FPSLREB Decisions

Heard at Ottawa, Ontario,
April 14 to 17; May 20 to 23; August 18 to 21, 25 to 27, and 29;
and October 22 to 24, 27, and 28, 2014; and
January 5, 26 to 27, and 29; March 13 and 16; and May 19 to 22, 2015.

REASONS FOR DECISION

I. Grievance referred to adjudication

1        Yuri Boiko (“the grievor”) was employed with the National Research Council (“the NRC” or “the employer”) as an associate research officer (“AcRO”). By letter dated July 15, 2004 (“the July 15 letter”), he was rejected on probation from his position, effective July 19, 2004.

2        On July 26, 2004, the grievor filed a grievance against the employer’s decision to reject him on probation. His grievance stated that throughout his employment, his supervisor had harassed him to such an extent that it was impossible for him to receive a fair evaluation on his performance appraisals. As corrective action, he requested that he be reinstated to his position, reimbursed all lost monies and benefits from the date of his rejection on probation, and assigned to a supervisor other than Dr. Chander Grover.

3        The grievor was a member of the Professional Institute of the Public Service of Canada (PIPSC) and subject to the terms and conditions of a collective agreement; however, at the hearing, he was not represented by the PIPSC.

4        On April 1, 2005, the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; PSLRA), enacted by s. 2 of the Public Service Modernization Act (S.C. 2003, c. 22; PSMA), was proclaimed in force. Pursuant to s. 61 of the PSMA, a reference to adjudication of a grievance filed before April 1, 2005, must be dealt with in accordance with the provisions of the Public Service Staff Relations Act (R.S.C., 1985, c. P-35; PSSRA).

5        On April 11, 2008, the grievance was dismissed at the final level of the grievance process, and on May 8, 2008, the grievor referred it to the Public Service Labour Relations Board (PSLRB) for adjudication.

6        On October 30, 2008, the employer objected to the PSLRB’s jurisdiction to hear the grievance on the ground that s. 211 of the PSLRA did not allow referring to adjudication a grievance about any termination made under the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; PSEA).

7        On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365; PSLREBA) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (PSLREB) to replace the PSLRB as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in ss. 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to s. 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the PSLRA before November 1, 2014, is to be taken up and continue under and in conformity with the PSLRA as it is amended by ss. 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

8        On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9) received Royal Assent, changing the name of the PSLREB and the titles of the PSLREBA and the PSLRA to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”), the Federal Public Sector Labour Relations and Employment Board Act and the Federal Public Sector Labour Relations Act (“the Act”).

9        At some point before I began the hearing, the grievor’s supervisor, Dr. Grover, ceased to be employed by the NRC. As such, the latter part of the relief sought in the grievance has become moot.

10        From the outset of the grievance being filed, legislative modifications have changed the tribunal’s name and brought administrative changes under which the staff of the former Public Service Staff Relations Board (PSSRB) and PSLRB have become staff of the Administrative Tribunal Support Services of Canada (ATSSC). Before the Board’s name change, they had also provided support services to the PSLREB. For ease of reference, when referring to the staff of the PSSRB or PSLRB or of the ATSSC, I will simply state “the Board’s registry”. For the sake of simplicity, I will also refer to any of the PSSRB, PSLRB, and PSLREB as “the Board”.

II. Process issues

11        On June 17, 2008, the Board’s registry wrote to the grievor, acknowledging his “Notice of Reference to Adjudication of an Individual Grievance”. In that correspondence, he was advised that pursuant to s. 61(1) of the PSMA, the grievance would be dealt with in accordance with the provisions of the PSSRA. In addition, as he was self-represented, the Board’s registry sent him the following materials:

• “Representing Yourself: How we can help” - guide
• “Individual Grievances Referred to Adjudication Under Section 209 of the Public Service Labour Relations Act” - guide
• “Hearing Both Sides: Formal and Expedited Adjudication” - DVD
• “Best Interests: An Introduction to Grievance Mediation” - DVD

12        The grievance was tentatively scheduled to be heard from March 16 to 22, 2009, in Ottawa, Ontario. On October 22, 2008, the grievor wrote to the Board and requested that the hearing be held in abeyance pending four Federal Court proceedings he had commenced that had arisen from his employment. The employer did not object to removing the matter from the tentative March 2009 schedule and agreed to reschedule it pending two of the grievor’s Federal Court proceedings being resolved. On November 4, 2008, the Board ordered the hearing’s schedule held in abeyance pending decisions in Federal Court File Nos. T-137-08 and T-463-08.

13        By February 1, 2010, the Federal Court had disposed of both files.

14        On February 3, 2011, this matter was tentatively scheduled for the week of July 4 to 8, 2011, in Ottawa. That same day, the employer requested that the matter be removed from that schedule and offered several other potential hearing dates throughout May and June of 2011. On February 4, 2011, the grievor requested that the hearing again be held in abeyance pending appeals in two of his Federal Court proceedings and a new (2009) proceeding in the Ontario Superior Court.

