Teitelbaum v. Canada (Attorney General)

Teitelbaum v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2004-03-16
Neutral citation
2004 FC 398
File numbers
T-1748-02
Decision Content
Date: 20040316
Docket: T-1748-02
Citation: 2004 FC 398
Ottawa, Ontario, this 16th day of March, 2004
Present: The Honourable Justice James Russell
BETWEEN:
HESHEL TEITELBAUM
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This Application is brought in respect of a decision by the National Sciences and Engineering Research Council ("NSERC") rendered on March 22, 2002, to deny the Applicant, Professor Heshel Teitelbaum, a research grant following an application submitted by him in October, 2001. This decision was confirmed on September 13, 2002, following an appeal by the Applicant to the NSERC Appeal Process.
[2] NSERC promotes and assists research in the natural sciences and engineering by dispensing grants and scholarships among several hundred applicants on a regular basis. The sole basis for awarding grants is merit as viewed through the eyes of the peers of each applicant.
[3] The Applicant applied for a research grant for the funding year 2002-2003. Grant Selection Committee 26 (Analytical and Physical Chemistry) ("GSC 26") appraised his application with the help of three External Referees and a sub-committee of three Internal Reviewers charged with presenting their evaluations and recommendations to GSC 26. After considering the views of the External Referees, the Internal Reviewers recommended to GSC 26 as a whole that the grant application be turned down. The Applicant used the NSERC Appeal Process to have that decision reconsidered. The External Appeal Advisor recommended that the decision of GSC 26 be maintained and the Team Leader concurred.
[4] The Applicant challenges both the GSC 26 decision of March 22, 2002 ("Committee Decision") and the September 13, 2002, appeal decision of the Team Leader ("Appeal Decision")
BACKGROUND
The Natural Sciences and Engineering Research Council
[5] NSERC is an arm's length agency of the federal government, funded directly by Parliament and reporting to it through the Minister of Industry. Since its establishment in 1978 under the Natural Sciences and Engineering Research Council Act, R.S. 1985, c. -21 ("Act"), the mandate of NSERC has been as follows:
[T]o promote and assist research in the natural sciences and engineering, other than the health sciences; ... and advise the Minister in respect of such matters relating to such research as the Minister may refer to the Council for its consideration.
[6] NSERC is Canada's largest research granting agency. Each year it distributes grants exceeding $650 million to support university research and the training of scientists and engineers. It is extremely important to academics that their research receives support from agencies such as NSERC. Other federal and provincial government agencies and departments also fund research as do universities, private individuals, foundations and companies.
The Grant Allocation Process
[7] NSERC awards most of its grants over three to four years. Consequently, 70-75% of its funds for each fiscal year are already committed before NSERC considers applications for renewal or new research grants. The demand for renewal or new research grants exceeds the funds available by a wide margin. Typically, the funds available represent only 50% of all the grants requested. Given these constraints, and to discharge its mandate, NSERC has developed a process for allocating available monies among the various disciplines within its mandate and assessing the applications it receives.
[8] Each year, NSERC publishes a Peer Review Manual describing the process and assessment criteria it will employ in assessing research grant proposals submitted in that year. That document refers to more detailed sources of information, particularly the Program Guide for Professors on NSERC's website.
The Grant Allocation Process - Grant Selection Committees
[9] Central to the grant assessment and allocation process is the Grant Selection Committee ("GSC"). At present, twenty-five Grant Selection Committees represent the various disciplines in NSERC's mandate. Among other things, these committees review proposals for research grants submitted in their discipline and submit recommendations to the President of NSERC for approval. GSC 26 (Analytical and Physical Chemistry) is one of two grant selection committees that reviews grant proposals in the field of chemistry.
[10] NSERC has developed Guidelines Governing Membership of Selection Committees and Panels. These guidelines emphasise the need for diversified expertise in the areas of research covered by each GSC and the need for good judgment and broad knowledge in each GSC member. Experts drawn from the relevant discipline comprise the membership of each GSC. The chair of the GSC is one of its members. Each member of a GSC serves voluntarily for 3 years with one-third of the committee normally replaced each year. NSERC employs none of these individuals.
