Davies v. Canada (Attorney General) et al., (2005) 330 N.R. 283 (FCA)

• Judge: Richard, C.J., Rothstein and Malone, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: January 12, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2005), 330 N.R. 283 (FCA);2005 FCA 41

Davies v. Can. (A.G.) (2005), 330 N.R. 283 (FCA)

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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Temp. Cite: [2005] N.R. TBEd. FE.027

Alison Davies (appellant) v. Attorney General of Canada, Yvette Mulder, Denise Parks, Anna Gallant and Louise Berketa (respondents)

(A-114-04; 2005 FCA 41; 2005 CAF 41)

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

Federal Court of Appeal

Richard, C.J., Rothstein and Malone, JJ.A.

January 28, 2005.

Summary:

Davies, an unsuccessful candidate in a job competition, applied for judicial review of a decision rendered by a Public Ser­vice Com­mis­sion Appeal Board.

The Federal Court, in a decision reported at 245 F.T.R. 118, dismissed the application. Davies appealed.

The Federal Court of Appeal dismissed the appeal.

Labour Law - Topic 9185.1

Public service labour relations - Job com­petitions - General - Qualifications - Re­view of - Davies, an unsuccessful candi­date in a job competition, applied for judi­cial review of a decision rendered by a Pub­lic Service Com­mission Appeal Board - The application was dismissed - Davies appealed - She argued that the application judge erred in holding that the Appeal Board correctly determined that it lacked jurisdiction re­garding "know­ledge thresh­olds" estab­lished by the selec­tion board - Davies argued that the appli­cation judge failed to distinguish between the depart­ment's juris­diction to establish quali­fica­tions and an Appeal Board's juris­dic­tion to deter­mine whether the selec­tion process was consistent with the merit principle by affording a basis for assess­ment of the can­di­dates against such qualifi­cations - The Federal Court of Appeal rejected the argu­ment - The Appeal Board correctly deter­mined that its juris­diction did not extend to reviewing qualifi­ca­tions established by the department - The appli­cation judge under­stood the distinction between review­ing the methods used to evaluate qualifica­tions and review­ing the qualifications themselves - See paragraphs 26 to 44.

Labour Law - Topic 9193.1

Public service labour relations - Job com­petitions - General - Appeals - Jurisdiction of appeal board - [See Labour Law - Topic 9185.1 ].

Labour Law - Topic 9323

Public service labour relations - Judicial review - Decisions of board or commission - Standard of review - Davies, an unsuc­cessful candidate in a job competition, ap­plied for judicial review of a decision of a Public Service Commission Appeal Board - The application was dismissed - Davies ap­pealed - The Federal Court of Appeal applied the pragmatic and func­tional ap­proach to determine the standard of review that was to be applied by the application judge in reviewing the Appeal Board's de­cision - The appropriate stan­dard of review of the Appeal Board's decision on ques­tions relating to the selec­tion process was rea­sonableness - For questions relating to the Appeal Board's jurisdiction, the stan­dard of review was correctness - See para­graph 23.

Practice - Topic 8800.1

Appeals - Duty of appellate court regard­ing findings of mixed law and fact by a tri­al judge - Davies, an unsuccessful candi­date in a job competition, applied for ju­dicial review of a decision of a Public Service Commission Appeal Board - The ap­plication was dismissed - Davies ap­pealed, arguing that the application judge erred in concluding that: (1) the Appeal Board was correct when it determined that it lacked jurisdiction regarding knowledge thresholds required for a position; and (2) the Appeal Board had dealt appropriately with all of Davies' allegations - The Feder­al Court of Appeal held that the question of whether the application judge erred when he found that the Appeal Board had con­sidered all of Davies' allegations was a question of mixed fact and law that could only be disturbed if the court found pal­pable and overriding error by the applica­tion judge - The application judge's review of the Appeal Board's jurisdiction was a question of law which was subject to re­view on a correctness standard - See para­graphs 24 to 25.

Practice - Topic 8800.2

Appeals - Duty of appellate court regard­ing findings of law - [See Practice - Topic 8800.1 ].

Cases Noticed:

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 6].

Wyeth-Ayerst Canada Inc. v. Canada (At­torney General) (2003), 305 N.R. 317; 2003 FCA 257, refd to. [para. 6].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 7].

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, refd to. [para. 10].

Charest v. Canada (Attorney General), [1973] F.C. 1217 (F.C.A.), refd to. [para. 13].

Mercer et al. v. Canada (Attorney General) et al. (2004), 327 N.R. 263; 2004 FCA 301, refd to. [para. 31].

Bauer, Re, [1973] F.C. 626; 6 N.R. 183 (F.C.A.), refd to. [para. 33].

Ricketts v. Department of Transport (1983), 52 N.R. 381 (F.C.A.), refd to. [para. 35].

Nanda v. Public Service Commission Appeal Board (Can.), [1972] F.C. 277 (F.C.A.), refd to. [para. 36].

Canada (Attorney General) v. Viola et al., [1991] 1 F.C. 373; 123 N.R. 83 (F.C.A.), refd to. [para. 41].

Canada (Attorney General) v. Perera (2000), 256 N.R. 57; 189 D.L.R.(4th) 519 (F.C.A.), leave to appeal denied (2001), 270 N.R. 195 (S.C.C.), refd to. [para. 42].

Counsel:

David Yazbeck, for the appellant;

Alex Gay, for the respondent, Attorney General of Canada.

Solicitors of Record:

Raven, Allen, Cameron, Ballantyne & Yazbeck LLP/s.r.l., for the appellant;

John Sims, Deputy Attorney General of Canada, Ottawa, Ontario, for the respon­dent, Attorney General of Canada.

This appeal was heard on January 12, 2005, at Ottawa, Ontario, before Richard, C.J., Rothstein and Malone, JJ.A., of the Federal Court of Appeal. The following judg­ment of the Court of Appeal was de­livered by Richard, C.J., on January 28, 2005.