15        On May 17, 2011, the Board advised the parties that the hearing was tentatively scheduled for the week of October 31 to November 4, 2011. The grievor requested that it not proceed that week as he had certain proposed expert witnesses who were not available then. The employer advised that it did not object to the matter not proceeding during that week but requested that the grievor provide proposed hearing dates.

16        On August 4, 2011, a pre-hearing conference (PHC) was held. As a result, the tentatively scheduled hearing was postponed. The parties were also granted a three-month period in which to explore potential mediation and to allow the grievor time to complete his preparation of proposed expert evidence. The matter was referred to the Board’s Dispute Resolution Services (DRS) to schedule a mediation.

17        On August 31, 2011, with the parties’ agreement, DRS scheduled a mediation session for November 10, 2011. During the early part of the week of October 10, 2011, the grievor advised the mediator that he would require more time. The employer agreed to a short postponement, to December 8, 2011, at which time a mediation session was held. However, no resolution was reached.

18        The Board tentatively rescheduled the hearing for the week of August 13 to 17, 2012, and the parties were asked to provide their responses to the Board before December 16, 2011 The grievor requested a delay to respond to the request, submitting that he had other matters pending in the Federal Court. The request was denied.

19        On January 23, 2012, the employer wrote to the Board with respect to the grievor’s proposed expert evidence, taking the position that he should produce any proposed expert reports well in advance of the hearing (a May 2012 deadline was suggested) to permit the employer an opportunity to review them. It also requested a case management conference to discuss this issue. The grievor was asked to provide his position with respect to these matters by February 8, 2012.

20        The grievor responded and stated that the matters were complex and that a May 2012 deadline should not be set. In addition, he requested that an affidavit and transcripts of a cross-examination of a particular NRC employee in one of his Federal Court proceedings be admitted into evidence at the hearing. The grievor again asked that the hearing be put in abeyance pending the resolution of another Federal Court matter (File No. T-1338-07).

21        On February 29, 2012, the Board ordered that there would be no further scheduling delays and that preliminary matters would be dealt with at the outset of the hearing in August.

22        On March 13, 2012, a lawyer in Ottawa advised the Board that he was acting for the grievor. On May 4, 2012, the lawyer advised that he was not available on the scheduled August hearing dates, asked for a six-month postponement to prepare, and requested that the matter be postponed until after February 1, 2013.

23        On May 11, 2012, the employer wrote to the Board and advised that it took no position on the postponement request. However, it reiterated its request to deal with the grievor’s proposed expert evidence and for the delivery of proposed expert reports. On May 17, 2012, the Board denied the grievor’s request for postponement.

24        On May 25, 2012, the grievor requested that the Board permit his proposed expert witnesses to provide evidence via live video feed, as they resided outside Canada, and the travel costs would have been prohibitive.

25        On May 29, 2012, the grievor’s lawyer withdrew his representation.

26        On May 30, 2012, the grievor requested a postponement of the hearing due to the lawyer’s withdrawal. On May 31, 2012, the Board denied his request. In addition, on May 29, 2012, the Board ordered the grievor to provide the employer with any expert reports he intended to introduce at least 30 days before the start of the hearing, failing which they would not be admissible.

27        On June 1, 2012, the grievor wrote to the Board and reiterated his request that his proposed expert witnesses be permitted to give evidence by way of video-conference, stating this time that health hazards were associated with long travel and that problems could arise with obtaining travel visas to Canada. As an alternative, he suggested that the proposed expert witnesses could give their evidence via teleconference. At that juncture, the grievor disclosed that two proposed expert witnesses were from Russia and that translation services from Russian to English would be required. On June 4, 2012, the employer advised the Board that it did not object to video-conferencing but that it did oppose teleconferencing.

28        On June 6, 2012, the grievor wrote to the Board and requested that human rights issues be included in the hearing of his grievance. On June 21, 2012, the employer advised the Board that the human rights issues that the grievor was attempting to add to the grievance proceedings had previously been dealt with in other forums, including at the Canadian Human Rights Commission (CHRC) and the Federal Court.

29        On June 29, 2012, the Board denied the grievor’s request for video or teleconferencing of witness evidence and ordered that a further PHC be held, which was scheduled for July 19, 2012, at 10:00 a.m.

30        On July 11, 2012, the grievor wrote to the Board, requesting an interpretation of the order that he provide any proposed expert reports 30 days before the start of the hearing. The Board clarified that the deadline requiring him to deliver his proposed expert reports to the employer was no later than 11:59 p.m. on July 14, 2012.

31        The following order was made after the July 19, 2012, PHC:

1. The first day of the hearing, according to the agreement of the parties, will be devoted to an attempt to mediate the dispute.
2. At the hearing, the employer will be presenting its evidence first.
3. The parties agreed that the grievor would start his case after the employer by presenting his evidence and the testimony of his witnesses who are in the country at this time; the hearing would then be rescheduled as a continuation at a later date (to be determined) to allow him more time to prepare and bring witnesses from overseas.