[11] The Acting Director, Physical and Mathematical Sciences (presently Mr. Serge Villemure) and the program officers under his supervision, oversee the grant competition process and also provide secretarial and administrative support to the GSCs assigned to the Acting Director, including GSC 26. While these officers also advise GSCs about NSERC policies, guidelines and procedures with a view to ensuring consistency and fairness, they are not members of any GSC and exercise no voting rights in their deliberations.
[12] Each year, NSERC allocates the funds available for research grants among the GSCs. The funds distributed to each GSC then comprise the "budget" within which each GSC must operate for the purpose of recommending new grants to NSERC. Typically, this budget represents only 50% of the total amount requested by applicants. The GSCs operate on a 3-4 year budget cycle. Consequently, 70-75% of their funds for each fiscal year are already committed before NSERC considers applications for renewal of research grants. The grants support a variety of expenditures as set out in a proposal, such as stipends for graduate students, laboratory equipment, operation and maintenance costs, materials and supplies, travel, and publication costs.
[13] NSERC requires that prospective applicants submit a completed form entitled "Notification of Intent to Apply for a Research Grant" ("Notice of Intent") during the summer preceding the year for which they wish to receive a grant. The Notice of Intent advises NSERC of the researcher's intention to apply for a research grant, summarizes the proposed research and identifies up to five experts the applicant believes are qualified to act as external referees with respect to his or her application. This allows NSERC to start planning the review process before it receives the full application. Upon receiving the Notice of Intent, NSERC passes it to the chair of the GSC responsible for assessing grant proposals within that discipline, together with all other Notices of Intent in the same field.
[14] The chair then selects two or three members of the GSC (three in the case of GSC 26) whose expertise is closest to that engaged by the proposed project to act as Internal Reviewers of the proposal. These Internal Reviewers must be free of any conflict of interest (as per NSERC policy) and must be able to read the application in the official language in which it is submitted.
[15] The first Internal Reviewer selects at least four External Referees to review and comment in writing on the grant proposal. The External Referees are selected from a variety of sources, including lists of candidates provided by the applicant, the NSERC database and the personal knowledge and experience of the Internal Reviewer. The most important criteria for selecting External Referees are their familiarity with the subject area in which the applicant wishes to conduct research, their availability, and the absence of any real or perceived conflict of interest between the applicant and the proposed External Referee. NSERC then contacts the first three External Referees and keeps the remaining names in reserve in case one of the referees advises of his or her inability to perform the review.
[16] External Referees receive no payment for reviewing and commenting on grant proposals and do not participate - either by attending the discussions or voting - in the deliberations of the GSC considering the grant request for which they submit their comments. The External Referee has no "vote" on whether an application ought to be supported; the power is merely to recommend. In fact, in discharging its duty to make funding recommendations to NSERC based on a review of all material and information before it, the GSC is free to accept or reject the recommendations of the External Referees regarding an application.
[17] When an applicant submits a completed "Application for Research Grant", NSERC distributes this application to the entire GSC and to the External Referees. The Internal Reviewers and External Referees also receive the sample contributions provided by the applicant. In addition, the External Referees receive instructions on the criteria for evaluation, including those related to peer review. Those instructions are taken from the Peer Review Manual for the year being assessed.
[18] After receiving the grant proposal application and the sample contributions, the External Referees prepare and submit written reports to NSERC, describing their views about the feasibility of the proposal and the benefits of pursuing the proposed line of research. NSERC then sends the reports to the entire GSC.
[19] The Internal Reviewers also review in detail the grant proposals and the samples of contributions assigned to them, along with the External Reviewer reports, but are not required to submit a formal report to the GSC as a whole. However, they do prepare and submit preliminary funding recommendations showing the amount they would allocate to each proposal assigned to them for review.
