Supreme Court of Canada
Evans v. Public Service Commission Appeal Board, 1983 CanLII 141 (SCC), [1983] 1 SCR 582
Date: 1983-05-17
Bernard W. Evans Appellant;
and
Public Service Commission Appeal Board Respondent.
File No.: 16670.
1982: November 4; 1983: May 17.
Present: Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Labour law—Public Service employment—Appointments—Merit principle—Job selection process—Candidate denied eligibility for promotion because of notoriety—Whether a candidate’s reputation relevant in determining his merit—Public Service Employment Act, R.S.C. 1970, c. P-32, ss. 10, 21—Penitentiary Act, R.S.C. 1970, c. P-6, s. 8.
Administrative law—Public Service employment—Appeal Board—Candidate named in Parliamentary Subcommittee Report as inciting prison riot—Candidate denied eligibility for promotion because of notoriety—Whether Appeal Board has jurisdiction to inquire into Parliamentary Subcommittee findings—Public Service Employment Act, R.S.C. 1970, c. P-32, ss. 10, 21.
Appellant, a correctional officer, was employed at Millhaven Penitentiary when a disruption occurred. A Parliamentary Subcommittee investigated the incident and in its report named him as the instigator. Following that report, the Commissioner of Penitentiaries restricted him from working in penitentiaries and from having contact with inmates. Appellant later applied for the position of senior correctional officer. A selection board, established under s. 10 of the Public Service Employment Act, was to assess applications. Appointments were to be made on the basis of “merit”. Appellant was excluded from the eligibility list. The Selection Board based its assessment on a letter from appellant’s supervisor stating the restriction imposed by the Commissioner. An appeal board set aside the decision holding that the Selection Board had to make an independent assessment of appellant’s qualifications.
[Page 583]
Without notifying the appellant, the Selection Board proceeded to reassess him and, considering a memorandum from the Commissioner explaining the reason for the restriction placed on appellant’s work activities, confirmed its earlier assessment. Because of his notoriety resulting from the conclusion reached by the Parliamentary Subcommittee, the Selection Board agreed with the Commissioner that allowing the appellant to work in a penal institution would be dangerous to staff, inmates and appellant himself. Appellant appealed pursuant to s. 21 of the Public Service Employment Act and testified before a second appeal board to refute the Parliamentary Subcommittee Report. Nevertheless, the Appeal Board upheld the Selection Board’s decision on the ground that valid evidence had been obtained justifying the decision to deny promotion. The Federal Court of Appeal dismissed appellant’s application under s. 28 of the Federal Court Act to review and set aside the Appeal Board’s decision.
Held (Dickson and Beetz JJ. dissenting): The appeal should be allowed.
Per Ritchie, Estey, McIntyre, Chouinard and Lamer JJ.: Unless the allegation contained in the Subcommittee’s Report is found to be true, such allegation was irrelevant in determining appellant’s merit. The word “merit” in s. 10 of the Public Service Employment Act, refers only to the intrinsic, natural characteristics of a candidate. Consequently, the Selection Board should not concern itself with self-imposed limitations which by themselves have nothing to do with the worthiness of the candidate. Here, it was neither the duty nor the function of the Selection Board to launch an inquiry into the truth of the Parliamentary Subcommittee’s conclusion. The Selection Board is not an administrative tribunal but simply an instrument used by the Public Service Commission to perform its duty of selecting candidates on the basis of merit. Nor is it subject to the rules of natural justice. On the other hand, the Appeal Board, established under s. 21, was under a statutory duty to conduct such an inquiry and was subject to the rules of natural justice. It was incumbent upon it to determine whether the conclusion of the Subcommittee was correct in fact. It did not do so. The Appeal Board, in disposing of appellant’s appeal, should not have accepted the report of the Parliamentary Subcommittee in determining the merits of the appellant for inclusion in the eligibility list. The matter should be remitted to the Appeal Board for the completion of its inquiry under s.21.
[Page 584]
Per Dickson and Beetz JJ., dissenting: There is no doubt that appellant was denied access to the eligibility list solely on the basis of the notoriety he achieved following the Parliamentary Subcommittee findings and no one questioned the Commissioner’s judgment that such notoriety made appellant ineffective, even dangerous, in an institutional setting. The word “merit” in s. 10 of the Public Service Employment Act should not be used in a specialized sense. The distinction between “intrinsic” and “extraneous” qualities is not applicable in a public service hiring context. An opinion should be considered or ignored depending on whose opinion it is, whether it is well informed or misinformed—in short, whether or not it is relevant. The merit principle is designed to protect the public employer’s right to hire suitable and effective employees, not to derogate from that right; that principle cannot have been intended to force the Public Service Commission to appoint an individual to a position, knowing that his reputation makes it impossible for him to perform the duties required in that position. Here, appellant’s notoriety, even if undeserved, was a relevant attribute. The absence of a bad reputation among prison inmates is a bona fide occupational qualification.
A selection board is not exercising a judicial or quasi-judicial function subject to the rules of natural justice. It must carry out its administrative task fairly and impartially but it is not incumbent upon it to give every candidate the opportunity of refuting evidence adverse to his candidacy. On appeal, a candidate is specifically given an opportunity to be heard. The Appeal Board sat in a quasi-judicial role and the audi alteram partem rule applied to it. It was not within its jurisdiction, however, to investigate the Parliamentary Subcommittee findings. Section 21 of the Public Service Employment Act does not create a right to challenge findings by other tribunals.
[Blagdon v. Public Service Commission, 1975 CanLII 2300 (FCA), [1976] 1 F.C. 615, applied; Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, 1978 CanLII 24 (SCC), [1979] 1 S.C.R. 311, referred to.]
APPEAL from a judgment of the Federal Court of Appeal, 1981 CanLII 4582 (FCA), [1981] 2 F.C. 845, 37 N.R. 514, dismissing appellant’s application to review and set aside a decision of the Public Service Commission Appeal Board. Appeal allowed, Dickson and Beetz, JJ. dissenting.
[Page 585]
Maurice W. Wright, Q.C. and Andrew J. Raven, for the appellant.
Duff Friesen, for the respondent.
The judgment of Ritchie, Estey, McIntyre, Chouinard and Lamer JJ. was delivered by
ESTEY J.—This proceeding comes to us by way of s. 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, as an application to review a decision of the respondent Board issued on May 16, 1980. The procedural history up to that point is somewhat tangled. It is only necessary to say that the Board at that time was hearing a second appeal by the appellant from a denial by a selection board of his candidacy for inclusion on the eligibility list for appointment as a senior correctional officer in the Ontario Region of the Correctional Service of Canada.
The process from which this appeal has evolved began with the publication of a notice of competition under the Public Service Employment Act, R.S.C. 1970, c. P-32 (hereinafter referred to as “the Act”). The appellant survived a screening process conducted by the Selection Board established under the Act to conduct the competition but eventually the Selection Board excluded the appellant from the eligibility list “from which appointments may be made at institutions within the Ontario Region”.
The Selection Board conducted its hearings under the terms of s. 10 of the Act which provides as follows:
- Appointments to or from within the Public Service shall be based on selection according to merit, as determined by the Commission, and shall be made by the Commission, at the request of the deputy head concerned, by competition or by such other process of personnel selection designed to establish the merit of candidates as the Commission considers is in the best interests of the Public Service.
The Selection Board had before it, when reaching its decision with respect to the appellant, a
[Page 586]
memorandum from the appellant’s superior, Surgenor. This memorandum, entitled “Performance Review & Appraisal Mr. B. Evans”, included one sentence which was relied upon by the Selection Board in its determination to exclude the appellant from the eligibility list established by the Board. That sentence stated:
He labours under a restriction imposed by the Commissioner of Corrections, that he is not to be employed in an institution or have contact with inmates.
From this exclusionary determination by the Selection Board the appellant appealed by exercise of his rights under s. 21 of the Act, to which more detailed reference will later be made. The Appeal Board observed that the Surgenor memorandum met none of the requirements of an appraisal report as prescribed in the manual issued by the Treasury Board for such reports, that certain criticisms contained in the report were unfair, and that in any event the Selection Board should have awarded some credits to the appellant under the “Potential for Effectiveness” factor mentioned by the Board in its report, and in any case:
The Rating Board’s decision to grant the appellant no marks on “Potential for Effectiveness” on the basis of appraisal information was based entirely on one statement contained in the appraisal,…
the reference being to the portion of the letter quoted above. The Appeal Board further observed:
Because of this restriction the Rating Board felt that the appellant lacked “Potential for Effectiveness” for the position under appeal. The Rating Board did not question the restriction since, in accordance with Section 8(2) of the Canadian Penitentiary Act, the Commissioner was authorized to make such a decision. Section 8(2) read as follows—
8(2) The commissioner may where he considers it in the interests of the Service, suspend from duty any officer or employee of the Service.
