Bizier et al. v. Canada (Attorney General) et al., 2005 FC 8

• Judge: Noël, J.
• Court: Federal Court (Canada)
• Case Date: December 15, 2004
• Jurisdiction: Canada (Federal)
• Citations: 2005 FC 8;(2005), 268 F.T.R. 18 (FC)

Bizier v. Can. (A.G.) (2005), 268 F.T.R. 18 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2005] F.T.R. TBEd. JA.023

Donat Bizier, Benoît Patenaude, Paul Boucher, Jean-Marc Comeau, Daniel Morin and Gaétan Loiseau (applicants) v. Attorney General of Canada and Marcel Hachez (respondents)

(T-1017-03; 2005 CF 8; 2005 FC 8)

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

Federal Court

Noël, J.

January 6, 2005.

Summary:

The Department of National Defence employed Hachez as a chief estimator/designer (EG-05). In the spring of 1996, Hachez was assigned new duties while holding a project manager position at the EG-05 group and level. He had been appointed to the project manager position without a competition. On June 1, 1998, the designer position was changed to project manager (EG-05). On October 16, 2000, Hachez's position was reclassified to EG-06, retroactive to April 1997. The applicants, all of whom held EG-05 positions on April 1, 1997, appealed Hachez's appointment. The Public Service Commission Appeal Board concluded that it lacked jurisdiction to decide whether the case involved a new position or a reclassified decision. The Board dismissed the appeal on the ground that the appointment had been consistent with the merit principle. The applicants applied for judicial review.

The Federal Court dismissed the application.

Labour Law - Topic 9203

Public service labour relations - Job selections - Merit principle - The Department of National Defence employed Hachez as a chief estimator/designer (EG-05) - In 1996, Hachez was assigned new duties while holding a project manager position (EG-05) level - He had been appointed to the project manager position without a competition - On June 1, 1998, the designer position was changed to project manager (EG-05) - On October 16, 2000, the position was reclassified to EG-06, retroactive to April 1997 - An appeal board held that the appointment was consistent with the merit principle and dismissed an appeal - The appellants applied for judicial review, asserting that the merit principle had not been respected because the assessment of Hachez's qualifications and suitability was made after his appointment during the appeal process - The Federal Court dismissed the application - Not only did the appellants not show that Hachez lacked the qualifications, they admitted that he would have been the best qualified candidate and the successful candidate had a competition been held - Despite the importance of the merit principle and of following established procedures to ensure the integrity of the process, there was consistent and undisputed evidence that Hachez was amply qualified - Thus, the merit principle was respected even if the process that was followed left something to be desired - See paragraphs 32 to 34.

Labour Law - Topic 9218

Public service labour relations - Job selection - Appeal to appeal board - Scope of - The Department of National Defence employed Hachez as a chief estimator/designer (EG-05) - In the spring of 1996, Hachez was assigned new duties while holding a project manager position (EG-05) - He had been appointed to the project manager position without a competition - On June 1, 1998, the designer position was changed to project manager (EG-05) - On October 16, 2000, the position was reclassified to EG-06, retroactive to April 1997 - In dismissing an appeal, an appeal board concluded that it lacked jurisdiction to decide whether the case involved a new position or a reclassified position - The Federal Court affirmed that the board lacked jurisdiction to determine whether a reclassified position was actually a new position or vice versa - The board could only determine whether the process of making an appointment to a position (new or reclassified) was consistent with the merit principle - See paragraphs 29 to 31.

Labour Law - Topic 9288

Public service labour relations - Job selection without job competition - Selection process - General - [See Labour Law - Topic 9203 ].

Labour Law - Topic 9290

Public service labour relations - Job selection without job competition - Selection process - Appeals - [See Labour Law - Topic 9218 ].

Labour Law - Topic 9323

Public service labour relations - Judicial review - Decisions of board or commission - Standard of review - The Department of National Defence employed Hachez as a chief estimator/designer (EG-05) - In the spring of 1996, Hachez was assigned new duties while holding a project manager position (EG-05) - He had been appointed to the project manager position without a competition - On June 1, 1998, the designer position was changed to project manager (EG-05) - On October 16, 2000, the position was reclassified to EG-06, retroactive to April 1997 - An appeal board concluded that it lacked jurisdiction to decide whether the case involved a new position or a reclassified position - The board dismissed the appeal on the ground that the appointment was consistent with the merit principle - The Federal Court concluded that the issue of the board's jurisdiction was a question of law reviewable on the standard of correctness - Whether the appointment was consistent with the merit principle was a mixed question of fact and law reviewable on the standard of reasonableness simpliciter - See paragraphs 26 to 28.

Cases Noticed:

Larose et al. v. Canada (Procureur général) et al. (2002), 230 F.T.R. 131 (T.D.), refd to. [para. 10].

Canada (Attorney General) v. Laidlaw et al. (1998), 237 N.R. 1 (F.C.A.), refd to. [para.14].

Beaudry et al. v. Canada (Attorney General) et al. (2000), 180 F.T.R. 279 (T.D.), affd. (2000), 264 N.R. 389 (F.C.A.), refd to. [para. 14].

Canada (Attorney General) v. Brault, [1987] 2 S.C.R. 489; 81 N.R. 61, refd to. [para. 15].

Field v. Canada (Attorney General) (1995), 93 F.T.R. 158 (T.D.), refd to. [para. 17].

Ratelle, Re (1975), 12 N.R. 85 (F.C.A.), refd to. [para. 20].

Ricketts v. Canada (Department of Transport) (1983), 52 N.R. 381 (F.C.A.), refd to. [para. 20].

Canada v. Henri, [1986] F.C.J. No. 153 (F.C.A.), refd to. [para. 20].

Boucher et al. v. Canada (Attorney General) (2000), 252 N.R. 186 (F.C.A.), refd to. [para. 26].

Mathuik v. Canada (Attorney General) et al. (2001), 199 F.T.R. 42 (T.D.), refd to. [para. 26].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201; 160 D.L.R.(4th) 193, refd to. [para. 26].

Housen v. Nickolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 211 D.L.R.(4th) 577; 2002 SCC 33, refd to. [para. 28].

Buttar v. Canada (Attorney General) et al. (2000), 254 N.R. 368 (F.C.A.), refd to. [para. 31].

Counsel:

James Cameron, for the applicants;

Marie Crowley, for the respondent, Attorney General of Canada;

Marcel Hachez, for the respondent, Marcel Hachez.

Solicitors of Record:

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

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

Marcel Hachez, St-Jean-Sur-Richelieu, Quebec, for the respondent, Marcel Hachez.

This application was heard in Ottawa, Ontario, on December 15, 2004, by Noël, J., of the Federal Court, who delivered the following judgment on January 6, 2005.