[20] The following February in each year, the GSC meets for several days to discuss all the applications received and to vote on each proposal within the constraints of a limited budget. While either the assigned readers or all GSC members read each proposal, the Internal Reviewers present the proposals to the GSC when the grant proposal comes forward for consideration along with their recommended level of funding. As members of the GSC, the Internal Reviewers have a vote on the application. NSERC staff officials attend these meetings to ensure adherence to policies and to record key points made by GSC members and GSC recommendations. In this closed and close-
knit scientific community, views are often strongly held and vigorously stated.
[21] In assessing each grant proposal and preparing their recommendations, each GSC is supposed to consider:
(I) the scientific or engineering excellence of the researcher;
(ii) the merit of the proposed research;
(iii) the need for funds; and,
(iv) the contribution of the researcher to the training of highly qualified personnel.
[22] Following the meeting, the GSC submits its recommendations to NSERC for approval by the President. The recommendation may be that the application for funding be approved in full, or that only partial funding be approved, or, indeed, that no funding at all be granted. After the President approves the recommendations, NSERC officials prepare letters advising each applicant of the decision. When the GSC makes a recommendation that an applicant not receive a grant, it prepares a "comment" to the applicant explaining the rationale for the recommendation and attempts to set out the areas where the application might be improved.
The NSERC Appeal Process
[23] Section 10.5 of the NSERC Peer Review Manual for 2001 states that applicants may appeal an NSERC decision. It describes the nature of the appeal as follows:
A formal appeal of a decision on an NSERC application must be based on compelling evidence of error or discrimination in the review process. The appeal procedure is designed to ensure that the applicant has been treated fairly and consistently in the context of a competition for limited funds. NSERC strives to provide equitable treatment of applications and fair assessments in accordance with the selection criteria, and judges each case on its merits.
[24] The following principles apply to appeals:
(a) an appeal must be submitted within two months of receipt of the decision letter;
(b) the applicant bears the onus of demonstrating compelling evidence of error or discrimination;
(c) differences in opinion between External Reviewers and GSCs do not necessarily constitute grounds for appeal;
(d) new "source" material or information (e.g., papers published since the deadline date; or illness or other extenuating circumstances that should have been reported on Form 100) will not be taken into consideration; and
(e) the level and/or duration of a grant are subject to modification (increase or decrease) as a result of an appeal.
[25] On appeal, an NSERC Team Leader or a delegate reviews the relevant GSC recommendation with the assistance of staff and an External Appeal Advisor, who is a senior member of the research community with experience in NSERC peer review. The External Appeal Advisor must be a person who did not participate in the original assessment of the application as a member of the GSC or as an External Referee.
[26] The guidelines that are applied for the selection of External Referees are essentially those used for the selection of external advisors for appeals, except that the External Appeal Advisor need not necessarily have direct expertise in the applicant's specific field, but must have extensive knowledge of the NSERC peer review system. In addition, the External Appeal Advisor must declare any conflict of interest, both at the outset and if one arises subsequently, so that NSERC may appoint an alternative. The identity of the External Appeal Advisor is not revealed to the GSC or the appellant/applicant.
[27] The role of the External Appeal Advisor is to assess whether an applicant has demonstrated that an injustice occurred during consideration of the request for a grant. Upon receiving an appeal, NSERC officials send background material relevant to the particular application and statistics regarding the competition into which it had been entered to the External Appeal Advisor. The External Appeal Advisor analyses the appeal, taking into account the appellant's arguments, NSERC's review criteria and guidelines, the comments of the GSC and any precedent cases that may be relevant, and submits a written recommendation to NSERC.
[28] Upon receiving the written recommendation of the External Appeal Advisor and materials from staff, the Team Leader or his or her delegate reviews the appeal and the recommendation of the External Appeal Advisor and makes a decision.
The Applicant
[29] Professor Heshel Teitelbaum has been a professor at the University of Ottawa since 1978. He was an assistant professor from 1978 to 1985, and a full professor from 1995 to the present. He has been a visiting professor at two foreign universities during sabbatical leaves from the University of Ottawa: as a Lady Davis Professor of Physical Chemistry at the Hebrew University of Jerusalem from October 1992 to February 1992 and as a guest professor at the ETH, Zurich, Switzerland from August 1984 to July 1985.