The Appeal Board concluded: “In my opinion, the Rating Board erred in the way in which they assessed Mr. Evans against the ‘Potential for Effectiveness’ factor”; and accordingly allowed the appellant’s appeal.
[Page 587]
Thereafter the same Selection Board resumed its hearings with reference to the appellant. In preparation for those hearings the Public Service Commission stated in a letter to the Canadian Penitentiary Service:
The thrust of the Appeal Board’s decision would indicate that the Department failed to document their reasons for not qualifying the appellant in accordance with the selection standards (i.e. merit). It would, therefore, be appropriate to reassess Mr. Evans under the potential for effectiveness factor and fully document the Department’s rating and rationale. New appeal rights should then be granted accordingly.
The Selection Board then proceeded to reassess the appellant and in the end confirmed their earlier assessment. The Selection Board in this second session had before it a memorandum from the Commissioner of Corrections to an officer of that service which memorandum stated in part:
As you are aware, Mr. Evans was named by the Parliamentary sub-committee on the penitentiary system in Canada as having precipitated a riot at Millhaven Institution on October 5, 1976, as a result of “insulting remarks” made over a loud-hailer to inmates in the exercise yard. The fact that such a statement was made by a group of Members of Parliament cannot fail to make a strong impression on the inmates. In their minds, I am certain that the sub-committee confirmed their previous unsubstantiated allegations about Evans’ treatment of inmates. I have to conclude that there is a strong possibility of disturbance by inmates, involving the potential for injury to Evans, other members of staff, and to the inmates themselves, if he were to continue to perform the duties of a correctional officer in an institution. Furthermore, there is in my mind a strong possibility that the inmates would blame Evans for any incident that might occur, whether or not he had any connection with it. This not only reinforces the possibility of injury to Evans personally, but would make it more difficult to identify the real source of incidents which might occur. Consequently, I have concluded that the continued employment of Mr. Evans on institutional duties generates a degree of risk which is unacceptable to the best interests of the Service, its employees and the inmate population.
I am aware that Evans has not had the opportunity to respond in any formal way to the statements of the sub-committee. He believes that given such an opportunity he can, as he puts it, “clear himself”. However, I
[Page 588]
am of the opinion that this is not a situation that will change because of evidence, persuasion or rational argument. Press coverage of the incident, and the sub‑committee’s statement regarding his role in it, have made Evans a very high-profile figure, and his response is unlikely to make any significant impression on the attitude or possible reactions of the inmates to his presence in an institution. I have therefore directed you not to employ him on duties that involve working in an institution, including perimeter security.
Upon this confirmation of its earlier report by the Selection Board, the appellant again appealed to the Appeal Board under s. 21 of the Act. On this hearing the appellant became aware for the first time of the memorandum from the Commissioner of Corrections. The report of the committee of Parliament to which reference was made in the Commissioner’s memorandum was made by the Subcommittee on the Penitentiary System in Canada to the House of Commons in June 1977. That report stated in part:
Nevertheless, it [the disturbance at the Millhaven Institution] was precipitated about 8:30 p.m. by insulting remarks made by CX-2 Bernard Evans [the appellant] over the hailer from the Sally Port, as the inmates were summoned in from the exercise yard.
Before the second Appeal Board the appellant gave evidence in which he denied that he was the person who made such remarks or who had precipitated the disturbance and went on to say that he could call several witnesses who were on duty at the time in question to corroborate this evidence. The appellant also entered in evidence a letter from the Solicitor General of Canada dated October 17, 1979 which stated in part:
I can assure you that if The Correctional Service of Canada or I, as the new Solicitor General, had evidence to suggest that Mr. Evans was responsible for the riot at Millhaven in 1975 [sic], he would no longer be employed in The Service.
Also tendered by the appellant was a letter from the Chairman of the Parliamentary Subcommittee which stated in part:
Whether we were right or wrong in our description of the events in the Millhaven disturbance there is no parliamentary procedure for rectifying the Report. But
[Page 589]
there are remedies in the other areas which you can invoke.
Finally, the uncontradicted evidence of the appellant before the second Appeal Board was to the effect that he had reviewed the transcript of the proceedings before the Parliamentary Subcommittee and that this transcript contained no reference by any of the inmates in any of their statements or evidence that the appellant was the individual responsible for the remarks over the loud-hailer which were said in the report of the Subcommittee to have caused the Millhaven disturbance.
It is clear, however, from the evidence before the second Appeal Board that the Selection Board in its second session reached their own conclusion independently of any opinions expressed by the Commissioner or Mr. Surgenor, that:
…notwithstanding any other considerations Mr. Evans was not suitable to work in an institutional environment and did therefore not meet the requirements of the potential for effectiveness factor.
The Selection Board Chairman stated that the board’s judgment was “based on our own knowledge, experiences and expertise of the penitentiary environment, of the inmate subculture…”. The Chairman was emphatic that the Selection Board had reached “its own conclusions and come to a fully independent decision as to the personal suitability of Mr. Evans…”
The second Appeal Board concluded:
(a) The principles of natural justice do not apply to selection boards;
(b) The Selection Board had objectively assessed or reassessed the appellant concerning the “Potential for Effectiveness rating factor”;
(c) The Selection Board took into account only that part of the Commissioner’s memorandum which stated that the appellant by order of the Commissioner was not to be “employed in an institution or have contact with inmates”;
(d) The Selection Board took into account statements in the report of the Parliamentary Subcommittee; and
[Page 590]
(e) This additional evidence together with the original Surgenor memorandum, albeit not in the form set forth in the Treasury Board’s Management Manual, nevertheless constituted a performance review and appraisal report. Accordingly, the Appeal Board concluded:
As a result, I cannot conclude, on the basis of the information that the selection board took into consideration, that the appellant was improperly assessed against the “Potential for Effectiveness” rating factor;
and dismissed the appellant’s appeal. It is this decision which has been brought under review by an application by the appellant under s. 28 of the Federal Court Act. The Federal Court of Appeal dismissed the application. In doing so the Court concluded:
(a) The Selection Board could rely on the restriction imposed by the Commissioner on the appellant as being proper in law, and that faced with such restriction the Selection Board could not conclude that the appellant met “the minimum requirements for potential effectiveness”;
(b) The Selection Board had neither the duty nor function to inquire into the truth of the Parliamentary Subcommittee’s conclusion concerning the appellant and the Millhaven disturbance;
(c) The Selection Board was entitled to rely upon the above-quoted sentence from the Surgenor memorandum in its assessment of the “Potential for Effectiveness” of the appellant; and
(d) The Selection Board, in responding to the first Appeal Board’s decision, was not required to obtain any further personal appraisal report in official form or otherwise but “it could rely on the Commissioner’s restriction, if judged to be well-founded, as an overriding or peremptory factor that precluded a passing mark for ‘Potential for Effectiveness’ ”.
Le Dain J., on behalf of the Federal Court of Appeal, stated:
The duty of the selection board was to make an overall assessment of “Potential for Effectiveness”, involving, in
[Page 591]
the words of the statement of qualifications for the position, an “Overview of total suitability”, and not to determine what the applicant’s “Potential for Effectiveness” might have been had it not been impaired for the reasons given by the Commissioner. The opinion of the Commissioner was clearly related to effectiveness. It was not a reason for not appointing the applicant unrelated to the qualifications to be assessed by the selection board.
Le Dain J., correctly, in my respectful view, concluded that the Commissioner had reached his decision and the Selection Board confirmed it, in effect, not on the basis that the Parliamentary Subcommittee report was true, but because it would be taken as true by the inmates of the institution and consequently the presence of the appellant as a correction officer in a penitentiary would endanger the safety of the appellant and others and would seriously impede the operation of the correction facility. Consequently, the Commissioner observed that it would make no difference whether the appellant was able to demonstrate his innocence to the satisfaction of any tribunal, the consequence would still be that the appellant was unsuitable for employment as a correction officer inside a penitentiary. Le Dain J. went further and stated:
The essential fact on which the Commissioner’s opinion was based, namely, publicity given to the finding or statement in the Report of the Parliamentary Sub-committee that the applicant was responsible for the insulting remarks that provoked the disturbance in the Millhaven Institution was before the selection board. Although an inquiry by the selection board into the truth of the Sub-committee’s statement might have gone some way to satisfy the understandable desire of the applicant for justice, I do not think it was the duty or function of the selection board to make such an inquiry. It was not a tribunal equipped to make such an inquiry.
