Supreme Court of Canada
Bullion v. The Queen et al., 1980 CanLII 223 (SCC), [1980] 2 SCR 578
Terrick Bullion Appellant;
and
Her Majesty The Queen, represented by the Deputy Minister of Indian Affairs and Northern Development, and the Public Service Commission Respondents.
1980: November 12; 1980: December 18.
Present: Martland, Ritchie, Dickson, Mclntyre and Chouinard JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Administrative law—Judicial review—Public Service Commission Appeal Board—Eligibility for a closed competition restricted by reference to a minimum salary level—Error in law—Public Service Employment Act, R.S.C. 1970, c. P-32, ss. 13, 21—Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
The appellant was excluded from a closed competition on the ground that he occupied a position in which the maximum rate of pay was less than the minimum prescribed in the competition. The Public Service Commission Appeal Board having dismissed his appeal brought pursuant to s. 21 of the Public Service Employment Act, he applied to the Federal Court of Appeal, pursuant to s. 28 of the Federal Court Act, to review and set aside that decision. The Federal Court of Appeal, by a majority of two to one (LeDain J. dissenting), dismissed the appellant’s application. Hence the appeal to this Court.
Held: The appeal should be allowed.
The dissenting judge of the Federal Court of Appeal stated that the Commission in choosing the criterion of a minimum salary level without regard to the occupational nature of positions had adopted a criterion for restriction of eligibility that is not authorized by the Public Service Employment Act and therefore erred in law in not allowing the appeal on this ground. The reasons of the dissenting judge were sound in law and should be supported.
APPEAL from a judgment of the Federal Court of Appeal1, dismissing an application to review a decision of the Public Service Commission Board.
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Appeal allowed.
Maurice Wright, Q.C., for the appellant.
David Sgayias, for the respondents.
Reasons for Judgment
The judgment of the Court was delivered by
MARTLAND J.—The appellant applied to the Federal Court of Appeal, pursuant to s. 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, to review and set aside a decision of an Appeal Board established by the Public Service Commission under the Public Service Employment Act, R.S.C. 1970, c. P-32, which had dismissed an appeal brought by the appellant pursuant to s. 21 of that Act.
In the spring of 1979, the Department of Indian Affairs and Northern Development held a closed competition for the position of Engineering and Works Manager (EG-ESS 9) (English). The competition poster provided that the competition was:
OPEN TO: Employees across Canada occupying positions in which the maximum rate of pay is not less than $22,600 per annum.
The applicant applied in the manner prescribed in the poster but was not allowed to participate in the competition on the ground that he occupied a position in which the maximum rate of pay was less than the prescribed minimum of $22,600.
The applicant contended that he was wrongfully excluded from the competition and that, as a consequence, no appointment should be made as a result of that competition. He rested his contention on two submissions, namely:
(1) that the provision limiting the right to participate in the competition to employees holding a position with a maximum rate of pay of at least $22,600 was invalid and contrary to the merit principle; and
(2) that, in any event, the Appeal Board had erred in finding that he occupied a position in which the maximum rate of pay was less than $22,600.
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The issue raised by the first submission was as to whether eligibility for a closed competition in the Public Service may be restricted by reference to a minimum salary level without reference to the occupational nature of positions in which candidates are employed.
The authority of the Public Service Commission to restrict eligibility for a closed competition is conferred by s. 13 of the Public Service Employment Act, R.S.C. 1970, c. P-32, as follows:
- Before conducting a competition the Commission shall
(a) determine the area in which applicants must reside in order to be eligible for appointment; and
(b) in case of a closed competition, determine the part, if any, of the Public Service and the occupational nature and level of positions, if any, in which prospective candidates must be employed in order to be eligible for appointment.
The Federal Court of Appeal, by a majority of two to one, dismissed the appellant’s appeal. LeDain J. dissented. The reasons delivered in the Federal Court of Appeal are reported in 1979 FCA 4210, [1980] 2 F.C. 110. With leave, the appellant appealed to this Court. The appellant’s argument before this Court was limited to the issue raised by his first submission.
In my opinion the reasons delivered, in dissent, by LeDain J. in respect of the first submission are sound in law and should be supported. He stated his conclusion as follows:
…The Commission has not directed its mind to the level of position, as it relates to occupational nature, at all. It has chosen the criterion of a minimum salary level without regard to the occupational nature of positions. In doing so it has in my opinion adopted a criterion for restriction of eligibility that is not authorized by the Act, and the Appeal Board erred in law in not allowing the appeal on this ground.
Disposition
I would, therefore, allow the appeal and set aside the judgment of the Federal Court of Appeal and also the decision of the Public Service Commission Appeal Board. The appellant is entitled to
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his costs as against the Crown in this Court and in the Federal Court of Appeal.
Appeal allowed with costs.
Solicitors for the appellant: Soloway, Wright, Houston, Greenberg, O’Grady & Morin, Ottawa.
Solicitor for the respondents: R. Tassé, Ottawa.
Footnotes
- 1979 FCA 4210, [1980] 2 F.C. 110.