Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Administrative law Standard of review Whether the Court of Appeal failed to provide proper deference to the Tribunal’s decision that there was no abuse of authority Whether the Court of Appeal erred in broadly interpreting and applying the term “abuse of authority” as found in para. 77(1)(b) of the Public Service Employment Act.

Mr. Kane was employed in the Department of Human Resources and Social Development — Service Canada, Newfoundland at the PM 05 level. Pursuant to a reorganization conducted after the modernization of the Public Service Employment Act, S.C. 2003, c. 22 (“the “PSEA”), Mr. Kane was deployed into a Service Delivery Manager position (PM 05) which was created in August 2005. About a month later, a review to determine the resources required was announced. It led to the establishment of the IPCS Support Unit, which consisted of a Regional Manager (PM 06) and six staff (including two PM 05s). The Regional Management Board elected to proceed with an internal advertised appointment process for the PM 05 and 06 positions. Mr. Kane applied for the PM 06 position and was assessed for that position by means of a standardized test set by the Commission. In March 2006, the Regional Manager position was sent to classification for review. It was classified at the PM 06 level. In May 2006, Mr. Kane was informed that he had not passed the standardized test and would not be considered for the PM 06 position. Later, he was informed that, when his acting assignment was over, he could continue with IPCS in a PM 05 position or he could be placed on a priority list for a PM 05 vacancy. Shortly thereafter, his substantive position was declared redundant and he was offered a PM 05 position in IPCS. He also agreed to remain as the acting Regional Manager on a temporary basis. Mr. Kane filed a complaint with the Tribunal alleging abuse of authority contrary to the PSEA. The Tribunal found no abuse of authority in the choice of an internal advertised appointment process to staff the Regional Manager position or in the decision not to appoint Mr. Kane to the position. The Federal Court dismissed the application for judicial review. The Court of Appeal allowed the appeal, set aside the decision of the Federal Court, granted judicial review, set aside the Tribunal’s decision and remitted the matter to a differently constituted Tribunal to redetermine Mr. Kane’s complaint.