32        The parties met on August 14, 2012, and a mediation session ensued. As a result, the Board member assigned to hear the grievance postponed the hearing to allow the grievor an opportunity to seek counsel to represent him.

33        On September 6, 2012, the grievor wrote to the Board and restated his request that during the hearing of his grievance, the human rights issues be included that he believed were relevant to his case. On September 7, 2012, the Board wrote to the parties and stated as follows:

The adjudication hearing of your grievance against the termination of your employment was adjourned on August 14, 2012, at your request, in order to allow you time to retain counsel to represent you. Is it still your intention to retain counsel to represent you? If it is, then the adjudicator recommends that another pre-hearing conference be held with the employer, you and your counsel where issues such as this can be discussed again.

If you no longer intend to retain counsel, please advise us as soon as possible, so that we can begin the process of rescheduling the adjudication hearing. The adjudicator will entertain a request for a pre-hearing conference one month before the scheduled date of the hearing. You may raise such issues at that pre-hearing conference.

34        On September 7, 2012, the grievor wrote again to the Board with respect to the issue of the human rights matters, and the Board wrote back to the parties on September 12, 2012, as follows:

The Adjudicator has no further directions at this time. As indicated in the letter of September 7, 2012, until such time as the issue of Dr. Boiko’s representation is resolved, decisions on preliminary matters would be premature. Dr. Boiko’s grievance will be re-scheduled [sic] according to my earlier directions and at that time, a decision will be made as to the most effective way of dealing with any outstanding preliminary matters. Until that time, there will be no directions or orders made on any preliminary issue.

35        On November 14, 2012, the employer wrote to the Board about rescheduling the hearing as it had not heard anything from the grievor on the status of retaining legal counsel. On November 19, 2012, the Board wrote to him (copying the employer), enquiring about his legal counsel status. On December 5, 2012, he emailed the Board, advising that he was in pursuit of legal representation.

36        On February 15, 2013, the Board asked the grievor for an update on his legal representation status by no later than March 1, 2013. On that date, he emailed the Board, again advising that he was in pursuit of legal representation.

37        On June 3, 2013, the grievor emailed the Board and advised that he had identified a lawyer who might potentially consider representing him.

38        On September 4, 2013, the grievor emailed the Board and advised that he was still pursuing legal representation. On September 6, 2013, the employer wrote to the Board in response to his correspondence and took the position that the grievor was abusing its accommodating nature with respect to the hearing of the grievance, stating as follows:

…

It is now well over a year since this grievance was set to be heard by the adjudicator. That scheduled hearing date (August 2012) was specifically adjourned at the request of Dr. Boiko for the purposes to secure counsel. While no more than the provision of a few weeks would have been necessary to permit Dr. Boiko to engage counsel, we are currently at a juncture wherein Dr. Boiko, in his most recent email correspondence, admits that he has yet to secure counsel and seeks yet a further time extension to do so. This has not only become farcical in nature, but to a further extent, disconcerting, in that his earlier recent emails (some of which are included in the email trail below), led the NRC to believe that he in fact had retained counsel and was merely in the process of reviewing the evidentiary concerns related to the case… .

…

… We respectfully request the adjudicator to canvass available dates with the parties for a December hearing date, if possible… .

…

39        On September 8, 2013, the grievor wrote back to the Board and the employer, referring extensively to his Superior Court action and stating that he was still pursuing legal representation. On September 9, 2013, the employer reiterated its request that hearing dates be set.

40        On September 11, 2013, the Board’s registry wrote to the parties and advised them that the hearing of the matter would be scheduled in the normal course.

41        On October 21, 2013, the Board’s registry wrote to the parties and advised them that it had tentatively scheduled the matter to be heard from May 20 to 23, 2014, in Ottawa. The parties were asked to advise the Board by no later than November 8, 2013, if they were not available on those dates.

42        On November 8, 2013, the grievor wrote to the Board and the employer and advised that the dates in May were not suitable to him as he had to be out of the country and that his key witnesses were unable to attend on those dates. He requested that the hearing be moved to August of 2014 or that the Board provide him other dates.

43        On November 15, 2013, the employer wrote to the Board and the grievor. It objected to the requested delay, submitted that the lengthening delay was prejudicing its ability to substantiate its case, and requested that the Board require the grievor to provide documentary confirmation that would verify his grounds for requesting the postponement.

44        On November 18, 2013, the grievor responded to the Board and requested that if he were required to provide documentary substantiation of his reasons for the requested postponement that it remain confidential between him and the Board. He also sought a meeting with the Board but without the employer.

45        On November 25, 2013, the Board’s registry wrote to the parties and conveyed the following direction of the adjudicator:

The matter will be scheduled in May 2014 unless the grievor produces confirmation of his travels and his witnesses’ unavailability which will be shared with the employer. Additionally, the parties are requested to provide alternate availability for the months of February, March and April 2014.

