Date: 20080418
Docket: T-1336-06
Citation: 2008 FC 493
Ottawa, Ontario, April 18, 2008
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
CANADIAN
FEDERATION OF STUDENTS
Applicant
and
NATURAL SCIENCES AND
ENGINEERING
RESEARCH COUNCIL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to section 18.1 of the Federal Courts Act,
R.S.C. 1985, c. F-7, for judicial review of a decision of the Natural Sciences
and Engineering Research Council of Canada (NSERC or the respondent) dated June
15, 2006, confirming a decision dated December 13, 2005 that NSERC would take
no further action with respect to a research misconduct complaint filed by the
Canadian Federation of Students (the applicant) against the University of
Toronto (the University).
[2]
The
applicant requested the following:
1. An
order:
(a) quashing
or setting aside NSERC’s decision, communicated in its letter dated June 15,
2006, refusing to request that the University carry out an enquiry and inform
NSERC of the outcome; and
(b) referring
the decision back to NSERC for reconsideration in accordance with such
directions as this Court considers appropriate;
2. An
order in the nature of mandamus requiring NSERC to request that the
University:
(a) carry
out an enquiry into the applicant’s complaint and inform NSERC of the outcome;
and
(b) carry
out such enquiry in a manner consistent with the “Procedures for Processing
Allegations” identified in the Council’s Framework for Tri-Council Review of
Institutional Policies Dealing with Integrity in Research (the Integrity
Framework) and
3. An
order for the costs of this application.
Background
[3]
For
background purposes, the Canadian Federation of Students is an organization
whose mandate is to lobby for high quality, publicly funded, and accessible
post-secondary education in Canada and for academic freedom. The Natural
Sciences and Engineering Research Council of Canada is a federal agency
responsible for funding research in Canada and for ensuring that
research funds administered by it are used with integrity, accountability and
responsibility. The research at issue in this application is the “Wiarton Water
Distribution System Monitoring Study” (the Wiarton study), a study conducted
from June 19 to August 28, 2000 by a number of university professors, including
two from the University
of Toronto. In general,
NSERC issues research funds to the University of Toronto pursuant to
a Memorandum of Understanding, which incorporates by reference a number of
policy statements. Of particular relevance to this case, is the Tri-Council
Policy Statement: Integrity in Research and Scholarship Schedule (the
Tri-Council Policy Statement) which, when triggered, requires that NSERC, upon
receiving a complaint of research misconduct, request that the university in
question make an enquiry and forward a copy of the report from the enquiry back
to NSERC.
[4]
In
a letter to NSERC dated July 14, 2004, Christopher Radziminski, filed a formal
grievance against the University of Toronto in regards to among other issues,
questionable research conducted at the University of Toronto during the Wiarton
study. Specifically, Mr. Radziminski alleged that the Wiarton study’s
researchers had in their conclusions published in the Journal of
Environmental Engineering and Science reported that “no customer taste and
odor complaints were reported during the study period”, when in fact they had.
In his letter, Mr. Radziminski requested that NSERC conduct a full, prompt
investigation into the allegations of academic misconduct during the Wiarton
study.
[5]
NSERC
responded to Mr. Radziminski’s grievance in a letter dated August 9, 2004,
within which NSERC provided that they were “unable to determine that the items
triggered the Tri-Council Policy Statement. Mr. Radziminski then wrote a letter
dated August 27, 2004 to NSERC requesting clarification of the response. In a
reply letter dated September 22, 2004, NSERC clarified that their response was
that they had reviewed the matters as requested by Mr. Radziminski and found
that they did not fall under the purview of the Tri-Council Policy Statement.
[6]
It
appears that at this point, Mr. Radziminski approached the Canadian Federation
of Students with the issue. In a letter to NSERC dated July 19, 2005, Angela
Regnier, the National Deputy Chairperson of the applicant organization,
requested that NSERC communicate to the University the specific allegations of
research misconduct arising from the Wiarton study and require the University
to conduct an enquiry into the matters. On August 10, 2005, NSERC wrote to the
University requesting a response to the applicant’s allegations, but did not
request that the University conduct an enquiry. On October 18, 2005, the
applicant made further submissions to NSERC and requested a substantive
response to the applicant’s letter dated July 19, 2005. On November 8, 2005,
NSERC requested once again a response from the University. On November 21,
2005, the University provided their response to NSERC and the applicant.
[7]
On
December 2, 2005, the applicant wrote to NSERC indicating that it would be
addressing the findings of the University and the University’s continuing
failure to address the applicant’s specific concerns. In a reply dated December
13, 2005, NSERC informed the applicant that the University’s response had
appropriately addressed all the issues and concerns raised by the applicant.
The applicant then followed up with NSERC in a letter dated January 11, 2006, a
meeting held on April 11, 2006 and a letter dated April 11, 2006. On June 15,
2006, NSERC advised the applicant by letter, that it had nothing to add to the
previous replies given to the applicant. On July 26, 2006, the applicant
launched the within application for judicial review.
Reasons for Decision
[8]
The
entirety of NSERC’s decision is found in a letter dated June 15, 2006 from
NSERC to the applicant which reads as follows:
Dear Ms. Regnier:
Dr. Fortier has asked me to reply to your
letter of April 11, 2006. I apologize for the delay in my reply.
NSERC notes that your recent letter
raises issues presented to NSERC in your previous correspondence and to which
NSERC has provided responses.
After reviewing your recent letter in
light of the entire file on this matter, NSERC wishes to advise you that we have
nothing to add to the previous replies given to you.
Thank you for writing.
Sincerely,
Martine Dupré
Corporate Secretary
[9]
The
above reference to “previous replies given” includes two letters of particular
importance in the case at bar.
[10]
The
first letter is one from NSERC’s to Mr. Raziminski dated September 22, 2004
wherein NSERC found that the allegations of research misconduct raised by Mr.
Radziminski in relation to the Wiarton study did not fall under the purview of
the Tri-Council Policy Statement, and also that there was no apparent role for
NSERC to play in addressing these issues.