[30] Professor Teitelbaum is an internationally renowned expert in the field of chemical kinetics. Kinetics is among the most intellectually demanding of the physical sciences. Professor Teitelbaum has focussed his efforts on developing sophisticated models to understand the processes that occur in high energy combustion. He has related interests in oscillatory reactions, another highly challenging field.
[31] In the last 7 years Professor Teitelbaum's publishing record has been as follows:
I) 3 papers published in peer-reviewed journals;
ii) 1 paper submitted for publication in a peer-reviewed journal;
iii) 1 chapter in a book;
iv) 2 papers in refereed conference proceedings; and
v) 2 papers presented at conferences not publishing their proceedings.
[32] Professor Teitelbaum has supervised the work of seven students from 1994 to 2000 as follows:
I) 3 students in their 4th year of undergraduate studies from 1995 to 1999;
ii) one master of sciences student;
iii) one doctoral student from 1994 to 1998;
iv) one post-doctoral fellow in 1999; and
v) one research associate from 1997 to 2000.
The Significance of NSERC Funding for the Applicant
[33] For disciplines such as the one to which the Applicant has dedicated his career, chemical kinetics researchers and scientists depend almost entirely on NSERC funding to pursue research. This is because these disciplines tend to receive little, if any, funding from industry, given that the innovation that derives from these sciences will not have immediate commercial applications. NSERC itself also recognizes that, for some researchers, it is the only source of funding.
[34] The consequences of not obtaining funding from NSERC have been, therefore, significant for the Applicant. He lists the following:
I) he cannot conduct experimental research, which has resulted in his losing his laboratory privileges at the University of Ottawa. His laboratory apparatus was taken apart and put into storage. He estimates that it would cost approximately $50,000 to re-assemble the laboratory;
ii) he cannot hire students, which impacts on future funding applications, since the ability to contribute to the training of highly qualified personnel is a key criterion in the granting of research funds. Without students, his capacity to conduct research and report on that research is restricted;
iii) conference participation will be affected by a lack of funding, resulting in missed opportunities for sharing in and exchanging research experiences with fellow researchers, as well as a loss of opportunity to present his research and theories;
iv) he has suffered reduced opportunities to collaborate with colleagues in research projects. On a sabbatical in 2002, the Applicant funded a collaborative effort in Portugal with his own money;
v) the focus of the Applicant's research has been narrowed to theoretical subjects, since the experimental aspects of his work are no longer possible with the loss of his laboratory;
vi) the theoretical aspects of the Applicant's work will also suffer since, without the capability to conduct experimental work, he cannot test his theories;
vii) he will suffer stigma resulting from the perception among the Applicant's peers that his research is not worthy of funding;
viii) he is exposed to potential loss of membership in the School of Post-Graduate and Post-Doctoral studies, and in the Ottawa-Carleton Research Institute, all of which are conditional on having a peer-reviewed grant;
ix) he will experience an increase in teaching load far beyond the norm for the Applicant's colleagues, based on the perception by the Dean of Science that, with no funding to train graduate students, the Applicant should be devoting more time to teaching undergraduate students; and
x) the cumulative effect of all the above consequences is that the Applicant will have increasing difficulty satisfying the key criteria for obtaining NSERC funding.
[35] The Applicant was a recipient of funding from NSERC from 1978 until the funding year 2000-2001, when he was denied funding. He was also denied funding for the 2001-2002 and 2002-2003 funding years.
The Applicant's Grant Application
[36] On August 15, 2001, the Applicant submitted a completed Notice of Intent to NSERC. On October 26, 2001, he submitted a completed application for a research grant. Put broadly, the Applicant proposed that he do work on "Vibrationally Detailed Chemical Kinetics," involving molecular energy transfer, vibrational energy, rate laws, kinetics, combustion, hydrogen, oxygen, and non­equilibrium phenomena. He requested a total grant of $340,000 to spend over 4 years.