With the observations of Le Dain J. with reference to the duty and function of the Selection Board, I am in respectful agreement. The court then concluded that as the issue in the proceeding was the likely effect of the report on the attitude of the inmates and the subsequent consequence with reference to the suitability of the appellant for employment in the institution, any subsequent
[Page 592]
attempt to establish a different view of the facts would have no determinative effect. Accordingly, the court found the respondent board was correct in its determination that the Selection Board had not failed to perform its statutory function in assessing the application by the appellant for inclusion on the eligibility list for the advertised appointment. In short, the reliance by the Selection Board and the Appeal Board on the Commissioner’s assessment or judgment of the employability of the appellant in such an appointment was not, in law, defective. In reaching their respective decisions the court and the Boards concluded that the doctrine of fairness as enunciated by this Court in Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, 1978 CanLII 24 (SCC), [1979] 1 S.C.R. 311, had no application to a selection board under the Act, although only Le Dain J. made specific reference to Nicholson. The Board was not obliged to hear candidates in such a competition, and the Selection Board was, in the final analysis, entitled to “take a report [such as the Commissioner’s memorandum] as it finds it”.
In my view of this rather complex procedural history, the disposition of this appeal must follow the rather simple track described by a proper interpretation of the applicable provisions of the Act. The process starts with s. 10 which I have already set out and which requires that the personnel selection system “establish the merit of candidates”. The issue reduces itself to a determination as to the correct meaning in the context of the statute of the word “merit”. If the word be given its broadest interpretation, then the term will include not only inherent, internal elements of credit, meritorious characteristics, achievements of the candidate and so on, but also external characteristics which would include the suitability or usefulness of the candidate in the office or position in question. That is to say, merit might on the one hand embrace only inherent or intrinsic values as discerned in the nature, personality, character, training and experience of the candidate, or it might additionally include the extra-natural or man-made attributes such as usefulness, suitability or incapacities created in the community and not intrinsic in the candidate. The Concise Oxford
[Page 593]
Dictionary, 6th ed., 1976 defines “merit” in part in these terms:
…the intrinsic rights and wrongs (of case etc., esp. Law); judge (proposal etc.) on its [merit]s, with regard only to its intrinsic excellences…
The 4th edition, 1951 referred to:
…the [merit]s, intrinsic rights & wrongs (of case etc., esp. Law); judge (proposal etc.) on its [merit]s (with only its intrinsic excellences etc…).
In the context in which the word is employed in s. 10, and considering particularly the importance of s. 10 as enunciated in the fundamental principles of the pattern adopted by Parliament in the Act, I conclude that the word merit refers to the intrinsic, natural characteristics of the candidate. Conversely, this term, in my view, does not include any man‑made restrictions or limitations which might, as in this case, be imposed upon a candidate and which limitations by themselves do not necessarily have any relationship to the inherent, meritorious qualities of the candidate. Such limitations may or may not have this connotation and I will return to this aspect of the proper interpretation of s. 10 shortly.
It is the determination of merit on this basis with which the Selection Board was solely concerned in establishing the eligibility list for the advertised appointment. At this stage of the process there is nothing in the statutory pattern to indicate that the Selection Board is performing anything but an administrative function within the traditional field of operations of the executive branch of government. Nothing is revealed in the statute to indicate any parliamentary intention to establish a body which would be subject to the rules of natural justice, and none of the parties before the Court so contended. Its simple but important function is to assess the application for eligibility by each candidate, applying thereto a uniform standard of tests or yardsticks. In doing so, the Board is, of course, confined to its constituting statute which brings us back to the word “merit” and the proper interpretation and application of that term by the Selection Board in its
[Page 594]
assessment of the eligibility of candidates for appointment.
I digress for a moment to contrast the role of that board to the role prescribed in s. 21 of the Act for the Appeal Board. That section provides as follows:
- Where a person is appointed or is about to be appointed under this Act and the selection of the person for appointment was made from within the Public Service
(a) by closed competition, every unsuccessful candidate, or
(b) without competition, every person whose opportunity for advancement, in the opinion of the Commission, has been prejudicially affected,
may, within such period as the Commission prescribes, appeal against the appointment to a board established by the Commission to conduct an inquiry at which the person appealing and the deputy head concerned, or their representatives, are given an opportunity of being heard, and upon being notified of the board’s decision on the inquiry the Commission shall,
(c) if the appointment has been made, confirm or revoke the appointment, or
(d) if the appointment has not been made, make or not make the appointment,
accordingly as the decision of the board requires.
It will be noted at once that the Appeal Board is under statutory duty to conduct an inquiry and to afford an opportunity to the parties for such an inquiry to be held. Such a board is subject to the rules of natural justice and none of the parties before the Court contended otherwise.
Some issue might have arisen with respect to the deliberations and decision of the Appeal Board by reason of the lack of notice to the appellant, prior to the commencement of the hearings of the Appeal Board, of the existence of the Commissioner’s memorandum. However, the appellant has not before this Court advanced his position on the basis of a failure by the Appeal Board to observe the principles of natural justice but rather has concentrated his claims upon the activities at the level of the Selection Board.
I return to considerations relating to the process undertaken here by the Selection Board. The Board has, as we have seen, taken into account the
[Page 595]
memorandum from the Commissioner of Corrections, explaining the reason for his directive that the appellant should not be employed within a penitentiary. That explanation, of course, is founded upon the conclusion reached by the Parliamentary Subcommittee that the appellant had been the cause of a disturbance in a penitentiary. I draw a distinction between the memorandum of Surgenor describing the simple edict issued by the Commissioner with reference to the appellant, on the one hand, and the explanation given by the Commissioner, incorporating as it does a reference to the report to Parliament, on the other hand. In assessing the inherent or intrinsic qualities of the candidate, the Selection Board, in my view, should not concern itself with self-imposed limitations which by themselves have nothing to do with the worthiness or otherwise of the candidate for appointment. Such a limitation in short does not relate to the “merit” of the candidate and hence is irrelevant to the selection process.
On the other hand, the allegation contained in the Subcommittee’s report, if found to be true, would in fact reveal an inherent characteristic or quality in the candidate which would be relevant in determining his merit or lack of it for the purposes of the selection system established under the Act.
The Selection Board, as I have said, has not been established under the Act as a tribunal ordinarily referred to as an administrative tribunal with adjudicative powers attracting the doctrine of natural justice. It is simply an instrument of the executive, an operating procedure under the Act. The Appeal Board is a different administrative unit. It does have the power to conduct an inquiry and, as the record here will reveal, such an inquiry was undertaken by the first and second appeal boards constituted under s. 21. It is to this board that the appellant has taken resort in protest against the reliance by the Selection Board upon the Surgenor report and the Commissioner’s explanation as well as the included reference to the Subcommittee’s report. In hearing such an appeal it is open to, and indeed incumbent upon, the Appeal Board to determine whether the conclusion
[Page 596]
of the Subcommittee as reflected in its report is correct in fact.
The Appeal Board was hearing the appeal of the appellant and any response thereto by his employer (in these proceedings the Treasury Board of Canada), and in the course of performing this function it must determine the accuracy of the report. If such determination is that the report is correct, then the circumstance is relevant for consideration by the Selection Board in the discharge of its function. On the other hand, if the Appeal Board concludes on due inquiry that the report is erroneous, then the Selection Board must, in the discharge of its selection duty, disregard that report in the assessment of the candidate’s merit under s. 10.
This conclusion I reach not by the application of the doctrine of procedural fairness as regards the Selection Board, nor upon the application of the principles of natural justice in the case of the Appeal Board. In my view, this result is dictated by what I believe to be the correct interpretation of the Act, particularly ss. 10 and 21. This conclusion is supported by the relationship between the selection and appeal processes, and by the right and authority of the Commissioner under s. 8 of the Penitentiary Act, R.S.C. 1970, c. P-6. I find the description of the two processes here in question, in the judgment of Pratte J. in Blagdon v. Public Service Commission, 1975 CanLII 2300 (FCA), [1976] 1 F.C. 615, to be helpful (at pp. 622-23):
Second, it should also be borne in mind that “the appointment function and the appeal function are different stages of the ‘merit’ system” (MacDonald v. Public Service Commission [1973] F.C. 1081, per Jackett C.J., at page 1086); the function of a Selection or Rating Board and that of an Appeal Board must not be confused. A Rating Board is an instrument used by the Public Service Commission to perform its duty to select candidates on the basis of merit. Its function is merely to assess the various candidates and, in doing so, it performs a purely administrative task. That task must, of course, be performed fairly and honestly so as to achieve an assessment on the basis of merit, but it is not governed by rules, such as audi alteram partem, applicable to judicial or quasi-judicial bodies. Speaking broadly, the only general rule that governs the activity of a Selection Board is that the selection be made on the
[Page 597]
basis of merit. An Appeal Board, under section 21 of the Act, has a different function. Its duty is not to reassess the candidates but to conduct an inquiry in order to determine whether the selection has been made in a way consistent with the merit principle; its decision is to be made on “a judicial or quasi-judicial basis”. The mere fact that an Appeal Board could, had it sat as a Selection Board, have reached a conclusion different from that reached by the Selection Board is not a sufficient ground for allowing the appeal. It must be realized that the assessment of the merit of various persons, which is the function of the Selection Board, cannot be reduced to a mathematical function; it is, in many instances, a pure matter of opinion. And, there is no reason why the opinion of an Appeal Board should be preferred to that of a Selection Board.
