Federal Court Judicial Review of PSST Decision Succeeds!

Kilbray and Wersch v. the Attorney General of Canada

On April 20th, a decision was rendered in the Federal Court in our favour. This was the first Public Service Staffing Tribunal (PSST) decision ever reviewed by the Federal Court. This case relates to an Application for Judicial Review of the Public Service Staffing Tribunal’s decision to dismiss a complaint alleging that the Deputy Head abused his authority in the appointment of an Acting Manager Technical Services at Service Canada in Winnipeg.

The complaint dealt with a non-advertised acting appointment for a period of 1 year. Prior to the acting appointment, the successful candidate was holding the position of Manager, Client Services, and an AS-06 level position. In general terms, the complaint alleged that the Deputy Head had established inadequate Essential Qualification for the position by lowering the Knowledge Requirement. In its decision, the PSST had found that "the Tribunal has no jurisdiction to review whether the position is properly classified as a CS-04". The issue before the Federal Court was whether the PSST addressed the issue arising from the complaint that the Essential Qualifications for the position were inadequate.

The Federal Court, applying a standard of review of reasonableness, found that the statutory interpretation applied by the PSST in an earlier decision, Rinn, established the proper approach. The court stated;

The Tribunal must first determine if the Essential Qualifications established in the Statement of Merit Criteria by the Deputy Head for the Position of Manager Technical Services meets or exceeds the qualification standards for the position established by the CPSA for the employer. The Tribunal did not address this issue even though the Applicants raised the issue before the Tribunal.

It was incumbent on the Tribunal to examine the justification for the change of the knowledge requirement in the Essential Qualifications in this context. This is not to say that the Tribunal or this court should determine if the position is properly classified. Rather, the Tribunal is to examine if the Essential Qualifications in the Statement of Merit Criteria meet or exceed the Qualification Standard established for the position of Manager, Technical Services.

The Court ordered that the matter be remitted back to a differently- constituted Tribunal for re-determination.

Conclusion

This was an important decision as it is the first true piece of jurisprudence dealing with the new PSEA.

PIPSC is also awaiting a second decision from the Federal Court which was heard on January 22, 2009.