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NATURAL JUSTICE - Actual vs. apprehended bias

Wednesday, February 26, 2020 @ 8:11 AM  

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Appeal by Oleynik a tenured sociology professor, from a decision dismissing his application for judicial review of a decision of an appeals committee of the Social Sciences and Humanities Research Council confirming the adjudication committee’s decision not to offer funding for which the appellant had applied. The committee rejected his funding application due to its final low score. The application was screened out in light of its low score and was not considered by the adjudication committee. Before the appeals committee, the appellant alleged bias and institutional bias, failure to manage the real, perceived, or potential conflicts of interest of both the adjudication committee chair, McQuillan and the chair of the appeals committee, Verbeke, as a subordinate to McQuillan, as well as the conflict of interest of an external reviewer. The chair of the appeals committee guided discussion of all committee members to reach a unanimous recommendation for each of the files. The alleged conflict of interest arose from hard-fought litigation between the appellant and a member of the academic staff of the University of Calgary, where McQuillan continued to be a member of the university’s senior management team. The litigation cost the university more than $100,000 in legal fees. The appellant surmised that McQuillan must have been aware of the litigation. There was therefore, he argued, a conflict between McQuillan’s institutional and business interests as a member of the senior management team of the university and his responsibilities in the merit review process. The appeals committee found no evidence that a real, perceived or potential conflict of interest of the chair influenced the scores or outcome of the appellant’s application. The Federal Court found that Verbeke’s role did not deprive the appellant of the opportunity to be heard and that there was no evidence that the members of the Appeal Committee were improperly influenced by their professional or personal relationships. The appellant argued that the Federal Court erred by failing to conclude that there were unaddressed conflicts of interest affecting both the adjudication committee and the appeals committee. It also erred by failing to conclude that the adjudication committee breached his right to procedural fairness by following a process that did not conform with its own policies, contrary to his reasonable expectations that the adjudication committee that considered his application would discuss the entire set of applications submitted to the committee for consideration, including his.

HELD: Appeal dismissed. Determining whether a reasonable apprehension of bias existed was highly dependent on the factual circumstances. Reflecting on what, objectively, a reasonable, informed person would think, particularly given the limits of McQuillan’s role in the merit review process and the information gaps in the record before the court, the appellant did not meet his burden of establishing a reasonable apprehension of bias in relation to the role of McQuillan. All that the record disclosed about the relationship between Verbeke and McQuillan was that the former was a member of the teaching faculty of the University of Calgary and the latter was deputy provost, a senior management position. There was nothing that fleshed out the nature of their relationship or established that it was truly one of subordinate to superior, in any meaningful sense. A reasonable person would need to know more before he or she could conclude that the relationship gave rise to a reasonable apprehension of bias. The court refused to consider the issue of the appellant’s legitimate expectations concerning the adjudication committee’s discussion of his application as this was not raised before the appeals committee or the Federal Court.

Oleynik v. Canada (Attorney General), [2020] F.C.J. No. 78, Federal Court of Appeal, D.J. Rennie, J.M. Woods and J.B. Laskin JJ.A., January 10, 2020. Digest No. TLD-February242020006