46        That correspondence gave the parties a deadline of December 10, 2013, to provide the Board with their availability for the months of February, March, and April 2014.

47        On November 28, 2013, the Board’s registry again wrote to the parties and confirmed that the deadline on which the grievor was required to comply with the adjudicator’s direction with respect to providing confirmation of his travels and his witness availability was also December 10, 2013.

48        In December of 2013, this file was reassigned to me by the Board’s acting chairperson.

49        On December 10, 2013, the employer advised the Board that the only other dates it was available as per the direction of November 25, 2013, was the week of April 14, 2014.

50        On that same date, the grievor wrote a lengthy email to the Board, referring to his Superior Court action and to jurisdictional issues he believed were relevant to that matter and potentially to his grievance, including human rights issues and a defamation action he was pursuing. He did not address the questions the Board posed to him in its direction. He sent a second email that day, stating that he was still attempting to obtain legal representation, suggesting that he might obtain it in January or February 2014, and stating that August dates would be preferable for him.

51        On December 11, 2013, the grievor again wrote to the Board and made submissions about scheduling the hearing. He again referenced issues that were occurring in his Superior Court action that he stated the Board should consider before scheduling the grievance hearing. He also raised production issues. However, he again did not address the questions put to him in the Board’s direction.

52        On December 11, 2013, I gave the following direction in this matter:

The grievor’s request to postpone the hearing days of May 20-23, 2014, is denied.

In addition, the Board has added the following hearing days April 14 to 17, 2014, in Ottawa.

In addition, if the grievor is intending on leading expert evidence other than that which is contained in the reports already provided to the employer, those reports must be served on the employer’s representative no later than 4:00 pm ET on Friday, March 14, 2014.

If the employer has not already provided to the grievor “will say” statements of its contemplated witnesses, they shall do so no later than 4:00 pm ET on Friday March 14, 2014.

Prior to the previously scheduled hearing dates, the employer stated its objection to one of the grievor’s witnesses, Dr. Simova, being called as an expert. If it is still the grievor’s intention to call Dr. Simova as an expert, and the employer maintains its objection, the parties must be prepared to argue that issue at the time when Dr. Simova is called to testify.

The parties are to advise when they are available between December 17-23, 2013 and January 7-10, 2014, for a Pre-Hearing Conference to address the documentary production issues raised in Dr. Boiko’s email of December 11, 2013 sent at 2:06 pm, a copy of which is enclosed.

53        That direction instructed the parties to advise the Board no later than December 16, 2013, at 10:00 a.m., of their availability for the PHC.

54        On January 13, 2014, following a PHC that I chaired, I ordered that the grievor provide to the employer, by no later than 4:00 p.m. (EST) March 14, 2014, a complete and numbered list of all his allegations of disguised discipline.

55        On March 14, 2014, the grievor emailed his list, which he amended on March 16, 2014.

III. The grievor’s proposed expert evidence

56        The grievor identified the following five proposed experts in the field of optics, who would provide reports and testify: Eli Simova, Mukhamed Keshtov, Vladimir Solovjev, Valery Barachevsky, and Stepan Yaroslavovych Kuchmiy. Dr. Simova lives and works in Ottawa. Drs. Barachevsky, Keshtov, and Solovjev all live in Russia, and Dr. Kuchmiy lives in Ukraine.

57        Originally, the grievor advised that the hearing could not be held before August 2014 because the witnesses were available then to come to Ottawa to testify. During the course of the hearing in May of 2014, discussions were held with respect to these proposed witnesses attending the scheduled August hearing days.

58        On May 26, 2014, the Board’s registry wrote to the parties and confirmed the instructions I had given to them before the May hearing days had adjourned, which were that the grievor was to contact the proposed expert witnesses and to advise, no later than June 6, 2014, if they were available during the two weeks of hearing scheduled for August and if not, when they would be available, either in September or October of 2014.

59        On June 6, 2014, the grievor advised the Board’s registry that only Dr. Barachevsky was available to testify during the August dates. As for dates in either September or October of 2014, the grievor advised that Drs. Keshtov and Kuchmiy were available in October and that the availability of Drs. Simova and Solovjev was unknown. He asked that he be given until the end of June to advise as to when Drs. Simova and Solovjev would be available. I granted the request. On June 30, 2014, the grievor advised that he did not have any update on the availability of Drs. Simova and Solovjev due to circumstances beyond their control and requested a further extension of time until the end of July 2014.

60         On June 12, 2014, the employer requested, by no later than the close of business on June 30, 2014, the production of certain documentation related to the testimonies of the proposed expert witnesses, failing which it would request an order from me.

61        On July 8, 2014, the employer requested that I make an order requiring the grievor to produce the documentation requested on June 12. On July 10, 2014, I ordered that the grievor provide to counsel for the employer all emails, letters, correspondence, and similar documentation (including any notes made of discussions) he had exchanged with his five proposed experts from the initial date of contact requesting their participation to the dates that they issued their final reports. I further ordered that he provide this information in the manner in which the employer had requested it and that it be delivered no later than 4:00 p.m. on July 15, 2014.