[11]
The
second letter is one from NSERC to the applicant dated December 13, 2005
wherein NSERC found:
- that the
process followed in investigating the allegations of misconduct complied
with the expectations set out in the Tri-Council Policy Statement, the
Memorandum of Understanding and the Integrity Framework;
- that for
the most part the University’s policy on ethics entitled Faculty of
Applied Sciences and Engineering, Framework on Ethics, met the
requirements of the Tri-Council Policy Statement, the Memorandum of
Understanding and the Integrity Framework; and
- that the
Research Ethics Board’s assessment and approval were actions consistent
with the responsibilities of the institution outlined in the Memorandum of
Understanding.
[12]
NSERC
concluded that “in light of the foregoing, NSERC is satisfied that the
University has appropriately addressed all issues and concerns raised in your
correspondence with NSERC”.
Issues
[13]
The
applicant submitted the following issues for the Court’s consideration:
1. Breach of Legal
Obligation
a. Did
NSERC err in law in refusing to require the University to conduct an enquiry
into specific allegations of research misconduct?
b. Did
NSERC commit a reviewable error in deciding to dismiss the applicant’s
complaint?
2. Procedural
Fairness
a. Did
NSERC violate the rules of procedural fairness in failing to advise the
applicant of the factual or legal basis of its decision?
b. Did
NSERC violate the rules of procedural fairness in the conduct of its
investigation into the applicant’s complaint?
c. Did
NSERC address the complaint in a manner that gives rise to a reasonable
apprehension of bias?
[14]
The
respondent submitted the following preliminary issues for the Court’s
consideration:
1. Does
the applicant have standing to bring this application?
2. If
so, should portions of the applicant’s supporting affidavit be struck out as
irrelevant, immaterial or otherwise improper?
[15]
I
would rephrase the issues as follows:
1. Preliminary
issues:
a. Does
the applicant have standing to bring this application?
b. If
so, should portions of the applicant’s supporting affidavit be struck out?
2. Reviewable
errors:
a. What
is the appropriate standard of review?
b. Did
NSERC commit a reviewable error in refusing to require the University to
conduct an enquiry into specific allegations of research misconduct?
c. If
NSERC’s obligations under the Tri-Council Policy Statement were not triggered,
was NSERC’s consideration of the complaint nonetheless reasonable?
3. Procedural
fairness:
a. What
are the requirements of procedural fairness in the present case?
b. Did
NSERC breach procedural fairness in failing to advise the applicant of the factual
or legal basis for its decision?
c. Did
NSERC breach procedural fairness in failing to advise the applicant of the
procedures it intended to follow in addressing the applicant’s complaint?
d. Did
NSERC address the complaint in a manner that gives rise to a reasonable
apprehension of bias?
Applicant’s Submissions
[16]
The
applicant began submissions by addressing whether NSERC erred in law in taking
no further action after receipt of the University’s report. The applicant
submitted that the appropriate standard of review for this question is
correctness. The applicant submitted that this question goes to the scope of
the NSERC’s jurisdiction in respect of allegations of academic misconduct, and
that questions of jurisdiction are ordinarily questions of law (Murdoch v.
Canada (Royal Mounted Police), 2005 FC 420 at paragraph 14).
[17]
The
applicant then provided submissions on the relationship between NSERC and the
University. The applicant submitted that under the Memorandum of Understanding
between the University and NSERC, both parties are obliged to adhere to the
Tri-Council Policy Statement. This statement sets out obligations and
responsibilities for both parties. Specifically, the University must promote
integrity in research and scholarship and investigate all possible instances of
misconduct, while NSERC is obliged to ensure that their research funds are used
with a high degree of integrity, accountability and responsibility, and to
request an institution identified as involved in an allegation of research
misconduct carry out an enquiry and inform the Council of the outcome. The
applicant also submitted that the Tri-Council Policy Statement defines
misconduct as any action that is inconsistent with integrity. The applicant
submitted that this statement provides that NSERC play a fundamental and
central role in receiving allegations of research misconduct. The applicant
submitted that a complaint triggers NSERC’s role only where the research
funding comes from NSERC. The applicant submitted that the burden of proof
required to trigger NSERC’s role is low as it requires only “evidence of
misconduct”. The applicant submitted that where this low threshold is met,
NSERC must request that the institution involved carry out an enquiry informing
the Council of the outcome and such an enquiry must be consistent with NSERC’s
procedural requirements for investigating allegations of research misconduct.
[18] The applicant
submitted that the complaint filed in the July 19, 2005 letter fell within the
scope of the Tri-Council Policy Statement. The applicant submitted that the
technology at the core of the research misconduct issues was the basis for
NSERC’s 2003 grant of $25,000 to the University. The applicant submitted that
NSERC erred in failing to require the University to conduct an enquiry into the
substance of the allegations and instead requesting that the University provide
NSERC with a response addressing the broader issues and concerns raised by the
applicant. As such, NSERC erred in disposing of the applicant’s allegations as
though they lay entirely outside of NSERC’s jurisdiction.
[19]
The
applicant then addressed the submission that NSERC committed a reviewable error
in deciding to dismiss the applicant’s complaint. The applicant submitted that
the appropriate standard of review is reasonableness. NSERC’s enabling statute
contains no privative clause and no statutory right of appeal. The question at
issue is a factual question that requires no particular expertise. The issues
raised are quasi-legal and not policy based and finally, the determination of
the question will have precedential value.
[20]
The
applicant submitted that NSERC’s decision to dismiss the applicant’s
allegations was not open to NSERC as it had overwhelming evidence before it of
deliberate mischaracterization of the public response to the Wiarton study
within the academic literature. The applicant also submitted that the context
and seriousness of the applicant’s allegations demanded thorough and careful
analysis from NSERC. The applicant submitted that instead, NSERC responded with
indifference towards an important Canadian public health issue, and a
questionable approach to oversight of taxpayer funds administered through its
research grants and awards. The applicant submitted that NSERC’s response was
simply unreasonable and not supported by the evidence before it.
[21]
The
applicant also raised three issues of procedural fairness. The applicant
submitted that the circumstances of this case require a high degree of
procedural fairness as NSERC’s decision to take no further action on an
allegation of academic misconduct effectively extinguishes the complainant’s
claim (Herbert v. Canada (Human Rights Commission) (1998), 156
D.L.R. (4th) 539 (F.C.A.)). Furthermore, the process is adversarial in nature
and as such, requires a high standard of procedural fairness (Downing v.
Graydon et al. (1978), 92 D.L.R. (3d) 355 at 370, 374, 377 (Ont. C.A.)).
