Maslanko v. Canada (Attorney General), (1997) 132 F.T.R. 15 (TD)

• Judge: MacKay, J.
• Court: Federal Court (Canada)
• Case Date: April 09, 1997
• Jurisdiction: Canada (Federal)
• Citations: (1997), 132 F.T.R. 15 (TD)

Maslanko v. Can. (A.G.) (1997), 132 F.T.R. 15 (TD)

MLB headnote and full text

Temp. Cite: [1997] F.T.R. TBEd. JN.040

In The Matter Of an application to review and set aside, pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, the Decision of Appeal Board Chairperson Murby rendered December 5, 1995, by which Chairperson Murby declined jurisdiction to hear the Applicant's appeal

(P.S.C. File No.: 95-NAR-1190J).

Janice Maslanko (applicant) v. Attorney General of Canada (respondent)

(T-19-96)

Indexed As: Maslanko v. Canada (Attorney General)

Federal Court of Canada

Trial Division

MacKay, J.

May 23, 1997.

Summary:

Maslanko appealed the assignment of another employee to a temporary position with the Department of National Revenue. The Public Service Commission Appeal Board determined that the assignment was not an "appointment" and, therefore, Maslanko was not entitled to a right of appeal under s. 21 of the Public Service Employment Act. Maslanko applied for judicial review.

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

Administrative Law - Topic 9105

Boards and tribunals - Judicial review - Question of law - Maslanko appealed the assignment of another employee to a temporary position - The Public Service Commission Appeal Board determined that the assignment was not an "appointment" and, therefore, Maslanko was not entitled to a right of appeal under s. 21 of the Public Service Employment Act - Maslanko applied for judicial review - The Federal Court of Canada, Trial Division, stated that the Board's determination was a question of law - The court stated that "[w]hether facts, once established, satisfy some legal criteria, requirement or definition, is a question of law." - See paragraphs 11 to 14.

Evidence - Topic 9

General and definitions - What constitutes a "question of law" - [See Administrative Law - Topic 9105 ].

Labour Law - Topic 9028

Public service labour relations - Definitions - Appointment to a position - [See both Labour Law - Topic 9283 ].

Labour Law - Topic 9281

Public service labour relations - Job selection without job competition - General - The Federal Court of Canada, Trial Division, affirmed that a reasonable degree of flexibility or maneuverability was to be accorded to the administration to assign Public Service employees temporarily to new functions without giving rise to the application of the merit principle and the right of appeal under s. 21 of the Public Service Employment Act - This maneuverability was not unlimited but must be exercised in a "reasonable" manner, within the bounds of "reasonable flexibility" - See paragraph 22.

Labour Law - Topic 9283

Public service labour relations - Job selection without job competition - Appointment to a job - What constitutes - Pearcy was assigned within the same department to a position at the same job level for a one year term - He had the same status and benefits from his permanent position - He was to return to his existing or "substantive" position at the term's end - Maslanko appealed the assignment - The Chairperson of the Public Service Commission Appeal Board determined that the assignment was not an "appointment" and, therefore, Maslanko was not entitled to a right of appeal under s. 21 of the Public Service Employment Act - Maslanko applied for judicial review - The Federal Court of Canada, Trial Division, dismissed the application stating that the Chairperson's conclusion was open to him and no reviewable error was committed in so finding.

Labour Law - Topic 9283

Public service labour relations - Job selection without job competition - Appointment to a job - What constitutes - The Federal Court of Canada, Trial Division, set out three main factors to be considered by a court in determining whether, in the circumstances, in staffing a position on a temporary basis, the administration had exceeded its "reasonable flexibility" so that the staffing action constituted an "appointment" within the meaning of s. 21 of the Public Service Employment Act - See paragraph 23.

Cases Noticed:

Pezim v. British Columbia Securities Commission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1; 114 D.L.R.(4th) 385, refd to. [para. 10, footnote 1].

Moreno and Sanchez v. Minister of Employment and Immigration, [1994] 1 F.C. 298; 159 N.R. 210 (F.C.A.), refd to. [para. 11, footnote 2].

Canada (Attorney General) v. Pearce, [1989] 3 F.C. 272; 99 N.R. 338 (F.C.A.), refd to. [para. 13, footnote 3].

Doré v. Canada, [1987] 2 S.C.R. 503; 81 N.R. 77, refd to. [para. 16, footnote 4].

Canada (Attorney General) v. Brault, [1987] 2 S.C.R. 489; 81 N.R. 61, refd to. [para. 16, footnote 4].

Lucas v. Public Commission Appeal Board (Can.), [1987] 3 F.C. 354; 80 N.R. 109 (F.C.A.), refd to. [para. 16, footnote 4].

Canada (Attorney General) v. Dawidowski (1994), 88 F.T.R. 234 (T.D.), refd to. [para. 16, footnote 4].

Canada (Attorney General) v. Public Service Commission Appeal Board (Can.) et al. (1994), 88 F.T.R. 229 (T.D.), refd to. [para. 23, footnote 8].

Statutes Noticed:

Public Service Employment Act, R.S.C. 1985, c. P-33, sect. 10 [para. 15]; sect. 21(1), sect. 21(1.1) [para. 15].

Authors and Works Noticed:

Wade, H.W.R., Administrative Law (6th Ed. 1988), pp. 938 to 939 [para. 11].

Counsel:

David Yazbeck, for the applicant;

Joseph De Pencier, for the respondent.

Solicitors of Record:

Raven, Jewitt & Allen, Ottawa, Ontario, for the applicant;

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

This application was heard on April 9, 1997, at Ottawa, Ontario, by MacKay, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on May 23, 1997.