62        On July 10, 2014, I also ordered that by no later than 4:00 p.m. on July 16, 2014, the grievor had to provide particulars of the circumstances beyond the control of Drs. Simova and Solovjev in providing their availability for hearing dates in September and October of 2014. On July 16, 2014, the grievor advised that Dr. Simova was scheduled to be out of the country on personal matters and that Dr. Solovjev would be working.

63        On July 17, 2014, I ordered that the testimony of the grievor’s proposed expert witnesses could proceed via video-conference and that it was up to him to make the appropriate arrangements, wherever the witnesses were located. On July 29, 2014, in keeping with the Board’s practice, I ordered that the grievor was responsible for arranging for a suitable videoconferencing service for the testimonies of his proposed expert witnesses who were not in Ottawa and to arrange a translation service, if necessary, for Russian or Ukrainian. The order also confirmed that the hearing of the proposed expert witnesses would take place during the scheduled August 2014 hearing days.

64        At the continuation of the hearing on Monday, August 18, 2014, the grievor advised that only one of the proposed expert witnesses was available and only during the week of August 25, 2014. However, that witness did not testify in the end.

65        None of the proposed expert witnesses testified during the next continuation of the hearing, which occurred on October 22 to 24, 27, and 28, 2014.

66        At the continuation of the hearing on January 26, 2015, the grievor and employer presented me with a document entitled “Agreement to Admit Into Evidence On Consent The Grievor’s Expert Witness Reports” (“the Agreement on Experts”), dated January 9, 2015.

67        None of the proposed experts testified.

IV. The hearing

68        In addition to the extensive delays that marked the pre-hearing process, the hearing also was marked by extensive delays caused by the grievor.

69        There were 25 days of evidence during which the grievor was rarely ready to proceed at the designated start times.

70        During the course of the hearing, the grievor rarely had his documents ready, and despite me reminding him regularly that he was required to have a total of four copies of any document that he wished to submit into evidence and him acknowledging to me that he understood this requirement, he would not have the required documents copied and would require numerous adjournments during the course of the hearing day to tend to photocopying. On some days, in excess of an hour of hearing time was lost to photocopying alone.

71        Often during the course of the hearing day, the hearing would wait while the grievor attempted to formulate a question. These waits were often lengthy and often coincided with a request to adjourn to find a document and then photocopy it.

72        On the third day of the hearing, the grievor asked for a postponement, stating that he was sick. When pressed as to the nature of his illness, whether he had a cold or the flu, he admitted that he was not actually sick but was tired as he had not slept much.

A. The recall of Dr. Liu

73        Jiaren Liu appeared as a witness by summons at the grievor’s request. Between 2000 and 2004, Dr. Liu was a research officer in the NRC’s Photonics group. He testified before me on May 22 and 23, 2014. Some of his evidence was about events involving purchasing a laser and the training for it. His evidence-in-chief (when questioned by the grievor) with respect to the training was that the manufacturer had sent no one to the NRC to provide it. The grievor later testified and took the position that this was not the case.

74        The grievor completed his evidence on January 27, 2015, and he was the last witness for his case. The employer called one witness in reply, Mike Vandenhoff, who did not testify about this laser issue.

75        Mr. Vandenhoff finished his reply testimony on January 29, 2015. The hearing was scheduled to continue on January 30. However, given that the evidence was finished, at the parties’ request I adjourned to the next hearing day after January 30, 2015, which was March 13, 2015, at which point the parties would start making arguments. At this time, just before the employer started its submissions, the grievor said that he wanted to recall Dr. Liu because he believed that Dr. Liu might have data about the laser and could testify as to the particulars that would allow the grievor to write to the laser manufacturer and obtain information that might suggest that Dr. Liu’s testimony about the training had been wrong.

76         I denied the request to recall Dr. Liu. The information that the grievor was seeking could have been obtained when Dr. Liu testified or any time after that (May 22 and 23, 2014) either by requesting this information from the employer or, if the employer refused to provide it, by requesting that I order the employer to provide it. The request was also untimely, as 10 months had elapsed between Dr. Liu’s testimony and the grievor’s request, which was more than enough time to address this issue. In fact, after Dr. Liu testified, the hearing continued for two more weeks in August of 2014 and reconvened in October of 2014 and in January of 2015.

V. The alleged disguised discipline

77        The grievor’s disguised discipline allegations were set out in his email of March 16, 2014, as follows:

The disciplinary nature of the termination is supported by the following evidences:

1. The decision on the key grievance was delivered AFTER termination; i.e. the grounds set up to be chalenged in the greivance under expected consideration by Director General, were already used as if decided in the termination memo, specifically the false reason of not delivering any new technology, while three new technologies have been delivered and confirmed to be new by independent peer reviews from refereed journals and this was reported by Peter Hackett in the grievance. Therefore the decision on the greivance by Peter Hackett was significantly affected to be negative by premature termination memo. Specifically, the key issue of novelty of the delivered technologies was totally omitted by Peter Hackett in the decision. Instead some comments offered about non-readiness of the articles for publication. The last one contradicted to journal reviewer’s decision of “Admit for publication with minor mandatory revision”. The last criteria meaning was that the article actually is suitable for publication, but some revision was required to gain that.