[22]
Firstly,
the applicant submitted that NSERC violated the rules of procedural fairness in
failing to advise the applicant of the factual or legal basis for its decision.
NSERC denied the applicant the opportunity to comment on evidence tendered by
the University, despite being informed that the applicant intended to so do.
The applicant also submitted that NSERC representatives were unfamiliar with
the allegations and unprepared for a meeting between the parties and the
University held on April 11, 2006. The applicant submitted that a complainant
is entitled to be advised of and given the opportunity to respond to the
factual and legal basis of a decision disposing of his or her complaint (Selvarajan
v. Race Relations Board, [1976] 1 All E.R. 12 at 19 (C.A.), cited in
Irvine v. Canada (Restrictive Trade Practices Commission), [1987]
1 S.C.R. 181 at paragraph 54). The applicant also submitted that NSERC failed
to address the specific allegations in its decision, instead finding that the
Wiarton study lacked the necessary pre-requisites to engage the oversight
functions mandated by the Tri-Council Policy Statement.
[23]
The
applicant’s second submission on procedural fairness was that NSERC violated
the rules of procedural fairness in conducting its investigation into the
applicant’s complaint. The applicant submitted that at no point did NSERC
advise the applicant of the procedures it intended to follow in addressing the
allegations of research misconduct. The applicant submitted that the
Tri-Council Policy Statement prescribes the appropriate procedure and that when
NSERC deviated from this procedure, it failed to offer guidance to any of the
interested parties on how it would proceed. The applicant submitted that “a
complainant is entitled to know both the rules of the game and the
substance of the evidence before the Commission” (Mercier v. Canada
(Human Rights Commission), [1994] 3 F.C. 3 at paragraph 16 (C.A.)).
[24]
Thirdly,
the applicant submitted that the rules of natural justice were breached as the
applicant had the right to a hearing before a disinterested tribunal. The
applicant submitted that they had the right to enjoy a decision maker free of
bias at both the investigative and adjudicative stages of the procedure. The
applicant submitted that the appropriate test for bias at the investigative
stage is open-mindedness, that is, has the issue been pre-determined (Reimer
v. Saskatchewan (Human
Rights Commission), [1992] S.J. No. 547 at 8 (Sask. C.A.). The
applicant submitted that NSERC’s record discloses no independent investigation
of the allegations and instead appears to have down-loaded the responsibility
onto the University. NSERC merely accepted the conclusions of the University
without hesitation. Furthermore, the applicant submitted that NSERC was rushed
in dismissing the allegations and was unprepared in its dealings with the
applicant on the issues. The applicant submitted that these facts disclose a
startling degree of close-mindedness and give rise to a reasonable apprehension
of bias. As for bias at the adjudicative stage, the applicant submitted that
the appropriate test is whether the conduct of the decision maker gives rise to
a reasonable apprehension of bias (Newfoundland Telephone Co. v. Newfoundland (Board of
Commissioners of Public Utilities (1992), 4 Admin L.R. (2d) 121 at 134
(S.C.C.)). The applicant submitted that NSERC deferred their decision and
reasons to the University’s Dean’s Committee enquiry and that that committee’s
composition, motivation, and actions gave rise to a reasonable apprehension of
bias. Specifically, the applicant noted that the Dean’s Committee was struck at
the request of one of the professor’s alleged to have committed the misconduct,
and consisted of only two individuals, neither with expertise in the subject
area and both within the Faculty of Applied Science and Engineering.
Respondent’s Submissions
[25]
The
respondent submitted that the applicant lacks standing to bring this
application under section 18.1 of the Federal Courts Act, above and
therefore must rely on the discretion of the Court to grant it public interest
standing (Sierra Club of Canada v. Canada, [1999] 2 F.C. 211 at
paragraph 22 (T.D.)). The test for public interest standing is (1) whether the
litigation raises a serious or justiciable issue, (2) whether the applicant has
a genuine interest in the outcome of subject matter of the litigation, and (3)
whether there are persons other than the applicant who are more directly
affected and who can reasonably be expected to litigate the issues. The
respondent submitted that mere questions of administrative interpretation do
not satisfy the requirements of a “serious issue” (Harris v. Canada, [2000] F.C.J.
No. 729 at paragraphs 51 to 52 (C.A.)). The respondent
submitted that the requirements of a “genuine interest” requires consideration
of (1) whether the applicant’s interest in the legal issues is intimately
linked to its corporate objectives, and (2) whether the applicant possesses the
necessary “expertise, understanding and insights” to make a constructive
contribution or a “track record of general interest” in the issues (Sierra
Club of Canada, above at paragraphs 58, 66). The respondent
submitted that the applicant’s corporate objectives are not linked to drinking
water testing, but yet to advancing students’ interests. Moreover, the
respondent submitted that the applicant has no track record of general interest
in water quality. And finally, the respondent submitted that there are numerous
environmental, municipal, industry and technical organizations with a more
direct interest in the issues at hand that could be reasonably expected to
litigate the issues.
[26]
The
respondent submitted that if standing is granted, a substantial portion of the
applicant’s supporting affidavit (the Regnier affidavit), should be struck as
it includes documents that are not part of the certified tribunal record. The
respondent submitted that paragraphs of the Regnier affidavit that are based on
the contents of those documents should also be struck. The respondent submitted
that further portions of the Regnier affidavit should be struck as they contain
hearsay evidence. Specifically, the respondent identified paragraphs 14 to 22
which provided background on Mr. Radziminski’s academic career, research and
thesis, and paragraphs 26 to 43 and 45 to 53 which provided information on Mr.
Radziminski’s initial complaint to the University of Toronto and
complaint to Indiana
University.
The respondent submitted that contrary to paragraph 21 of the Regnier
affidavit, there was ample opportunity for Mr. Radziminski to provide an
affidavit upon which meaningful cross-examinations could have occurred. The
respondent also submitted that paragraphs 10 to 12, 64 and 67 of the Regnier
affidavit refer to irrelevant or extraneous matters and should be struck.
Finally, the respondent submitted that paragraphs 19, 20, 21, 58, 59, 74, 80,
81, and 82 should also be struck as they contain opinions and assertions
requiring expertise in drinking water disinfection, water safety systems,
chlorination, and the chemical properties and health effects of chlorine. The
respondent submitted that Ms. Regnier has no expertise in these areas.
