Doré v. Canada, [1987] 2 S.C.R. 503

Gisèle Doré Appellant

v.

Her Majesty The Queen in Right of Canada Respondent

and

Guy St‑Hilaire, Public Service Commission of Canada Mis en cause

and

Lise Nolet‑Terlecki Mis en cause

Indexed as: Doré v. Canada

File No.: 19770.

1986: October 31; 1987: November 19.

Present: Beetz, Chouinard*, Lamer, Le Dain and La Forest JJ.

*Chouinard J. took no part in the judgment.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Labour law ‑‑ Public Service employment ‑‑ Appointments ‑‑ Public Service employee assigned to different functions pending classification of a new position for such functions ‑‑ Distinction between the creation and the classification of a position ‑‑ Whether the assignment of the employee 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, s. 21.

The mis en cause Nolet‑Terlecki, an employee of a Canada Employment Centre, was assigned to the functions of supervisor of the reception and inquiries section pending classification of a new position for such functions. The appellant, an unsuccessful candidate, appealed against the assignment of the mis en cause before an appeal board under s. 21 of the Public Service Employment Act. At the time of the hearing, nine months after the assignment of the mis en cause, the latter was still acting full‑time as supervisor. A new organizational chart, providing for the new position, had been approved, but the position had not yet been classified. Before the board, the Department contended that the assignment of the mis en cause was not an appointment to a position giving rise to a right of appeal under s. 21, but was merely a temporary assignment to functions for which a new position had not yet been created. The board allowed appellant's appeal and revoked the appointment on the ground that the assignment was an appointment to a position within the meaning of s. 21 of the Act 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. This appeal is to determine whether the assignment of a person who occupies a position in the Public Service to different functions, pending classification of a new position for such functions, is an appointment to a position within the meaning of the Public Service Employment Act giving rise to a right of appeal under s. 21 of the Act.

Held: The appeal should be allowed.

Under section 21 of the Public Service Employment Act, it is what the Department has objectively done as a matter of fact, and not what it may have intended or understood it was doing as a matter of law, that must determine the application of the merit principle and the right of appeal. Here, there is no doubt, that the functions of supervisor of the reception and inquiries section were sufficiently different from those previously being performed by the mis en cause to constitute a new position according to the test indicated in Canada (Attorney General) v. Brault, 1987 CanLII 36 (SCC), [1987] 2 S.C.R. 489. Further, for purposes of the merit principle and the right of appeal, a position within the meaning of the Act may be created before such position has been classified. The creation of a position in the exercise of the Minister's management authority and the classification of the position by the Treasury Board or by a deputy head pursuant to s. 7 of the Financial Administration Act must be regarded as distinct and separate steps; otherwise the merit principle and the right of appeal could be circumvented by a failure to proceed to classification in a particular case.

While it must be possible for the administration to assign a person in the Public Service to new functions on a temporary basis without giving rise to the application of the merit principle and the right of appeal, that reasonable flexibility should no longer be available where, as in the present case, the assignment is permitted to become one of such significant and indefinite duration as may be presumed to place the occupant of the position at a distinct advantage in any subsequent selection process. The assignment of the mis en cause to the position of supervisor of the reception and inquiries section on a full‑time basis for some nine months had acquired that character when the appellant's appeal was heard by the appeal board. Accordingly, the assignment of the mis en cause was an appointment to a position within the meaning of s. 21 of the Act and that since, on the admission of the Department, the appointment was not based on selection according to merit, as required by s. 10 of the Act, the appeal board properly revoked the appointment.

Cases Cited

Applied: Canada (Attorney General) v. Brault, 1987 CanLII 36 (SCC), [1987] 2 S.C.R. 489, rev'g 1984 CanLII 5313 (FCA), [1985] 1 F.C. 410; referred to: Re Belisle and Public Service Commission Appeal Board (1983), 1983 CanLII 2937 (FCA), 149 D.L.R. (3d) 352; Bauer v. Public Service Appeal Board, [1973] F.C. 626; 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(1)(c), (2).

Public Service Employment Act, R.S.C. 1970, c. P‑32, ss. 10, 21.

APPEAL from a judgment of the Federal Court of Appeal[^1], 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.

[^1]: F.C.A., No. A‑‑1493‑84, December 17, 1984.

Robert W. Côté, for the appellant.

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 assignment of a person who occupies a position in the Public Service of Canada to different functions, pending classification of a new position for such functions, is an appointment to a position within the meaning of the Public Service Employment Act, R.S.C. 1970, c. P‑32, giving rise to a right of appeal under s. 21 of the Act.

