Dickinson v. Canada (Attorney General)

Dickinson v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2024-09-20
Neutral citation
2024 FC 1480
File numbers
T-1155-23
Decision Content
Date: 20240920
Docket: T-1155-23
Citation: 2024 FC 1480
Ottawa, Ontario, September 20, 2024
PRESENT: The Honourable Madam Justice Kane
BETWEEN:
PHILIP DICKINSON
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
[1] The Applicant, Dr. Philip Dickinson, seeks judicial review of the decision made by the Presidents of the three major Canadian research-funding agencies: the Canadian Institutes of Health Research [CIHR], the Natural Sciences and Engineering Research Council of Canada [NSERC], and the Social Sciences and Humanities Research Council [SSHRC], collectively referred to as the “Tri-Agency”.
[2] The Tri-Agency Presidents dismissed Dr. Dickinson’s complaint of “Institutional Non-Compliance” by McGill University [McGill].
[3] Dr. Dickinson’s complaint alleged that McGill had breached the Tri-Agency’s Framework on the Responsible Conduct of Research [Tri-Agency Framework], which governs the relationship between academic institutions and the Tri-Agency.
[4] The Secretariat on the Responsible Conduct of Research [SRCR] appointed an external reviewer to review Dr. Dickinson’s complaint. The Tri-Agency Presidents adopted the findings of the external reviewer and the recommendation of the Panel on Responsible Conduct of Research [the Panel], and dismissed Dr. Dickinson’s complaint.
[5] In this Application for Judicial Review, Dr. Dickinson submits that the Tri-Agency Presidents’ decision is not reasonable, the process for determining his complaint was procedurally unfair, and the investigation and decision-makers were biased.
[6] Dr. Dickinson’s experience in seeking some redress and accountability for his exclusion from a research project that he conceived and developed highlights the need for different approaches to resolve such complaints. Although McGill conducted an investigation into Dr. Dickinson’s complaint of research misconduct and issued the report of its Investigation Committee [IC], which acknowledges some of Dr. Dickinson’s concerns, this is not the decision subject to judicial review. Dr. Dickinson challenged McGill’s determination that there was no evidence of research misconduct by pursuing a complaint to the SRCR of Institutional Non‑Compliance by McGill [INC complaint]. The Respondent notes that the INC complaint process is not an appeal of McGill’s decision; but rather is an examination of the process followed by McGill and whether McGill complied with the Tri-Agency Framework.
[7] The many frameworks, agreements, processes, committees and panels, and the limitations of the INC complaint process—described to a limited extent below—portray a bureaucratic maze that offers limited recourse to scholars who seek to navigate this maze. As acknowledged in several documents on the record before this Court, this process was not conducive to addressing Dr. Dickinson’s concerns about his exclusion from the research project and the redirection of the funds initially granted for the project to a different project and a different researcher.
[8] Although McGill’s IC found that there was no research misconduct, their report acknowledges, to some extent, the impact on Dr. Dickinson. For example, the IC notes, “our investigation did uncover evidence that R1 [Dr. Pruessner, who was Dr. Dickinson’s academic supervisor and collaborator] may not have exercised sound research judgment and full transparency toward C [Dr. Dickinson] when it became obvious that C could not be included on the grant…”; and, “C’s negative treatment documented by this case, and how it likely impacted on his academic career trajectory, must be acknowledged by the University in a meaningful way, through some form of formal apology that recognises C’s role as a victim in this case”.
[9] The Panel also noted that the conduct of Dr. Pruessner was a departure from the Tri‑Agency Framework, which states: “Researchers shall strive to follow the best research practices honestly, accountably, openly and fairly in the search for and in the dissemination of knowledge”.
[10] The Court’s focus is on the decision of the Tri-Agency Presidents—who accepted the report of the external reviewer and the recommendation of the Panel—and dismissed Dr. Dickinson’s three allegations of Institutional Non-Compliance by McGill.
[11] Regardless of the limitations of an INC complaint, the process must be procedurally fair and the decision of the Tri-Agency Presidents must be reasonable to withstand judicial review.
[12] For the reasons that follow, the Court finds that there was no breach of the duty of procedural fairness owed to Dr. Dickinson by the SRCR in the determination of the INC complaint. The Court also finds that there is no evidence of any reasonable apprehension of bias in the investigation of the INC complaint or by the decision-makers. However, the Court finds that the Tri-Agency Presidents’ decision to dismiss the INC complaint with respect to the allegation that the reallocation of funds granted to Dr. Pruessner violated the Tri-Agency Framework is not reasonable.
