Lo v. Public Service Commission Appeal Board (Can.) et al., (1997) 222 N.R. 393 (FCA)

• Judge: Desjardins, Décary and Linden, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: December 18, 1997
• Jurisdiction: Canada (Federal)
• Citations: (1997), 222 N.R. 393 (FCA)

Lo v. Public Service Comm. (1997), 222 N.R. 393 (FCA)

MLB headnote and full text

Temp. Cite: [1998] N.R. TBEd. JA.010

In The Matter Of an application for judicial review and set aside, and for declaratory relief pursuant to ss. 18(1) and 18.1(1) of the Federal Court Act, R.S.C. 1985, c. F-7, as amended;

And In The Matter Of a decision of an Appeal Board, established pursuant to s. 5(c) of the Public Service Employment Act, rendered by John A. Mooney dated 21st November 1995, with respect to the appeal of Marilla Lo under s. 21 of the Public Service Employment Act, R.S.C. 1985, c. P-32, as amended.

The Public Service Commission Appeal Board, The Public Service Commission of Canada and The Treasury Board Secretariat of Canada (appellants/respondents) v. Marilla Lo (respondent/applicant)

(A-196-97)

Indexed As: Lo v. Public Service Commission Appeal Board (Can.) et al.

Federal Court of Appeal

Desjardins, Décary and Linden, JJ.A.

December 18, 1997.

Summary:

Lo applied for a closed competition po­sition. She was notified that Wilson and Steadman were the successful candidates and that she did not have the linguistic qualifi­cations. Lo appealed the selection process to the Public Service Commission Appeal Board. The Appeal Board dismissed the appeal. Lo applied for judicial review.

The Federal Court of Canada, Trial Di­vision, in a decision reported at 95 F.T.R. 132, allowed the application. The court found that Wilson and Steadman did not possess the required educational qualifi­cations and that an improper selection standard had been used. The court set aside the Appeal Board's decision and referred the matter back to a newly constituted board. A new Appeal Board allowed the appeal against the appointment of Wilson, but decided that the appeal against the appoint­ment of Steadman was moot, because Stead­man had been transferred and had subsequently resigned. Lo sought judicial review.

The Federal Court of Canada, Trial Di­vision, in a decision reported at 126 F.T.R. 274, allowed the application. The court held that the Appeal Board erred in concluding that the appeal against Steadman's appoint­ment was moot. The court referred the mat­ter back for rehearing and redetermination of Lo's appeal solely on the issue of a defect in the process for the selection for appointment of Steadman. The Appeal Board appealed.

The Federal Court of Appeal affirmed that the Appeal Board erred in concluding that the appeal was moot. However, the court modified the order of the Trial Division to refer the matter back to the Appeal Board for redetermination on the basis that the appeal against the appointment of Steadman should be allowed.

Labour Law - Topic 9193

Public service labour relations - Job com­petitions - General - Appeals - Steadman was a successful candidate in a closed competition - Lo, an unsuccessful candi­date, appealed - An Appeal Board dis­missed the appeal - Lo sought judicial review - Pinard, J., found that an improper selection standard was used and referred the matter to a new Appeal Board - The new Board decided that the appeal was moot because Steadman had been trans­ferred and subsequently resigned - Lo sought judicial review - Gibson, J., held that the Board erred in concluding that the appeal was moot and that s. 21(3) of the Public Service Employment Act empowered the Board to take any measures to remedy a defect in the selection process - The matter was remitted to the Board for redetermination - The Federal Court of Appeal affirmed that the Board erred in concluding that the appeal was moot - However, the court held that Gibson, J., erred in giving such a wide interpretation to s. 21(3) and that the Board was bound by Pinard, J.'s, decision - The court remitted the matter to the Board for redetermination on the basis that Lo's appeal should be allowed.

Labour Law - Topic 9193.1

Public service labour relations - Job com­petitions - General - Appeals - Jurisdiction of appeal board - [See Labour Law - Topic 9193 ].

Labour Law - Topic 9261

Public service labour relations - Job selec­tion with job competition - Selection pro­cess - Appeals - [See Labour Law - Topic 9193 ].

Cases Noticed:

Noël v. Ministre de l'Emploi et de l'Im­migration (1991), 136 N.R. 398 (F.C.A.), dist. [para. 2, footnote 3].

Charest v. Canada (Attorney General), [1973] F.C. 1217 (F.C.A.), refd to. [para. 16, footnote 6].

Shannon v. Canada (Attorney General), [1993] 1 F.C. 331; 151 N.R. 45 (F.C.A.), refd to. [para. 16, footnote 6].

Statutes Noticed:

Public Service Employment Act, R.S.C. 1985, c. P-33, sect. 21(3) [para. 2].

Counsel:

Brian J. Saunders, for the appellants;

Peter C. Engelmann, for the respondent.

Solicitors of Record:

George Thomson, Deputy Attorney General of Canada, Ottawa, Ontario, for the appellant;

Caroline Engelmann Gottheil, Ottawa, Ontario, for the respondent.

This appeal was heard on December 18, 1997, at Ottawa, Ontario, before Desjardins, Décary and Linden, JJ.A., of the Federal Court of Appeal. The following judgment of the Court of Appeal was delivered orally by Desjardins, J.A., on the same date.