Canada (Attorney General) v. Brault, (1987) 81 N.R. 61 (SCC)

• Judge: Beetz, Chouinard, Lamer, Le Dain and La Forest, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 31, 1986
• Jurisdiction: Canada (Federal)
• Citations: (1987), 81 N.R. 61 (SCC)

Can. (A.G.) v. Brault (1987), 81 N.R. 61 (SCC)

MLB headnote and full text

[French language version follows English language version]

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

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Serge Brault and Pierre Dubois (appellants) v. Attorney General of Canada (respondent) and Bernard Lenoir, Daniel Beaupre, Pierre Delage, Director, Appeals Division, Public Service Commission (mis-en-cause)

(No. 18949)

Indexed As: Canada (Attorney General) v. Brault

Supreme Court of Canada

Beetz, Chouinard, Lamer, Le Dain and La Forest, JJ.

November 19, 1987.

Summary:

The Department of National Revenue notified customs inspectors of the creation of a canine detection unit and invited applications for assignment of a person as a "dog handler". Brault and Dubois, two customs inspectors who were not selected for the unit, appealed under s. 21 of the Public Service Employment Act. The appeal board allowed the appeal. The board revoked the existing appointments on the ground that there had been an appointment to a position within the meaning of s. 21 of the Act and that such an appointment had not been based on selection according to merit. The Crown applied under s. 28 of the Federal Court Act to set aside the board's decision.

The Federal Court of Appeal, in a decision reported in [1985] 1 F.C. 410; 61 N.R. 133, allowed the application and set aside the board's decision. The Court of Appeal held that the selection of customs inspectors for the canine detection unit did not constitute an appointment to a position for the purposes of the Public Service Employment Act. Brault and Dubois appealed.

The Supreme Court of Canada allowed the appeal and restored the decision of the appeal board. The Supreme Court held that there had been an appointment to a new position, giving rise to a right of appeal under s. 21 of the Act and the requirement of the application of the merit principle.

Crown - Topic 656

Authority of ministers - Authority to create positions - The Supreme Court of Canada set out the steps in the creation of a position in the public service and the appointment of a person to a position - The court held that it is the Minister or deputy head of a Department who creates a position and determines the qualifications for appointment to it and that, subject to the necessary approval from the Treasury Board, this act does not call for any particular formality or expression - It is an administrative decision which identifies particular functions to be performed and defines the qualifications required for performing them - See paragraph 11.

Crown - Topic 678

Authority of ministers - Exercise of - Creation of new positions - The Supreme Court of Canada held that the creation of additional functions or duties in a position in the Public Service of Canada, calling for additional qualifications and the selection of a person possessing such qualifications, constituted the creation of a new position, although not formally designated as such - Accordingly, there must be an appointment to the position based on selection according to merit, according to s. 10 of the Public Service Employment Act - The court disagreed that a new position cannot be created by a change in functions of an existing position unless the administration chooses to regard such a change as creating a new position - Minor changes in the functions of an existing position do not create a new position (requiring appointment based on selection according to merit) - See paragraphs 11 to 13.

Labour Law - Topic 9028

Public service labour relations - Appointment to a position defined - The Department of National Revenue notified customs inspectors of the creation of a canine detection unit and invited applications for the "position" of dog handler - The Supreme Court of Canada held that the assignments of persons as dog handlers were appointments to a position in the public service.

Labour Law - Topic 9028

Public service labour relations - Appointment to a position defined - [See Crown - Topic 678 above].

Labour Law - Topic 9213

Public service labour relations - Job selection - Appointment - General - [See Crown - Topic 678 above].

Labour Law - Topic 9213

Public service labour relations - Job selection - Appointment - General - [See first Labour Law - Topic 9028 above].

Labour Law - Topic 9626

Public service labour relations - Collective agreement - Management rights - Creation and elimination of positions - [See Crown - Topic 656 above].

Labour Law - Topic 9626

Public service labour relations - Collective agreement - Management rights - Creation and elimination of positions - [See Crown - Topic 678 above].

Words and Phrases

Appointment - The Supreme Court of Canada discussed the meaning of the word "appointment" as found in the Public Service Employment Act, R.S.C. 1970, c. P-32.

Words and Phrases

Position - The Supreme Court of Canada discussed the meaning of the word "position" as found in the Public Service Employment Act, R.S.C. 1970, c. P-32.

Cases Noticed:

Kelso v. Canada, Government of, [1980] 1 F.C. 659; 31 N.R. 70; revsd on other grounds [1981] 1 S.C.R. 199; 35 N.R. 19, refd to. [para. 6].

Brown v. Public Service Commission, [1975] F.C. 345; 9 N.R. 493, refd to. [para. 11].

Statutes Noticed:

Public Service Employment Act, R.S.C. 1970, c. P-32, sect. 6, sect. 8 [para. 11]; sect. 10 [paras. 1, 5, 8]; sect. 12 [para. 8]; sect. 21 [paras. 1-2, 4-6, 8, 12-13].

Public Service Employment Regulations, C.R.C. 1978, c. 1337, sect. 5 [paras. 5, 8].

Counsel:

Robert W. Côté, for the appellants;

James M. Mabbutt and Jean-Marc Aubry, for the respondents.

Solicitors of Record:

Gowling & Henderson, Ottawa, Ontario, for the appellants;

James M. Mabbutt, Ottawa, Ontario, for the respondent.

This appeal was heard before Beetz, Chouinard, Lamer, Le Dain and La Forest, JJ., of the Supreme Court of Canada, on October 31, 1986. The decision of the Supreme Court was delivered in both official languages by Le Dain, J., on November 19, 1987.

Chouinard, J., did not take part in the judgment.