[13] Contrary to Dr. Dickinson’s submission that the Court should substitute its own decision and find that McGill breached the Tri-Agency Framework, there is no reason for the Court to do so. Although the complaint must be redetermined, no bias has been established and no obvious or single outcome to the redetermination is apparent. The Court’s role is to determine if the decision-maker erred, not to make the decision.
I. Background A. McGill’s RCR Obligations [14] McGill University is required to maintain a Responsible Conduct of Research policy [RCR policy] that fulfills the minimum provisions set out in the “Tri-Agency Framework: Responsible Research Conduct (2016)” [Tri-Agency Framework]. The Tri-Agency Framework governs institutions applying for and managing Tri-Agency funds, performing research and disseminating results, and the processes that institutions must follow when there is an allegation that the Tri-Agency Framework has been breached. Institutions that receive funding must establish policies to implement the requirements of the Tri-Agency Framework. McGill’s implementing policies are its RCR policy and the “McGill Regulation on the Conduct of Research” and the “McGill Regulation Concerning the Investigation of Research Misconduct” [McGill Regulations].
B. Dr. Dickinson’s doctoral research [15] Dr. Dickinson is a neuroscientist and a Vanier Scholar. During his doctoral studies at McGill, he developed a research project to evaluate the impact of beta-blocker drugs on the autobiographical memory of hypertensive patients. Dr. Dickinson authored grant applications to the CIHR to fund the project; however, he was not able to apply directly for grants because, at that time, he was a doctoral student. He worked with his supervisor, Dr. Pruessner, to submit grant applications to the CIHR that acknowledged Dr. Dickinson’s contributions and listed him as a co-applicant.
[16] After four unsuccessful applications, Dr. Pruessner submitted an application to the “2016 1st Live Pilot Project Grant” competition with the CIHR. Dr. Pruessner excluded Dr. Dickinson from the list of co-authors and removed all acknowledgements of Dr. Dickinson in the proposal. The grant application was successful and received funding from the CIHR. Dr. Dickinson notes that immediately after the grant was awarded on July 18, 2016, Dr. Pruessner announced that he no longer wished to pursue the project and wanted to use the funds for other research. Dr. Pruessner then left on sabbatical and did not return.
[17] Dr. Dickinson learned that the funds were not returned to the CIHR. The funds were later redirected to Dr. Nader, also a professor at McGill, for a different research project related to testing new treatments for smoking addictions.
C. Dr. Dickinson’s complaint of research misconduct [18] On March 18, 2020, Dr. Dickinson submitted a detailed complaint against Drs. Pruessner and Nader to McGill’s Research Integrity Office [the research misconduct complaint].
[19] Dr. Dickinson alleged that:
1. Dr. Pruessner and Dr. Nader did not maintain the highest standards of honesty, integrity, and ethical behaviour (citing the RCR policy at section 3.1.i and the Tri-Agency Framework at section 2.1.2);
2. Dr. Pruessner knowingly engaged in plagiarism (citing the McGill Regulations at section 5.1 and, the Tri-Agency Framework at section 3.1.1.d); and
3. Dr. Pruessner and Dr. Nader used grant funds inconsistent with the CIHR’s policies (citing the Tri-Agency Framework at section 3.1.3).
D. McGill’s IC Determination [20] McGill’s Research Integrity Office referred the research misconduct complaint to an IC.
[21] On October 27, 2020, McGill advised Dr. Dickinson by letter that McGill’s investigation concluded that there was no research misconduct and that his complaint was dismissed.
[22] The IC found no evidence of a violation of the guidelines on ethical behaviour in research.
[23] The IC also found that there was no evidence that Dr. Pruessner intended to plagiarize Dr. Dickinson’s work when he submitted the 2016 CIHR application. The IC noted that Dr. Pruessner had acknowledged in emails to Dr. Dickinson and to collaborators that Dr. Dickinson had made intellectual contributions to the formulation of the grant application over an extended period. The IC found that Dr. Pruessner’s conduct, in excluding Dr. Dickinson in the 2016 application, was an inadvertent omission. The IC noted that Dr. Pruessner and Dr. Dickinson had discussed the omission and agreed to “deal with the situation” and add Dr. Dickinson’s name if the grant were successful.
