Canada (A.G.) v. Brault, [1987] 2 S.C.R. 489

Serge Brault and Pierre Dubois Appellants

v.

The Attorney General of Canada Respondent

and

Bernard Lenoir, Daniel Beaupré and Pierre Delage, Director, Appeals Division, Public Service Commission Mis en cause

indexed as: canada (attorney general) v. brault

File No.: 18949.

1986: October 31; 1987: November 19.

Present: Beetz, Chouinard[^1], Lamer, Le Dain and

La Forest JJ.

on appeal from the federal court of appeal

Labour law ‑‑ Public Service employment ‑‑ Appointments ‑‑ Creation of the additional function of "dog handler" in the existing position of customs inspector ‑‑ New function requiring additional and special qualifications ‑‑ Whether the assignment of customs inspectors to the function of dog handler was an appointment to a position within the meaning of the Public Service Employment Act ‑‑ Public Service Employment Act, R.S.C. 1970, c. P‑32, ss. 10, 12(1), 21.

The Department of National Revenue, Customs and Excise, authorized the establishment of a canine detection unit and posted a notice inviting customs inspectors to apply for assignment as a "dog handler". The new function required additional and special qualifications of customs inspectors. The appellants, two unsuccessful candidates, challenged the selection before an appeal board under s. 21 of the Public Service Employment Act. At the hearing, the Department contended that the assignment was not an appointment giving rise to a right of appeal under s. 21 but was merely an assignment to an additional function in the existing position of customs inspector, involving the acquisition and use of additional working tools. The appeal board allowed appellants' appeal and revoked the appointments on the ground that the selection resulted in an appointment to a position within the meaning of s. 21 that had not been based on selection according to merit. The Federal Court of Appeal allowed respondent's application under s. 28 of the Federal Court Act and set aside the board's decision. The majority of the Court held that a position within the meaning of the Public Service Employment Act can be created only by a clear administrative decision and expression of intention to create such a position, and that the creation of a position could not result, in the absence of such a decision and expression of intention, from a change in the functions of a position for which a new selection must be made. This appeal is to determine whether the creation of additional functions in a position in the Public Service, calling for additional qualifications and the selection of a person possessing such qualifications, amounts to the creation of a new position requiring an appointment based on selection according to merit from which an appeal will lie to an appeal board under s. 21 of the Act.

Held: The appeal should be allowed.

The assignments of the successful candidates to the function of dog handler were appointments to a position in the Public Service within the meaning of s. 21 of the Public Service Employment Act, and since, on the admission of the Department, the appointments were not based on selection according to merit, the appeal board properly revoked them. It is the Minister or deputy head who creates a position and determines the qualifications for appointment to it and this act, subject to the necessary approval from the Treasury Board under s. 7 of the Financial Administration Act, does not call for any particular formality or expression. It is an administrative decision which identifies particular functions to be performed and defines the qualifications required for performing them. The view that a new position in the Public Service calling for an appointment within the meaning of s. 21 cannot be created by a change in the functions of an existing position unless the administration chooses to regard such a change as creating a new position within the meaning of the Act would permit the circumvention of the merit principle and the right of appeal.

Obviously the administration must have reasonable flexibility to make minor changes in the functions of an existing position in the Public Service which the occupant of the position may be called on to perform, without thereby creating a new position for which an appointment based on selection according to merit must be made. Where, however, as in the present case, the change in functions is of such a significant or substantial nature as to call for additional or special qualifications requiring evaluation and therefore what amounts to a new selection for the position, a new position within the meaning of the Act is created. Quite clearly it was considered necessary, because of the special qualifications required for the function of dog handler, to make an evaluation and selection of candidates for this function. This was a clear indication that the function of dog handler was a new position although it also required the qualifications for the existing position of customs inspector.

Cases Cited

Referred to: Brown v. Public Service Commission, [1975] F.C. 345; Kelso v. The Queen, 1979 CanLII 4174 (FCA), [1980] 1 F.C. 659, rev'd on other grounds 1981 CanLII 171 (SCC), [1981] 1 S.C.R. 199 .

Statutes and Regulations Cited

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.

Financial Administration Act, R.S.C. 1970, c. F‑10, s. 7 .

Public Service Employment Act, R.S.C. 1970, c. P‑32, ss. 6, 8, 10, 12(1) [rep. & subs. 1974‑75‑76, c. 66, s. 10], 2 .

