Date:
20130208
Docket:
T-1287-11
Citation:
2013 FC 144
Ottawa, Ontario, February 8, 2013
PRESENT: The Honourable Mr.
Justice Phelan
BETWEEN:
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JOHANNES WHEELDON
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
is the continuation of the litigation regarding a decision of the Social
Sciences and Humanities Research Council [SSHRC] denying the Applicant a
post-doctoral fellowship [Award Decision].
[2]
In
my decision cited as Wheeldon v Canada (Attorney General), 2012 FC 355,
216 ACWS (3d) 367, the matter was adjourned to permit the production of the
certified tribunal record [CTR], following which the parties were provided with
an opportunity to update their submissions.
This is the
judicial review of the Award Decision based upon a proper record.
II. FACTS
[3]
The
facts were generally set out in the previous decision but are repeated here for
completeness.
[4]
In
October 2010, the Applicant, Mr. Wheeldon, applied for a two-year post-doctoral
fellowship from the SSHRC. The SSHRC is a federal agency created to promote and
support post-secondary based research and training in humanities and social
sciences. It annually awards scholarships and fellowships.
[5]
On
February 10, 2011, the Applicant was informed in the Award Decision that he had
not been successful. There are three critical elements in each of the two
categories upon which applicants are evaluated. The Applicant claims that there
are actually 15 elements and each is, by the SSHRC’s admission, weighted
equally. The Award Decision gave the Applicant his scores for “Track Record”
and “Proposed Program of Work”.
[6]
In
response to questions from the Applicant about the assessment of applications,
the SSHRC informed him that he could file an internal appeal. The grounds of
such an appeal were limited to procedural error or factual error.
[7]
The
Applicant pursued the matter further, questioning the application process and
requesting a copy of his file.
[8]
In
response to the request for his file, the Applicant received an administrative
file but did not receive any file from the committee members who made the
assessment of his application.
[9]
In
response to further questions from the Applicant, the SSHRC provided some data
as to the number of complaints/appeals that were received by the SSHRC for
post-doctoral fellowship funding since 2008 and confirmation that specific
criteria was used by committee members in evaluating such applications for
funding.
[10]
On
May 5, 2011, the Applicant formally appealed the scoring of his award
application on the basis of procedural fairness in that he could not
meaningfully understand the basis of the scoring.
[11]
The
Applicant’s judicial review was based on inadequate reasons being a breach of
procedural fairness.
[12]
Following
the previous decision, the Applicant was provided with the CTR principally
consisting of a spreadsheet which had contained the final total scores of the
SSHRC’s Post-doctoral Fellowship submissions for the 2011-2012 application
cycle. The version provided to the Applicant was redacted to remove the names
and sub-category scores of other candidates.
[13]
The
Applicant maintained his position that the record did not allow him to know the
basis of the Award Decision. The complaint is in part that numeric scores not
linked to criteria and sub-criteria are not sufficient for a proper review; in
essence, that there is inadequate feedback.
The Applicant
also says that he cannot tell in what ways he can improve his proposal for
future applications. He relies on Teitelbaum v Attorney General of Canada, 2004 FC 398, 248 FTR 283 [Teitelbaum], for the proposition that
applicants deserve feedback to position themselves to compete in future grant
competitions.
[14]
The
SSHRC allocates its awards based on the recommendations from selection
committees who assess, score and rank applications through independent expert
reviews. These selection committees are made up of university based researchers
and, where appropriate, experts from outside the academic community. Each year
between 350-400 Canadian and international scholars and experts volunteer to
serve on these selection committees.
[15]
The
information governing the awards process is available to applicants both
through SSHRC staff and on the internet. In the Frequently Asked Questions
section, the following appears:
… in view of the large number of applications,
committee members are not asked to provide written appraisals of individual
applications, nor is a record kept of consensus judgments about the strengths
and weaknesses of individual applications.
“Frequently Asked Questions about the Application
Process – Doctoral Awards”, online: Social Sciences and Humanities Research
Council < http://www.sshrc-crsh.gc.ca/funding-financement/apply-demande/faqs-questions_frequentes/doctoral_awards-bourses_de_doctorat-eng.aspx>.
[16]
Selection
committee members submit preliminary scores and rank each application in
accordance with a formula whose purpose is to distribute marks of a particular
applicant in a way that is relative to other applicants in that year’s
competition. Only the top 20-25% of applications are recommended for funding.
In the 2011-2012 competition, only 20% of the applications were funded.
