Canada (Attorney General) v. Roy, 2008 FC 1296

• Judge: Shore, J.
• Court: Federal Court (Canada)
• Case Date: November 04, 2008
• Jurisdiction: Canada (Federal)
• Citations: 2008 FC 1296;(2008), 338 F.T.R. 255 (FC)

Can. (A.G.) v. Roy (2008), 338 F.T.R. 255 (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: [2009] F.T.R. TBEd. JA.019

Procureur général du Canada (demandeur) v. Gaston Roy (défendeur)

(T-695-07; 2008 CF 1296; 2008 FC 1296)

Indexed As: Canada (Attorney General) v. Roy

Federal Court

Shore, J.

November 28, 2008.

Summary:

The Correctional Service of Canada (CSC) issued a competition for correctional supervisor positions. Roy submitted his application but was not successful. Roy appealed. The Appeal Board of the Investigations Branch of the Public Service Commission allowed the appeal. The Attorney General of Canada applied for judicial review.

The Federal Court dismissed the application.

Labour Law - Topic 9193

Public service labour relations - Job competitions - General - Appeals (incl. waiver) - The Correctional Service of Canada (CSC) issued a competition for correctional supervisor positions - Roy submitted his application but was not successful - Roy appealed - The Appeal Board of the Investigations Branch of the Public Service Commission allowed the appeal - The Attorney General of Canada applied for judicial review - The Federal Court discussed the burden of proof of an appellant in an appeal brought under s. 21 of the Public Service Employment Act and stated that an appellant before the Appeal Board had "the burden of demonstrating the merits of the allegations that the merit principle was not honored in the selection process ... To discharge this burden, the appellant must demonstrate that there is a real possibility or likelihood that the best persons possible were not appointed" - See paragraph 28.

Labour Law - Topic 9193.1

Public service labour relations - Job competitions - General - Appeals - Jurisdiction of appeal board - The Correctional Service of Canada (CSC) issued a competition for correctional supervisor positions - Roy submitted his application but was not successful - Roy appealed - The Appeal Board of the Investigations Branch of the Public Service Commission allowed the appeal - The Attorney General of Canada applied for judicial review - The Federal Court discussed the power of an Appeal Board hearing an appeal under s. 21 of the Public Service Employment Act and stated that "an appeal board has a different function from a selection board. Its duty did not consist in reassessing the candidates, but holding an inquiry to determine whether the selection was made according to merit ... An appeal board does not have the right to review the reasonableness of the assessment of a selection board if it is not without merit. ... As for its jurisdiction, an appeal board should be only concerned with the actions of the Commission in selecting from among the candidates who have the qualifications required by the employer-department the one who is the most meritorious ... An appeal board that decides on the qualifications of candidates exceeds its jurisdiction, and is thereby committing an error of law that is reviewable by this Court on the standard of correctness." - See paragraphs 23 to 27.

Labour Law - Topic 9203

Public service labour relations - Job selection - General - Merit principle - The Correctional Service of Canada (CSC) issued a competition for correctional supervisor positions - Roy submitted his application but was not successful - Roy appealed - The Appeal Board of the Investigations Branch of the Public Service Commission allowed the appeal - The Appeal Board held that instead of focussing on Roy's experience, the Screening Board had assessed the candidates' experience quantitatively, not qualitatively - The definition of qualifications established by the Screening Board provided that the term "extensive experience" required at least two years' experience as a primary worker or as a parole officer or in a CX-02 position - Temporal criteria were applied quantitatively and without a check of whether the candidates actually had the qualifications - The Appeal Board found that by restricting its assessment to the duration of service in a position on the basis of its specific group and level rather than the extent of the experience acquired, the Screening Board had violated the merit principle - The Attorney General of Canada applied for judicial review - The Federal Court dismissed the application - The Screening Board did not have the power to add to the qualifications because it was not acting with the authority of the CSC, which had an exclusive power in this regard - Moreover, even if the Screening Board had such a power, the changes were not reasonable because the Screening Board used temporal criteria that violated the merit principle - It went against the merit principle that Roy's application was rejected because of one minor detail, especially when the qualifications were specified in detail and without notice - See paragraphs 29 to 52.

Cases Noticed:

Canada (Attorney General) v. Bates, [1997] 3 F.C. 132; 129 F.T.R. 61 (T.D.), refd to. [para. 1].

Stout v. Public Service Commission of Canada, Appeals Branch and Murby (1983), 51 N.R. 68; 24 A.C.W.S.(2d) 74 (F.C.A.), refd to. [para. 2].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 20].

Davies v. Canada (Attorney General) et al. (2005), 330 N.R. 283; 2005 FCA 41, refd to. [para. 21].

McGregor v. Canada (Attorney General) et al. (2007), 366 N.R. 206; 2007 FCA 197, refd to. [para. 21].

Canada (Attorney General) v. Clegg (2008), 380 N.R. 275; 168 A.C.W.S.(3d) 109; 2008 FCA 189, refd to. [para. 21].

Ratelle, Re (1975), 12 N.R. 85 (F.C.A.), refd to. [para. 23].

Ratelle v. Public Service Commission Appeal Board (Can.) - see Ratelle, Re.

Blagdon v. Public Service Commission Appeal Board (Can.), [1976] 1 F.C. 615 (F.C.A.), refd to. [para. 24].

Scarizzi v. Marinaki (1994), 87 F.T.R. 66 (T.D.), refd to. [para. 25].

Canada (Attorney General) v. Perera (2000), 256 N.R. 57; 189 D.L.R.(4th) 519 (F.C.A.), leave to appeal dismissed (2001), 270 N.R. 195 (S.C.C.), refd to. [para. 27].

Canada (Attorney General) v. Girouard et al. (2002), 291 N.R. 289; 2002 FCA 224, refd to. [para. 28].

Leckie et al. v. Canada, [1993] 2 F.C. 473; 151 N.R. 377 (F.C.A.), refd to. [para. 28].

Krawitz v. Canada (Attorney General) (1994), 86 F.T.R. 47; 51 A.C.W.S.(3d) 2 (T.D.), refd to. [para. 32].

Mercer et al. v. Canada (Attorney General) et al. (2004), 327 N.R. 263; 244 D.L.R.(4th) 382; 2004 FCA 301, refd to. [para. 33].

Bambrough v. Public Service Commission Appeal Board (Can.), [1976] 2 F.C. 109; 12 N.R. 553 (F.C.A.), refd to. [para. 34].

Canada (Attorney General) v. Blashford et al., [1991] 2 F.C. 44; 120 N.R. 223 (F.C.A.), refd to. [para. 35].

Hassall et al. v. Canada (Attorney General) (1999), 162 F.T.R. 295; 86 A.C.W.S.(3d) 112 (T.D.), refd to. [para. 47].

Brookman v. Canada (Attorney General) et al. (2000), 184 F.T.R. 47; 97 A.C.W.S.(3d) 926 (T.D.), refd to. [para. 47].

Statutes Noticed:

Public Service Employment Act, R.S.C. 1985, c. P-33, sect. 21 [para. 18].

Counsel:

Paul Deschênes, for the applicant;

Marie Pépin, for the respondent.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the applicant;

Pépin and Roy, Montreal, Quebec, for the respondent.

This application was heard on November 4, 2008, at Montreal, Quebec, by Shore, J., of the Federal Court, who delivered the following judgment on November 28, 2008.