[24] The IC also found that there was no evidence that the CIHR grant had been used in a manner inconsistent with the Tri-Agency Financial Administration Guide. The IC noted that “many core tenets of the 2016 CIHR grant proposal, for example, which are highlighted in the abstract and public summary – understanding the effects of [med], [disease], a focus on [blank] –are no longer being investigated after the grant was transferred to [R2]. Still a conceptual and methodological link between R2’s current projects and those for which funding was received can be established and the extent from which funded research may divert over time from its original goals is poorly defined by CIHR”.
[25] The IC Report, although concluding that there was no research misconduct, noted several general concerns, including that, “our investigation did uncover evidence that R1 may not have exercised sound research judgment and full transparency toward C when it became obvious that C could not be formally included on the grant (for example, by immediately communicating this situation to C and seeking a resolution before the grant was submitted.)”
[26] The IC also noted, “the Committee believes that C’s negative treatment documented by this case, and how it likely impacted his academic career trajectory, must be acknowledged by the University in a meaningful way, through some form of apology that recognizes C’s role as a victim in this case”.
[27] The IC also commented that the investigation highlighted “potential vulnerabilities and a lack of judicious oversight in the process of transferring Tri-Council awards to a new PI (principal investigator), which in certain contexts could lead to an unsanctioned use of public funds”. The IC noted, “the degree to which this new line of research is closely aligned with the originally proposed project in 2016 is subject to interpretation”. The IC stated that “to ensure clear standards in the financial administration of publicly awarded funds, and to maintain public trust in peer-reviewed research, the Committee calls on the CIHR and [institution] to re-examine their current policies and processes for transferring Tri-Council awards to a new PI and for overseeing these awards”.
E. Dr. Dickinson’s complaint to the SRCR of Institutional Non-Compliance by McGill [28] On December 22, 2020, Dr. Dickinson submitted his INC complaint against McGill to the SRCR. Dr. Dickinson made three specific allegations:
1. McGill failed to apply the appropriate interpretation of plagiarism as described in Section 3.1 of the Tri-Agency Framework;
2. McGill failed to provide Dr. Dickinson an opportunity to be heard by the Investigation Committee, as described in Section 4.3.4.b of the Tri-Agency Framework; and
3. McGill failed to interpret Section 3 of the Tri-Agency Guide on Financial Administration in a manner that is consistent with the funding opportunity description, in breach of Section 1.3.b of the Tri-Agency Framework.
F. The SRCR Process [29] The Respondent relies on the affidavit of Karen Wallace, the Executive Director of the SRCR at the relevant time, which explains the roles of the Secretariat, the Panel and the process for addressing complaints.
[30] The role of the SRCR is to provide substantive and administrative support to the Panel and the Tri-Agency.
[31] The role of the Panel is to ensure a uniform approach for promoting the responsible conduct of research and to address allegations of a breach of the Tri-Agency policies, consistent with the Tri-Agency Framework.
[32] Ms. Wallace explains that a complaint of institutional non-compliance is “not meant as an appeal process”. She explains:
It is not an avenue for reconsideration of findings in relation to allegations against researchers. The Secretariat addresses allegations of institutional non-compliance by engaging an external assessor to examine whether an Institution has failed to comply with the RCR Framework [i.e.Tri Agency Framework] or the Agreement.
[33] Ms. Wallace also explains that “allegations of institutional non-compliance relate only to the process followed by the Institution when addressing an allegation against their researchers”. There is no assessment of the merits of the allegation made against researchers, which in this case would be the allegations regarding McGill and Drs. Pruessner and Nader.
[34] With respect to the process, Ms. Wallace explains that upon receipt of an allegation of institutional non-compliance, the SRCR contacts the institution and considers whether an external assessment is necessary. If so, the SRCR selects the external reviewer and provides the documents for the purpose of the external reviewer’s assessment. The external reviewer prepares a draft report, which is provided to the complainant and the institution for the purpose of commenting on factual accuracy. The external reviewer then provides the report to the Panel, with the names of the complainant and researchers anonymized. The Panel then considers the report of the external reviewer and makes recommendations to the Tri-Agency Presidents. The SRCR provides the Panel’s recommendations and the relevant background documents to the Tri-Agency Presidents for their final decision.