[17]
In
the Award Decision, the Applicant received a brief statement about the process
of selection, the fact that of 877 applications 175 were offered awards and the
details of his marks; first, the Track Record mark, then the Program of Work
mark and finally the total score.
[18]
The
critical issue in this judicial review is whether the Applicant was denied
procedural fairness by reason of breach of legitimate expectations. The issue
of the reasonableness of the decision is a secondary matter.
III. ANALYSIS
[19]
Originally
the Applicant characterized the attack on the Award Decision as a breach of
procedural fairness due to inadequate reasons – phrased as a stand alone right.
With the decision in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, the
Applicant could not rely on inadequate reasons as a stand alone ground for
judicial review.
[20]
The
standard of review in respect of procedural fairness is correctness (Sketchley
v Canada (Attorney General), 2005 FCA 404, [2006] 3 FCR 392).
To the extent
that the decision itself is challenged, because of inadequate reasons, that
issue is decided under the reasonableness standard of review analysis.
[21]
The
Applicant claims that he was entitled to a process and a result which gave him
information on how he could improve his application for the future. He relies
extensively on the Teitelbaum decision at paragraphs 116-120 which refer
to the legitimate expectations created by Natural Sciences and Engineering
Research Council [NSERC] Peer Review Manual that referred to “constructive
comments to applicants” and that these comments were to serve a number of
purposes including assisting research to improve future applications.
[22]
The
current case is distinguishable from Teitelbaum, above, because no such
legitimate expectation was created. The SSHRC website explains that, unlike the
NSERC policy, no comments are provided due to the large number of applications.
SSHRC appreciates that unsuccessful applicants
frequently seek information to help them improve a future application.
Unfortunately, the large number of applications in each competition precludes
selection committees from providing written explanations for the scores
assigned and from making any comments on the application’s standing in the
competition. Therefore, for any given application, the only information
available from the selection committee is the competition results and the score
assigned. Competition results are not communicated by telephone or email.
“Notification of Competition Results: Fellowships
and Scholarships”, online Social Sciences and Humanities Research Council:
<http://www.sshrc-crsh.gc.ca/funding-financement/policies-politiques/f_notification-b_avis-eng.aspx>
[23]
Given
that expressed disclaimer of the provision of comments, the Applicant cannot
claim that he was denied some legitimate expectation. The evidence confirms
that the Applicant received what he had been promised – a chance to be granted
an award in accordance with an application process that was followed.
[24]
To
the extent that there is any issue of reasonableness of the decision not to
provide comments or reasonableness of the mark given and denial of an award,
the decision of the SSHRC is entitled to considerable deference by this Court.
[25]
In
applying the reasonableness standard of review in an academic context, it has
been found that a high degree of deference is owed to the expertise of the
decision-making body. In Mohl v University of British Columbia, 2000
BCSC 1849, 101 ACWS (3d) 932, aff’d in 2001 BCCA 722, 161 BCAC 276, leave to
appeal to SCC refused 295 NR 199 (cited to QL), the BC Supreme Court made at
least two comments worthy of repetition here.
13 Where a senate committee makes a decision deferring
to faculty on matters of academic judgment, it is my view that the court should
accord high deference to such a decision. As will be seen, the underlying
decision here was, at its heart, an exercise of academic judgment by faculty as
to whether Mohl was able to successfully meet the standards required for his
practicum. The significance of this will be apparent after consideration of the
procedural issues raised by Mohl.
[…]
16 It seems to me that the question of reasonableness
must be intertwined to a certain extent with the question of deference. In
other words, the reasonableness of the finding must be considered having regard
to the degree of deference to which the tribunal is entitled on the matter at
issue.
[26]
The
same principles are applicable to the SSHRC decision. There is a rationale for
the process, there is a knowledgeable body making a highly discretionary
decision to which the Applicant has no right to a specific result and there is
a clear result.
[27]
This
is not a situation in which a court would be justified to intervene. It is a
matter about which the decision making body has far greater expertise.
[28]
The
Applicant, as can be seen from his amended relief, seeks to have the Court
impose a process on SSHRC regarding the award procedures and to then submit
that process for court review within one year. There is no basis for this Court
engaging in that kind of remedy.
[29]
I
can find no basis for disturbing the SSHRC Award Decision.
IV. CONCLUSION
[30]
Therefore,
this judicial review will be dismissed with costs.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed with costs.
“Michael L. Phelan”
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