Teitelbaum v. Canada (Attorney General), 2004 FC 398

Date: 20040316

Docket: T-1748-02

Citation: 2004 FC 398

Ottawa, Ontario, this 16^th 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 4^th 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:

[54]            The Act gives NSERC a broad discretion in the exercise of its mandate:

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 Applicant submits that publications per se are not the measure of a researcher's excellence; rather, it is the contribution as evidenced or reflected in those publications. The Applicant submits that GSC 26 focussed on the quantity, not the quality, of his publications, and even committed errors when considering his quantitative output.

ii)         Merits of the Application

[67]            In determining the merits of his application, the Applicant submits the GSC 26 failed to weigh the evidence presented before it. He claims that the record reveals that GSC 26 placed undue emphasis on the evaluation of the Applicant's research submitted by External Referee M, to the exclusion of the evaluations by the other two referees. The Applicant submits that this undue emphasis was acknowledged by NSERC, and became the prime area that GSC 26 was asked to address in its Extended Response. It was also emphasized by the External Appeal Advisor and communicated by Ms. Podeszfinski to the GSC members who prepared the Extended Response. Ms. Podeszfinski noted that the "comment gives me the impression that the GSC was overly influenced by one of the referees and does not reflect the independent evaluation done by the committee."

[68]            The Applicant submits that, even given this second opportunity through the Extended Response to justify its decision, GSC 26 still was not able to distance itself from the comments of External Referee M. Even though the Applicant addressed specific deficiencies in External Referee M's analysis that revealed a lack of understanding of the science behind the proposal, there is no mention of these errors in the Extended Response.

[69]            Finally, the Applicant submits that GSC 26 failed to consider a number of potential dangers which NSERC cautions GSCs to guard against in making recommendations. These dangers are described in the Peer Review Manual and form part of the criterion of merit. Of particular importance in this case is "school of thought" bias, which relates to negative inferences based on the size or reputation of an applicant's university.

[70]            The Applicant submits that school of thought bias was evident in the evaluation of External Referee M, who compared the Applicant's work to "the very busy field of van der Waals cluster" and to the work of chemical dynamicists. There is no indication in the record that GSC 26 turned its mind to this source of bias, or was alert to it. The Applicant submits that the record reveals GSC 26's own bias when one of its members asked "do we want to encourage HQP in that kind of research?" The record also reveals that GSC 26 had concerns with the teaching environment of the University of Ottawa, suggesting a further source of bias based on the reputation of the university.

iii)        Need for Funds

[71]            The Applicant submits that the need for funds is a fundamental issue that has to be addressed by GSCs in evaluating grant applications. The Applicant argues that GSC 26 failed to consider this important criterion in his case, despite the fact that GSC 26 was aware that the Applicant had not received a grant for the two prior funding years, and despite his having provided a detailed budget justifying the need for funds. The Applicant also indicated to GSC 26 that his ability to train students had been affected by lack of funding. The question of need was also noted by one of the Internal Reviewers and an External Referee. The Applicant claims that GSC 26 failed to turn its mind to the question of need and this is revealed both in its reasons of March 22, 2002, and its Extended Response following the Applicant's appeal of the NSERC Decision.

iv)         Contribution to the Training of Highly Qualified Personnel

[72]            The Applicant submits that the Peer Review Manual requires that a researcher's contribution to training be assessed in terms of quality and impact, and not in terms of the number of people supervised. The Applicant argues that GSC 26 failed to address the quality and impact of his contributions to the training of Highly Qualified Personnel ("HQP") and focussed instead on the irrelevant criterion of number of people trained. Using research grants as a means of training HQP has serious limitations, and NSERC explicitly addresses these limitations by maintaining separate pools of funds for this purpose.

The Duty to Give Reasons

[73]            The Applicant submits that the importance and purpose of giving reasons for a decision have been articulated as follows:

I)           to foster better decision-making by ensuring that issues and reasoning are articulated and thought out;

ii)          to allow the parties to exercise rights of appeal in a meaningful way;

iii)          to make decision-makers publicly accountable for their decisions;

iv)         to allow an appellate or reviewing Court to determine whether the decision-maker erred;

v)          to allow a reviewing Court to educate itself about the nature and implications of decisions by a specialist decision-making body to determine whether that body should be accorded deference; and

vi)         to provide guidance to others and a standard by which future activities of those affected by the decision can be measured.

In this regard, the Applicant draws the Court's attention to VIA Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25, F.C.J. No. 1685 (C.A.) at paras. 16-19, 33 and, Writing Effective Tribunal Decisions and Reasons (Keynote Address to Annual Conference on Advanced Administrative Law and Practice, Toronto, October 7, 2002), pages 3, 5, 7 by Evans J.A.

[74]            The Applicant submits that a failure to provide adequate reasons constitutes an error in law because a reviewing Court will not be able to ascertain whether the decision-maker addressed the issues or used proper principles.

[75]            The Applicant points out that the task of drafting reasons for unfavourable funding decisions by NSERC is assigned to the Internal Reviewers. He submits that NSERC emphasizes that, where a grant is denied, reasons are important to assist an applicant in improving future funding applications. He also points out that the Peer Review Manual emphasizes the following:

As there will be little opportunity during the competition session to prepare careful and constructive comments, internal reviewers should prepare in advance of competition draft comments to applicants if they anticipate these being required.

...

Constructive comments to applicants are of vital importance to enable researchers to improve future applications and/or their research programs. Committees are encouraged to provide constructive, specific and helpful comments to applicants ...

[76]            The Applicant submits that GSC 26 failed to provide adequate reasons. Mr. Villemure, in his Appeal Analysis prepared on July 30, 2002, commented as follows:

The comment of the GSC should have covered the four criteria and should have been more constructive to the applicant. Unfortunately, GSCs do not have much time to write comments and usually only include the factor that led them to their recommendation. In this case, this is very unfortunate but it does not represent a reason to overturn the decision.

[77]            The Applicant submits that the Internal Reviewers failed to provide draft reasons in advance of the competition period in February 2001, as emphasized in the Peer Review Manual. Moreover, no rating sheets were available for review in the record provided by NSERC, so that it must be presumed that these were not completed. Rating sheets would have been invaluable in providing a sense of how and whether the four criteria were applied and weighed. NSERC maintains it has no knowledge of this and no records of these documents. The Applicant says these deficiencies in the record should be interpreted against the decision-maker, and may constitute independent grounds for setting aside the decision (Parveen v. Canada (Minister of Citizenship and Immigration) (1999), 168 F.T.R. 103, F.C.J. No. 660 at para. 9 (F.C.T.D.).

[78]            The Applicant concludes that a failure to provide adequate reasons cannot be excused by the decision-maker's caseload, lack of time, or budgetary constraints. In any event, he says these reasons would not be valid here, since only a small percentage of applicants were denied funding (16 of 110).

The Appeal Process

[79]            Under the NSERC Appeal Process prescribed by the Peer Review Manual, the External Appeal Advisor reviews the appellant's arguments, the NSERC review criteria and guidelines, the comments of the GSC and any precedent cases. If the External Appeal Advisor determines that additional input is required from the GSC, it is obtained by NSERC staff. In requesting additional input, the External Appeal Advisor must outline specific questions to be addressed and the additional information should address those questions. After receipt of the additional information, the External Appeal Advisor makes a recommendation to the Team Leader.

[80]            The Applicant submits that the record reveals that the External Appeal Advisor and NSERC failed to follow the established procedure for addressing appeals. This resulted in a flawed process to the degree that the Applicant was denied any meaningful right of appeal. Despite acknowledging the deficiencies in the Committee Decision and in its reasons, and requesting additional input from GSC 26, the External Appeal Advisor proceeded to make his/her recommendation to confirm the original denial, before completing his/her review, in a telephone conversation with Mr. Villemure toward the end of July, 2002.

[81]            The Applicant submits that a second major failure in the NSERC Appeal Process in his case was the absence of specific questions for GSC 26 to address. The only direction to the GSC 26 came from Ms. Podeszfinski, who suggested what points should be noted in the GSC 26's response to explain the rationale for its decision.

