Civil Service Association of Alberta et al. v. Alberta (Minister of Education) and Boesen, (1976) 2 A.R. 43 (CA)

• Judge: Clement, Moir and Haddad, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: September 28, 1976
• Citations: (1976), 2 A.R. 43 (CA)

Civil Service Assoc. v. Alta. (1976), 2 A.R. 43 (CA)

MLB headnote and full text

Civil Service Association of Alberta et al. v. Minister of Education and Boesen

Indexed As: Civil Service Association of Alberta et al. v. Alberta (Minister of Education) and Boesen

Alberta Supreme Court

Appellate Division

Clement, Moir and Haddad, JJ.A.

September 28, 1976.

Summary:

This case arose out of the applicant's claim that two teachers in the Department of Education were improperly appointed to two new positions without a competition contrary to the Public Service Act, R.S.A. 1970, c. 298. The defendant, a superintendent of a government school for the deaf, reorganized one wing of the school with the result that two new senior teacher positions were created. The superintendent appointed two teachers to fill the positions without a competition contrary to the Public Service Act, R.S.A. 1970, c. 298. The applicants, who were fellow teachers of those appointed, applied for an order in the nature of certiorari to set aside the appointments. The Alberta Supreme Court granted the application and set aside the appointments. The defendant Minister of Education appealed.

The Appellate Division dismissed the appeal. The Appellate Division held that certiorari lay against the decision of the superintendent, because he was a statutory body, who had the power to make a final decision regarding appointments, a decision which was required to be made on a quasi-judicial basis after a competition.

Administrative Law - Topic 1216

Classification of power or function - Functions classified as quasi-judicial - Appointment of civil servant after competition - The Public Service Act, R.S.A. 1970, c. 298, required certain appointments to positions in the public service to be made after competition - The Alberta Court of Appeal held that the selection and appointment of an employee to a position after a competition was a quasi-judicial act - See paragraphs 16 to 23.

Administrative Law - Topic 5040

Judicial review - Certiorari - Tribunals subject to certiorari - Statutory bodies - The Alberta Court of Appeal held that certiorari only lay with regard to statutory bodies - See paragraphs 9 to 15.

Administrative Law - Topic 5042

Judicial review - Certiorari - Tribunals subject to certiorari - Statutory bodies - What constitutes - Superintendent of a government school - The superintendent of a government school for the deaf was appointed by the Minister of Education pursuant to his authority under the regulations under the Department of Education Act, R.S.A. 1970, c. 96, s. 7(1)(e) - The Alberta Court of Appeal held that the superintendent was a statutory body, who could be subject to certiorari - See paragraphs 12 to 15.

Administrative Law - Topic 5104

Judicial review - Certiorari - Conditions precedent to application - Finality of decision - The superintendent of a government school promoted two teachers without a competition, which the plaintiffs alleged was improper - The plaintiffs applied for an order of certiorari and the Crown alleged that certiorari did not lie, because the superintendent's decision was not final - The Alberta Court of Appeal found that the superintendent had the authority to make a final decision with regard to the appointments and that certiorari did lie - See paragraphs 24 to 28.

Administrative Law - Topic 5110

Judicial review - Certiorari - Conditions precedent to application - Exhaustion of appeals or other remedies - The superintendent of a government school promoted two teachers without a competition, which the plaintiff teachers alleged was improper - After exhausting three of the four levels of the grievance procedure under the collective agreement the plaintiffs applied for an order of certiorari - The Crown objected that certiorari did not lie, because the plaintiffs had not exhausted the grievance procedure - The Alberta Court of Appeal found that the complaint was not a category of grievance which could have been referred to the fourth level of the grievance procedure - The Appellate Division rejected the Crown's objection - See paragraphs 29 to 31.

Administrative Law - Topic 5190

Judicial review - Certiorari - Discretionary bars - Existence of another remedy - What constitutes another remedy - Grievance procedure - The superintendent of a government school promoted two teachers without a competition, which the plaintiff teachers alleged was improper under the Public Service Act, R.S.A. 1970, c. 298 - The plaintiffs applied for an order of certiorari - The Crown objected that the discretion of the court in granting certiorari should not be exercised where another remedy existed; namely, the grievance procedure under the collective agreement - The Alberta Court of Appeal found that the grievance procedure was not a legal remedy, because the appeal was to other government officials, not to the court, and did not provide for ultimate access to the court - The Appellate Division held that the issue involved the interpretation of statutes and regulations and was one properly determined by the court - See paragraphs 32 to 35.

Cases Noticed:

Port Arthur Shipbuilding Co. v. Arthurs, [1969] S.C.R. 85; 70 D.L.R.(2d) 693, appld. [para. 9].

Vanek v. Governors of the University of Alberta, [1975] 5 W.W.R. 429, refd to. [para. 10].

McComb v. Vancouver Real Estate Board (1960), 32 W.W.R.(N.S.) 385, appld. [para. 11].

Re Ness and Incorporated Canadian Racing Association, [1946] O.R. 387, appld. [para. 11].

Re Brown and Brock v. Rentals Administrator, [1945] 3 D.L.R. 324, appld. [para. 16].

Calgary Power v. Copithorn (1959), 16 D.L.R.(2d) 241, appld. [para. 22].

F.F. Ayriss and Company v. Board of Industrial Relations (1960), 23 D.L.R.(2d) 584, dist. [para. 24].

Chad Investments Ltd. v. Longson, Tammets & Denton Real Estate Ltd. et al., [1971] 5 W.W.R. 89, appld. [para. 33].

Madison Developments Corporation v. Town of St. Albert, [1975] 6 W.W.R. 345, appld. [para. 34].

Statutes Noticed:

Department of Education Act, R.S.A. 1970, c. 96, sect. 5 [para. 12]; sect. 7(1)(e) [para. 13].

Public Service Act, R.S.A. 1970, c. 298, sect. 15 [para. 7]; sect. 16(1) [paras. 7, 20]; sect. 16(3) [paras. 7, 17]; sect. 17 [paras. 7, 20, 27]; sect. 18 [paras. 7, 27].

Counsel:

A.P. Hnatiuk, for the appellants;

J.R. Scott, for the respondents.

This case was heard at Edmonton, Alberta, before CLEMENT, MOIR and HADDAD, JJ.A., of the Alberta Supreme Court, Appellate Division.

On September 28, 1976, MOIR, J.A., delivered the following judgment of the Appellate Division: