Berger et al. v. Canada (Attorney General) et al., (2004) 249 F.T.R. 93 (FC)

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: December 09, 2003
• Jurisdiction: Canada (Federal)
• Citations: (2004), 249 F.T.R. 93 (FC);2004 FC 447

Berger v. Can. (A.G.) (2004), 249 F.T.R. 93 (FC)

MLB headnote and full text

Temp. Cite: [2004] F.T.R. TBEd. AP.008

Bonny Berger, Ian Burchett, Brian Casey, Robert Catellier, Jennifer Daubeny, Robert Farell, Walter Hughes, François Laberge, Andre LeBlanc, Anne Martel, Paul Roche and Stuart Savage (applicants) v. The Attorney General of Canada and Louis Marcotte (respondents)

(T-1494-02; 2004 FC 447)

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

Federal Court

Russell, J.

March 25, 2004.

Summary:

The Department of Foreign Affairs and International Trade sent a request to the Public Service Commission to staff the position of Director, Trade Commissioner Service Marketing. Marcotte had been acting in the position for one year. A Screening Board and a Selection Board determined that Marcotte met the requirements of the position. He was interviewed and assessed and appointed to the position. The Commission received 15 appeals against the appointment. The appellants were asked to provide their curricula vitae for review by the Selection Board. The Selection Board determined that only one appellant met the requirements of the position. That person was interviewed and assessed and was found to be qualified. However, the Selection Board found that Marcotte was the more meritorious of the two and confirmed his appointment. The Public Service Commission Appeal Board dismissed the appellants' appeals. The Appeal Board found that Marcotte had not been given an unfair advantage and that his appointment was not contrary to the merit principle. The appellants applied for judicial review of the Appeal Board's decision.

The Federal Court dismissed the application.

Labour Law - Topic 9203

Public service labour relations - Job selection - General - Merit principle - The Public Service Commission received a request to staff a position - Marcotte had been acting in the position for one year - A Screening Board and a Selection Board determined that Marcotte met the requirements of the position - He was interviewed and assessed and appointed to the position - The Commission received 15 appeals against the appointment - The appellants were asked to provide their curricula vitae for review by the Selection Board - The Selection Board determined that only one appellant met the requirements of the position - That person was interviewed and assessed and was found to be qualified - However, the Selection Board found that Marcotte was the more meritorious of the two and confirmed his appointment - The Public Service Commission Appeal Board dismissed the appellants' appeals - The Appeal Board found that Marcotte had not been given an unfair advantage and that his appointment was not contrary to the merit principle - The appellants applied for judicial review - The Federal Court dismissed the application - The Appeal Board's findings were not unreasonable or incorrect.

Cases Noticed:

Canada (Attorney General) v. Greaves et al., [1982] 1 F.C. 806; 40 N.R. 429 (F.C.A.), refd to. [para. 10].

Boucher v. Canada (Attorney General) (2000), 252 N.R. 186 (F.C.A.), refd to. [para. 13].

Bambrough v. Public Service Commission Appeal Board (Can.), [1976] 2 F.C. 109; 12 N.R. 553 (F.C.A.), refd to. [para. 15].

Ewing v. Canada (Attorney General) et al. (1999), 171 F.T.R. 136 (T.D.), refd to. [para. 18].

Buttau et al. v. Canada (Treasury Board) (1995), 95 F.T.R. 313 (T.D.), refd to. [para. 19].

Stout v. Public Service Commission of Canada, Appeals Branch and Murby (1983), 51 N.R. 68 (F.C.A.), refd to. [para. 20].

Doré v. Canada, [1987] 2 S.C.R. 503; 81 N.R. 77, refd to. [para. 24].

Ordines et al. v. Canada (Procureur général) (1999), 156 F.T.R. 293 (T.D.), refd to. [para. 25].

Canada (Attorney General) v. Bozoian, [1983] 1 F.C. 63; 42 N.R. 226 (F.C.A.), refd to. [para. 30].

Canada (Attorney General) v. Pearce, [1989] 3 F.C. 272; 99 N.R. 338 (F.C.A.), refd to. [para. 46].

McAuliffe v. Canada (Attorney General) (1997), 128 F.T.R. 39 (T.D.), refd to. [para. 46].

Counsel:

James L. Shields, for the applicant;

Lynn Marchildon, for the respondent.

Solicitors of Record:

James L. Shields, Ottawa, Ontario, for the applicant;

Department of Justice, Ottawa, Ontario, for the respondent.

This application was heard on December 9, 2003, at Ottawa, Ontario, before Russell, J., of the Federal Court, who delivered the following decision on March 25, 2004.