Public Service Employment Regulations, C.R.C. 1978, c. 1337, s. 5 [am. SOR/78‑343, s. 2].

APPEAL from a judgment of the Federal Court of Appeal, 1984 CanLII 5313 (FCA), [1985] 1 F.C. 410, 61 N.R. 133, allowing respondent's application under s. 28 of the Federal Court Act to review and set aside a decision of the Public Service Commission Appeal Board. Appeal allowed.

Robert W. Côté, for the appellants.

James M. Mabbutt and Jean‑Marc Aubry, for the respondent.

The judgment of the Court was delivered by

1. Le Dain J.‑‑The question raised by this appeal is whether the creation of additional functions or duties in a position in the Public Service of Canada, calling for additional qualifications and the selection of a person possessing such qualifications, amounts to the creation of a new position, although not formally designated as such, requiring an appointment based on selection according to merit, in accordance with s. 10 of the Public Service Employment Act, R.S.C. 1970, c. P‑32, from which an appeal will lie to an appeal board under s. 21 of the Act.

2. The appeal is by leave of this Court from the judgment of the Federal Court of Appeal (Marceau and Hugessen JJ., Pratte J. dissenting) on May 23, 1984, 1984 CanLII 5313 (FCA), [1985] 1 F.C. 410, allowing an application under s. 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, and setting aside the decision of an appeal board on July 4, 1983, which allowed the appeal, pursuant to s. 21 of the Public Service Employment Act, of the appellant customs inspectors, Brault and Dubois, against the selection of the mis en cause customs inspectors, Lenoir and Beaupré, as dog handlers in a newly established customs detection unit on the ground that the selection resulted in an appointment to a position, within the meaning of s. 21, that had not been based on selection according to merit.

I

3. In July 1982, the Department of National Revenue, Customs and Excise, posted a notice inviting customs inspectors at the PM‑1 level in the Montréal Region to apply for "assignment" as a "dog handler" in a "dog detector unit" to be established in the Montréal Region. The notice (Bulletin 82‑44, July 16, 1982) described the function of dog handler and the required qualifications as follows:

dog handler

The Department has recently authorized the establishment of a dog handler and detector dog unit for the Montreal Region. In addition to the dog and handler, the unit will have at its disposal a motor vehicle, kennel facilities, dog run and dog equipment.

program

The selected candidate will receive training of approximately three months duration. The training will be on‑site mostly in Montreal. The training will be oriented toward Customs search of vehicles, baggage and vessels. Dogs will be trained to detect various drugs, firearms and ammunition as well as in obedience, agility and tracking.

open to

Letter applications will be considered from qualified Customs Inspectors at the PM‑1 level, in the Montreal Region. Applications should include why the officer is interested and any outside experience related to the handling of dogs.

In order to be offered this assignment, employees must be willing to accept the following conditions:

‑‑to meet language requirements of the position to be filled before appointment (imperative nomination aabb);

‑‑willingness to accept the position for a period of at least 3 consecutive years;

‑‑must be fully trained and experienced in all phases of Customs Inspector duties;

‑‑good physical health;

‑‑proven ability to deal effectively with people;

‑‑must be prepared to travel and be a licenced automobile driver;

‑‑prepared to devote time and effort to the care and maintenance of a detector dog and related equipment;

‑‑must presently occupy living quarters which include a yard that will accommodate a kennel and dog run.