2. The appeal is by leave of this Court from the judgment of the Federal Court of Appeal (Pratte, Hugessen and MacGuigan JJ.) on December 17, 1985, 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 December 13, 1984, which allowed the appeal, pursuant to s. 21 of the Public Service Employment Act, of the appellant Gisèle Doré against the assignment of the mis en cause Lise Nolet‑Terlecki to the functions of supervisor of the reception and inquiries section of the Canada Employment Centre at Amos, Quebec, on the ground that the assignment was an appointment to a position within the meaning of s. 21 that had not been based on selection according to merit.

I

3. Until February 1984 the supervision of the reception and inquiries section of the Canada Employment Centre at Amos, Quebec, was one of the responsibilities associated with the position of Referral Officer (PM‑01). The new director of the Centre decided that the supervision of the section required more time than a referral officer was able to give to it. He noted that in other Canada Employment Centres supervision of this section was allocated to the position of Supervisor, Reception and Inquiries (CR‑05), and that in the Centre at Amos there were three persons employed as Officers I(CR‑05): the appellant Doré, the mis en cause Nolet‑Terlecki and Madeleine Turgeon. The director decided to assign one of them to the functions of supervisor of the reception and inquiries section pending classification of a new position for such functions. He asked all three whether they were interested, and the appellant and the mis en cause said they were. After interviewing each of them the director selected the mis en cause. It would appear that his reason for selecting the mis en cause rather than the appellant was that he was not satisfied that the functions of supervisor of the reception and inquiries section, which involved some management responsibility, would be compatible with the appellant's position in the union.

4. The mis en cause was assigned full‑time to the functions of supervisor of the reception and inquiries section on February 9, 1984. She ceased to perform the functions of Officer I(CR‑05), but she continued to be paid the salary for that position and to be shown, for administrative purposes, as occupying that position. It was originally intended that the assignment to the functions of supervisor of the reception and inquiries section would be until March 31, 1984, but the assignment was subsequently extended beyond that date, and the mis en cause was still acting full‑time as the supervisor of the reception and inquiries section of the Canada Employment Centre at Amos, Quebec, when the appeal board heard the appeal on November 6, 1984. The director testified at the hearing before the appeal board that the intention was to classify a new position for the functions of supervisor of the reception and inquiries section and to make a selection by competition for a permanent appointment to the new position after it had been classified. Although a new organizational chart, providing for a position of Supervisor, Reception and Inquiries (CR‑05), was approved on July 3, 1984, the new position had not been classified by the time of the appeal board's decision, apparently because the necessary job description for classification of the position had not yet been completed.

5. The appellant appealed in September 1984 against the assignment of the mis en cause to the functions of supervisor of the reception and inquiries section. The Department contended that there had not been an appointment to a position, giving rise to a right of appeal under s. 21 of the Public Service Employment Act, but merely a temporary assignment to functions for which a new position had not yet been created. In support of this contention the Department relied particularly on the judgment of the Federal Court of Appeal in Attorney General of Canada v. Brault, 1984 CanLII 5313 (FCA), [1985] 1 F.C. 410, in which a majority of the Court held that a new position in the Public Service within the meaning of the Public Service Employment Act cannot be created unless there is a clear decision and expression of intention to create such a position. The appeal board declined to apply this judgment, noting that it was under appeal to this Court and appeared to be in conflict with something said by Ryan J. on behalf of the Federal Court of Appeal in Re Belisle and Public Service Commission Appeal Board (1983), 1983 CanLII 2937 (FCA), 149 D.L.R. (3d) 352, where, at p. 358, he appeared to agree with the statement of the appeal board in that case that "the mere absence of formal authorization for . . . a recognized position might not be sufficient to conclude that there was no position to which it could be shown an appointment has been made." Referring to the discussion of the creation of a position, the classification of a position and the appointment to a position by Jackett C.J. in Bauer v. Public Service Appeal Board, [1973] F.C. 626; Brown v. Public Service Commission, [1975] F.C. 345; and 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), the appeal board drew a distinction between the creation of a position in the exercise of the Minister's management authority, and the classification of a position pursuant to the authority which is conferred on the Treasury Board by s. 7(1)(c) of the Financial Administration Act, R.S.C. 1970, c. F‑10, and which may be delegated to a deputy head pursuant to s. 7(2) of the Act. The board concluded that a position for the purposes of an appointment, within the meaning of the Public Service Employment Act, may exist before it has been classified. The board held that if there was any doubt that a new position within the meaning of the Act existed at the time the mis en cause was assigned to the functions of supervisor of the reception and inquiries section on February 9, 1984, there was no doubt that a new position existed at least from July 3, 1984, when an organizational chart showing the new position was approved. Accordingly the board concluded that there had been an appointment 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 the appointment, by the Department's admission, had clearly not been based on selection according to merit, the board allowed the appeal and revoked the appointment of the mis en cause Nolet‑Terlecki.

