Kite v. Canada (Attorney General), (1996) 122 F.T.R. 142 (TD)

• Judge: Muldoon, J.
• Court: Federal Court (Canada)
• Case Date: April 10, 1996
• Jurisdiction: Canada (Federal)
• Citations: (1996), 122 F.T.R. 142 (TD)

Kite v. Can. (A.G.) (1996), 122 F.T.R. 142 (TD)

MLB headnote and full text

In The Matter Of an Application to review and set aside, pursuant to section 18 and section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended;

And In The Matter Of a decision of the Public Service Commission Appeal Board, rendered by Joan Stewart, Chairperson, on April 25, 1995, respecting an appeal under section 21 of the Public Service Employment Act, R.S.C. 1985, c. P-33, as amended (Public Service Commission Appeal Board File No. 95-DOE-0364X, 95-DOE-0365X and 95-DOE-0499J)

Dr. Geoffrey W. Kite (applicant) v. Attorney General of Canada (Environment Canada) (respondent)

(T-1143-95)

Indexed As: Kite v. Canada (Attorney General)

Federal Court of Canada

Trial Division

Muldoon, J.

October 29, 1996.

Summary:

Kite's 1992 application for a promotion passed the NHRI level, but was rejected by the C&P committee (second level) as he did not meet the leadership criterion. In 1993, Kite reapplied for promotion, but NHRI did not recommend his application to C&P. Kite appealed against the other promotions. In rejecting Kite's appeal, the Appeal Board held that NHRI could use the 1992 C&P decision as a threshold to ascertain whether Kite's leadership skills warranted change at the C&P level. The 1992 decision, not appealed, was deemed correct. Kite sought judicial review.

The Federal Court of Canada, Trial Division, dismissed the application.

Labour Law - Topic 9183.1

Public service labour relations - Job competitions - Rules and procedure for promotions - Kite's 1992 promotion application passed the NHRI level, but was rejected at the C&P level given his lack of leadership skills - Kite's 1993 application was rejected by NHRI given his insufficient improvement in leadership from the 1992 C&P assessment - Kite's appeal against other promotions was dismissed by the Appeal Board - Kite sought judicial review, claiming that the board failed to apply the promotion standard and that the system was unfair - The Federal Court of Canada, Trial Division, disagreed - A new evaluation of Kite's skills was not required since neither Kite's application nor the standard had changed - The board made its own finding regarding Kite's skills - It was inappropriate to adjudicate the system's fairness in the absence of a breach of procedural fairness - The board correctly concluded that NHRI correctly applied the standard - See paragraphs 10 to 18.

Labour Law - Topic 9183.1

Public service labour relations - Job competitions - Rules and procedure for promotions - Following rejections of his applications for promotions, Kite, a scientist for Environment Canada, appealed the promotions of other scientists made under s. 10(1) of the Public Service Employment Act - The Appeal Board dismissed his appeal - Kite sought judicial review, claiming that the appointment process was void ab initio since the board relied on the wrong analytical framework - The Federal Court of Canada, Trial Division, held that the board's method was not an error of law - It was simply a matter of hindsight that the promotion should have been made under s. 10(2) - The board was correct in employing a s. 10(1) analysis since the promotions were made under s. 10(1) of the Act - See paragraph 19.

Labour Law - Topic 9193.1

Public service labour relations - Job competitions - Appeals - Jurisdiction of appeal board - Kite's 1992 application for promotion passed the NHRI level, but was rejected at the C&P level - Kite reapplied in 1993, but NHRI refused to recommend his application - Kite appealed against 1993 promotions - In rejecting Kite's appeal, the Appeal Board found that NHRI could use as a threshold the 1992 C&P decision, which was deemed correct - Kite sought judicial review, claiming that the board erred by failing to examine the reasonableness of the 1992 C&P decision - The Federal Court of Canada, Trial Division, disagreed - Under s. 21 of the Public Service Employment Act, the board could only confirm or revoke appointments - It would have been beyond the board's jurisdiction to readjudicate the decision - See paragraphs 8 to 9.

Cases Noticed:

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

Lee v. Canada (Attorney General), [1981] 2 S.C.R. 90; 38 N.R. 346, refd to. [para. 7].

Canada (Attorney General) v. Murby - see Lee v. Canada (Attorney General).

Madracki v. Canada (1986), 72 N.R. 257 (F.C.A.), refd to. [para. 7].

Evans v. Public Service Commission Appeal Board, [1983] 1 S.C.R. 582; 47 N.R. 255, refd to. [para. 7].

Shannon v. Canada (Attorney General), [1993] 1 F.C. 331; 151 N.R. 45 (F.C.A.), refd to. [para. 9].

Noel v. Ministre de l'Emploi et de l'Immigration (1991), 136 N.R. 398 (F.C.A.), refd to. [para. 9].

Charest v. Canada (Attorney General), [1973] F.C. 1217; 2 N.R. 288 (F.C.A.), refd to. [para. 9].

Dansereau v. Public Service Appeal Board (Can.), [1991] 1 F.C. 444; 122 N.R. 122 (F.C.A.), refd to. [para. 15].

Blagdon v. Canada (Public Service Commission Appeal Board), [1976] 1 F.C. 615 (F.C.A.), refd to. [para. 16].

Peet v. Canada (Attorney General) (1996), 107 F.T.R. 102 (T.D.), refd to. [para. 19].

Counsel:

Dougald E. Brown, for the applicant;

Geoffrey S. Lester, for the respondent.

Solicitors of Record:

Nelligan Power, Ottawa, Ontario, for the applicant;

George Thomson, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard in Ottawa, Ontario, on April 10, 1996, before Muldoon, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on October 29, 1996, in Calgary, Alberta.