4. Twenty customs inspectors in the Montréal Region, including the appellants Brault and Dubois and the mis en cause Lenoir and Beaupré, submitted applications and were interviewed. The candidates were interviewed to determine who would be most suitable as a dog handler, having regard to the special requirements of that function set out in the notice of July 16, 1982, but they were not evaluated with respect to their qualifications for the position of customs inspector. On August 16, 1982, the appellants were informed that they would not be selected and that the final selection would be made from among three other candidates, who were later identified as Daniel Alexander and the mis en cause Lenoir and Beaupré, apparently in that order of merit or eligibility. The selection of these three candidates gave rise to two challenges by the appellants before appeal boards under s. 21 of the Public Service Employment Act. The first followed the assignment of Alexander to the function of dog handler and the second followed the subsequent assignment of the mis en cause Lenoir and Beaupré, after Alexander resigned. The issues before both appeal boards were whether the assignment of a candidate to the function of dog handler was an appointment to a position in the Public Service, as required for the right of appeal under s. 21, and whether, if it was an appointment, it was one which had been based on selection according to merit. In both appeals the Department contended that what was involved was merely an assignment to an additional function in the existing position of customs inspector, involving the acquisition and use of additional working tools. Both appeal boards held that it was an appointment to a new position that had not been based on selection according to merit and revoked the appointments. A section 28 application in the Federal Court of Appeal against the decision of the first appeal board was dismissed on the ground that since Alexander had resigned the issue had become moot. The reasoning of the two appeal boards on the two issues before them was essentially the same, but since it is the decision of the second appeal board concerning the assignment of the mis en cause Lenoir and Beaupré to the function of dog handler that is in issue in this appeal, I shall refer to the reasons of that board.

5. To facilitate an understanding of the issues before the appeal board and its disposition of them it is convenient here to set out s. 21 of the Public Service Employment Act, which defines the right of appeal against an appointment to a position in the Public Service, as well as ss. 10 and 12(1) of the Act and s. 5 of the Public Service Employment Regulations, C.R.C. 1978, c. 1337, which lay down the requirement that an appointment to a position in the Public Service must be based on selection according to merit in accordance with the applicable selection standards. These provisions read as follows:

6. 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.

10. 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.

11. (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.

12. Every appointment pursuant to section 10 of the Act shall be made, in accordance with selection standards, by one of the following processes of personnel selection:

(a) an open competition between persons who

(i) respond to public notice, or

(ii) are identified by means of an inventory;

(b) a closed competition between employees who

(i) respond to notice, or

(ii) are identified by means of an inventory; or

(c) the consideration of such material and the conduct of such examinations, tests, interviews and investigations as the Commission considers necessary to establish the merit of a candidate for appointment where the Commission is of the opinion that a competition would not be in the best interests of the Public Service and the appointment is one of the following, namely,

(i) the appointment of an employee to a position for which the maximum rate of pay does not exceed the maximum rate of pay for the position occupied by the employee immediately prior to the appointment,

(ii) the appointment of an employee to a reclassified position that the employee occupied immediately prior to the reclassification of the position,

(iii) the promotion of an employee in a position to which he was appointed at a level lower than the full level of the position,

(iv) the appointment for a specified period from outside the Public Service to meet an emergency situation, and

(v) an appointment by the Commission, other than an appointment described in subparagraphs (i) to (iv), that the Commission considers to be in the best interests of the Public Service.

6. Like the first appeal board, the second appeal board held that the appellants were unsuccessful candidates in a closed competition within the meaning of s. 21 of the Act, and by implication, that this indicated that the assignment of the successful candidates to the function of dog handler was an appointment to a position in the Public Service within the meaning of the Act. In concluding that the creation of the additional function of dog handler in the existing position of customs inspector amounted to the creation of a new position, the second appeal board relied particularly on certain statements of Jackett C.J. in Kelso v. The Queen, 1979 CanLII 4174 (FCA), [1980] 1 F.C. 659 (reversed by this Court on other grounds, 1981 CanLII 171 (SCC), [1981] 1 S.C.R. 199) concerning the authority to change the qualifications for a position in the Public Service during a particular tenure of it and the effect of such a change. The appeal board would appear to have attached particular importance to the following statements in the reasons for judgment of Jackett C.J. at pp. 663 and 664‑65:

Neither do I know of any authority for changing the qualifications that must be satisfied by a person so appointed to a position during the period that he continues to occupy that position. Any such change in qualifications would, in effect, make the position something other than that to which he was appointed.

The general power of management must not only include the power to decide how many persons of what qualifications are required to enable the Department to perform its statutory obligations to serve the public but, in the event of changing circumstances or policies, must include the power to decide that classes of employees with certain qualifications who are on staff are no longer required and that employees with other qualifications are required to provide the service to the public that it is the Department's duty to provide. Put another way, the general power of management not only includes the power to create positions (including the definition of what is required therefor) but the power to abolish certain positions and create other positions requiring different qualifications. Furthermore, if a position is abolished and a new position created the incumbent of the position abolished ceases to be employed and the new position created must be filled by the Public Service Commission.⁸

⁸ Generally, small changes in qualifications will result in voluntary acceptance by the incumbent of appointment to the new position and will be regarded as (and called) an amendment to the original position or a transfer.