[82]            The Applicant notes that, finally, there was a failure by GSC 26 and the Appeal Advisor to turn their minds to any of the objections raised by the Applicant to External Referee M's understanding of the science and how this led to many of his erroneous conclusions. Only the procedural issues were addressed. The Applicant submits that of particular note is the failure to address possible "school of thought bias" in External Referee M's assessment, as specifically raised in the objection and as stipulated in the Peer Review Manual. This is all the more objectionable in light of the External Appeal Advisor's recommendation to confirm the denial of the grant before s/he received the further input requested. Hence, the recommendation, the Applicant says, had no foundation. Indeed, the External Appeal Advisor's report misleadingly states that s/he made the recommendation after reviewing the Extended Response. The Applicant notes that Mr. Villemure stated that, by the end of July 2002, the External Appeal Advisor had made up his or her mind to confirm the Committee Decision. The Applicant submits that this amounts to rendering a decision before having considered all the evidence, which in turn may be characterized as a form of bias, or of having a closed mind (Xu v. Canada (Minister of Citizenship and Immigration) (1999), 172 F.T.R. 294, F.C.J. No. 1184 at para. 8)

[83]            The Applicant submits that the External Appeal Advisor's report is striking for its lack of comment on, or independent assessment of, the substance of the appeal. The Applicant contends that the report is almost devoid of commentary on the Extended Response and it reveals no independent assessment by the External Appeal Advisor.

[84]            The Applicant concludes that the NSERC Appeal Process was used as a means to correct deficiencies in the original Committee Decision and in the reasons given, rather than as a legitimate opportunity to give his application a fresh look and to determine what errors had been made.

Reasonable Apprehension of Bias

[85]            The Applicant suggests that External Referee M showed both personal and "school of thought bias" towards him.

[86]            The Applicant also suggests that a further source of bias arose as a result of the overlap of functions performed by the staff of NSERC. Mr. Villemure participated in the GSC 26 deliberations of the Applicant's application. He reviewed the funding decisions of GSC 26 before the President of NSERC decided whether to accept the recommendation, and he had input into those decisions to the extent that he approved the amount of money that was recommended by those GSCs for which he was responsible. He was the effective decision-maker in the Applicant's appeal of the Committee Decision. He was also involved in the selection of chairs and members to the GSC 26. Finally, he participated in policy discussions with senior NSERC administrators and communicated the results of those policy discussions to GSC members under his supervision. While some of these overlapping functions may be prescribed by the Peer Review Manual, the legislation does not sanction this degree of overlap. To the extent that the legislation may permit such overlap, the Applicant suggests that it would be a breach of the duty of fairness required by the Canadian Bill of Rights.

ANALYSIS

Improper Exercise of Discretion

[87]            Having reviewed the Applicant's assertions against what the record reveals of the actual process followed by the NSERC in this case, I cannot agree with his position that GSC 26 failed to consider the relevant criteria and committed a reviewable error in reaching the Committee Decision. Perhaps the most that can be said is that the "comment" provided by NSERC to the Applicant following the refusal of the grant application is not a particularly comprehensive explanation of how the Committee Decision was reached and the reasons for the refusal. The comment to the Applicant reads as follows:

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.

[88]            The fact that "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" cannot be taken as an indication that the GSC 26 failed to turn its mind to relevant criteria of assessment, failed to properly evaluate excellence, paid undue attention to the evaluation of External Referee M or succumbed to school of thought bias. The comment which is provided to applicants is not intended to be a detailed explanation of how the Committee Decision was made.

[89]            The fact that later concerns were expressed about the adequacy of the comment to the Applicant and what it might suggest about the impact of the negative evaluation does not mean that GSC 26 and NSERC did not do their job properly in this case.

[90]            The Applicant was obviously disappointed by the refusal of the grant application, but he is now asking the Court to read into the comment provided to him negative inferences that are not supported by the record as a whole.

[91]            The concern in the evidence over the Committee Decision is not a concern that the Decision was wrong or that it was not reached in accordance with the guidelines; the concern is with the accuracy and adequacy of the comment provided to the Applicant. It is part of the granting process to try and provide failed applicants with the feedback they need to prepare themselves for future grant applications. But inadequate feedback, and expressions of concern about the adequacy of the comment that went to the Applicant, is not evidence of the several complaints made by the Applicant.

[92]            The Applicant cites Baker, supra, for the proposition that where someone's capacity to pursue a profession is at stake, a high standard of procedural fairness is required. While the Applicant is not prevented from teaching, the denial of a research grant thwarts an important aspect of his work as a scientist. He is prevented, or severely restricted, in the kinds of research he can conduct and, in effect, is limited to theoretical work only. This constitutes a severe restriction on his capacity to practise his profession. In an analogous context, where the need for procedural fairness has been long acknowledged, the Applicant argues that it is well recognized that a denial of hospital privileges can severely limit a doctor's capacity to practise medicine. Moreover, there is a public interest in ensuring that scientific research, including the kind conducted by the Applicant, continues to be done.