[27]
With
regards to the appropriate standard of review, the respondent submitted that
the Natural Sciences and Engineering Research Council Act, R.S.C. 1985,
c. N-21 (NSERC’s enabling act) provides no express statutory right to appeal
and no privative clause. NSERC is a specialist funding agency and has
experience dealing with academic institutions, and their procedures. The
respondent submitted that the purpose of NSERC’s enabling act is to establish
an administrative body to promote and assist research in natural sciences and
engineering and that in achieving this purpose, NSEC must provide effective
fiscal control, while being careful not to constrain the independence of the
research process. And finally, the respondent submitted that whether NSERC
exercised its discretion properly is a question of fact and reviewable on a
standard of patent unreasonableness. The respondent submitted that whether
NSERC’s finding that the Wiarton complaint did not trigger the applicable
policies is a question of mixed law and fact reviewable on a standard of
reasonableness.
[28]
The
respondent submitted that NSERC made no reviewable error in taking no further
action. The respondent submitted that the applicant misreads NSERC’s
requirements under the Tri-Council Policy Statement. The respondent submitted
that NSERC’s responsibility under the policy is to forward the complaint to the
university in question, review the university’s report and consider sanctions
where misconduct is found. The respondent submitted that in any event, the
applicant’s complaint did not trigger the applicable policy. The respondent
submitted that the authority of NSERC to insist that an academic institution
carry out an investigation into alleged misconduct is grounded in its funding
role and in the case at bar NSERC did not provide funding to the Wiarton study.
The respondent also submitted that the applicant’s complaint did not allege
“research misconduct” as defined by the University. The respondent submitted
that an alleged failure to refer in certain publications to purportedly
conflicting evidence is not of the same nature as the kind of “deliberate
falsification”, “plagiarism”, “breach of confidentiality”, or “fraud” which
constitutes “misconduct”. Finally, the respondent submitted that “research
integrity” allegations do not require action by NSERC.
[29]
On
the issue of the contents of procedural fairness, the respondent made the
following submissions. With regards to how closely the process resembles that
of a judicial process, the respondent submitted that NSERC is not tasked with
making any final decision concerning a complaint, but is a conduit through
which a complaint flows to the academic institution for report. As the process
is not adjudicative, a lower standard of fairness is appropriate. With regards
to the nature of the statutory scheme, the silence on the availability of an
appeal suggests that these are administrative, rather than judicial powers and
therefore are subject to a lesser requirement of fairness. The respondent also submitted
that the within application is not central to the mandate or expertise of the
applicant, and the interest affected is indirect. The respondent noted that
there was no basis for an expectation that NSERC would afford further
procedural rights to the applicant. And finally, the respondent submitted that
NSERC’s enabling statute does not set out a specific procedure for the Council
to follow when determining whether to accept, reject or seek further
information in relation to a complaint or a report received from an academic
institution and as such, deference should be given. The respondent submitted
that these considerations indicate that a lower level of procedural fairness is
required.
[30]
With
regards to the applicant’s allegation that NSERC failed to provide them with
the factual and legal basis for their decision, the respondent submitted in
light of NSERC’s limited role and the Baker factors, the procedure
followed satisfied the requirements of fairness. The respondent submitted that
the complainant was aware of the issues, and was kept apprised of the steps
taken by NSERC. The respondent submitted that the University’s response was
provided to the applicant. The respondent submitted that NSERC’s decision did
not shield the researchers from meaningful scrutiny as it was not NSERC’s role
to dismiss the complaint, but yet to forward it to the academic institution for
review and collect the report. The respondent submitted that in any case, the
academic institution itself is not shielded from scrutiny as an affected party
could bring a judicial review of its decision, or otherwise institute civil
proceedings against it.
[31]
With
regards to the alleged failure to inform the applicant of the procedures taken,
the respondent submitted that the Memorandum of Understanding provides
guidelines which are flexible and require that complaints of misconduct be
forwarded to the academic institution, a report be made, and that report be
considered by NSERC. In the case at bar, this procedure was followed and no
breach of procedural fairness occurred.
[32]
The
respondent submitted that there is no basis for the alleged reasonable
apprehension of bias. The test for a reasonable apprehension of bias is “what
would an informed person, viewing the matter realistically and practically –
and having thought the matter through – conclude (Canada (Attorney
General) v.
Fetherston, 2005 FCA 111 at paragraph 34). The respondent submitted that
this test is a flexible one and must be adapted to the nature of the decision
maker. The respondent submitted that the allegation that no independent
investigation was done misconceives NSERC’s role. With regards to the
allegations that NSERC rushed to dismiss the complaint and was unprepared for a
meeting with the applicant, the respondent submitted that the applicant had
failed to signal in advance its desire to discuss the substance of its
complaint at the meeting and in any case, NSERC considered the letter in rendering
the decision under review.
Analysis and Decison
[33]
1. Preliminary
Issues
a. Does
the applicant have standing to bring this application?
The respondent submitted that
the applicant lacks standing under subsection 18.1(1) of the Federal Courts
Act, above to bring this application and does not qualify for a grant of
public interest standing. Subsection 18.1(1) of the Act reads as follows:
|
18.1(1) An
application for judicial review may be made by the Attorney General of Canada
or by anyone directly affected by the matter in respect of which relief is
sought.
|
18.1(1)
Une demande de contrôle judiciaire peut être présentée par le procureur
général du Canada ou par quiconque est directement touché par l’objet de la
demande.
|
[34]
The
respondent submitted that the applicant does not contend that the decision in
question “directly affects” its private legal rights or those of its members,
and as such, must convince the Court to use its discretion to grant the
applicant public interest standing. I agree. The applicant’s submissions are to
the affect that NSERC did not follow the procedure it is required to follow in
addressing the complaint. The applicant’s submissions are not to the effect
that it or its members’ legal rights are being directly affected, nor is the
applicant claiming that “special damages” are being inflicted. As such, the applicant
bears the onus of convincing the Court that a grant of public interest standing
is warranted (Sierra Club of Canada, above at paragraph
24).