7. The appeal board also based its conclusion that the addition of the function of dog handler to the existing position of customs inspector had created a new position on the nature of the special qualifications required of a dog handler, as indicated in the following passage of its decision:

[TRANSLATION] In view of the observations of Jackett C.J. of the Federal Court of Appeal, referred to above, on the effect of changes made to the qualifications, duties and responsibilities of a position, and taking into account the additional qualifications, duties and responsibilities expected of a "dog handler", in addition to the usual ones of a customs inspector, I think it is clear that in imposing them the Department was in fact establishing and creating positions that were different from those of customs inspector. In my view, it is clear that having regular custody at home of a specially trained dog, spending one to two hours a day of this working time exercising it, being responsible for the maintenance of equipment relating to the custody and use of the dog, and being subject to conditions in addition to those usually imposed on ordinary customs inspectors, makes the position of a "dog handler" quite different from that of an ordinary customs inspector. The Department even admitted that special qualifications were needed in order to become a "dog handler", and it was not something which every customs inspector could do.

8. The second appeal board further held, as had the first appeal board, that the appointment to the position of dog handler had not been based on selection according to merit in accordance with the applicable selection standards, as required by ss. 10 and 12 of the Act and s. 5 of the Regulations, which have been quoted above, because, as admitted by the Department, the candidates had not been evaluated with respect to the rated requirements of knowledge, capacity and personal qualities for the position of customs inspector, as well as suitability for the function of dog handler, in the light of the special qualifications for that function. According to the first appeal board, the Department's reason for not evaluating the merit of the candidates with respect to their qualifications for the position of customs inspector, as well as those for the function of dog handler, was a concern that such evaluation might establish that some candidates were not qualified for the position of customs inspector, with the result that they would have to be dismissed. In any event, it is admitted by the Department that if the assignment of the mis en cause as dog handlers was an appointment within the meaning of s. 21 of the Public Service Employment Act it was not one based on selection according to merit.

9. In the Federal Court of Appeal, which set aside the decision of the appeal board, Marceau J., with whom Hugessen J. concurred, held that a position within the meaning of the Public Service Employment Act can be created only by a clear administrative decision and expression of intention to create such a position, and that the creation of a position could not result, in the absence of such a decision and expression of intention, from a change in the functions of a position for which a new selection must be made. He expressed his views on this question as follows at pp. 421 and 422:

So far as I am concerned, it would appear that since the creation of a position involves the identification and definition of a function requiring the hiring of a person, and since the power of creating a position is a legal power involving the taking of a decision, it can hardly be doubted that to create a position a firm and unambiguous expression of intent will be required. In adopting as its premise that a position can be created simply by a situation of fact, merely by the behaviour of management, and even contrary to the wishes of the Minister or his representatives, the Board in my opinion is setting forth a proposition which is theoretically indefensible.

I therefore consider that the Board erred in assuming that the creation of a position in the Public Service did not require a clear decision and an unambiguous indication of intent by the Minister or someone empowered to act for him: that it could result simply from a situation of fact or the behaviour of managers, and could even occur without the knowledge, indeed against the wishes of a department. In my view, in the circumstances disclosed by the record and admitted by the Board, new positions of "dog handler" were not created: accordingly there was no appointment to a position within the meaning of the Public Service Employment Act, and section 21 of that Act could not be applied.

10. Pratte J., dissenting, was of the view that a new position in the Public Service may be created, without a formal expression of intention to do so, by a change in the functions of an existing position of such a significant or substantial nature as to create what amounts to a different job. He expressed his views to this effect as follows at pp. 415‑16:

As counsel for the applicant emphasized, the Public Service Employment Act frequently uses the expression "appointment to positions in the Public Service" but does not define the words "appointment" and "position". It follows that these words are used in their ordinary sense, according to which a person is appointed to a position when he is designated to perform a job or function. Accordingly, a person who already has a position in the Public Service, as was the case with the mis‑en‑cause Lenoir and Beaupré, is appointed to another position if he is designated to perform a job different from the one already held by him. In my view, for someone who already has a position in the Public Service to be appointed to a new position, it is not necessary for the authorities in question to expressly appoint him to such a position: it will suffice if such authorities, without expressly creating a new position, appoint him to permanently carry out in future a new job which is substantially different from that associated with the position held by him until that time.