The appellant is entitled under the Public Service Employment Act to inclusion in the eligibility list for appointment as a correction officer of the class advertised, if indeed he can establish his “merit” for such an appointment. It may be, should the Selection Board in the final analysis determine that the appellant merits inclusion in the eligibility list, that upon the availability of an opening of the class described either he will be appointed or his appointment will be prevented by the exercise of the Commissioner of his right and responsibility under s. 8 of the other Act. With these possible consequences, neither the Selection Board nor the Appeal Board can properly be concerned. Nor, in my view, can the Commissioner be concerned with the inclusion of the appellant on the eligibility list. The Commissioner’s duty to the community under s. 8 of the Penitentiary Act will be discharged, if the appellant becomes eligible for appointment as a senior correctional officer, by the exercise at that time of his best judgment in the existing circumstances. In the discharge of that function he is no doubt accountable in the ordinary course of executive government and parliamentary surveillance. The appellant on the other hand has but the limited right to be properly considered as a candidate under s. 10, and the associated appeal rights under s. 21, and to a proper discharge of the executive function by the Commissioner under s. 8 of the other Act, should that stage of the appointment process be reached.
[Page 598]
It is important to recognize that the position of the Commissioner, taken quite properly in my view in the discharge of his serious responsibilities as head of the Penitentiary Service, is that the accuracy or otherwise of the Parliamentary Subcommittee’s comments on the appellant is not a relevant consideration. He has been concerned only with the impact of the report on the inmates in the institution and the relationship between that impact and the employment in a penitentiary of the appellant. Nothing in these reasons should be taken as a comment adverse to the position so taken by the Commissioner. In discharging his duty, however, the Commissioner will have to assess the desirability of appointing the appellant to a position in a penitentiary in light of the true facts existing at the time that the appellant is to be considered for appointment under the statutory process. It may be that the condition caused by the Subcommittee Report is a transitory one and that the notoriety thereby attracted to the appellant in his work as a Correctional Officer will fade with the passage of time and the changing penitentiary population. Equally, it may be appropriate to reassess the weight given to the naming of the appellant in the parliamentary report, in determining the probable reaction of the prison population to his presence in the prison, should it be determined that the appellant was not a contributor to the disturbance at Millhaven. All this is not a matter for the Court but for the assessment by the proper officials acting under their respective statutory mandates.
In this I share, with respect, the view expressed by Le Dain J. in the Federal Court of Appeal when he said:
This is a disturbing case because there is a strong suggestion in the evidence that the applicant may have suffered an injustice, and that he has sought in vain for a forum in which to have it remedied. It is the opinion of the Commissioner and the selection board that because of the way inmates think and behave it cannot be remedied, at least in so far as the applicant’s ability to work with inmates is concerned. One is reluctant to accept that conclusion, but it is the judgment of persons of experience in the penitentiary system. Neither the Appeal Board nor the Court can substitute its judgment on this issue for theirs.
[Page 599]
The Court of Appeal likewise appeared concerned, and in this I share their views, with respect, that the implication was clear “that the applicant [the appellant] may have been wrongly named in the Report of the Parliamentary Sub-Committee…” This concern finds support in the comments of the Solicitor General and committee Chairman already mentioned. It would be an unusual and indeed a discordant element in our system of law if a person who has been wronged in a serious way in his gainful employment was without access to any remedy in court or otherwise. Of course, had there been repercussions from a like report in the case of an employee engaged in an ordinary master and servant relationship, the employee would have recourse to the courts for action taken by the master in reliance upon an erroneous and defamatory report if the employee could, as the appellant here alleges he can, demonstrate to the court that the report was fallacious and therefore not to be taken into account in determining the relationship between the master and the servant. Whether there are any other forums or causes of action available in such circumstances should be left to speculation for we are only concerned with the consequences in the operation of the Act as between the appellant and his employer, and then only in the context of the competition conducted under the Act.
From the procedural aspect it is well to bear in mind throughout these proceedings that the Court is here sitting on appeal from a determination in judicial review under s. 28 of the Federal Court Act by the Court of Appeal. That Court may confirm or set aside the order issued by the administrative tribunal. It may not, in a judicial review, simply substitute its opinion for that of the Appeal Board on the administrative or other question there before the Appeal Board. Neither may this Court do so. Section 28 provides:
- (1) Notwithstanding section 18 or the provisions of any other Act, the Court of Appeal has jurisdiction to hear and determine an application to review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis, made by or in
[Page 600]
the course of proceedings before a federal board, commission or other tribunal, upon the ground that the board, commission or tribunal
(a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
(b) erred in law in making its decision or order, whether or not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
In my view, the Appeal Board under judicial review has erred in law in failing to interpret s. 10 so as to require the Selection Board to limit its examination of the merit of the candidate to those intrinsic qualities revealed in the appellant’s application and to exclude from that process the decision of the Commissioner which is referred to in the Surgenor memo and explained in the memo of the Commissioner. The Appeal Board in the circumstances of this case in disposing of an appeal under s. 21 with reference to the action taken under s. 10 should not have accepted the report of the Parliamentary Subcommittee in determining the merits of the appellant for inclusion in the eligibility list. The Appeal Board could only reach a decision on this issue by conducting an inquiry into the accuracy of the conclusion reached by the Subcommittee with reference to the appellant. This Court therefore, in my view, should allow this appeal and set aside the order of the Federal Court of Appeal and remit the matter to the Appeal Board for the completion of its inquiry under s. 21 and to thereafter, depending upon the determination of its inquiry, dispose of the appellant’s application as a candidate for inclusion in the eligibility list, in the manner indicated in s. 21. For these reasons, therefore, I would allow the appeal with costs on the foregoing basis.
The reasons of Dickson and Beetz JJ. were delivered by
DICKSON J. (dissenting)—The issue is whether the Public Service Employment Act, R.S.C. 1970,
[Page 601]
c. P-32, by requiring that appointments to the Public Service be made on the basis of “merit”, prevents a Selection Board from excluding an applicant because notoriety makes him unsuitable for a particular position. A subsidiary question is whether an Appeal Board appointed under the Public Service Employment Act has jurisdiction to inquire into the accuracy of the finding of a Parliamentary Subcommittee that a named individual made insulting remarks precipitating a prison riot.
I The Facts
The appellant, Bernard W. Evans, has been a Correctional Officer Class 2 since 1967. In 1976 he was employed at Millhaven Penitentiary when a disruption occurred. A Parliamentary Subcommittee investigated the incident and named Evans as the instigator. The Subcommittee, in a report in June 1977, said:
The disturbance at the Millhaven Institution followed the others in many respects. It began on the night of Tuesday, October 5, and involved damage to 161 cells for a cost of at least $200,000.
…it was precipitated about 8:30 p.m. by insulting remarks made by CX-2 Bernard Evans over the hailer from the Sally Port, as the inmates were summoned in from the exercise yard. He shouted: “Come on girls, pick up your skirts and pull it. No stabbings in the yard tonight, the blood bank is running low,” referring to a stabbing which had occurred in the yard the previous evening, perhaps resulting from a homosexual situation. Apparently he repeated the reference to “girls” several times.
These derogatory remarks seemed intended to inflame anger and resentment. The majority of inmates were incensed by the remarks and started to become unruly. Upon arrival on the range, they refused to enter their cells and demanded to see a senior official. After much discussion, all inmates except seven members of the Inmate Committee went to their cells and were secured.
The following comment appears under the rubric “Millhaven Today”:
[Page 602]
- Millhaven Institution opened prematurely in May, 1971, in an atmosphere of brutality borrowed from the violence of the Kingston Riot in which a group of inmates killed 2 fellow inmates and severely beat 16 others. Many of the nearly 400 inmates transferred to Millhaven after the riot in a period of 3 or 4 days (instead of over a 6‑month period) were made to run a gauntlet of guards who struck them with clubs as they entered the institution. With such a beginning it has experienced 19 major incidents in its six years of existence.