[37] For the 2002-2003 fiscal year, GSC 26 received 110 grant proposals, including the Applicant's. The total value of all grants requested was $7.9M. This sum exceeded the amount allocated to GSC 26 for the purpose by $3.1M. Of the 110 applications for research grants received by NSERC in the area for which GSC 26 was responsible, 94 received grants.
[38] NSERC forwarded the Applicant's Notice of Intent to the Chair and Internal Reviewers of GSC 26 and forwarded the application to the whole GSC 26. On November 21, 2001, NSERC produced a summary of the Applicant's previous grant history and provided it to the Internal Reviewers and the GSC. This followed standard practice for all applications under consideration by GSCs.
[39] In accordance with NSERC practice, and consistent with peer review regimes in force, the External Referees provided their comments on the basis that their identity would not be disclosed to the Applicant or the public. The Applicant does not question the good faith of any of the External Referees. Three External Referees examined the Applicant's proposal and submitted their written comments.
[40] The following is a summary of the three External Referees' reports that were obtained for the Applicant's proposal:
1) all three referees organized their comments around the 4 basic criteria: scientific or engineering excellence of the researcher; the merit of the proposed research; the need for funds; and the contribution of the researcher to the training of highly qualified personnel;
2) the element, need for funds, was not specifically addressed. The discussion centered on the 3 other factors;
3) two referees ("K" and "L") were in favour of funding the proposal. The third referee ("M") was not in favour;
4) the following is to be noted as to K's comments:
(a) K claimed only to be "somewhat close" to the area of expertise of that in the proposal;
(b) K rated the Applicant's proposal relative to others that "K" had refereed in recent years as "Fair";
(c) K thought that the Applicant's output had been modest for the past several years (noting that he had received little funding);
(d) while acknowledging the Applicant's expertise, as well as the inherent worth of his proposal, the real issue for K was whether there was sufficient infrastructure to support the project in terms of good people and modern equipment in the setting in which the project would be carried out;
(e) K thought that good people and modern equipment could not be found;
(f) despite this reservation, K thought that the Applicant should be given a chance to prove K wrong;
(g) K thought only one of the three experiments proposed should be supported;­
(h) K thought that the proposal should be concluded within three (and not the proposed four) years.
5) The following is to be noted as to L's comments:
(a) L rated his ability to assess the application as "High";
(b) L rated the Applicant's proposal relative to others that L had refereed in recent years as "Excellent";
(c) L acknowledged the Applicant's high international reputation in his field;
(d) L thought the research was important and the results would be significant for his specialized community;
(e) L felt that the Applicant had managed to remain productive and that this was "amazing," in light of the fact that he had been denied research funding in previous competitions;
(f) L thought that the prior refusal was "grossly unfair and wrong"; and
(g) L therefore asked the Committee "to right that wrong."
6) The following is to be noted as to M's comments:
(a) M rated his expertise in the area of the proposal as "Very close";
(b) M rated the Applicant's proposal relative to others that M had refereed in recent years as "Fair";
(c) M thought the Applicant's productivity and contribution to training appeared to be limited at best;
(d) M thought the Applicant's teaching and supervision of students had not been impressive;
(e) M thought that, while some of his work was of small interest to a limited number of researchers, other (experimental) work had and would have minimal impact;
(f) M thought the Applicant's recent work did not give confidence that he could carry out the more complicated experiments he proposed;
(g) M thought the proposed work itself would have some impact on the understanding of combustion kinetics, but that impact would be minor, and the theoretical methodology appeared to be very straightforward;
(h) M thought the experiments proposed were complex, and the results would be difficult to interpret ("and the resulting kinetic measurements essentially meaningless");
(I) M thought some of the proposed experiments would have limited value; and
(j) M thought that "Overall, given the low productivity, the poor training, and the limited impact of the proposed research, I cannot recommend funding of this proposal."