6. In allowing the s. 28 application to review and set aside the decision of the appeal board, the Federal Court of Appeal applied its earlier judgment in Brault, holding that just as it is necessary that there be a clear decision and expression of intention to create a position in the Public Service, within the meaning of the Public Service Employment Act, so there must be a clear decision and expression of intention to make an appointment to such a position, within the meaning of the Act. The reasons for judgment of Pratte J. on behalf of the Court are as follows:

The appeal board held that Mrs. Nolet‑Terlecki was appointed on February 9, 1984 to a position that was not created until the following July 3. In doing so, in our opinion, it manifestly erred.

In Attorney General of Canada v. Brault and Dubois (May 23, 1984, A‑1029‑83), this Court held that the creation of a position required a unambiguous expression of intent; to this it should now be added that, similarly, there cannot be an appointment to a position if there is no intent to make such an appointment. In the case at bar, the record clearly showed that Mrs. Nolet‑Terlecki, who already held a position in the Public Service, simply agreed as of February 9, 1984 to undertake new duties temporarily, which were eventually to be attached to a position that was to be created. In such circumstances the appeal board could not, without erring in law, find that there had been an appointment.

The application will therefore be allowed, the decision impugned will be set aside and the matter referred back to the appeal board to be decided by it on the basis that Mrs. Nolet‑Terlecki was not appointed within the meaning of section 21 of the Public Service Employment Act.

II

7. This appeal was heard at the same time as the appeal in Canada (Attorney General) v. Brault, 1987 CanLII 36 (SCC), [1987] 2 S.C.R. 489 ("the Brault appeal"), in which judgment has been rendered today. For the reasons given in that appeal, the issue in the present appeal cannot, in my respectful opinion, turn on whether the Department intended to create a position and to make an appointment within the meaning of the Public Service Employment Act. There must, of course, be an intended identification and definition of functions to be performed and an intended assignment of a person to perform them, but, as I said in the Brault appeal, the application of the merit principle and the right of appeal under s. 21 of the Public Service Employment Act cannot depend on whether the Department chooses to regard what is done as the creation of a position and an appointment to it within the meaning of the Act. It is what the Department has objectively done as a matter of fact and not what it may have intended or understood it was doing as a matter of law that must determine the application of the merit principle and the right of appeal.

8. In the present appeal there is no doubt, and indeed it is not contested, that the functions of supervisor of the reception and inquiries section of the Canada Employment Centre at Amos, Quebec, were sufficiently different from those previously being performed by the mis en cause Nolet‑ Terlecki as Officer I(CR‑05) to constitute a new position according to the test indicated in the Brault appeal‑‑a change in functions of such a significant or substantial nature as to call for additional or special qualifications requiring evaluation and therefore what amounts to a selection for appointment. The particular issue raised by this appeal, as I perceive it, is whether there can be the creation of a position within the meaning of the Public Service Employment Act, for purposes of the merit principle and the right of appeal, before a position has been classified for remuneration and other purposes by the Treasury Board, pursuant to the authority conferred by s. 7(1)(c) of the Financial Administration Act, or by a deputy head under a delegation of that authority pursuant to s. 7(2) of the Act. I agree with the appeal board that the identification and definition, in the exercise of the Minister's management authority, of functions to be performed and of the qualifications required for such performance must be regarded as a distinct and separate step from classification, resulting in the creation of a position within the meaning of the Act; otherwise the merit principle and the right of appeal may be circumvented by a failure to proceed to classification in a particular case. Accordingly, I am of the view that there was the creation of a position in the Public Service for purposes of an appointment within the meaning of the Public Service Employment Act.

9. The ultimate issue in the appeal is whether the assignment of the mis en cause on a temporary basis to the position of supervisor of the reception and inquiries section, pending the classification of the position, was an appointment to the position within the meaning of s. 21 of the Public Service Employment Act. On this issue, I am of the view that while it must be possible for the administration to assign a person in the Public Service to new functions on a temporary basis without giving rise to the application of the merit principle and the right of appeal, that reasonable flexibility should no longer be available where, as in the present case, the assignment is permitted to become one of such significant and indefinite duration as may be presumed to place the occupant of the position at a distinct advantage in any subsequent selection process. In my opinion the assignment of the mis en cause to the position of supervisor of the reception and inquiries section on a full‑time basis for some nine months had acquired that character when the appellant's appeal was heard by the appeal board in November, 1984. I am, therefore, of the opinion that there was an appointment of the mis en cause to a position within the meaning of s. 21 of the Public Service Employment Act and that since, on the admission of the Department, the appointment was not based on selection according to merit, as required by s. 10 of the Act, the appeal board properly revoked the appointment.

10. 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 appellant: Gowling & Henderson, Ottawa.

Solicitor for the respondent: Frank Iacobucci, Ottawa.