The Court granted an order of mandamus and certiorari to the petitioner employee, finding that the respondent employer failed to comply with a direction of the Public Service Appeal Board concerning its competition process and that the respondent employer had no right to make appointments by lateral transfers in the absence of compliance with the direction of the Appeal Board

24. September 2005 0

Administrative law – Judicial review – Compliance with legislation – Procedural requirements – Remedies – Mandamus – Certiorari

Gowman v. Land and Water British Columbia Inc., [2002] B.C.J. No. 2406, British Columbia Supreme Court, October 22, 2002, Owen-Flood J.

The respondent posted a competition for seven “Land and Water Manager” positions. The petitioner applied to the competition but was unsuccessful and his application failed to make it past the initial screening process. The petitioner then filed an appeal with the Public Service Appeal Board, which found that the initial screening process did not comply with the Public Service Act, R.S.B.C. 1996, c. 385, and directed the appointments of the seven positions be rescinded and the competition be reconsidered. The respondent in turn cancelled the competition and filled the seven positions by way of lateral transfers, transferring the persons originally selected by the appointment panel through the impugned competition process into the positions.

The respondent failed to comply with the mandatory directive of the Public Service Appeal Board. The so-called “reconsideration” process done by the respondent was not one that met the Public Services Appeal Board’s standard of being “fair, consistent and documented” and was merely a repetition of the same improper procedures already condemned by the Board.

The Public Service Act creates two rights: the right of appeal for the employee; and the right of the employer to make lateral transfers. Each right must be interpreted in a manner that recognizes the existence of the other and there is nothing in the legislation that gives one right precedence over the other. Where an employee has exercised his right of appeal and succeeded in obtaining a decision from the Appeal Board that the appointments in issue be rescinded, the employer has no right to make lateral transfers in the absence of compliance with the direction of the Appeal Board.

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