The Commissioner of Penitentiaries, acting under s. 8(2) of the Penitentiary Act, R.S.C. 1970 c. P-6 restricted Mr. Evans from working in penitentiaries, and from having contact with inmates. Mr. Evans was given other, more menial, work.
In 1979 the Department published a notice of competition to fill existing and future vacancies for Correctional Officers 3 and 4. The advertised position would be a promotion for Mr. Evans, and he applied for it.
Under the Public Service Employment Act the Public Service Commission has exclusive authority to make appointments to the civil service (s. 8). Appointments are to be made on the basis of “merit”, and “by competition or by such other process of personnel selection designed to establish the merit of candidates as the Commission considers is in the best interests of the Public Service” (s. 10). The Commission is obliged to give proper notice of a proposed competition (s. 14), and may conduct such examinations, tests, interviews and investigations as it considers desirable (s. 16). In practice the Commission delegates the candidate assessment process to a selection board, the authority to delegate deriving from s. 6. That board selects candidates who are qualified for the position, and ranks them in order of merit on an “eligible list”, from which existing and future vacancies are filled (s. 17). Applicants have a right of appeal against the Board’s decisions, including the order of ranking (s. 21).
[Page 603]
A selection board was struck to assess applications for the Correctional Officer positions for which Mr. Evans applied. The Board conducted written tests and oral interviews; it also considered information contained in the application forms, and in performance appraisal reports from the candidates’ supervisors. The Board assessed each candidate under three headings: “Knowledge”, “Abilities”, and “Potential for Effectiveness”. To make the eligible list a candidate was required to get a passing grade of 60 percent in each category.
At the conclusion of the process the Board found 33 candidates to be qualified, and ranked them in order of merit on an eligible list. Mr. Evans passed the “Knowledge” and “Abilities” categories, but failed the “Potential for Effectiveness” factor. The Board allocated a maximum of 70 marks to this category; 50 for the oral interview, 20 for the supervisors performance appraisal report. Mr. Evans received 36 of the 50 oral interview marks, but received “zero” in the performance appraisal category. Since the passing mark was 42 out of 70, he failed and was not included on the eligible list.
The Board gave Mr. Evans zero marks in the performance appraisal category because Mr. Surgenor, Mr. Evans’ supervisor, had written to the Board in the following terms:
PERFORMANCE REVIEW & APPRAISAL MR. B. EVANS
Reference is made to the attached Performance Review & Appraisal Report which has been requested on Mr. Evans. The circumstances leading to Mr. Evans’ employment in this division are well known and do not require further amplification. One thing is apparent, however, Mr. Evans does not and has not since joining our staff, performed any of the duties of a Correctional Officer. No one in this division therefore, no matter how well qualified, is in a position to assess him from a CX2 standpoint.
Mr. Evans is misemployed at RHQ. He labours under a restriction imposed by the Commissioner of Corrections, that he is not to be employed in an institution or have contact with inmates. As a good percentage of the Regional Security function is directly connected with and requires frequent access to institutions, it becomes
[Page 604]
obvious that the areas of employment in which Mr. Evans can be utilized is extremely restricted. Consequently the tasks assigned to him have been routine and in many cases menial in nature…
Mr. Evans is an unwilling member of RHQ security staff. He considers himself to be first, foremost and always a Correctional Officer. He has a deep seated belief that he has been maligned by authority at all levels and is victimized by Senior Management when they deny him the opportunity of pursuing his career as a CXO in the only proper setting, that of an institution. His attitude is that if he willingly accepts any form of employment other than that of a Correctional Officer in the true sense, he abdicates his cause, that of reinstatement, and admits, in his eyes, defeat.
I have discussed his position with Mr. Evans on numerous occasions in joint meetings with RMS, the RDG and on one occasion with the DCS. All these discussions have been reasonably amiable but non productive. I assess Mr. Evans as a personable individual, intelligent and I am sure, capable. I have little doubt that he has the ability to perform at a highly acceptable level when employed in a position in which he is interested sufficiently to apply himself properly. I have considerable sympathy for Mr. Evans concerning the position in which he finds himself but confess to little sympathy towards his attitude concerning that position. Mr. Evans has potential of that I am certain. I regret that under present circumstances that potential is not and will not be realized.
Mr. Evans successfully appealed the Board’s decision to fail him in the “Potential for Effectiveness” category. The Appeal Board said:
I will not comment on whether Mr. Surgenor’s letter constituted a valid appraisal for the purpose of this competition since the Rating Board chose to ignore most of this letter and made its decision to fail the appellant on “Potential for Effectiveness” on the basis of a single statement in the letter. I note that appellant Evans’ representative called no evidence to refute the Department’s contention that Mr. Evans had been restricted from working with inmates by the Minister of the Department and, therefore on the balance of probabilities, I am prepared to accept that Mr. Evans has not been so restricted. Whether or not the Minister has the
[Page 605]
authority to make such a restriction, and I consider it unnecessary to make a finding in this regard, in my view, it is not reasonable to conclude that a candidate lacks “Potential for Effectiveness” simply because the Minister has said he cannot work with inmates. The responsibility for assessing candidates in a competition lies with the Rating Board and not with the Minister. It is incumbent upon a Rating Board to make an independent assessment of candidates qualifications and to make appointments to positions on the basis of merit. This would not preclude any power the Minister may have under section 8(2) of the Canadian Penitentiary Act to suspend from duty employees appointed by virtue of the competition process.
If the Rating Board had investigated the reasons for the restriction placed on appellant Evans’ work activities and had discovered valid evidence that Mr. Evans was personally unsuited for working with inmates then I would not fault the Board for concluding that appellant Evans lacked “Potential for Effectiveness”. However, according to the Department’s statements at the appeal hearing, no attempt was made by the Rating Board to ascertain why such a restriction had been placed on Mr. Evans’ job mobility. It is possible that the Minister issued the restriction for reasons totally unrelated to appellant Evans’ “Potential for Effectiveness”, for example, he may have felt that Mr. Evans lacked the “Knowledge” to work with inmates. In my opinion, the Rating Board erred in the way in which they assessed Mr. Evans against the “Potential for Effectiveness” factor.
The references to the “Minister” are in error. “Minister” should read “Commissioner of Corrections”.
The matter was sent back to the Selection Board (or Rating Board) for reconsideration. In order to correct its earlier error the Board considered the following memorandum from the Commissioner of Corrections to Mr. A.M. Trono, Regional Director General, (Ontario) of the Correctional Service:
Bernard Evans
I wish to confirm direction which I have given you regarding assignments of the above employee, and several conversations we have had on the subject.
As you are aware, Mr. Evans was named by the Parliamentary sub-committee on the penitentiary system in
[Page 606]
Canada as having precipitated a riot at Millhaven Institution on October 5, 1976, as a result of “insulting remarks” made over a loud-hailer to inmates in the exercise yard. The fact that such a statement was made by a group of Members of Parliament cannot fail to make a strong impression on the inmates. In their minds, I am certain that the sub‑committee confirmed their previous unsubstantiated allegations about Evans’ treatment of inmates. I have to conclude that there is a strong possibility of disturbance by inmates, involving the potential for injury to Evans, other members of staff, and to the inmates themselves, if he were to continue to perform the duties of a correctional officer in an institution. Furthermore, there is in my mind a strong possibility that the inmates would blame Evans for any incident that might occur, whether or not he had any connection with it. This not only reinforces the possibility of injury to Evans personnally, but would make it more difficult to identify the real source of incidents which might occur. Consequently, I have concluded that the continued employment of Mr. Evans on institutional duties generates a degree of risk which is unacceptable to the best interests of the Service, its employees and the inmate population.
I am aware that Evans had not had the opportunity to respond in any formal way to the statements of the sub-committee. He believes that given such an opportunity he can, as he puts it, “clear himself”. However, I am of the opinion that this is not a situation that will change because of evidence, persuasion or rational argument. Press coverage of the incident, and the sub-committee’s statement regarding his role in it, have made Evans a very high-profile figure, and his response is unlikely to make any significant impression on the attitude or possible reactions of the inmates to his presence in an institution. I have therefore directed you not to employ him on duties that involve working in an institution, including perimeter security.
I am sympathetic to the situation in which my direction places Mr. Evans, who was appointed as a correctional officer and wishes to continue his career as such. Regrettably his interests are not the only ones that have to be considered. I have asked you, and personally counselled him, to make every effort to provide him with or train him for alternate employment. If he is prepared to co-operate in this effort, I am confident that it will succeed.
(Emphasis added.)