[35]
It
is well established that the test for public interest standing is threefold:
(1) a serious or justiciable issue is raised, (2) the applicant has shown a
genuine interest in the subject matter of the litigation, and (3) there is no
other reasonable and effective manner to litigate the issues (Thorson v.
Canada (Attorney General), [1975] 1 S.C.R. 138, Canada (Minister
of Justice) v. Borowski, [1981] 2 S.C.R. 575, Canadian Council of
Churches v. Canada (Minister of Employment and Immigration), [1992]
1 S.C.R. 236, Sierra Club of Canada, above). Analysis of the
first requirement, a serious or justiciable issue, involves a consideration of “both
the importance of the issues and the likelihood of their being resolved in
favour of the applicant” (Sierra Club of Canada, above
at paragraph 38). The respondent submitted that according to the authority in Harris,
above a mere question of administrative interpretation does not qualify as
a serious or justiciable issue. While I agree with the legal principle, I
disagree that it applies to the case at bar. In my opinion, the issues raised
by the applicant are not questions of administrative interpretation, but
questions as to NSERC’s statutory authority to investigate claims. The
applicant is arguing that the necessary pre-requisites were present to trigger
NSERC’s responsibility under the Tri-Council Policy Statement to require the
University to conduct an investigation. In my opinion, this is a question of
NSERC’s statutory authority and not merely a question of administrative
interpretation. The issues are serious. With regards to the likelihood of a
favourable outcome for the applicant, having reviewed the materials, I am
convinced that there is some likelihood of success on the part of the
applicant.
[36]
As
to the second requirement, that of a genuine interest in the outcome of the
litigation, the factors to consider are (1) whether the applicant’s interest in
the issues are intimately linked to its corporate objectives, and (2) whether
the applicant possesses an expertise or track record of general interest in the
area of question (Sierra Club of Canada, above at paragraph 66). After
consideration of these factors, I am satisfied that the applicant has met this
requirement. The applicant’s corporate objectives include advancing students’
interests and the applicant has demonstrated that its members’ interests
include ensuring the integrity of academic institutions, and protecting those
who speak out against research misconduct. Furthermore, the applicant has
demonstrated a past record of active involvement in these issues. As stated in
the applicant’s supporting affidavit of Ms. Regnier, the applicant organization
has in the past publicly supported researchers who have spoke out in defence of
research integrity, lobbied for legislation and policies to protect
whistleblowers and supported publicly funded research. In my opinion, the
organization has demonstrated a sufficient degree of involvement in the issues
such that it is an appropriate body to institute this proceeding.
[37]
The
third and final requirement of the public interest test is whether or not there
is a more appropriate applicant. This condition requires the Court to consider
if there “are other individuals who are more directly affected than the
applicant, and are reasonably likely to institute proceedings to challenge the
administrative action in question” (Sierra Club of Canada, above
at paragraph 69). The respondent submitted the names of a number of
environmental and municipal organizations that they claim have a more directly
affected interest. While I acknowledge that these organizations and their
members have an interest in determining if research misconduct occurred in the
Wiarton study, their interest is comparable in importance to that of the
applicant who seeks to ensure integrity in academic research. There is no
indication from the respondent that these organizations have commenced legal
proceedings on the issue. As such, I find that the applicant has met the
condition and public interest standing should be granted.
[38]
b. If
so, should portions of the applicant’s supporting affidavit be struck out?
The respondent
made three separate requests for striking out of affidavit evidence. Firstly,
the respondent submitted that the applicant attempted to rely on documents that
were not before NSERC when the decision was made and as such, these documents
and references to them in Ms. Regnier’s affidavit should be struck. The
respondent submitted that the documents were introduced on the merits and not
in respect of the applicant’s procedural argument.
[39]
I
have reviewed the documents listed in Appendix A of the respondent’s memorandum
of fact and law and with the exception of a couple of documents that I have
found to be in the tribunal record, I agree that the remaining documents did
not form part of the tribunal record. Specifically, I have identified the
following documents listed in Appendix A to be part of the tribunal record:
|
Description in Appendix A
|
Location within the
Certified Tribunal Record
|
|
#20: Letter dated January 31, 2003 from
C. Radziminski providing his consent Qs: 176-177
|
Tab 1
|
|
#28: Joint Statement of Defence Q. 187
|
Tab 2
|
|
#51: Residents’ letter dated August,
2000 to the Mayor and Town Council
|
Tab 1
|
|
#51: Letters to the editor published in
the Wiarton Echo
|
Tab 1
|
|
#72: A 2003 U of T publication,
“University of Toronto Engineering Experts Available to Comment on National
Engineering week (NEW), March 1-9, 2003”
|
Tab 1
|
[40]
Recently
in Vennat v. Canada (Attorney General), [2006]
F.C.J. No. 1251 at paragraphs 43 to 45, this Court considered the issue of
striking evidence that was not before the decision maker when the decision was
rendered:
43 Generally, at the judicial review stage, only
evidence relied on in the decision under review must be considered (see Smith
v. Canada, [2001] F.C.J. No. 450, 2001 FCA
86). Such is the case because the purpose of the application for judicial
review "is not to determine whether or not the decision of the Tribunal in
question was correct in absolute terms but rather to determine whether the
Tribunal was correct based on the record before it" (Chopra v.
Canada (Treasury Board), [1999] F.C.J. No. 835, at paragraph 5).
44 Exceptionally, the Court may receive documents that
did not exist at the time of the application for judicial review, when issues
of procedural fairness or jurisdiction are involved (McFadyen v.
Canada (Attorney General), [2005] F.C.J. No. 1817, 2005 FCA 360, at
paragraphs 14 and 15; Ontario Association of Architects v.
Association of Architectural Technologists of Ontario, [2003] 1 F.C. 331,
at paragraph 30 (F.C.A.)). Issues of that nature are involved in this case.
45 However, to be admitted on an exceptional basis, the
evidence that was not available to the decision-maker must serve to establish
that there was a breach of procedural fairness, and not that the applicant was
correct on the merits. If this rule is not observed, the applicant could
indirectly introduce new evidence on the merits, thereby making the application
for judicial review a hearing de novo. In other words, it would be sufficient
to raise procedural fairness to transform an application for judicial review
into a hearing de novo.
[41]
In
my opinion, this is what the applicant has essentially done in the case at bar.