G. The processing of Dr. Dickinson’s INC complaint [35] On April 30, 2021, Dr. Dickinson wrote to the SRCR and to the President of the CIHR expressing his dissatisfaction about the lack of progress regarding his complaint. On May 4, 2021, the SRCR responded with details about the procedure, and noted that an independent external reviewer would be appointed.
[36] On June 4, 2021, the SRCR confirmed that McGill had responded to the complaint.
[37] On July 23, 2021, the SRCR advised Dr. Dickinson that an external reviewer had been selected.
[38] On August 11, 2021, the SRCR confirmed that Dr. Dickinson’s original research complaint against McGill would be provided to the external reviewer for context, and that Dr. Dickinson would not be permitted to review McGill’s response to his INC complaint.
[39] On August 12, 2021, Dr. Dickinson objected to the external reviewer selected by the SRCR noting that a reviewer who had no previous relationship with either the Tri-Agency or the institutions would be more suitable. The SRCR agreed and undertook to select another external reviewer.
[40] On December 3, 2021, the President of the CIHR responded to Dr. Dickinson’s inquiries about the delay and the process, noting, among other things, that a formal process for addressing allegations of institutional non-compliance exists.
[41] On December 22, 2021, the SRCR again responded to Dr. Dickinson regarding efforts to identify candidates to serve as external reviewers.
[42] On March 18, 2022, the SRCR proposed Dr. Robert Lipson as the external reviewer. Dr. Lipson had served two terms as a member on the Panel.
[43] On April 20, 2022, Dr. Dickinson again objected to the delay and to Dr. Lipson’s appointment, noting that Dr. Lipson’s past affiliation with the Panel raised a “red flag”. He noted that the qualified reviewer should not have ties to the SRCR.
[44] On May 2, 2022, the SRCR responded, acknowledging Dr. Dickinson’s concerns, but confirming that Dr. Lipson would remain as the external reviewer. The SRCR explained that there was no impediment to Dr. Lipson’s ability to assess compliance with “Agency policy”, Dr. Lipson’s knowledge was an asset, and that a search for another external reviewer would cause further delay.
[45] On July 15, 2022, the SRCR provided Dr. Dickinson with Dr. Lipson’s draft report. Dr. Dickinson and McGill were invited to provide comments on the factual accuracy of the draft report. Dr. Dickinson and McGill provided comments.
[46] On September 7, 2022, the SRCR advised Dr. Dickinson that Dr. Lipson would consider the comments and that Dr. Lipson’s final report would be sent to the Panel before being sent the Tri-Agency Presidents for final determination.
[47] On September 9, 2022, Dr. Lipson submitted his final report to the SRCR. On October 24, 2022, the Panel met to discuss the report.
[48] In February 2023, the Panel recommended, by way of two briefing notes, that the Tri‑Agency Presidents accept the external reviewer’s report.
[49] The Panel recommended to the President of the CIHR to accept the IC’s report, issue a letter of reprimand to Dr. Pruessner, and declare the INC complaint file closed. (This recommendation was made to the President of the CIHR as the key funding agency for the research at issue.)
[50] The Panel also recommended to the three Presidents of the Tri-Agency to accept Dr. Lipson’s report and declare the INC complaint file closed.
[51] On April 26, 2023, the Presidents of the Tri-Agency issued their decision by way of letter to McGill, with a copy to Dr. Dickinson, dismissing Dr. Dickinson’s complaint.
II. The Decision At Issue [52] As noted, the decision that is subject to judicial review is the decision of the Tri-Agency Presidents dismissing Dr. Dickinson’s INC complaint against McGill.
A. The Decision letter [53] The decision letter notes the three allegations made by Dr. Dickinson against McGill and the external reviewer’s (Dr. Lipson) conclusion that McGill had not breached the Tri-Agency Framework. The letter states:
We have reviewed the file, the external assessor’s report and supporting documentation, and the Panel on Responsible Conduct of Research’s recommendations. On this basis, we accept the external assessor’s conclusion that McGill University did not breach the requirements of the RCR Framework [Tri Agency Framework].
We apologize for the delay in communicating this final decision to you.
We acknowledge that the University’s efforts to clarify its regulations to facilitate the participation of complainants in the investigation process and in developing a clear process for graduate students to use when they are dissatisfied with the way in which their work is used in grant applications when the situation is time sensitive.