2. Procedurally the internal reviews by direct subordinates of Chandfer [sic] Grover were also controlled in full by Chander Grover – there was no way for any positive to be reflected there either as only negative s statements would be allowed by Chander Grover.

3. Peter Hackett denying independent reviews, contrary to the recommendation of Janusz Lustyk, his predecessor as Director General.

4. Two last PPR evaluations were openly disciplinary in nature and were direct discipline for ongoing harassment complaint. Specific of discipline in two last PPR is in that based on openly false assumption of no NOVELTY, ORIGINALITY and SIGNIFICANCE of the delivered work results, the correctional measures are forced upon me, which actually were make work activities, such as multiple proposals writing with no chance for any credit, but require from me to stay away from the real experimental work. For the last PPR of 2004 – issued by Chander Grover was direct prohibition for the lab access. Peter Hackett secured no lab access status by issuing memo isolating me from scientific supervisory contact, so that even after completing last make work activity of literature review writing (a schooling type of activity) and delivering it to NRC there was no way of continuing actual work. I was left with the only task of writing to harassment investigator, who was throwing all my writings away, as the investigation was simply stalled. So, it was double discipline - progress is blocked by prohibition of lab access and forced upon me writing reports to investigator, who was not responding and eventually simply destroyed all the writings (with no report from investigator ever delivered).

5. Writing of the Release on Probation draft was done by Chander Grover himself as direct discipline for harassment complaint, which was ongoing at a time.

6. Content of the Release on Probation draft was significantly exceeding the content of the PPR documents in factual terms, giving the statement of false facts, which were not in the PPRs, which also evidence the discipline. Specifically, some events are described, of my refusals to go on various trips and participation of various events, which simply were not true and no evidence were supporting it. Additionally – I was denied even possibility to comment on those statements (so principle of natural justed broken here).

7. Provisional supervisory contact had been denied for resolution of harassment complaint and instead by memo the instructions were given to resume reporting to Chander Grover in Fall 2003 while ongoing was the harassment complaint.

8. As a result of denial of the provisional supervisory contact the assignments were derectly controlled by Chander Grover, who built them as make work activities with no chance for any credit, which was pure discipline, disguised as corrective steps. PPRs were just used for justification of those make work activities in assignments.

9. The last assignment prohibited access to the lab space and equipment, as a part of discipline. To complete the disciplining nature of the last assignment – there were no supervisory contact to send it to – it was complete denial of any supervisory contact in full by the memo from Peter Hackett, The submisiion of it (i.e. of assignment report) to the provided contact Ms. Gingras generated no response and left me without assignments at all for the rest of employment.

10. Openly disciplinary actions started after June 2003 meeting with Director General, which left me again with all PPRs to be undisguised discipline. Ground used in PPR was false – lack of NOVELTY, ORIGINALITY and SIGNIFICANCE of the result delivered. Based on that all evaluations and planning was built up as a discipline (with denying deserved credits, denying conference participation, pursuit of publications, denying possibility to initiate jint projects with Queen’s University and University of Alabama)

11. Mary McLaren memo of 2005 denying to look into problems with harassment complaint investigator on an artificial ground of her not been there at a time of reported event. Denied is natural justice here.

12. Evidences that NRC knew about Chander Grover practicing false evaluation and undeserved discipline against NRC employees:

• multiple false evaluations from Chander Grover, which were corrected later by NRC (including those to Pavel Cheben, Mike Vandenhoff etc.);
• evidences from David Kahn on NRC been tolerant to Chander Grover open disregard to subordination and power abuse.

Evidences against Chander Grover, showing disciplinary action.

1. False declaration of lack of NOVELTY, ORIGINALITY and SIGNIFICANCE in the articles provided as a result of my work, including:

• made by Chander Grover in his e-mail, which are on registered CD for grievance;
• made by Chander Grover’s agents/“reviewers” in their reviewes (also on CD for grievance)
• repeated by Chander Grover in his “draft” of release on probation:
• (this also was repeated by Mary McLaren in her memo in copy/paste fasion);

2. Falsity of accusations on lack of NOVELTY, ORIGINALITY and SIGNIFICANCE in the articles provided as a result of my work was reported to Chander Grover with tiny details (with additional extended comments after first submission was disregarded), but dismissed stating false reason – that my comments did not address the “crux” of the matter (this is in e-mail on CD with grievance).

Expert Reports provide insight on validity of my comments, i.e. revealing the disguise of the discipline used by Chander Grover when stating that my comments did not address the “crux” of the issues (I.e. Expert Reports verify that the “crux” of the issues was addressed by me in my comments.

