Date: 20000331
Docket: T-166-99
BETWEEN:
RUTH ABERCROMBIE,
Applicant,
- and -
ATTORNEY GENERAL OF CANADA,
Respondent.
REASONS FOR JUDGMENT
DAWSON, J.
[1] Ruth Abercrombie, pursuant to section 21 of the Public Service Employment Act (R.S.C. 1985, c. P-33) ("the PSEA"), appealed against the selection of Deborah Wipp to perform the duties of the position of Program and Services Officer at the Kelowna, British Columbia office of the Department of Human Resources and Development ("the Department").
[2] Section 21 of the PSEA provides, subject to some restrictions not relevant to this matter, an appeal procedure before an Appeal Board for any person who wishes to challenge an appointment on the basis that it was not made according to the merit principle.
[3] When Ms. Abercrombie's appeal came on for hearing before the Appeal Board it was her position that the impugned staffing action was an appointment and that therefore section 21 appeal rights applied.
[4] It was the position of the Department that no "appointment" had been made under the PSEA so that no appeal rights existed against the staffing action.
[5] The Appeal Board chairperson concluded that he could not find that an appointment had been made. In the result he found that he did not have jurisdiction to hear Ms. Abercrombie's appeal.
[6] Ms. Abercrombie now brings this application for judicial review of that decision. She challenges it on the ground that it was based on an improper legal standard and irrelevant considerations and that it failed to address important issues.
The Facts
[7] The facts are not in dispute and may be summarized briefly as follows.
[8] Deborah Wipp was employed as an Employment Counsellor (PM-02) at the Human Resources Centre in Vanderhoof, British Columbia, until July of 1995. She was then granted a one-year leave of absence without pay, expiring on July 3, 1996, because her spouse had been relocated to Kelowna, British Columbia.
[9] On June 5, 1996 Ms. Wipp was "appointed" as a Program and Services Officer (PM-02) at the Human Resources Centre in Kelowna, British Columbia. This appointment was made pursuant to subsection 41(1) of the Public Service Employment Regulations, 1993 (SOR/93-286) ("the PSER"), "for a term from June 5, 1996 to September 30, 1996".
[10] The Department "appointed" Ms. Wipp for a second term from October 1, 1996, to March 31, 1997.
[11] The Department then "assigned" Ms. Wipp to the same position from April 1, 1997, to September 30, 1997. This "assignment" was extended twice, the first time from October 1, 1997, to March 31, 1998, and the second time from April 1, 1998, to March 31, 1999.
[12] The Department viewed these as temporary assignments and justified them on the basis that there were departmental staffing restrictions in effect while the federal government negotiated with the provincial government for the transfer of employment programs to the province.
The Issues
[13] The issues before me are:
| (1) Did the chairperson used the correct legal test to determine whether the challenged staffing situation constituted an appointment within the meaning of the PSEA and the PSER? |
| (2) Did the chairperson consider relevant factors in applying the legal test for appointment? |
[14] Before me the parties were in agreement that on this application the proper standard of review is correctness. This is in accord with prior decisions of this Court, for example Maslanko v. Canada (Attorney General) (1997), 132 F.T.R. 15 (Trial Division), appeal dismissed [1999] F.C.J. No. 324 (FCA), Court File No. A-452-97 and Beaudry v. Canada (Attorney General), [2000] F.C.J. No. 37, Court file No. T-1925-98 (Trial Division), appeal filed A-63-00.
[15] A number of cases have considered the question of how to distinguish an "assignment" from an "appointment" for the purposes of the appeal process under the PSEA and the PSER. The leading cases are Canada (Attorney General) v. Brault, [1987] 2 S.C.R. 489, Doré v. Canada, [1987] 2 S.C.R. 503 and Maslanko v. Canada (Attorney General), supra.
[16] These cases establish that the Appeal Board should have applied the following legal test to determine whether there was an appointment: (i) was the assignment of Ms. Wipp of such "significant and indefinite duration" to be presumed to place Ms. Wipp at a "distinct advantage" in any subsequent selection process?; (ii) was there such a significant or substantial change in functions requiring "additional or special qualifications" so that the "assignment" was tantamount to a new position?; and (iii) was the staffing action in fact an attempt by the Department to avoid observance of the merit principle?
The Decision of the Appeal Board
[17] The Appeal Board chairperson first laid out the context of the appeal and the factual background. He then went on to state correctly the legal test.
[18] The chairperson then went on to outline the Department's argument that although the "assignment" was lengthy, it was temporary and its future duration depended largely on the results of the federal-provincial negotiations, and there was no real change in duties. He then outlined the argument advanced on behalf of Ms. Abercrombie, that the "assignment" was of a "significant and indeterminate length" so as to confer a distinct advantage to Ms. Wipp in a future selection process and that the positions were "distinct in nature and required different qualifications".
[19] The chairperson then, under the heading "Decisions and Reasons", considered a number of issues including whether or not an acting appointment had been made and the availability of a deployment. He then found that "Ms. Wipp was moved from one position to another at the same group and level, with no promotion having resulted from that transfer". Accordingly he concluded that he could not find that an appointment resulted from Ms. Wipp's "assignment" to the position in Kelowna. He found that Ms. Abercrombie failed to demonstrate that the Kelowna position required additional or special qualifications and found instead that the duties performed by Ms. Wipp in her position in Vanderhoof were quite similar to those she performed in Kelowna.
[20] While the chairperson noted the Department's acknowledgment that the duration of the assignment was in issue, he did not address the issue in his decision. Instead, he stated that he was in agreement with Appeal Board Chairman Murby with respect to his decision on a similar issue in Maslanko. However, in Maslanko the assignment was for a one year duration and the assignment was not initially described by the Department as being an "appointment".
[21] Given the importance of this part of the legal test, especially in light of jurisprudence which has held that in some circumstances even nine months was too long for an assignment, I conclude that the chairperson failed to properly apply the correct legal test.
[22] As well, with respect to the third part of the legal test set out above, while Ms. Abercrombie argued before the Appeal Board that the staffing action was an attempt to circumvent the merit principle, there was no mention of this part of the legal test in the chairperson's reasons. The Department, according to the evidence, was under some financial restraint in the Kelowna area and was thus reluctant to create a new position while negotiations were under review, yet it wished to accommodate Mr. Wipp's relocation and would have made an appointment but for the fact of the negotiations. In my view, this evidence required an analysis as to whether the Department was exercising reasonable management flexibility or whether it was attempting to avoid the merit principle.
[23] For these reasons, this application for judicial review is allowed with costs, and Ms. Abercrombie's appeal is to be referred for reconsideration by a differently constituted Appeal Board.
OTTAWA, Ontario
March 31, 2000
Judge