[93]            The Applicant submits that the duty of fairness is rooted in the fundamental values underlying the rule of law. Because of its fundamental importance, heavy caseloads, lack of time, or budgetary constraints are no defence to a failure to act fairly.

[94]            The Applicant also submits that he had a legitimate expectation that NSERC would follow the procedures established in its Peer Review Manual and that his application would be considered in light of all the criteria established by NSERC. He also claims a reasonable expectation that the process followed would be a fair one, including the giving of appropriate reasons, a legitimate right of appeal, and an unbiased decision-maker. Legitimate expectations may found a claim to greater procedural protections than the individual may normally be entitled to (Baker, supra, at para. 26; Edison v. Canada (M.N.R.) (2001), 208 F.T.R. 58, 2001 FCT 734, F.C.J. No. 1064 at paras. 24, 30, 31.

[95]            Once again, my review of the record suggests that it is the adequacy of the comments provided to the Applicant that underscores this application. I find no convincing evidence of personal or "school of thought bias" on the part of GSC 26, the External Referees or the staff of NSERC.

[96]            External Referee M pulls no punches. But this is his/her job. He/she rates the Applicant's proposal as "fair" but cannot recommend funding, and says why in no uncertain terms. He/she criticizes his work. He/she is also very close in area of expertise. Perhaps s/he gets some things wrong. But that is not bias by either M or, more importantly, by GSC 26. It is possible to disagree with M's assessment and the Applicant obviously takes detailed issue with many of M's assumptions and conclusions. But the Committee Decision was made by GSC 26, not by M, and I am not convinced that any of the objections that the Applicant raises with regards to M's report can be translated into a reviewable error by GSC 26 which, in the comment to the Applicant, focuses upon the unlikelihood of success of the Applicant's proposed experiments, limited innovation and low impact on the scientific community. It is possible to disagree with these conclusions, but disagreement does not amount to reviewable error.

[97]            In its comment to the Applicant, the GSC says that it "concurs with the detailed reasons enumerated by one of the external referees which indicate that the proposed experiments are very unlikely to succeed." This is nowhere near saying that the GSC agrees with everything that External Referee M says or that it regarded his/her assessment as conclusive.

[98]            External Referee K, who the Applicant does not accuse of bias, had the following to say:

Taken together these three experiments would provide a major improvement in our understanding of the detailed dynamics (not just the kinetics) that is responsible for reaction following shock-heating, and hence (given the system under study) for combustion.

The question that NSERC faces is not, therefore, whether this is a worthy proposal, but whether, given the resources of people and equipment, Professor Teitelbaum is in a position to deliver what he proposes. I am convinced that he has the necessary skills, vision and ambition. Sadly, I am not convinced that the good people and modern equipment can be found in the setting in which Professor Teitelbaum must operate.

[99]            K was only "somewhat close" to the Applicant and, like M, s/he only rated the proposal as "fair". K's conclusions can hardly be called a ringing endorsement of the proposal. S/he doesn't think the Applicant can deliver but suggests that he be given a chance. This could hardly have inspired confidence in the Applicant's proposal in a GSC fixed with the responsibility of allocating scarce resources to scientific research on the basis of merit.

[100]        External Referee L, who gives the most favourable impression, is, in my opinion, somewhat lacking in objectivity in portions of her/his assessment. For instance, the following suggests special pleading for the Applicant, as opposed to assessing the actual proposal:

It is amazing that Dr. Teitelbaum has been able to remain productive in the face of the decision of an NSERC panel not to award him a grant in a previous competition. That decision was grossly unfair and wrong. I ask current committee members to right that wrong.

[101]        This cannot have helped the Applicant, yet he dose not criticize it or say that the GSC was biased against him as a result of this remark.

[102]        Once again, in saying that NSERC did not follow the procedures in the Peer Review Manual and consider all of the criteria, the Applicant is asking the Court to draw negative inferences from one External Referee's report and the comment sent to the Applicant, inferences which these documents will not bear. We do not have the detailed deliberations of the GSC 26 before us and there is no evidence this Court can accept to support the Applicants assertions in this regard. He appears to assume that the negative decision of the GSC 26 is itself proof of bias or procedural unfairness because of his high standing in this field. But this was the third time that the Applicant had been refused an NSERC grant.