This become a proof of using false reason to deliver penalty, i.e. disguised disciplinary action.

3. Falsity of accusations on lack of NOVELTY, ORIGINALITY and SIGNIFICANCE is also confirmed by achieved publications in peer reviewed edditions, such as Proceedings of professional conferences as well as professional refereed journals.

The articles are put together on the web:

[website reference omitted]

4. Prohibition of using NRC name on publication, while suggesting to publish from my own behalf, which suggest that issue of NOVELTY, ORIGINALITY and SIGNIFICANCE of the results of my work was not a true concern, but rather disguise. It is because only when the material does have NOVELTY, ORIGINALITY and SIGNIFICANCE it is possible to pursue publication in refereed journal regardless of whether it is on your own behalf or from NRC. This contradicts to his assertion that article is not just ready for publication – even making it ready to the extent of publishing on your own behalf would not gain his authorization to publish from NRC because duplication of the publications is not allowed.

5. False references to the articles [4-10] by Chander Grover’s agents-reviewers, who were engaged by Chander Grover to conduct internal reviews, as an illegal source of my results, falsely disqualifying novelty, originality and thus significance of my work. Contrary to the assertions of Chander Grover’s agents-reviewers, the material they state is taken (i.e. plagirized, to put it normally accepted terms) is not present in those articles. I.e. evidence here is that one cannot plagiarize something, which is not really there.

Specifically, contrary to assertion of Chander Grover’s agent – there is no even word of “holographic” or “holography” in references [4-7]. This can be verified by non-experts (by examining those references [4-7] for terms “holography” and/or “holographic”.

Strong error by Chander Grover’s agent/reviewer making false statement, that in reference [10] the results already reported and disqualify novelty of my results.

Even non-experts can verify that it is false, as there was only promis to do it in the future in reference [10], but no actual result were achieved there – they are not there.

On Z-scan technology – Chander’s Grover agent falsely accused me of self-plagiarim (i.e. that my results are reproduced from my earlier publications, meaning that actual cheating occurred, which was openly false.

Also onZ-scan technology Chander Grover’s agent accused me illiteracy by demanding non-existing parameter (thus exposing his own illiteracy).

The two falsifications on Z-scan require expertise to be understood and expert reports serve the purpose. Other falsifications, even very primitive ones above, which may be verified by non-experts, also submitted to experts for verifications.

References involved are:

[4]. M. Irie and M. M. Mohri, ‘Thermally irreversible photochromic systems. Reversible photocyclization of diarylethene derivatives”, J. Org Chem. 1988, 803-808 (1988).

[5]. S. Nakamura and M. Irie, “Thermally irreversible photochromic systems. A theoretical study”, J. Org Chem. 1988, 6136-6138 (1988).

[6]. Y. Nakayama, K. Hayashi and M. Irie, “Thermally irreversible photochromic systems. Reversible photocyclization of 1,2-diselenenylethene and 1,2-diindolylethene derivatives”, J. Org Chem. 55, 2592-2596 (1988).

[7]. G. M. Tsivgoulis, “New Photochromic materials”, Marie Curie Fellowship Annuals, 1, 8-12 (2001).

[8]. D. H. Kwo, H. W. Shin, E. Kim, D. W. Boo and Y. R. Kim, “Photochromism of diarylene derivatives in rigid polymer matrix: structural dependence, matrix effect, and kinetics”, Chemical Physics Letters, 328, 234-243 (2000).

[9]. S. Cattaneo, S. Lecomte, C. Bosshard, G. Montemezzani, P. Gunter, R. C. Livingston and F. Diederich, “Photoinduced reversible optical gratings in photochromic diarylethene- doped polymeric thin films”, Opt. Soc. Am. B., 19, 2032-2038 (2002).

[10]. E. Molinari, G. Zerbi, F. Bortoletto. C. Bertarelli, A. Bianco, P. Conconi, M. C. Gallazzi, E. Giro, R. Mazzoleni, C. Pernechele and F. M. Zerbi, “Photochromic polymers for erasable focal plane masks and re-writable volume phase holographic gratings”, SPIE, 4485-29, (August 2001).

4. Changing procedure of internal review along the way;

• Promissed in e-mail (it is on grievance CD) is transparent procedure with guaranteed feedback from reviewers (specifically it is suggested that I provide comments to reviewers, so that they could comment back). however after receiving my comments, the feedback was denied based on false ground, that my comments do not address the “crux” of the issues. This is false, because Chander Grover simply acted againt the fact, that my comments reveal falsity of accusations. Experts Reports provide confirmation of falsity of Chander Grover’s assessment of validity of my comments to the reviewers (i.e. I was addressing the “crux” of the issues, but Chander Grover denied consideration, breaching natural justice).
• for the last article my comments were not even solicited – only comments which Chander Grover selected himself were put into PPR evaluation (therefore I was denied not only feedback, but was denied even possibility to comment prior to the statement with false accusations got into the PPR text.