[Page 607]
On the basis of the Commissioner’s letter the Board confirmed its earlier decision to award Mr. Evans zero out of the 20 marks in the “Potential for Effectiveness” category. His name was excluded from the eligible list. Again he appealed, this time unsuccessfully. At the second appeal Mr. Evans said the Parliamentary Subcommittee had wrongly accused him; that he did not utter the insulting remarks attributed to him; that he could bring witnesses, including his Millhaven Supervisor, to testify to this effect; that he had read the transcript of the evidence received by the Subcommittee, and that no “inmate” before the Subcommittee had identified him as the speaker of the unfortunate remarks. He also introduced in evidence a letter written by the Honourable Allan Lawrence, P.C., a former Solicitor General of Canada, to the “Star Probe” column in the Toronto Star newspaper. This letter stated in part:
I can assure you that if The Correctional Service of Canada or I, as the new Solicitor General, had evidence to suggest that Mr. Evans was responsible for the riot at Millhaven in 1975 [sic], he would no longer be employed with The Service.
The letter continues:
Mr. Evans states that his removal from Millhaven Institution was on the recommendation of the Sub-Committee. On the contrary, even though I was not Solicitor General at that time, my officials have assured me that Mr. Evans’ transfer from Millhaven Institution is a totally separate issue.
Mr. Evans also tendered a letter from the Honourable Mark McGuigan, P.C., Chairman of the Parliamentary Subcommittee, stating in part:
Whether we were right or wrong in our description of the events in the Millhaven disturbance there is no parliamentary procedure for rectifying the Report. But there are remedies in the other areas which you can invoke.
The Selection Board members had experience in the penitentiary environment and knowledge of the inmate subculture. The Chairman of the Selection Board, Mr. Pyke, a Senior Security Officer gave the following answer to a question from Arthur H. Rosenbaum, appointed to hear Mr. Evans’ second appeal:
[Page 608]
The inmate subculture and inmate reaction to the presence of a person of Mr. Evans’ notoriety, the board concluded that notwithstanding any other considerations Mr. Evans was not suitable to work in an institutional environment and did therefore not meet the requirements of the potential for effectiveness factor.
Later in the transcript the following answer was given by Mr. Pyke:
Mr. Rosenbaum: No matter what evidence, from what you’re saying, no matter what evidence the appellant might produce to the effect that he was not implicated at all in the riot that would have no consequence to the selection board’s decision.
Mr. Pyke: Right. If Mr. Evans was to go before a tribunal of some sort tomorrow and be found 100% innocent and get 55 apologies from someone, it would not change the context of the rationale of the decision.
He has been identified, rightly or wrongly, and the fact that he could be found innocent tomorrow will not change the opinions of the inmates. They just will not change it.
It was the board’s deliberations based on our knowledge of working within an institution and again, I have to state… Mr. Done… about personal knowledge. I have worked with Mr. Evans. We have worked in an institution together. I am aware of what would happen if Mr. Evans was to enter an institution.
The final exchange between Mr. Rosenbaum and Mr. Pyke to which I would refer is this:
Mr. Rosenbaum: Well, it’s true that the selection board made its decision not on the basis of, that Mr. Evans was responsible for the riot but on the basis that whether he was or was not responsible unfortunately there were certain consequences are going to flow.
Mr. Pyke: That’s right. He was given the notoriety whether he was or wasn’t responsible.
That there was notoriety is beyond doubt. Mr. Done, head of the Grievance and Adjudication Division of the Public Service Alliance of Canada, who represented Mr. Evans, asked Mr. Pyke:
I put it to you as bluntly as I can. Everybody in Kingston knew why he had been removed. It was in the papers. The parliamentary report was quoted. It was on the radio. It was on the television. It was a subject of
[Page 609]
constant discussion throughout the penitentiary service. Is that not true?
Mr. Pyke replied “Yes, that’s true…”
The second Appeal Board dismissed Mr. Evans appeal.
There is no doubt that Mr. Evans was denied access to the eligible list solely on the basis of the notoriety he achieved following the Parliamentary Subcommittee’s findings. The second Appeal Board, outlining the position of the Department, put it this way:
The Department agreed with the contents of the letter from Mr. Lawrence, the previous Solicitor General, dated October 17, 1979. In other words, the appellant may or may not have been responsible for the disturbance at the Millhaven Institution in 1976. However, the selection board did not find the appellant not to have been personally suitable because the Parliamentary Subcommittee on the Penitentiary System in Canada found that he was responsible for the disturbance. Rather, the board found that the appellant was personally unsuitable for employment in a penal institution as a Correctional Officer because of the notoriety, rightly or wrongly, that he was responsible for the disturbance and the consequences that would likely ensue if he was appointed to such a position.
The judgment of the Appeal Board concludes:
The comments of the Commissioner of Corrections in his memorandum dated February 4, 1980 may very well be categorized as “opinion”. However, I consider it reasonable for the selection board to have regarded that “opinion” as “valid evidence” upon which to base its assessment of the appellant against the “Potential for Effectiveness” rating factor, in view of the position that the person who expressed that “opinion” occupies, and the nature of his comments. Moreover, I must add that no evidence has been submitted that that “opinion” was not formed in “good faith”. As a result, I cannot conclude, on the basis of the information that the selection board took into consideration, that the appellant was improperly assessed against the “Potential for Effectiveness” rating factor.
The good faith of the Commissioner of Corrections, Mr. Yeomans, was never in issue. On the
[Page 610]
contrary, Mr. Done, who represented Mr. Evans, said:
I think I would like for the record to say that Mr. Yeomans, for whom, incidentally, I have the greatest respect and so does the Alliance—
Mr. Evans sought unsuccessfully to have the Appeal Board’s decision set aside under s. 28 of the Federal Court Act. The Federal Court of Appeal, speaking through Mr. Justice Le Dain, concluded:
In the result, I agree with the Appeal Board that the selection board did not fail to act in accordance with the merit principle when in the very special circumstances of this case it based its overall assessment of the applicant’s “Potential for Effectiveness” on the Commissioner’s judgment, with which it agreed, as to the likely effect of the public perception of the applicant’s responsibility for the disturbance in the Millhaven Institution in 1976. It was an assessment that was different than that applied to other candidates because it was one that was peculiar to the case of the applicant. It could not be ignored by the selection board. To have done so would have been to have failed to act in accordance with the merit principle and to conclude on some other basis, not related to all the pertinent facts, that there was potential for effectiveness, when there was reason to believe that it did not exist.
Mr. Evans now appeals the decision of the Federal Court of Appeal. He submits that the Federal Court of Appeal erred in law in three respects when it dismissed his application under s. 28 of the Federal Court Act and upheld the decision of the Public Service Commission Appeal Board.
II The First Ground of Appeal
It is contended that the Court erred in concluding the Selection Board was not subject to the principle of procedural fairness as laid down by this Court in Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, 1978 CanLII 24 (SCC), [1979] 1 S.C.R. 311. I do not read the judgment of the Federal Court of Appeal as reaching any such conclusion. The Court observed that the essential submission of the applicant was that the Selection Board had failed to offer the applicant an opportunity to be heard with respect to the Commissioner’s memorandum. Counsel for the applicant conceded before the Federal Court of
[Page 611]
Appeal that the Selection Board was not exercising a judicial or quasi-judicial function subject to the rules of natural justice but he invoked the doctrine of fairness recognized in Nicholson. In answer to this Mr. Justice Le Dain said:
In my opinion a selection board is not obliged to hear candidates in a competition in so far as that implies a right to present evidence and submit arguments concerning disputed questions of fact or law. It is like any examining body. Its task is to set the examination or evaluative process, to carry it out and to determine the results. It is not obliged, for example, to offer candidates an opportunity to be heard on the merits of a personal appraisal report. Internal administrative procedures may provide for review of personal appraisal reports, but that is not the function of a selection board which must take a report as it finds it. The Commissioner’s memorandum with respect to employment of the applicant was in my opinion in the same category.
With respect I agree.
In Blagdon v. Public Service Commission, 1975 CanLII 2300 (FCA), [1976] 1 F.C. 615 at pp. 622-23, Pratte J. stated, in my view correctly, the duties resting upon a selection board or, as it is sometimes called, Rating Board, selecting candidates according to merit for appointment to the Public Service:
A Rating Board is an instrument used by the Public Service Commission to perform its duty to select candidates on the basis of merit. Its function is merely to assess the various candidates and, in doing so, it performs a purely administrative task. That task must, of course, be performed fairly and honestly so as to achieve an assessment on the basis of merit, but it is not governed by rules, such as audi alteram partem, applicable to judicial or quasi-judicial bodies. Speaking broadly, the only general rule that governs the activity of a Selection Board is that the selection be made on the basis of merit.