[54] As noted in Sketchley v Canada (Attorney General), 2005 FCA 404 at para 37:
When the Commission adopts an investigator's recommendations and provides no reasons or only brief reasons, the Courts have rightly treated the investigator's Report as constituting the Commission's reasoning for the purpose of the screening decision under section 44(3) of the Act (SEPQA, supra at para. 35; Bell Canada v. Communications, Energy and Paperworkers Union of Canada (1999) 167 D.L.R. (4th) 432, [1999] 1 F.C. 113 at para. 30 (C.A.) [Bell Canada]; Canadian Broadcasting Corp. v. Paul (2001), 274 N.R. 47, 2001 FCA 93 at para. 43 (C.A.)).
[55] This same principle, reiterated in many subsequent cases and contexts, applies in the present case; the reasons of the Tri-Agency Presidents are brief and adopt the reasons of the external reviewer, Dr. Lipson, and the Panel (which adopted the report of the external reviewer). The Court, therefore, regards the reasons of the external reviewer as the reasons of the Tri-Agency Presidents.
B. The External Reviewer’s Report [56] Dr. Lipson’s report summarizes the background related to Dr. Dickinson’s INC complaint and lists the documents provided to assist him with the assessment, which include Dr. Dickinson’s initial research misconduct complaint.
[57] With respect to Dr. Dickinson’s first allegation, regarding the appropriate interpretation of plagiarism, Dr. Lipson cited the Tri-Agency Framework and McGill’s Regulations and found that they were consistent. Dr. Lipson concluded that McGill’s “policy” (i.e. the McGill Regulations] and McGill’s “actions” regarding the plagiarism allegation (which the Court interprets as meaning McGill’s approach to determining the plagiarism allegation) did not constitute a breach of the Tri-Agency Framework.
[58] Dr. Lipson characterized Dr. Dickinson’s assertion that Dr. Pruessner had acknowledged plagiarism as “a presumption of its proof and of [Dr. Pruessner’s] guilt”. Dr. Lipson noted that “[i]t is not the role of a Complainant to make such a judgment, but that of the Investigation Committee”.
[59] Dr. Lipson cited McGill’s response to the INC complaint, which stated that Dr. Pruessner did not admit to plagiarism and that McGill’s IC had concluded, “[t]hat the facts, as described ‘somewhat differently’ by both parties, did not amount to plagiarism”.
[60] Dr. Lipson explained that his role was not to reassess the allegations.
[61] With respect to Dr. Dickinson’s second allegation, regarding McGill’s failure to provide him with an opportunity to appear before the IC, Dr. Lipson found that McGill was not required to do so. Dr. Lipson concluded that both the previous and new versions of McGill’s RCR policy were consistent with the Tri-Agency Framework and do not provide a right to the complainant to appear; the opportunity to be heard can be provided in several ways.
[62] With respect to Dr. Dickinson’s third allegation, regarding McGill’s failure to interpret the Tri-Agency Guide on Financial Administration consistently with the funding agreement and the Tri-Agency Framework, Dr. Lipson found no inconsistency. Dr. Lipson concluded that the repurposing of the grant and the transfer of the funds to Dr. Nader’s project did not breach the Tri-Agency Framework.
[63] Dr. Lipson relied on his own experience, noting that research agencies fund programs rather than specific projects, and that several projects typically make up a program. Dr. Lipson noted that principal investigators “have the flexibility to change projects provided that thy [sic] fall within the general theme of the program. This flexibility is essential for many reasons including allowing [principal investigators] to follow emerging opportunities, and to respond to results published over the lifetime of the grant”.
C. The Panel’s recommendation
[64] The Panel’s recommendations are set out in two briefing notes prepared by the SRCR. The briefing notes recount the history of Dr. Dickinson’s complaint, the findings of the IC, and the Panel’s discussion.
[65] The briefing note addressed to the President of the CIHR summarized the discussion of the Panel, including that Panel members were of the view that “poorly communicated expectations were at the heart of the [Dr. Dickinson’s] allegations”, and that with “proper mentorship… [Dr. Dickinson] might have had a more realistic expectation of the role of a co‑applicant on a grant application”. The Panel also noted that Dr. Pruessner’s conduct was a departure from article 2.1.2 of the Tri-Agency Framework, which states: “Researchers shall strive to follow the best research practices honestly, accountably, openly and fairly in the search for and in the dissemination of knowledge”.