The obligation to give Reasons and the Appeal Process

[103]        In my view, the Applicant also misconceives the nature of the appeal process that was required and followed in this case. Paragraph 10.5 of 2001 Peer Review Manual makes it clear that the grounds of appeal are not restricted, even though they generally fall into "procedural" or "scientific" issues. But the Peer Review Manual also makes the following clear:

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.

[104]        The Peer Review Manual also establishes that the "onus is on the applicant to demonstrate that an injustice has occurred" and specifically says that "differences in opinion between external reviewers and selection committees/panels do not necessarily constitute grounds for appeal."

[105]        The objectives of the NSERC Appeal Process followed in this case were not to reconsider the Applicant's proposal de novo, but to ensure that there was no compelling evidence of error or discrimination in the review process that had taken place before GSC 26. In the appeal letter put together by his lawyers, the Applicant states the essence of his complaints as follows:

Professor Teitelbaum appeals on the basis that GSC 26 misapprehended or ignored the materials before it, and thus made palpable and overriding errors in fact in coming to its decision on his application.

The Committee relied exclusively and unreasonably on the opinion of a single External Referee, whose hostility to him is manifest on the pages of the Referee Report, and ignored the opinion of the two other External Referees whose opinion had been sought, and whose evaluation of his ability as a researcher and the merit of his proposal were exceptionally positive.

The Committee's reliance on the negative Report to the exclusion of the other two Reports is manifestly unfair, and arguably approaches perversity. The unfairness is compounded by the fact that the Committee does not appear to have made any efforts to substantiate the hostile Referee's positions, and provided no explanation in its Reasons for preferring the hostile Referee's evaluation over the evaluation of the other two Referees it had engaged.

Prof. Teitelbaum asks that his Application be reconsidered, with appropriate regard to all the materials before the Committee, and especially with appropriate regard to all of the Referee's Reports.

[106]        The Applicant himself, in Appendix "A" of his lawyer's letter provided "Comments re Hostile Reviewer's Concerns About the Feasibility of my Research Program." The Applicant's counsel took the position that, in light of M's "obvious predisposition," the "hostile review ought to have been discarded in its entirety as an objective assessment of Dr. Teitelbaum's proposal." The same logic about obvious predispositions would also, in my opinion, exclude the positive review, which is predisposed to regard the Applicant's prior failures to obtain funding as "grossly unfair and wrong" and which exhorts current GSC members "to right that wrong." But this is not the point of the NSERC Appeal Process.

[107]        The letters of appeal from the Applicant's counsel also say that, apart from the hostile report, the "other two Referee Reports solicited by the Committee were unreservedly positive about Prof. Teitelbaum's excellence as a scientist, the importance of the proposed research, and the feasibility of the experiments proposed." Yet one of those reports (K's) rated the proposal as only "fair/passable" (the second lowest rating possible) and concludes "[s]adly, I am not convinced that the good people and modern equipment can be found in the setting in which Professor Teitelbaum must operate" and, as a consequence is doubtful whether "given the resources of people and equipment, Professor Teitelbaum is in a position to deliver what he proposes." K then asks that the Applicant be "given a chance to prove me wrong."

[108]        The Court finds it very difficult to accept this language as demonstrating an "unreservedly positive" attitude towards the Applicant's proposed experiments.

[109]        Having reviewed the record as it relates to the role of the External Appeal Adviser, the Team Leader and the various staff members involved, I can find no convincing grounds for saying that the appeal process followed in this case was flawed or that the matters raised by the Applicant in his letter of appeal were not considered. There was ample reason for the conclusion reached in the Appeal Analysis:

The recommendation is to maintain the original decision. Although the GSC did agree with the negative report, it would be an error to conclude that it did not have the capabilities to make its own assessment of the application and that they relied solely on the negative referee report. While it is granted that this report was not appropriate in tone, and that the GSC comment should have been more explicit, these do not represent reason to change the decision.

[110]        The Appeal Report itself confirms that the "advisor has reviewed all the material pertinent to the review of this appeal and concurs with the GSC assessment and finds no compelling evidence of error or discrimination in the review process."

[111]        In my opinion, the NSERC Appeal Process addressed the correct issues, reviewed the grounds alleged by the Applicant, reviewed the process that had been used to reach the decision by GSC 26 and concluded, reasonably, that no error or discrimination had occurred.