[41] In February 2002, GSC 26 met to discuss all the applications for new grants assigned to it. When GSC 26 reviewed the Applicant's grant request, it considered the following documents:
(a) the Applicant's application for a grant dated October 26, 2001;
(b) the statement of the Applicant's previous grant history;
(c) three spreadsheets showing the preliminary funding recommendations of the Internal Reviewers;
(d) the written reports of the three External Referees;
(e) samples of research contributions as submitted by the Applicant with his application for funding; and
(f) the comment provided to the Applicant on his 2001 application.
[42] The spreadsheets served as a discussion guide during the presentation to the full GSC26. These spreadsheets showed that, bearing in mind their assessments of all other grant applications, only one Internal Reviewer proposed funding the Applicant's grant application, and then only to the extent of $20,000. The application was for a total of $340,000 over four years. After discussing the application and the views of the Internal Reviewers and External Referees, GSC 26 voted on the Applicant's proposal and decided to not recommend approval.
[43] The President of NSERC subsequently accepted the recommendation of GSC 26 and, by letter dated March 22, 2002, NSERC informed the Applicant of the decision. NSERC sent the Applicant a comment from GSC 26 with brief reasons for its recommendation in April 2002. The comments read:
The committee and the external referees recognized the contributions of the applicant in the area of gas-phase chemical kinetics. However, the committee concurs with the detailed reasons enumerated by one of the external referees which indicate that the proposed experiments are very unlikely to succeed. In view of this fact, the limited innovation expressed in the proposal, and the probable low impact of the proposed work on the scientific community, the committee did not recommend funding of this proposal.
NSERC Disclosed Documents to the Applicant
[44] Except for the document describing the Applicant's previous grant history, the spreadsheets prepared by the Internal Reviewers reflecting their preliminary or "mini budget" allocations, and those portions of the reports of the External Referees and other documents that identify the Internal Reviewers and the External Referees, NSERC subsequently disclosed to the Applicant all of the documents placed before GSC 26 concerning his grant request.
The Applicant's Request for Review
[45] On May 6, 2002, counsel for the Applicant wrote NSERC objecting to the Committee Decision and seeking review of his application. Counsel set out a very detailed critique of the GSC 26's refusal to recommend a grant. On May 17, 2002, the Acting Director, Physical and Mathematical Sciences, wrote the Applicant and his counsel to describe the NSERC Appeal Process and advise them that NSERC could not consider the representations and requests of a third party concerning a grant application unless the Applicant authorized it. Shortly thereafter, the Applicant's counsel provided the required Consent and Direction.
[46] By letter dated July 3, 2002, Mr. Roger Proulx, Program Assistant Research Grants for NSERC sent the appeal documents for the Applicant to an External Appeal Advisor. During a telephone conversation with the Team Leader at the end of July 2002, the External Appeal Adviser indicated that, after reviewing the documents, she/he was comfortable with the rationale for the GSC recommendation. However, the External Appeal Advisor also asked that GSC 26 provide a more comprehensive "comment" for its recommendation regarding the Applicant's application. After speaking with the External Appeal Advisor by telephone, the Team Leader asked Ms. Catherine Podeszfinski, the NSERC staff member assigned to the file, to obtain more information for the External Appeal Advisor. Acting on that request, Ms. Podeszfinski wrote an e-mail to four members of GSC 26 on July 30, 2002, requesting further input.
[47] On August 13, 2002, Ms. Podeszfinski received a draft "extended GSC comment" from one of the four GSC 26 members. The same day she e-mailed the draft "extended GSC comment" to the other three people she had contacted on July 30. The three members of GSC 26 replied in separate e-mails later that day. On August 16, 2002, Ms. Podeszfinski sent the "extended GSC comment" from the four GSC 26 members to the External Appeal Advisor.
[48] On or about September 10, 2002, the External Appeal Advisor submitted an analysis of the appeal. Meanwhile, NSERC staff and the Team Leader summarised and analysed the appeal.
[49] The External Appeal Advisor pointed out that External Referees do not see the full picture in comparison to the Internal Reviewers and GSC as a whole, and so are often more positive in their recommendations than are the GSCs, whose recommendations are made in the context of a competition for limited funds. The External Appeal Advisor also thought that, even though GSC 26 had a hard job in evaluating so many applications in a short time, a more comprehensive statement of the reasons for refusing a grant might usefully have been sent to the Applicant concluding that the recommendation submitted by GSC 26 be maintained.