[66] The SRCR noted that Dr. Pruessner’s conduct, “while undoubtedly a failure of the principles of ethical behaviour that risk impacting a student’s career trajectory, is not a breach of a specific article of the RCR framework [Tri-Agency Framework]”.
[67] The Panel agreed with the SRCR’s assessment that Dr. Pruessner should receive a letter of reprimand to remind him of the requirement to follow the best research practices. The Panel also suggested that the CIHR clarify its guidelines about how to transfer a grant from one researcher to another and under what conditions. The briefing note concludes with recommendations:
That the Panel on Responsible Conduct of Research recommend that the President of CIHR:
1) accept the Institution’s report;
2) issue a letter of reprimand to [Dr. Pruessner], and
3) declare the file closed.
[68] The briefing note addressed to the Tri-Agency Presidents reiterates much of the same information. The briefing note explains that the Panel acknowledged that Dr. Dickinson “appears to have devoted countless hours of time and effort, with minimal acknowledgement, to putting the application together with the expectation that [he] would be able to have a key role in carrying out the research”; however, both the Panel and the SRCR agreed with Dr. Lipson that McGill did not breach the requirements of the Tri-Agency Framework or any other Tri-Agency policy. The briefing note concludes with recommendations:
That the Panel on Responsible Conduct of Research recommend that the Presidents of CIHR, NSERC and SSHRC:
1) accept the report; and
2) declare the file closed.
[69] The Tri-Agency Presidents accepted the recommendations.
D. Other Evidence [70] The information considered by the Tri-Agency Presidents in making their decision is set out in the Certified Tribunal Record (CTR) and is comprised of:
Two briefing notes; Dr. Dickinson’s INC complaint; The Final Report of the IC; Responses to the IC Report from Dr. Pruessner and Dr. Nader; Dr. Dickinson’s and McGill’s comments regarding Dr. Lipson’s draft report; and Dr. Lipson’s Final Report.
[71] The Respondent submits that only the documents in the CTR should be considered by the Court in determining the reasonableness of the decision.
[72] As a general rule, new evidence (i.e. evidence not part of the record before the decision-maker) is only permitted on judicial review on an exceptional basis (Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at paras 19-20 [Access Copyright]). The recognized exceptions are for evidence that: (1) provides general background information that may assist in understanding the relevant issues but does not add new evidence on the merits; (2) draws the attention of the reviewing court to procedural defects that cannot be found in the decision-maker’s record; and (3) highlights the absence of evidence before the decision-maker on a particular finding (Access Copyright at para 20).
[73] The Court notes that the CTR does not include many of the documents relied on by both the Applicant and Respondent, including the various frameworks, the RCR policy or McGill Regulations cited by the Applicant and Respondent. Nor does it include all the documents provided to Dr. Lipson for the external review.
[74] The Court also notes that Dr. Dickinson’s Application Record is over 2000 pages and includes documents that are not in the CTR. Similarly, the Respondent’s Record includes documents not in the CTR.
[75] The Respondent’s Record includes Ms. Wallace’s affidavit, which provides an overview of the SRCR’s policies and procedures for complaints. Ms. Wallace’s affidavit attaches several exhibits, including the documents that were provided to the external reviewer, Dr. Lipson (for example, the research misconduct complaint, the IC report, the Tri-Agency Framework, the McGill Regulations and other correspondence).
[76] Dr. Dickinson does not oppose the Court’s receipt of Ms. Wallace’s affidavit. The Court finds that Ms. Wallace’s affidavit provides general background information. The affidavit is admitted in accordance with a recognized exception (Access Copyright).
[77] The Respondent objects to the Court’s consideration of Dr. Dickinson’s exhibits to his affidavit that were not provided to the Tri-Agency Presidents, including his original research misconduct complaint, with its attachments, which included the description of the 2016 1st Live Pilot Project Grant and related information about “foundation grants”. However, the Respondent’s objection overlooks that a copy of the research misconduct complaint is included in the Respondent’s record, as part of the documents provided to Dr. Lipson for the external review.