[112]        Notably, however, what emerged from the NSERC Appeal Process was the one issue of real concern raised by this application. The Appeal Report makes the following point:

The message to the applicant, which was sent after the competition, could have been more helpful. It is important that the members of the committee have to write comments, which are very important for the applicants, in a very difficult context, during the February competition. Nevertheless, a more detailed comment would have been much more useful to the applicant. That is the reason why, in the review of this appeal, that is was judged necessary to go back to the committee and ask for a better explanation of the assessment that took place. It is recommended that NSERC should continue to work with the committees to ensure that the messages sent to applicants are more detailed.

[113]        The Appeal Report on this issue is not, of course, a legal opinion and I do not take it, as the Applicant seems to suggest, as incontrovertible evidence of reviewable error. But is does raise what, in my opinion, is the Applicant's one real ground of complaint in this Application. What the Applicant deserved, but did not receive, was better feedback on his failed application for grant monies so that he could position himself and his work better to compete in future NSERC granting competitions. The issue is, then, whether the feedback he received was so deficient that it amounted to a reviewable legal error.

[114]        At this point it is worth quoting the comment to the Applicant again in full:

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.

[115]        There is some suggestion in the record that this kind of message is not untypical and that detailed communications to failed applicants are difficult because of the demands made upon the GSCs in assessing and judging the number of applications for money that come before NSERC each year. There is no evidence that the Applicant was treated differently in this regard from other applicants who were refused funds for 2002-2003. Rather than going through the whole gamut of criteria that the Peer Review Manual lists as relevant and important, the message is clearly an attempt to list the really crucial issues that told against the Applicant when the GSC 26 came to make its final decision. And it is important to keep in mind that, when making this decision, the Applicant was being assessed against the other approximately 109 submissions submitted for that particular year. He was a participant in a competition for scarce funds.

[116]        The Applicant has ably stated why reasons are important. Comments made by NSERC itself and the Peer Review Manual make it clear that there is general agreement that helpful comments are vital to the granting process.

[117]        The Applicant says that the reasons provided in this case were so inadequate that they amounted to a reviewable error of law. I disagree. The Applicant is confusing "comments" as described in the Peer Review Manual with adjudicative and/or administrative reasons for a decision. The Peer Review Manual calls for "constructive comments to applicants ... to enable researchers to improve future applications and/or their research programs." The Peer Review Manual does not require a decision of the kind that explains to failed applicants the evidentiary and legal considerations that went into the decision. In the context of this granting scheme, where a GSC makes a recommendation following a detailed internal and external review, such a detailed decision would be difficult to devise for all refused applicants in the time available.

[118]        In Baker, supra, the Supreme Court of Canada concluded that "it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision." [para. 43] Implicit in this statement is the suggestion that procedural fairness only requires reasons "in certain circumstances" and the Supreme Court is content to rest with the further explanation that "in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required." [para. 43]

[119]        In the case at bar, there is no statutory right of appeal, although an appeal process is set out by NSERC in its Peer Review Manual. It is not clear from the Baker, supra, decision what "other circumstances" might include, but the Supreme Court does refer to "the flexibility that is necessary, as emphasized by MacDonald and Lametti, supra, when courts evaluate the requirements of the duty of fairness with recognition of the day-to-day realities of administrative agencies and the many ways in which the values underlying the principles of procedural fairness can be assured." [para. 44]

[120]        In deciding what reasons were required in this case, I place significant emphasis upon the reasonable expectations of grant applicants and the corresponding duties of GSCs created by the following words from the NSERC Peer Review Manual:

6.11.3. Preparing Draft Comments and Presentation to the GSC

As there will be little opportunity during the competition session to prepare careful and constructive comments, internal reviewers should prepare in advance of competition draft comments to applicants if they anticipate these being required. These should be discussed in February when applications are reviewed by the GSC and carefully vetted to ensure they represent the committee discussion and consensus. The final version of the communication form provided to NSERC must reflect the comments of the entire committee. The rating sheet is an excellent tool on which to base the formulation of balanced and helpful comments.

Constructive comments to applicants are of vital importance to enable researchers to improve future applications and/or their research programs. Committees are encouraged to provide constructive, specific and helpful comments to applicants especially in the following cases:

New applicants;

All nil awards

Significant (20% or more) reductions or termination (NSERC requires comments for such cases);

Serious concerns with research productivity, and/or the research proposal;

Applicants from small universities.