This case is not one of those exceptional circumstances where an exception to
the general rule is warranted. As such, I would allow the respondent’s request
and strike all the identified documents, except those I have found to be a part
of the certified tribunal record outlined in the table above. I would also
strike the following paragraphs of Ms. Regnier’s affidavit to the extent that
they rely directly on documents which were not before the tribunal:
Paragraphs: 5, 8,
11-20, 23-25, 36, 38-43, 46-53, 56, 59-61, 64-68, 70, 72-83, 88-92, 103-108, 111
and 112.
[42]
The
respondent’s second request is to the effect that a number of paragraphs in Ms.
Regnier’s affidavit are hearsay evidence. The respondent submitted that the
applicant has failed to meet the exception for hearsay evidence in affidavits,
and as such the paragraphs should be struck. Specifically, the respondent takes
issue with the paragraphs dealing with Mr. Radziminski’s academic career,
research and thesis (paragraphs 14-22), Mr. Radziminski’s initial complaint to
the University
of Toronto (paragraphs
26-43 and 45-53), and assertions of fact from Mr. Radziminski concerning the
Wiarton study (paragraphs 46-64).
[43]
I
feel it necessary to note the seriousness of the remedy requested by the
applicant. The jurisprudence indicates that striking out certain paragraphs of
the affidavit is a remedy that should be exercised sparingly and only where it
is in the interests of justice to do so (Armstrong v. Canada (Attorney
General), [2005] F.C.J. No. 1270 at paragraph 40). Background information
may help a presiding judge and should not be struck unless prejudice to the
respondent arises (Armstrong, above).
[44]
Section
81 of the Federal Courts Rules, SOR/98-106 states that “affidavits shall
be confined to facts within the personal knowledge of the deponent, except on
motions in which statements as to the deponent’s belief, with the grounds
therefore, may be included.” However, the Federal Court of Appeal in Ethier v.
Canada (Royal
Canadian Mounted Police Commissioner), [1993] 2 F.C.
659 (F.C.A.) held that a principled approach must be taken and the governing
principles to be considered are the reliability of the evidence and its
necessity. The respondent submitted that the identified hearsay evidence in Ms.
Regnier’s affidavit is information supplied by Mr. Radziminski, and that there
was time for himself to provide an affidavit between June and October 18, 2006,
before his departure for Africa. Ms. Regnier’s affidavit indicates at paragraph
21 that Mr. Radziminski himself is “unavailable to provide an affidavit to
present this information to the court as he is finalizing preparations to work
in Africa for the
balance of 2006 and much of 2007.” I accept the applicant’s submission that Mr.
Radziminski was unavailable. Moreover, I am of the opinion that the applicant
has sufficiently demonstrated that the evidence provided is somewhat reliable
as it came from Mr. Radziminski himself, someone with a certain degree of
expertise in the field and who is not uninvolved in the circumstances of this
case. Indeed, I do acknowledge the respondent’s submission that this
information may not respect the “best evidence rule”, but this goes to the
weight of the evidence and not its admissibility (Lumonics Research Ltd. v.
Gould, [1983] 2 F.C. 360 (C.A.)).
[45]
The
respondent’s third submission regarding Ms. Regnier’s affidavit is that certain
paragraphs refer to irrelevant or extraneous matters (paragraphs 10-12, 64 and 67)
and others contain opinions and assertions requiring expertise that the affiant
does not have (paragraphs 19-21, 58-59, 74 and 80-82). While I acknowledge the
respondent’s submission, I believe that allowing the evidence will not
prejudice the respondent. The issue of lack of expertise of the affiant will go
the weight given to the evidence. Once again in light of the seriousness of the
remedy requested, I would dismiss the respondent’s request.
[46]
2. Reviewable
errors:
- What
is the appropriate standard of review?
The
applicant submitted that the question of whether NSERC’s obligations under the
Tri-Council Policy Statement were triggered is reviewable on a standard of
correctness. The applicant submitted that if NSERC’s obligations were not
triggered, its consideration of the complaint must nonetheless be reasonable.
The respondent submitted that the appropriate standards of review are patent
unreasonableness, and reasonableness, respectively. Applying the standard of
review analysis to the facts of this case, I note the following:
- NSERC’s
enabling act contains no privative clause, nor does it expressly provide
for an appeal. This is a neutral factor.
- NSERC’s
expertise includes dealing with academic institutions, and their policies
and procedures. Moreover, NSERC is also an expert in administering public
research funds and ensuring that they are used with integrity,
accountability and responsibility. These factors warrant greater
deference.
- The
purpose of NSERC’s enabling act is to administer public funds for research
in the natural sciences and engineering fields. This mandate requires
NSERC to balance the interests of the public, academic institutions, and
researchers. This polycentric nature indicates that greater deference is
owed.
- With
regards to whether NSERC’s obligations were triggered, this is a question
of mixed law and fact as it requires NSERC to apply its policies to the
set of facts before it. I note that the obligations are found in a policy
and not law.
- With
regards to whether NSERC’s consideration of the complaint was reasonable,
this is a question of mixed law and fact.
[47]
In
conclusion, I am of the opinion that both issues raised are reviewable on a
standard of reasonableness.
[48]
b. Did
the NSERC commit a reviewable error in finding that the applicant’s complaint
did not trigger NSERC’s obligations under the Tri-Council Policy Statement?
The
relationship between the University and NSERC is governed by the memorandum of
understanding. Section 5.4 of this document, entitled “Integrity in Research
and Scholarship”, provides that:
The Institution and the Agencies are
committed to the highest standards of integrity in research and scholarship.
While the primary responsibility for maintaining high standards of integrity,
accountability and responsibility rests with the researchers, the Institutions
and the Agencies have a role in providing an environment that is conducive to
achieving these goals. The Parties therefore agree to adhere to the guidelines
set out in Schedule 4.
Schedule 4 provides:
As a condition of eligibility to receive
Agency funds, Institutions must have in place an integrity policy that is
consistent with the Tri-Council Policy Statement.
[49]
The
portion of the Tri-Council Policy Statement at issue in this case is the
responsibilities of research funding councils. Specifically, the responsibility
to order a University to conduct an enquiry into alleged misconduct. The
Tri-Council Policy Statement provides:
In the event that a Council, or one of
its peer review committees, identifies evidence of misconduct as part of the
peer review processes, the Council will request the institution(s) involved to
carry out an enquiry and to inform the Council of the outcome.