[50] In considering the Applicant's appeal, the Team Leader reviewed the recommendation of the External Appeal Advisor, the documents upon which the recommendation was based and the material prepared by NSERC staff in light of the recognized criteria and the NSERC Appeal Process.
[51] Based on that review, the Team Leader concurred with the recommendation of the External Appeal Advisor. He concluded that "there was no compelling evidence of unfairness in the evaluation of the application." Accordingly, by letter dated September 13, 2002, the Team Leader, on behalf of NSERC, informed the Applicant, via his counsel, that no compelling evidence of error or injustice had been demonstrated. He also provided the Applicant's counsel with a copy of the External Appeal Advisor's report.
ISSUES
[52] The Applicant raises the following issues:
Did NSERC exercise its discretion improperly in denying the Applicant a research grant for the grant funding year 2002-2003?
Did NSERC deny the Applicant procedural fairness in denying him a research grant and in the manner in which it conducted the appeal of its original determination?
PERTINENT LEGISLATION
[53] NSERC derives its authority to award grants for research from the Natural Sciences and Engineering Research Council Act, R.S. 1985, c. -21. The mandate of NSERC is set out in s. 4 of the Act:
4. (1) The functions of the Council are to
(a) promote and assist research in the natural sciences and engineering, other than the health sciences; and
(b) advise the Minister in respect of such matters relating to such research as the Minister may refer to the Council for its consideration.
4. (1) Le Conseil a pour mission_:
a) de promouvoir et de soutenir la recherche dans le domaine des sciences naturelles et du génie, à l'exclusion des sciences de la santé;
b) de conseiller le ministre, en matière de recherche, sur les questions que celui-ci a soumises à son examen.
[54] The Act gives NSERC a broad discretion in the exercise of its mandate:
(2) The Council, in carrying out its functions under subsection (1), may
(a) expend, for the purposes of this Act, any money appropriated by Parliament for the work of the Council or received by the Council through the conduct of its operations; and
(b) publish and sell or otherwise distribute such scholarly, scientific and technical information relating to the work of the Council as the Council considers necessary.
(2) Dans l'exécution de sa mission, le Conseil peut_:
a) utiliser, dans le cadre de la présente loi, les crédits qui lui sont affectés par le Parlement et les recettes provenant de ses activités;
b) à son appréciation, publier, vendre et diffuser par tout autre moyen des données scientifiques, techniques ou d'érudition relatives à ses travaux.
THE STANDARD OF REVIEW
[55] The issues raised by the Applicant immediately raise the complex issue of what standard of review to apply in this case. The Applicant characterizes the issues in a very broad way, but this only complicates matters because the Applicant also raises sub-issues. In addition, the Application itself requests judicial review of "the decision of the Natural Sciences and Engineering Research Council ("NSERC") dated September 13, 2002 and communicated to the Applicant on September 14, 2002, wherein NSERC dismissed the Applicant's appeal of the decision of the Grant Selection Committee No. 26 ("GSC 26") to deny the Applicant's application for a research grant on the grounds that NSERC acted contrary to law in denying the Applicant's application for a research grant, and on the grounds that the Applicant was denied procedural fairness."
[56] So although the Applicant seeks to attack the decision made under the NSERC Appeal Process he seeks to do so on the grounds that the Committee Decision was contrary to law.
[57] In fact, in his written and oral arguments the applicant rolls both decisions together and clearly wants the Court to review both, even though his Application says that is it a request for judicial review of the NSERC Appeal Process decision.