The mis‑en‑cause Lenoir and Beaupré were customs inspectors when they were selected to perform the duties of "dog handler". To decide whether as such they were being appointed to new positions, it must be determined whether their new duties were sufficiently different from those of a customs inspector to constitute a different job. The Board answered this question in the affirmative. I consider it was correct, as the function of a "dog handler" adds such significant responsibilities and obligations to those of a customs inspector that it seems impossible to accept the applicant's argument that the selection of the mis‑en‑cause as "dog handlers" was merely an assignment of duties within the ordinary limits of their jobs as customs inspectors.

II

11. As Pratte J. noted, the Public Service Employment Act does not contain any indication of what constitutes a position in the Public Service of Canada that can only be validly filled by an appointment in accordance with that Act, either by the Public Service Commission pursuant to its authority under s. 8 of the Act or by a deputy head acting under a delegation of the appointment power by the Commission pursuant to s. 6 of the Act. The authority to create a position and to determine the qualifications required for appointment to it has been the subject of commentary in several judgments of the Federal Court of Appeal, notably in Brown v. Public Service Commission, [1975] F.C. 345, where Jackett C.J. at pp. 347 and 348 referred to a position as "the legal authority to employ a person in the Public Service" and at pp. 357‑58 set out the steps in the creation of a position and the appointment of a person to it. From the commentary in that case and others, such as Kelso, supra, and my own examination of the relevant legislation, I conclude that the steps may be summarized as follows: 1. The Minister or deputy head of a Department, in the exercise of his management authority, determines what positions are required in the Department and determines the qualifications for appointment to them; 2. Financial approval for a position must be obtained from the Treasury Board, which has authority under s. 7 of the Financial Administration Act, R.S.C. 1970, c. F‑10, to classify positions in the Public Service for renumeration and other purposes; 3. The deputy head makes a request to the Public Service Commission to make the necessary appointment or makes the appointment himself under a delegation of authority; and 4. The appointment is made pursuant to the particular selection process required by the Public Service Employment Act and Regulations, the relevant provisions of which have been quoted above. The important point, for purposes of the issue in this appeal, is that it is the Minister or deputy head who creates a position and determines the qualifications for appointment to it, and that, subject to the necessary approval from the Treasury Board, this act does not call for any particular formality or expression. It is an administrative decision which identifies particular functions to be performed and defines the qualifications required for performing them.

12. Having regard to the importance of the principle of selection according to merit and the right of appeal under s. 21 of the Public Service Employment Act, I am unable, with great respect, to agree with the premise underlying the judgment of the majority of the Federal Court of Appeal, which I understand to be that a new position in the Public Service calling for an appointment within the meaning of s. 21 cannot be created by a change in the functions of an existing position unless the administration chooses to regard such a change as creating a new position within the meaning of the Act. Such a view would permit the circumvention of the merit principle and the right of appeal.

13. Obviously the administration must have reasonable flexibility to make minor changes in the functions of an existing position in the Public Service which the occupant of the position may be called on to perform, without thereby creating a new position for which an appointment based on selection according to merit must be made. Where, however, as in the present case, the change in functions is of such a significant or substantial nature as to call for additional or special qualifications requiring evaluation and therefore what amounts to a new selection for the position, a new position within the meaning of the Act is created. Quite clearly it was considered necessary, because of the special qualifications required for the function of dog handler, to make an evaluation and selection of candidates for this function. This was a clear indication, in my opinion, that the function of dog handler was a new position although it also required the qualifications for the existing position of customs inspector. The assignments of the mis en cause Lenoir and Beaupré to the function of dog handler were accordingly appointments to a position in the Public Service giving rise to a right of appeal under s. 21 of the Public Service Employment Act, and since, as conceded, the appointments were not based on selection according to merit the appeal board properly revoked them.

14. For these reasons I would allow the appeal with costs, set aside the judgment of the Federal Court of Appeal and restore the decision of the appeal board.

Appeal allowed with costs.

Solicitors for the appellants: Gowling & Henderson, Ottawa.

Solicitor for the respondent: James M. Mabbutt, Ottawa.

[^1]Chouinard J. took no part in the judgment.