GSCs should provide comments primarily on those aspects of a proposal that are important in arriving at the committee's recommendation. Both strengths and weaknesses are appropriate for comment. The comments should also address any apparent discrepancy between the GSC recommendation and the referee reports in order to provide a clear understanding of the GSC evaluation. The comments should explicitly discuss specific points in external reviews with which the GSC particularly agrees or disagrees if they are a factor in the final recommendations.

The comments must be in accordance with NSERC guidelines and appropriate for transmission to the applicant. If at all possible, the GSC should write the comments in the applicants' preferred language.

The following examples are some of the problems sometimes encountered in comments prepared by GSCs:

Lack of clarity, e.g., it is not clear what message the GSC is trying to give;

Message too general to be of use, i.e., applicant did not rate as highly as others in the competition;

Abusive or belittling language;

Eligibility messages, i.e., we did not recommend funding because applicant should not be eligible. Note: This is an NSERC role, not that of a GSC;

Messages counter to NSERC policy, e.g., GSC did not recommend funding because work is applied or not suitable for its discipline, but suitable for a Strategic Project grant or suitable for CIHR funding.

Messages which appear to be inconsistent with external reviewers' comments without acknowledging those comments and explaining the GSC's rationale.

In the past, a number of appeals have been based on the applicant's perception of an age or gender bias in the recommendation of the GSC. Members must make sure that such biases are not introduced in the review process and that the message conveyed to the applicant does not imply that there were such biases (see Section 5.4.6).

[121]        I consider these instructions in the Peer Review Manual as an acknowledgment by NSERC that the peer review and grant competition process that is administered "encourages" "constructive comments to applicants" that conform to the following basic tenets:

1.          they should be constructive in the sense of assisting researchers to improve future applications and/or their research programs;

2.          they should be specific enough to assist applicants in the way described in 1 above;

3.          they should focus on those aspects of a proposal that are important in arriving at a committee's recommendation;

4.          it is appropriate, but not compulsory, to mention strengths and weaknesses;

5.          they should address any apparent discrepancy between the GSC recommendations and the External Referee reports;

6.          they should discuss specific points in external reviews with which the GSC particularly disagrees or agrees, but only if they are a factor in the final determination;

7.          they must be in accordance with NSERC guidelines and appropriate for transmission to the applicant.

[122]        The Peer Review Manual does not require the production or communication of a complete adjudicative or administrative decision. The comments provided to the Applicant in this case were an attempt to follow the principles enumerated above. My reading of the comments suggests that they do not fall sufficiently short of the stated objectives to amount to a reviewable error and that, in any event, the Peer Review Manual makes it clear that a failure to provide adequate comments is not a ground upon which to overturn the Committee Decision.

[123]        Following the Committee Decision, various parties commented upon the inadequacy of the comments provided to the Applicant. The concern was not that the Applicant had not been assessed properly but, rather, that he had not received the feedback he required. This is also the conclusion reached in the Appeal Report. In other words, the NSERC Appeal Process worked, in my opinion, because it correctly identified what had gone wrong in the Applicant's case.

[124]        In the particular circumstances of the granting competition administered by NSERC, reasons in accordance with paragraph 6.11.3 of the Peer Review Manual are a deliverable that GSCs are "encouraged" to provide. But the failure to give adequate reasons for the refusal does not vitiate a decision that is fairly arrived at, as was the decision of the GSC in the case at bar. The Applicant had no statutory right of appeal that needed to be protected by more extensive reasons in this case. By submitting his application, the Applicant subjected himself to the NSERC system which entitled him to use the NSERC Appeal Process as described in the Peer Review Manual. That Appeal Process was a check to ensure he had "been treated fairly and consistently in the context of a competition for limited funds." If there had been "compelling evidence of error or discrimination in the review process" a recommendation could have been made to change the Committee Decision. The grant system administered by NSERC also encourages the production of constructive comments in accordance with 6.11.3 to enable applicants "to improve future applications and/or their research programs."

[125]        But the Peer Review Manual, which sets out the respective duties and entitlements for the competition, nowhere suggests that a failure to provide constructive comments in accordance with 6.11.3 is an "error or discrimination" in the award process that entitles the Applicant to have a GSC decision reconsidered or allows the Team Leader to suggest that monies be allocated to an appellant such as the Applicant. In his submissions to the Court, the Applicant himself emphasises the importance of looking to the Peer Review Manual as a guide to the legitimate expectations of the parties.