[58] In an attempt to address the Applicant's concerns I have examined the record for both decisions and considered the issues that the Applicant raises in relation to both decisions. Strictly speaking, however, I regard this Application to be a request for judicial review of the NSERC Appeal Process decision alone and I do not regard what is said regarding the Committee Decision as necessarily relevant to the real issues under review except by way of background and context. For reasons that I give later, the Court takes a very different view of the NSERC Appeal Process from that taken by the Applicant. The Applicant is of the view that the NSERC Appeal Process involves a de novo consideration of his grant application, and this is why he has introduced evidence and arguments that, strictly speaking, go to the earlier Committee Decision. The Court is of the view, however, that the NSERC Appeal Process is much more limited in scope and does not involve a de novo consideration of the Applicant's grant application but requires a determination of whether there is "compelling evidence of error or discrimination in the review process" to ensure that the Applicant had "been treated fairly and consistently in the context of a competition for limited funds." This requires an examination of the Committee Decision and the review process to see if there is any evidence of error or discrimination that was neglected or mishandled by the NSERC Appeal process, but it is the appeal decision that is under review.
[59] In his attack on both decisions, the Applicant raises a wide range of issues, including a failure to apply relevant criteria, disregard of relevant evidence, failure to follow guidelines, school of thought bias, failure to give reasons and administrative bias.
[60] On the bias issues, I have taken the position that any reasonable apprehension of bias would be grounds for invalidating the decisions for a lack of procedural fairness. But I find no evidence of bias. For reasons that will become clear when I address each of the particular grounds raised by the Applicant, I do not regard it as necessary at this stage to embark upon complex analysis of the applicable standard of review. This is because, even if I apply the least deferential standard of correctness to most of the issues, I cannot find fault with the decisions. And in the area of adequate reasons I believe that the Applicant's legitimate expectations are governed by the Peer Review Manual and that the reasons in this case do not constitute a reviewable error when that Manual is taken into account.
Applicant's Arguments
The Relevant Criteria
[61] The Applicant submits that notwithstanding that an administrative body may have a broad discretion to carry out its mandate, that discretion is always subject to limits. He says that guidelines are an important aid for courts in the assessment of whether a discretion may have been exercised properly, particularly where the guidelines reflect the appropriate values and criteria to be applied by decision-makers in the exercise of that discretion. The Applicant indicates that, in this case, the NSERC guidelines as set out in its Peer Review Manual establish four key criteria by which grant applications should be evaluated. The guidelines emphasize that "[a]ll the criteria must be assessed for each application." Those criteria are:
I) the scientific or engineering excellence of the researcher;
ii) the merits of the research proposal;
iii) contributions of the researcher to the training of highly qualified personnel; and
iv) the applicant's need for funds.
[62] The Applicant submits that the importance of applying all four criteria is noted elsewhere in the NSERC Peer Review Manual. Internal Reviewers are encouraged to use a rating sheet to ensure that reviews are based on assessments of each criteria (section 6.11.1).
[63] The Applicant argues that GSC 26 failed to consider all the relevant criteria when dealing with his grant application. He contends that this is acknowledged by Mr. Villemure, the Acting Director, Physical and Mathematic Sciences, in his Appeal Analysis of July 30, 2002, when he notes that "[t]he comment of the GSC should have covered the four criteria." This failure is also revealed in the initial Committee Decision, and reinforced in the Extended Response provided to the Applicant following his appeal. The Applicant alleges that both documents reveal that GSC 26 was not attentive or alert to each criterion and, in fact, failed to consider them.
[64] The Applicant takes the position that failure to consider or assess a relevant criterion is an error of law and that a useful analogy can be found in decisions by the Public Service Commission Appeal Board reviewing selection board decisions for civil service positions (see Boucher v. Canada (Attorney General) (2000), 252 N.R. 186, F.C.J. No. 711 (T.D.) at para. 8 and Brookman v. Canada (Attorney General) (2000), 184 F.T.R. 47, F.C.J. No. 711 (T.D.) (F.C.T.D.) at para. 23.)
I) Scientific and Engineering Excellence of Researcher
[65] The Applicant submits that a proper evaluation of the scientific or engineering excellence of any researcher should be directed to the actual contribution made to the field. A number of factors are listed in the NSERC Peer Review Manual for evaluating a researcher's contribution. These include knowledge, expertise and experience, contributions to and impact on other areas of research, and importance of contributions to other researchers and end-users.
[66] The Appli