpower and Immigration did not have the legal authority to establish knowledge of the French language as a job qualification because such authority was given to the Public Service Commission by virtue of s. 20 of the Public Service Employment Act and that such authority was not exercised in connection with the job competition in question. The appeal board dismissed the appeal by the grievor.

On appeal to the Federal Court of Appeal pursuant to s. 28 of the Federal Court Act the appeal was dismissed and the appointment of the successful candidate was affirmed. The Federal Court of Appeal stated that s. 20 of the Public Service Employment Act did not operate to invalidate a particular appointment. The Federal Court of Appeal stated that s. 20 was intended to operate when a question arose as the adequacy of the number of employees with particular language qualifications being appointed to a particular part of the public service - see paragraph 24.

Labour Law - Topic 9178

Public service labour relations - Job competitions - Language qualifications - The grievor entered a job competition for an appointment as a senior manpower counsellor in the Department of Manpower and Immigration - A requirement of the job was stated to be a "knowledge and use of the English and French languages" - The grievor failed an examination respecting proficiency in the French language and thereby did not qualify for the job - The grievor claimed that the Department of Manpower and Immigration did not have the legal authority to establish knowledge of the French language as a job qualification because such authority was given to the Public Service Commission by virtue of s. 20 of the Public Service Employment Act and such authority was not exercised in connection with the job competition in question - The Federal Court of Appeal held that the failure of the Public Service Commission to act pursuant to s. 20 did not operate to invalidate a particular appointment - The Federal Court of Appeal stated that s. 20 was intended to operate when a question arose as to the adequacy of the number of employees with a particular language qualification being appointed to a particular part of the Public Service.

Labour Law - Topic 9021

Public service labour relations - General principles - Hiring authority of ministers - The Federal Court of Appeal stated the general authority of a minister respecting hiring and reviewed the statutory exceptions to such authority - See paragraphs 8 to 14.

Statutes Noticed:

Public Service Employment Act, R.S.C. 1970, c. P-32, sect. 20 [para. 17].

Official Languages Act, S.C. 1968-69, c. 54, sect. 9 [para. 18].

Counsel:

M.W. Wright, Q.C. and J.L. Shields, for the appellant;

D.H. Aylen and R.G. Vincent, for the respondent.

This appeal was heard by the Federal Court of Appeal at Ottawa, Ontario on May 28 and 31, 1973. Judgment was delivered by the Federal Court of Appeal on May 31, 1973 and the following opinions were filed:

JACKETT, C.J. - see paragraphs 1 to 27.

BASTIN, D.J. - see paragraphs 28 to 32.

ST.-GERMAIN, D.J. concurred with JACKETT, C.J.