The Federal Court allowed an application by a group of federal employees for judicial review of a decision of the Public Service Staffing Tribunal, which had dismissed complaints of abuse of authority that had been filed by the applicants. The Court found that the Tribunal had failed to properly consider the evidence before it and that its decision was unreasonable.

27. October 2009 0

Administrative law – Decisions of administrative tribunals – Public Service Staffing Tribunal – Abuse of public authority – Employment law – Appointment – Competition for employment – Judicial review – Compliance with legislation – Jurisdiction of tribunal – Evidence – Standard of review – Reasonableness simpliciter

Brown v. Canada (Attorney General), [2009] F.C.J. No. 943, Federal Court, July 27, 2009, Heneghan J.

The applicants were employees of the Department of National Defence in Halifax, each holding a position at the PG-02 level. In 2005, the Department had held an open competition for a Senior Contracts Officer position at the PG-04 level. Two of the applicants, along with a Ms. McGuiness, applied for the position. Ms. McGuiness and one of the applicants were unsuccessful in the knowledge examination, while the other applicant withdrew for personal reasons. The position was never filled.

The Contracts Coordination Manager of the branch named Ms. McGuiness as an acting appointee in that position, on the basis that the PG-04 position had yet to be filled and due to operational requirements, and also on the basis that Ms. McGuiness had received the highest, although failing, mark on the knowledge exam. In order to fill the position, Ms. McGuiness was temporarily deployed into a PG-03 position (in which she did not actually serve) before commencing in the PG-04 position. The acting appointment was for less than four months and, when a new staffing process failed to fill the position, Ms. McGuiness’ acting appointment was extended for another four months through a non-advertised process. The Manager later informed one of the applicants who had expressed an interest in the PG-04 acting position that only those candidates ranked at the PG-03 level would be considered for the acting position.

The applicants filed complaints alleging that the Manager had abused her authority in failing to give reasonable consideration to the appointment of qualified PG-02 candidates on an acting basis, in the interim period prior to the conclusion of the second staffing process. The Tribunal determined that it did not have jurisdiction to consider the deployment into a PG-03 position or the initial acting appointment. This was on the basis that a deployment is not the same thing as an appointment, and there is therefore no jurisdiction to hear a complaint under s. 77 of the Public Service Employment Act, on the basis of a deployment. Likewise, pursuant to s. 14(1) of the Public Service Employment Regulations, an acting appointment of less than four months may not be challenged by way of a complaint alleging abuse of authority under s. 77. The Tribunal went on to find that there was no abuse of authority shown in the appointment of Ms. McGuiness to the acting position once it exceeded four months. Finally, the Tribunal found that despite the fact that Ms. McGuiness did not qualify for the position, the Manager had acted appropriately in selecting her in a non-advertised process, given the branch’s past practice of offering an acting assignment to individuals one level below the level of the new position, given Ms. McGuiness’ past experience and in light of the fact that Ms. McGuiness had ranked first among those candidates vying for the position.

The applicants applied to the Court for judicial review of the Tribunal’s decision. The Court first considered the appropriate standard of review. Employing the pragmatic and functional analysis, the Court concluded that the appropriate standard is reasonableness.

The Court found that the Tribunal had erred by failing to look at the totality of the evidence regarding the employment of Ms. McGuiness in the PG-04 position, even on an acting basis. The Tribunal failed to consider the evidence before it from a global perspective. It improperly focused on isolated events rather than looking at the overall picture as to what transpired from the time that Ms. McGuiness was placed in an acting position as a PG-04, immediately after her deployment in the PG-03 position. Without status as a PG-03, it appeared that Ms. McGuiness would not have been eligible for the PG-04 position. The core of the applicants’ complaint did not relate to the deployment of Ms. McGuiness, but rather to what happened subsequently.

In the result, the Tribunal’s decision did not meet the standard of reasonableness. The application for judicial review was allowed, the decision of the Tribunal set aside, and the matter remitted to a differently constituted panel for determination in accordance with the Court’s reasons.

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