[126]        In fact, it is a misnomer to refer to the message to the Applicant as an attempt to provide reasons for the decision in an administrative law sense. The system envisaged by 6.11.3 of the Peer Review Manual uses the word "comments," not "reasons," and it does so because those comments have an identified purpose which is "to enable researchers to improve future applications and/or their research programs."

[127]        Under this system, to which the Applicant voluntarily submitted, comments are a deliverable; but inadequate comments are not an "error" or a form of "discrimination" in the "review process" that he can reasonably expect will lead to a change in the Committee Decision or in the Appeal Decision.

[128]        The Applicant submitted himself to the NSERC Appeal Process under the Peer Review Manual and, in my opinion, he cannot now attack the Committee Decision that he appealed. It was necessary to consider the Committee Decision as part of this Application because it formed the background to the Appeal Decision.

[129]        My review of the Appeal Decision leads me to the opinion that no reviewable error occurred in the NSERC Appeal Process that correctly identified that no error or discrimination had occurred in the "review process" and that more detailed "comments" would have been "much more useful to the applicant." In my opinion, this conclusion was correct and no reviewable error was committed. Even if I am wrong in this regard, this Application is fraught with other difficulties that prevent the Court from granting the relief requested.

Other Problems with this Application

[130]        To begin with, the decision under review here is the Appeal Decision under the NSERC Appeal Process. The Applicant's grounds for appeal were heavily focussed on the allegation that "the Committee relied exclusively and unreasonable on the opinion of a single External Referee ...." This allegation was investigated and found not to be substantiated. The Applicant cannot now, as he attempts to do in this Application, raise other grounds before this Court that were not raised in the appeal. In effect, having failed on his grounds of appeal, he is now asking the Court to review and quash the Committee Decision on much wider grounds than he raised on appeal. For instance, in his appeal, he did not complain about inadequate reasons. In other words, he is attempting to use a review application that should really be focussed on the Appeal Decision as a way of having the Court review and overturn the Committee Decision. In my opinion, any such broad review of the Committee Decision is now objectionable on the grounds that an internal appeal process (and one which the Applicant has used) exists that is an adequate alternative for judicial review, bearing in mind NSERC's mandate and the ground rules it has established to manage the granting process.

[131]        The Applicant also asks this Court to consider quashing the Committee Decision to deny him a grant and to substitute its own decision and award him the monies he was seeking from NSERC or, in the alternative, an order that NSERC should re-determine his application in accordance with directions from the Court as to the manner in which such determination should be made.

[132]        In my opinion, even if the Applicant had convinced the Court of reviewable error, neither of these remedies would have been possible.

[133]        To begin with, this Court is not in a position to assess the Applicant's grant application, particularly as regards its relative merits to the other approximately 94 applicants who were awarded grants for 2002-2003. It is important to bear in mind that the Applicant submitted to a competition that involved not only the weighing of complex scientific information but also measuring the Applicant's proposal against all other proposals seeking access to a limited pool of money at a particular time. No such determination could be made by this Court at this time.

[134]        As regards a redetermination on directions from the Court, the competitive nature of the NSERC process would prohibit any such order. This would involve a redetermination and re-enactment of the whole process for the 2002-2003 year. And for the Court to order a consideration of the Applicant's 2001 application by the present relevant NSERC GSC vis-a-vis the applicants for 2003-2004 would not be a redetermination of the 2002-2003 competition and would, in any event, be entirely unnecessary because the Applicant is free to make his submission to NSERC for the current year of the competition.

ORDER

THIS COURT ORDERS that

1.          This Application is dismissed.

2.          The Respondent shall have the costs of the Application.

"James Russell"

_________________________________

                                                                                                JFC

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE NO.:T-1748-02

STYLE OF CAUSE:Heshel Teitelbaum v. Attorney General of Canada

PLACE OF HEARING:Ottawa, Ontario

DATE OF HEARING:December 3, 2003

REASONS FOR ORDER AND ORDER:The Honourable Mr. Justice Russell

DATED:March 16, 2004

APPEARANCES:

Mr. Sebastian Spanofor the Applicant

Mr. Jeffrey Lester for the Respondent

Ms Sonia Barrette

SOLICITORS OF RECORD:

Engelmann and Gottheil      for the Applicant

Ottawa, Ontario

Mr. Morris Rosenbergfor the Respondent

Deputy Attorney General of Canada