The Councils [sic] request that
institutions which have carried out enquiries of alleged misconduct in research
or scholarship involving projects funded by the Councils provide the
appropriate Council(s) with the report of their findings. The Council(s) will
consider the report and may request clarification or additional information.
[50]
The
parties submitted, and I agree, that NSERC’s responsibility to “request the
institution(s) involved to carry out an enquiry and to inform the Council of
the outcome” is only triggered where (1) the alleged misconduct involves
research projects funded by NSERC, and (2) NSERC (or one of its peer review
committees) identifies evidence of misconduct.
[51]
The
parties disagree on whether the pre-requisite of research funded by NSERC is
satisfied in the case at bar. The applicant submitted that the technology at
the core of the research misconduct issue was the basis for NSERC’s 2003
$25,000 Synergy Award for Innovation to the University of Toronto and ERCO
Worldwide. The respondent on the other hand, has submitted an affidavit from
Mr. Serge Villemure, who is the Director of the Chemistry, Engineering and
Mathematical Sciences Division in the Research Grants and Scholarships
Directorate at NSERC, which provides:
I have reviewed the relevant files in
NSERC’s possession which relate to funding provided by NSERC to Drs. Andres,
Karney and Gagnon in the time period in question. That project is not mentioned
as a basis for the requests for funding, in the subsequent reports on matters
funded, or in other documentation which refers to activities in question at the
relevant times. Drinking water related projects in other locations or dealing
with other related subjects were supported by NSERC, but not the project at
Wiarton described by Ms. Regnier. Based upon the information available to
NSERC, there is no evidence that NSERC grant funding was used to support these
projects.
[52]
With
regards to the applicant’s submission, while the technology providing the
foundation for the research project might have been funded by NSERC, this does
not necessarily mean that the research project itself was. In my opinion, this
observation is supported by Mr. Villemure’s affidavit. Given Mr. Villemure’s
position as Director of the relevant research division in the Research and
Grants and Scholarship Directorate of NSERC, I accord his evidence great
weight. In conclusion, I am of the opinion that the funding pre-requisite was
not met, and thus NSERC’s responsibility to request the University to make an
enquiry was not triggered. Consequently, I find that NSERC’s finding that the
Wiarton study did not fall under the purview of the Tri-Council Policy Statement
was reasonable.
[53]
c. If
NSERC’s obligations under the Tri-Council Policy Statement were not triggered, was
NSERC’s consideration of the complaint nonetheless reasonable?
The
applicant submitted that even if NSERC’s obligations under the Tri-Council
Policy Statement were not triggered, NSERC, having accepted the complaint, was
obliged to treat it in a reasonable manner. Essentially, the applicant
submitted that NSERC’s decision to take no further action regarding the
complaint was unreasonable. The respondent for their part submitted that there
is no requirement that NSERC engage in their own investigation of the complaint
and in any event, NSERC’s decision to take no further action in the complaint
was reasonable.
[54]
Having
reviewed NSERC’s enabling act and the relevant policies, I agree with the
respondent that there is no requirement on NSERC to conduct their own
investigation of the complaint. The spirit of the Tri-Council Policy Statement
is that NSERC transmits complaints to institutions; only where pre-requisites
are met is an enquiry necessary. While the applicant argues that NSERC’s role
of promoting integrity in research demands that they investigate the complaint,
I do not agree. There is no language in the policy to support such an
assertion.
[55]
In
any event, I find that NSERC treated the applicant’s complaint reasonably. They
forwarded the complaint to the University and asked for general comments and a
response. Upon receipt of the report, NSERC was satisfied that the University
had properly addressed the issues and concluded that they would take no further
action. This decision was reasonable, and I see no reason to interfere with it.
[56]
3. Procedural
fairness:
a. What
are the requirements of procedural fairness in the present case?
As
articulated by the Supreme Court of Canada in Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraphs 21 to 28,
“the concept of procedural fairness is eminently variable and its content is to
be decided in the specific context of each case.” In applying the factors
enumerated in Baker, above I note the following considerations.
[57]
The
process articulated in the Tri-Council Policy Statement is far from that of a
judicial process. Under the Tri-Council Policy Statement it is clear that NSERC
is responsible for transmitting complaints from their source to the institution
involved and requesting that institution complete an enquiry and provide a copy
of the report from that enquiry to NSERC. The actual investigation and final
decision on academic misconduct rests with the institution. This is supported
by the fact that the memorandum of understanding between the parties requires
the institution to have an investigation process that conforms to the standards
set out in the Tri-Council Policy Statement. It is true that NSERC can impose
sanctions where misconduct is found, but the ultimate decision as to misconduct
is up to the institution. NSERC is not involved in weighing evidence or even
assessing the merits of each party’s submissions. The process is not judicial,
nor is it quasi-judicial.
[58]
With
regards to statutory scheme, section 4 of NSERC’s enabling act provides that
NSERC’s powers are to “promote and assist research in the natural sciences and
engineering other than the health sciences” and to “advise the Minister in
respect of such matters relating to such research as the Minister may refer to
the Council for its consideration.” NSERC’s enabling act is silent on the
specific process and procedures that NSERC must take in exercising its powers;
these are found in the guidelines, policies and memorandums of understanding
entered into by NSERC.
[59]
As
to the importance of the decision to the individual affected, I understand that
the applicant has an interest in ensuring academic integrity, but such an
interest is not unlike that of the general public. In my opinion, the
applicant’s rights and personal interests are not directly affected.
[60]
The
Tri-Council Policy Statement gives people in the position of the applicant a
legitimate expectation that their complaint will be forwarded to the
appropriate institution for investigation. In my opinion, there is no basis for
a legitimate expectation that NSERC will investigate and make its own
determination on the issue of alleged misconduct.
[61]
With
regards to the procedure, Parliament granted NSERC the discretion to choose its
own procedures in dealing with complaints of academic misconduct. In
conclusion, I am of the opinion that these factors point the lower end of the
spectrum of procedural fairness.
[62]
b. Did
NSERC breach procedural fairness in failing to advise the applicant of the
factual or legal basis for its decision?