The Selection Board must carry out its administrative task fairly and impartially. It may call some or all of the applicants for an oral interview but it is not conducting a trial and it is not incumbent upon it to give every candidate the opportunity of refuting evidence adverse to his or her candidacy. Apart from other considerations, the number involved and time constraints would
[Page 612]
make such a course impractical. The competition in question in the present proceedings attracted a total of 174 applications. The discretion exercisable by the Selection Board, acting on behalf of the Commission is considerable. Section 16(1) of the Public Service Employment Act reads:
- (1) The Commission shall examine and consider all applications received within the time prescribed by it for the receipt of applications and, after considering such further material and conducting such examinations, tests, interviews and investigations as it considers necessary or desirable, shall select the candidates who are qualified for the position or positions in relation to which the competition is conducted.
The appeal process and the role of the Appeal Board is distinct and in law entirely different from the selection process and the role of the Selection Board. Section 21 of the Act relates to appeals and reads:
- Where a person is appointed or is about to be appointed under this Act and the selection of the person for appointment was made from within the Public Service
(a) by closed competition, every unsuccessful candidate, or
(b) without competition, every person whose opportunity for advancement, in the opinion of the Commission, has been prejudicially affected,
may, within such period as the Commission prescribes, appeal against the appointment to a board established by the Commission to conduct an inquiry at which the person appealing and the deputy head concerned, or their representatives, are given an opportunity of being heard, and upon being notified of the board’s decision on the inquiry the Commission shall,
(c) if the appointment has been made, confirm or revoke the appointment, or
(d) if the appointment has not been made, make or not make the appointment,
accordingly as the decision of the board requires.
At the appeal level an unsuccessful candidate is given specifically an opportunity of being heard. The Appeal Board sits in a quasi-judicial role. The audi alteram partem rule applies, the merit principle continues to suffuse the proceedings.
In the present case, Mr. Evans was given an opportunity to be heard before the Appeal Board.
[Page 613]
He was heard at length. When the matter reached the Federal Court of Appeal the question which that Court had to answer was whether the Appeal Board had, within the terms of s. 28 of the Federal Court Act:
(a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
(b) erred in law in making its decision or order, whether or not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
It must be emphasized that the motion brought by Mr. Evans was to review and set aside the decision or order of the Appeal Board, not the decision of the Selection Board. I find it difficult to say that the Appeal Board failed to observe a principle of natural justice or that it erred in law in making its decision or order. I find it doubly difficult to say that the Federal Court of Appeal erred in concluding that the Appeal Board had not erred in either respect. I would reject the first ground of appeal.
III The Second Ground of Appeal
The second ground upon which Mr. Evans relies is that the Federal Court of Appeal approved of the manner in which the appellant had been reassessed by reason of the earlier Appeal Board decision, notwithstanding, in the appellant’s submission, clear evidence that the reconstituted Selection Board made no effort to undertake a bona fide reassessment of the appellant as it was required to do, but rather met and without any notice to the appellant reaffirmed its original decision for virtually identical reasons. This ground is two-fold. The complaint is that the reconstituted Selection Board
(a) made no effort to undertake a bona fide reassessment of Mr. Evans, and
(b) the Board reaffirmed its original decision without any notice to Mr. Evans.
[Page 614]
I have already indicated that in my view Mr. Evans was not entitled to notice at the Selection Board level. That disposes of (b).
I am not entirely clear what the Selection Board would have been expected to do by way of “bona fide reassessment”. The Board had been faulted in the first instance for failing to investigate the reasons for the restriction placed on Mr. Evans work activities. On being reconvened they were given the reasons in the detailed memorandum from Mr. Yeomans, the Commissioner of Corrections. They considered those reasons well-founded, and concluded that Mr. Evans’ “Potential for Effectiveness” in a penal institution working with inmates was fatally impaired. What more could be expected of them? Although, as Mr. Justice Le Dain notes, an inquiry by the Selection Board into the truth of the Parliamentary Subcommittee’s statement “might have gone some way to satisfy [Mr. Evans’] understandable desire… for justice”, it was neither the duty nor the function of the Selection Board to launch such an inquiry. Mr. Justice Le Dain observed:
It was not a tribunal equipped to make such an inquiry. What was in issue, as indicated by the Commissioner’s opinion, with which the members of the selection board concurred on the basis of their own experience in the penitentiary system, was the likely effect of the statement, with the publicity given to it, on the attitude of inmates, regardless of any subsequent attempt to establish and communicate a different view of the facts.
I agree with Mr. Justice Le Dain and I do not think the second ground of appeal can be sustained.
IV The Third Ground of Appeal—The Merit Principle
The third and more substantial ground lies in the fact that the Federal Court of Appeal acknowledged the case to be “disturbing” in that there was a “strong suggestion in the evidence that the applicant may have suffered an injustice, and that he has sought in vain for a forum in which to have it remedied”. I agree. It is said on behalf of Mr. Evans that the decision of the Appeal Board and
[Page 615]
the judgment of the Federal Court of Appeal are thus at variance with the merit principle.
Section 10 of the Act enshrines the merit principle. The section reads:
- Appointments to or from within the Public Service shall be based on selection according to merit, as determined by the Commission, and shall be made by the Commission, at the request of the deputy head concerned, by competition or by such other process of personnel selection designed to establish the merit of candidates as the Commission considers is in the best interests of the Public Service.
Section 10 must be read with s. 12:
- (1) The Commission may, in determining pursuant to section 10 the basis of assessment of merit in relation to any position or class of positions, prescribe selection standards as to education, knowledge, experience, language, residence or any other matters that, in the opinion of the Commission, are necessary or desirable having regard to the nature of the duties to be performed, but any such selection standards shall not be inconsistent with any classification standard prescribed pursuant to the Financial Administration Act for that position or any position in that class.
(2) The Commission, in prescribing or applying selection standards under subsection (1), shall not discriminate against any person by reason of sex, race, national origin, colour, religion, marital status or age.
Section 12 authorizes the Commission to establish selection standards with respect to any matters that in the Commission’s opinion “are necessary or desirable having regard to the nature of the duties to be performed”. The scope of the Commission’s power, however, is limited by the express reference to s. 10. Selection standards must be designed to determine the basis on which the merit of candidates for a particular position will be assessed.
The poster advertising the position for which Mr. Evans applied included a “Statement of Qualifications”, subdivided into “Basic Requirements” and “Essential Qualifications”. Under the latter heading is found “Potential for Effectiveness”, amplified in the following terms:
[Page 616]
Potential for Effectiveness
Overview of total suitability—
Some such attributes which may be considered are:
Ability to establish and maintain good working relationships.
Stability, reliability, self confidence, and maturity.
Judgment, initiative, discretion and persuasiveness.
Evidence of a positive attitude towards the inmate training and rehabilitation program.
Ability to adapt to a new environment.
Mr. Evans was excluded from the eligible list because the Selection Board agreed with the Commissioner of Penitentiaries that allowing Mr. Evans to work in a penal institution would be disruptive and even dangerous to staff, inmates and Evans himself.
No one in these proceedings has doubted that great notoriety surrounds Mr. Evans in the penitentiary service. His representative brought this out at the hearing before the Appeal Board. No one seems to have questioned the judgment of the Commissioner that such notoriety makes Mr. Evans ineffective, even dangerous, in an institutional setting. The issue that remains, however, is: Does the requirement that public service appointments be made on the basis of merit mean that an applicant’s notoriety must be overlooked, at least where the public opinion of the applicant may be misinformed, because notoriety has nothing to do with the worthiness or otherwise of the candidate? Can the Public Service Commission, pursuant to its statutory mandate to set selection standards, require that applicants possess some “potential for effectiveness” and where notoriety mars effectiveness, reject a candidate?
The Oxford English Dictionary and Webster’s Third New International Dictionary define “merit” in the precise sense in which it is used in the public service hiring context. The Oxford English Dictionary says:
merit system, the system of giving promotion in the civil service according to the deserts of the candidates (in the U.S. opposed to ‘spoils system’);
[Page 617]
Webster’s speaks in similar terms:
merit system: the system of appointing employees to office in the civil service and of promoting them for competency only (advocates of the merit system always concede that policy-determining posts should be political—D.D. McKean)—opposed to spoils system.
The word “merit” is defined in the Oxford English Dictionary in nine different senses. In one of these, and only one, is merit defined in terms of an intrinsic/extraneous dichotomy.
The merits or, rarely, the merit (of a case, question, etc.): chiefly in Law the intrinsic ‘rights and wrongs’ of the matter, in contradistinction to extraneous points such as the competence of the tribunal or the like. Hence, to discuss, judge (a proposal, etc.) on its merits, i.e. without regard to anything but its intrinsic excellences or defects. To have the merits (Law): of a party to a suit, to be in the right as to the question in dispute (said esp. when for technical reasons a favourable decision cannot be given).