[78] In addition, Dr. Dickinson’s submissions and affidavit note that he provided a copy of his research misconduct complaint along with his INC complaint to the SRCR as required by the Tri-Agency Framework. Dr. Dickinson’s research misconduct complaint to McGill refers to the 2016 1st Live Pilot Project Grant several times, noting that it was the basis for the grant awarded. He also made the submission in his research misconduct complaint (as he does before this Court) that Foundation Grants support researchers and their broad interests, whereas the 2016 1st Live Pilot Project Grant was designed to fund specific projects, with references to the relevant parts of the application criteria.
[79] In Dr. Dickinson’s response to Dr. Lipson’s draft report, he again attached the information regarding “Applying to the CIHR’s Project Scheme: 2016 1st Live Pilot Project”, which describes the objectives and application approval process, among other things.
[80] The Court finds that many of the documents included in both the Applicant’s record and the Respondent’s Record provide essential background information and/or highlight the absence of evidence before the decision-maker; these documents fall within the exceptions noted in Access Copyright. In addition, although only the documents in the CTR were provided to the Tri‑Agency Presidents to make their decision, the Tri-Agency Presidents adopted Dr. Lipson’s report. The documents that were considered by Dr. Lipson should, therefore, be considered by the Court in assessing the reasonableness of the decision.
E. The relevant provisions of the legislation and frameworks [81] As noted, there are many policies, agreements, frameworks and regulations included in the records of the Applicant and Respondent. Those noted below are relevant to the INC complaint and its determination.
[82] The CIHR is governed by the Canadian Institutes of Health Research Act, SC 2000, c 6. The relevant provisions describing the objectives and mandate of the CIHR are set out in Annex A.
[83] The 2016 Tri-Agency Framework describes its objectives as including the promotion of fairness in the conduct of research and in the process for addressing allegations of policy breaches, defines what constitutes a breach, and describes how allegations of a breach are investigated. The Breach of a Tri-Agency Research Integrity Policy includes plagiarism, which is defined in section 3.1.1 (d). The relevant provisions are set out in Annex A.
[84] The Agreement on the Administration of Agency Grants and Awards by Research Institutions [the Agreement] between McGill and the Tri-Agency requires McGill to, among other things, comply with the requirements of the Tri-Agency Framework, conduct independent reviews where a breach is believed to have occurred, and take corrective action where a “default” is found (which includes a material breach of the agreement). The relevant provisions are set out in Annex A.
[85] Excerpts of the McGill Regulation on the Conduct of Research are also included in Annex A.
III. Issues and Standard of Review
[86] Dr. Dickinson has raised many arguments and issues, but all relate to two key issues: whether the decision is reasonable and whether Dr. Dickinson was afforded the level of procedural fairness owed to him in the circumstances by the SRCR and the Tri-Agency Presidents with respect to his complaint of institutional non-compliance by McGill.
[87] The presumptive standard of review for administrative decisions is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 25 [Vavilov]).
[88] A reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law” (Vavilov at para 85), and where the reasons for the decision are justified, intelligible, and transparent (Vavilov at para 95).
[89] On judicial review, the court does not reweigh and reassess the evidence that was before the decision-maker (Vavilov at para 125, citing Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2018 SCC 31 at para 55). However, decisions must be justified in light of the facts (Vavilov at para 126, citing Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
[90] For a decision to be found unreasonable and set aside, the reviewing court must find serious shortcomings or flaws that are central to the decision (Vavilov at para 100); this includes irrational reasoning and indefensible outcomes in light of the relevant factual and legal constraints (Vavilov at para 101).
[91] Where there are allegations of a breach of the duty of procedural fairness, the Court considers whether the procedure followed by the decision-maker was fair having regard to all the circumstances. The Court must ask, “with a sharp focus on the nature of the substantive rights involved and the consequences for an individual, whether a fair and just process was followed” (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54; Brown v Canada (Attorney General), 2022 FCA 104 at para 13). Where a breach of procedural fairness is found, no deference is owed to the decision-maker.
[92] The scope of the duty of procedural fairness is variable and is informed by several factors established in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, 1999 CanLII 699 (SCC) [Baker]. The Baker factors include, as applicable: the nature of the decision, the nature of the statutory scheme, the importance of the decision to the person affected, the legitimate expectations of that person, and the choice of procedure made by the decision-maker. The cumulative assessment of the relevant factors guide the level or scope of the duty owed; no one factor is determinative.