The
applicant submitted that NSERC breached procedure fairness in failing to
provide them with the opportunity to respond to the University’s report before
they rendered their decision. The respondent submitted that the applicant’s argument
is based on a misunderstanding of NSERC’s role.
[63]
NSERC
was clear in its decision that the Wiarton complaint did not trigger NSERC’s
responsibilities under the Tri-Council Policy Statement. In my opinion, NSERC’s
act in forwarding the complaint to the University was an action not directed by
the Tri-Council Policy Statement. However, I do not accept the applicant’s
submission that by accepting the complaint and forwarding it to the University,
NSERC then had to provide the applicant with all the procedural rights involved
in an adjudicative process. In my opinion, the only requirement on NSERC was
that upon receiving a response from the University, they forward it to the
applicant and provide a reason as to why NSERC’s obligations under the
Tri-Council Policy Statement were not triggered. This is exactly what NSERC
did. Given that I have already determined that the procedural requirements in
these circumstances are at the lower end of the spectrum, I believe that there
was no violation of procedural fairness. I would not allow the judicial review
on this ground.
[64]
c. Did
NSERC breach procedural fairness in failing to advise the applicant of the
procedures it intended to follow in addressing the applicant’s complaint?
The
applicant submitted that NSERC breached procedural fairness when it departed
from its “normal procedure” and failed to inform the applicant of the new
procedure taken to deal with the complaint. In my opinion, there is no merit to
the applicant’s argument. The procedure that was followed was almost identical
to that prescribed by the Tri-Council Policy Statement with the exception that
NSERC did not order the University to do an enquiry; instead, it requested a
response from the University. The applicant was made aware that the complaint
had been forwarded to the University and that a response had been requested.
Furthermore, when the University’s response was not received on time, NSERC
informed the applicant that once received it would be forwarded to the
applicant. The applicant was kept informed of what was happening. Given the
minimal requirements for procedural fairness in the case at bar, I am of the
opinion that procedural fairness was not breached.
[65]
d. Did
NSERC address the complaint in a manner that gives rise to a reasonable apprehension
of bias?
The
applicant alleged that the University’s enquiry panel gave rise to a reasonable
apprehension of bias and that as NSERC simply accepted the University’s
finding, NSERC’s decision also gave rise to a reasonable apprehension of bias.
The applicant also submitted that NSERC’s handling of the complaint gave rise
to a reasonable apprehension of bias as NSERC was made aware that the applicant
intended to reply to the University’s findings.
[66]
With
regards to the applicant’s submission of bias at the investigative stage, the
applicant has confused the role of NSERC. Under the Tri-Council Policy
Statement, the question as to whether academic research misconduct occurred is
for the University to determine. Once no misconduct is found, there is no
further role for NSERC to play. NSERC’s only decision was whether or not its
responsibilities under the Tri-Council Policy Statement were triggered. In this
case, NSERC’s decision, which I have found above to be reasonable, was that
their responsibilities had not been triggered. In my opinion, the applicant
would like this Court to accept that NSERC had a role in approving or rejecting
the University’s finding of no misconduct. This is simply not the case. As
such, I do not accept the applicant’s submission that NSERC simply deferred
their decision to the University’s finding of no misconduct.
[67]
As
to the applicant’s submission that NSERC’s behaviour gave rise to a reasonable
apprehension of bias at the adjudicative stage, I also disagree. Given my
previous finding that the minimal procedural fairness requirements in this case
did not guarantee a reply to the applicant, I do not find that their actions
gave rise to a reasonable apprehension of bias.
[68]
The
application for judicial review is therefore dismissed, with costs to the
respondent.
JUDGMENT
[69]
IT
IS ORDERED that the application for judicial review is dismissed, with costs
to the respondent.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
The relevant
statutory provisions are set out in this section.
The Federal
Courts Act, R.S.C. 1985, c. F-7:
|
18.1(1)
An application for judicial review may be made by the Attorney General of
Canada or by anyone directly affected by the matter in respect of which
relief is sought.
|
18.1(1)
Une demande de contrôle judiciaire peut être présentée par le procureur
général du Canada ou par quiconque est directement touché par l’objet de la
demande.
|
The Federal
Courts Rules, SOR/98-106:
|
81.(1)
Affidavits shall be confined to facts within the personal knowledge of the
deponent, except on motions in which statements as to the deponent's belief,
with the grounds therefor, may be included.
(2) Where an
affidavit is made on belief, an adverse inference may be drawn from the
failure of a party to provide evidence of persons having personal knowledge
of material facts.
|
81.(1)
Les affidavits se limitent aux faits dont le déclarant a une connaissance
personnelle, sauf s’ils sont présentés à l’appui d’une requête, auquel cas
ils peuvent contenir des déclarations fondées sur ce que le déclarant croit
être les faits, avec motifs à l’appui.
(2)
Lorsqu’un affidavit contient des déclarations fondées sur ce que croit le
déclarant, le fait de ne pas offrir le témoignage de personnes ayant une
connaissance personnelle des faits substantiels peut donner lieu à des
conclusions défavorables.
|
The Natural
Sciences and Engineering Research Council Act, R.S.C. 1985, c. N-21:
|
4.(1)
The functions of the Council are to
(a) promote
and assist research in the natural sciences and engineering, other than the
health sciences; and
(b) advise the
Minister in respect of such matters relating to such research as the Minister
may refer to the Council for its consideration.
(2) The Council, in carrying out its
functions under subsection (1), may
(a) expend,
for the purposes of this Act, any money appropriated by Parliament for the
work of the Council or received by the Council through the conduct of its
operations; and
(b) publish
and sell or otherwise distribute such scholarly, scientific and technical
information relating to the work of the Council as the Council considers
necessary.
|
4.(1)
Le Conseil a pour mission:
a)
de promouvoir et de soutenir la recherche dans le domaine des sciences
naturelles et du génie, à l’exclusion des sciences de la santé;
b)
de conseiller le ministre, en matière de recherche, sur les questions que
celui-ci a soumises à son examen.
(2)
Dans l’exécution de sa mission, le Conseil peut:
a)
utiliser, dans le cadre de la présente loi, les crédits qui lui sont affectés
par le Parlement et les recettes provenant de ses activités;
b)
à son appréciation, publier, vendre et diffuser par tout autre moyen des
données scientifiques, techniques ou d’érudition relatives à ses travaux.
|
Email this Content