This use of “merit” is in a specialized sense, in a particular legal context, namely, the distinction between the intrinsic merits of an action, and extraneous considerations such as jurisdiction and procedure. This dichotomy is not applicable, in my view, in a public service hiring context. It is not the sense in which the word is used in s. 10 of the Public Service Employment Act. Even if one accepts the legal definition the contrast between “intrinsic” and “extraneous” qualities is not particularly helpful. The opinion of a man’s supervisor is extrinsic and “man-made” in exactly the same sense as the opinion of the inmates. Yet it cannot be said that the merit principle makes the supervisor’s opinion irrelevant. Opinions should be considered or ignored depending on whose opinion it is, whether it is well informed or misinformed, in short, whether or not it is relevant.
Corrections is not the only employment context in which public image and reputation might be relevant to an applicant’s ability to do some job. A
[Page 618]
man with a pro-union or pro-management reputation, whether deserved or not, could hardly be an effective labour mediator. There are at least some public service jobs, as there are some private sector jobs, for which a certain public image and reputation is a bona fide occupational qualification.
The merit principle serves employer as well as employee interests. The merit system protects an applicant’s interest in being assessed on the basis of reasonable and appropriate selection standards; but it is also designed to protect the public interest in having the best qualified people available appointed to the public service. The merit principle is designed to protect the public employers right to hire suitable and effective employees, not to derogate from that right; it is supposed to ensure that effective people are hired, not to make an applicant’s potential for effectiveness irrelevant. In my view the merit principle cannot have been intended to force the Public Service Commission to appoint an individual to a position, knowing that his reputation makes it impossible (here “risky”) for him to perform the duties required in that position.
It is true that even if Mr. Evans were appointed, the Commissioner of Corrections could still suspend him under s. 8(2) of the Penitentiary Act. Counsel for the respondent indicated however during argument that if Mr. Evans’ appeal should succeed and if the Public Service Commission appointed Evans to the position advertised in the notice of competition it was unlikely that the Commissioner would then act to suspend him. I assume that counsel for the Appeal Board can speak for the Commissioner of Corrections. However the merit principle applies in every public employment context, not just the Corrections group. What is to be done in other employment contexts where there is no equivalent to s. 8(2) of the Penitentiary Act? Must the Commission in such cases appoint employees whose notoriety makes them unsuitable and ineffective?
[Page 619]
Unfortunate though it may be, it is sometimes unavoidable that a man’s reputation, even if undeserved, will be relevant to his ability to perform certain duties effectively. Those familiar with prison work agree that this is such a case. Mr. Evans’ notoriety, even if external, is a relevant attribute. The absence of a bad reputation among prison inmates is, in this case, a bona fide occupational qualification. Reputation is relevant to the applicant’s merit in the straightforward sense that it is relevant to his ability to do the job.
V The Remedy
When there is a whiff of injustice in the air arising from possible misapprehension of facts the natural tendency of the courts is to cast about for some means of ascertaining the true state of affairs and put matters right. But there are limits. If there is injustice in this case it lies in the action of a Parliamentary Subcommittee in naming CX-2 Bernard Evans as instigator of the grave disturbance at Millhaven Institution, in attributing to him words he did not utter and in failing to afford him an opportunity to be heard before being condemned. It seems to me passing strange that a Parliamentary Subcommittee would make such an accusation without some evidence in support of it. We do not have a transcript of the hearing before the Parliamentary Subcommittee. Nor do we know whether the Subcommittee gathered evidence otherwise than in a formal hearing. Mr. Evans, as I have mentioned, told the Appeal Board that no “inmate” had named him. There is nothing, however, to indicate, one way or the other, what might have been said to the Parliamentary Subcommittee by correctional officers or other witnesses present at the time. Nevertheless, for the purposes of this appeal, let us assume the Subcommittee Members of Parliament publicly blamed Mr. Evans for the Millhaven disturbance without any evidence whatsoever. What is to be done?
I know of no jurisdiction residing in this Court to inquire into the accuracy of the Parliamentary Subcommittee’s finding that Mr. Evans was the cause of the 1976 Millhaven disturbance. Mr.
[Page 620]
Justice Le Dain was of opinion that it was not the duty or function of the Selection Committee to institute such an inquiry and I agree with him. Is the Appeal Board in any better position?
The Appeal Board considered the point. Mr. Rosenbaum said that he was not sitting to assess what the Parliamentary Subcommittee might have done, violating the principle of audi alteram partem; he was looking at what the Selection Committee had done; he did not have jurisdiction to inquire into what the Subcommittee had done. Mr. Evans’ representative responded “I know you don’t sir”. It has been suggested however, that Mr. Rosenbaum, as the Appeal Board is in a different position than the Selection Board, because under s. 21 of the Act the Appeal Board is authorized to “conduct an inquiry”.
Section 21 contemplates an appeal where a person is appointed or about to be appointed under the Public Service Employment Act. The inquiry is made into such appointment or projected appointment. An inquiry may be made into the manner in which a Selection Board applies the Commission’s selection standards and assesses the merits of the various applicants for a position. That is the limit of the inquiry and appeal envisaged by s. 21. I do not think s. 21 comprehends an inquiry into the accuracy of findings of fact by other tribunals, such as courts of law, labour arbitrators, administrative agencies or Parliamentary Subcommittees. The Appeal Board cannot compel the attendances of witnesses; it cannot take evidence under oath; it has no right of access to the departmental documents or files. If the Appeal Board is to investigate the truth of statements made by a Parliamentary Subcommittee will members of the Parliamentary Subcommittee have an opportunity to appear and defend the integrity of their report? Will there be an appeal from the decision of the Appeal Board?
It would be unprecedented, so far as I am aware for a court to sit in judgment upon a parliamentary subcommittee report. It would be incongruous for a Board, the sole function of which is to sit in appeal from the Public Service Selection Board to do so. Nothing in the Act or the record indicates to
[Page 621]
me that an appeal board has either the expertise, the institutional capacity or the procedural powers necessary to perform such a task.
Furthermore, under what circumstances is an appeal board supposed to reassess findings by other tribunals? Must it do so every time an applicant claims he can produce evidence to show than an adverse finding by some other tribunal is erroneous? Section 21 does not create a right to challenge findings by other tribunals that stand in the way of an applicant’s opportunity for career advancement. If Parliament had contemplated such a radical right of appeal it would have created it expressly. It would have equipped the Appeal Board with appropriate powers, and ensured that the Board was manned by individuals with legal training. The Public Service Employment Act does none of this. It mentions only an “inquiry” at which the appellant and the department “are given an opportunity of being heard”.
I cannot agree then, that in order to determine whether the Selection Board excluded Mr. Evans in accordance with the merit principle, the Appeal Board had a duty to inquire into the accuracy of the Parliamentary Subcommittee’s finding that Mr. Evans made the insulting remarks that precipitated a prison riot.
Mr. Evans’ desire for an opportunity to have some tribunal reassess the evidence considered by the Subcommittee is understandable. One might question Parliament’s decision to empower a committee of Members of Parliament to investigate, name names, and report publicly, with neither appearance nor appeal rights for those affected. Nevertheless, that is what Parliament appears to have done. Parliament is accountable for its decision, but not in a court of law. The remedy proposed is simply not available under s. 21 of the Public Service Employment Act.
There is a further point. Mr. Evans received zero marks on “Potential for Effectiveness” not because the allegations in the Parliamentary Subcommittee report were true, but because the pub-
[Page 622]
licity and notoriety attendant upon the incident made his presence in an institution a danger to himself, other correctional officers and inmates. Thus, even if the Appeal Board were to hold the proposed inquiry and come to the conclusion that the Subcommittee’s finding was both inaccurate and unreasonable, it is difficult to see how Mr. Evans’ career as a corrections officer could benefit. The notoriety would remain, abated somewhat perhaps by the passage of time but, for the purposes of this appeal, still extant.
In all the circumstances, I do not think this appeal can succeed. Mr. Evans understandably desires to have the Parliamentary Subcommittee’s finding investigated, but this is something which, in my opinion, is not within the competence of this Court or the Public Service Commission Appeal Board.
For these reasons, I would dismiss the appeal. The respondent Board has not asked for costs and no costs should be awarded.
Appeal allowed with costs, DICKSON and BEETZ JJ. dissenting.
Solicitors for the appellant: Soloway, Wright, Houston, Greenberg, O’ Grady, Morin, Ottawa.
Solicitor for the respondent: R. Tassé, Ottawa.