IV. The Applicant’s Submissions [93] Dr. Dickinson submits that the process for the determination of his INC complaint was not procedurally fair. He also alleges that the process and the decision-maker were biased as both favoured McGill. Dr. Dickinson further submits that the decision of the Tri-Agency Presidents is not reasonable.
A. Breach of Procedural Fairness [94] Dr. Dickinson submits that he was owed a high degree of procedural fairness, relying on the Baker factors. He submits that his INC complaint alleging that McGill breached the Tri‑Agency Framework created an adversarial process; the decision was very important to him; there is no further appeal; and, he had a legitimate expectation that the process would be made known to him, would be followed, would be timely, and that he would have an opportunity to respond to the external reviewer’s report before it was finalized. He also submits that he should have been provided with McGill’s reply to his INC complaint. He submits that as a result, he did not know the whole case he had to meet or to respond.
[95] Dr. Dickinson notes that the determination of his INC complaint took over two and a half years, rather than the seven months as expected. Dr. Dickinson argues that the excessive delays impeded his ability to resolve his issues with McGill in a timely manner, making a return to the research project impossible and prejudiced him in his pursuit of other remedies. Dr. Dickinson argues that the delay on its own constitutes a breach of procedural fairness.
B. The SRCR’s conduct shows a reasonable apprehension of bias [96] Dr. Dickinson submits that the INC complaint process is respondent-focused, contrary to the CIHR’s duty to support the careers of health science researchers. He submits that the focus on McGill’s interests resulted in a biased investigation process and biased decision-making.
[97] Dr. Dickinson submits that the SRCR’s cumulative actions during the investigation of his INC complaint support finding a reasonable apprehension of bias. Dr. Dickinson alleges that the SRCR withheld information from Dr. Lipson and made “inappropriate accommodations” for McGill, and that Dr. Lipson revised his report at McGill’s request and these revisions went beyond factual errors. Dr. Dickinson also alleges that the SRCR falsely attributed the delay to Dr. Dickinson’s own legitimate concerns about bias in the selection of the external reviewer.
[98] Dr. Dickinson adds that the Tri-Agency Presidents apologized to McGill in the decision letter, but the SRCR did not apologize to Dr. Dickinson, despite the recommendation of the IC to do so.
C. The decision is not reasonable [99] Dr. Dickinson further submits that the Tri-Agency Presidents’ decision is not reasonable; the decision is not justified, the decision-makers ignored evidence and their reasons lack logic and rationality.
[100] With respect to his allegation that McGill failed to apply the appropriate interpretation of plagiarism in accordance with the Tri-Agency Framework, Dr. Dickinson submits that Dr. Pruessner’s actions were—by definition—plagiarism.
[101] Dr. Dickinson asserts that Dr. Lipson and the Tri-Agency Presidents were not provided with the final IC report or with Dr. Dickinson’s submissions to the Research Integrity Office, which explained how Dr. Pruessner’s conduct constituted plagiarism. He argues that this lack of evidence prevented Dr. Lipson from identifying the lack of logic—i.e. by finding that there was no plagiarism because there was no intent to plagiarize. Dr. Dickinson submits that the IC found only that there was no evidence of intention—not that there was no evidence of plagiarism.
[102] Dr. Dickinson submits that Dr. Lipson erred by accepting the conclusion of the IC without considering whether plagiarism was demonstrated and erred by finding that both the Tri‑Agency Framework and the McGill Regulation regarding plagiarism were consistent.
[103] With respect to the dismissal of Dr. Dickinson’s allegation that McGill failed to give him the opportunity to appear before the IC contrary to the Tri-Agency Framework, Dr. Dickinson argues that Dr. Lipson relied on erroneous information. Dr. Dickinson notes that, in response to the draft report, he clarified that he had in fact requested to meet with the IC. However, Dr. Lipson’s final report perpetuated erroneous information by stating that Dr. Dickinson had appeared before the IC when he had not. Dr. Dickinson argues that the Tri-Agency Presidents accepted Dr. Lipson’s finding based on this incorrect information, which renders their decision unreasonable.
[104] Dr. Dickinson submits that Dr. Lipson also erred by dismissing Dr. Dickinson’s allegation that McGill failed to interpret the Tri-Agency Guide on Financial Administration consistently with the funding opportunity description and in breach of the Tri-Agency Framework. Dr. Dickinson argues t