Evans v. Public Service Commission Appeal Board

Evans v. Public Service Commission Appeal Board
Collection
Supreme Court Judgments
Date
1983-05-17
Report
[1983] 1 SCR 582
Case number
16670
Judges
Ritchie, Roland Almon; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien; Lamer, Antonio
On appeal from
Federal Court of Appeal
Subjects
Administrative law
Labour law
Notes
SCC Case Information: 16670
Decision Content
Supreme Court of Canada
Evans v. Public Service Commission Appeal Board, [1983] 1 S.C.R. 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. 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. 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, [1976] 1 F.C. 615, applied; Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311, referred to.]
APPEAL from a judgment of the Federal Court of Appeal, [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. 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:
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.
The Selection Board had before it, when reaching its decision with respect to the appellant, a 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. 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 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 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 (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 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 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, [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 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 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:
21. 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 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 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, [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 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. 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. 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:
28. (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