5. Disciplinary action with public unfounded and false accusation of sabotaging Kr-laser. The event is recorded on hidden tape recorder. The Transcript will be provided, from which it is seen that there were no real ground to suspect any of my fault in the Kr-laser incident, but Chander Grover still resorted to public accusation (stating that I the only one who he sees as linked to the incident; prior to that Chander Grover stated evidences of re-wiring the power plug – which wre false statements, as he withdrew it later, when I submitted to him evidence of his fault – I reported to him the problem with Kr-laser and got quotation from the company for fixing it, but he denioed $900 funds for that.

6. Following the accusation of Kr-laser sabotage I was denied access to the lab with femto-second laser. Excuse for that was offered invented – that my assignment does not include usage of this laser. This excuse was totally built upon false accusations of lack of NOVELTY, ORIGINALITY and SIGNIFICANCE of my work.

7. Make work activities mounted on me as a logical consequence of the false accusations of lack of NOVELTY, ORIGINALITY and SIGNIFICANCE of my work. This included multiple assignments with proposal writings, all of which were again found to be inferior (without any argument supporting that, i.e. with the breach of natural justice), and final assignment of 2004 was fully make work activity with no prospects for any credit: just writing analysis of existing literature on the subject of my work in order to upgrade my literacy. For that there was no need for assignment – it was my routing activity all the time. But now I was made to write reports on that activity (as a school-boy, not a scientist).

Procedural evidences against Chander Grover:

1. For internal reviews his direct subordinates were selected, who himselves were on probation.

2. Chander Grover completely controlled the content of the reviews, i.e. text was entirely under control and there was no possibility of anything positive to occur in the text.

3. September 2003 PPR was conducted for the period of Summer 2003, despite all my messages were directed to Director General (Janusz Lusztyk) and there were no interaction of any kind between me and Chander Grover, which contradicts to Collective Agreement provisions, requiring not a formal supervision, but actual interaction as pre-condition for valid PPR evaluation.

…

[Sic throughout]

VI. Summary of the evidence

78        The employer called three witnesses, Dr. Peter Hackett, Lorna Jacobs, and Marie D’Iorio. After the grievor had called his witnesses, the employer called one witness, Mr. Vandenhoff, in reply, whom the grievor had already called. The grievor testified and called 10 witnesses.

79        The grievor obtained a PhD from the Institute of Physics of the National Academy of Sciences of Ukraine, in Kiev, Ukraine, in May of 1988. Before he was hired by the NRC, he conducted post-graduate work as follows:

• 1988-1993, Physical Chemistry Institute; Kiev, Ukraine;
• 1993-1994, CSIRO Division of Chemicals and Polymers; Melbourne, Australia;
• 1994, Australian National University; Canberra, Australia;
• 1995-1996, School of Physics, University of Melbourne; Melbourne, Australia;
• 1996-1998, NIPT Inc.; San Diego, California;
• 1998, Physics Department, Université Laval; Québec, Québec;
• 1999-2000, Electrical and Computer Engineering Department, University of California; San Diego, California; and
• 2001, Engineering Department, Brown University;Providence, Rhode Island.

80        On July 12, 2001, the grievor applied for an AcRO position with the Optics Division in the Radiation Standards and Optics Directorate (RSO) of the Institute for National Measurement Standards (INMS) at the NRC. On October 12, 2001, he was offered the position, and the letter of offer was signed by Dr. Grover. The grievor’s appointment was subject to a three-year probation, effective the date of appointment. He accepted the offer on October 31, 2001, and commenced work on November 16, 2001.

81        The INMS consisted of three directorates, each of which was led by a director. Dr. Grover was the director of the RSO and reported to Dr. Janusz Lusztyk, who at that time was the director general (DG) of the INMS.

82        The RSO comprised three groups, each with a group leader who reported to Dr. Grover; however, he was the leader for the Optics and the Photonic Systems groups.

83        Dr. Lusztyk was the DG until June 9, 2003, when he resigned to head an NRC division in Edmonton, Alberta. Between July of 2002 and April of 2003, he was away from his office on language training. He retired from the NRC in 2012. He appeared and provided evidence to the hearing pursuant to a summons requested by the grievor.

84        When Dr. Lusztyk was the DG, he reported to Dr. Hackett, who was the vice president (VP) of research. Upon Dr. Lusztyk’s departure from the INMS, Dr. Hackett, in addition to retaining his VP position, assumed the INMS DG position. He remained in both positions until he left the NRC in July of 2004.

85        With the July 15 letter, Dr. Michael Raymont, the NRC’s acting president, terminated the grievor’s employment by rejecting him on probation. The relevant portion stated the following:

…

… Upon recommendation of your Director, Dr. Chander Grover, and following consultation with the appropriate Vice President and your representative, I regret to inform you that your employment with the NRC will be terminated by reason of rejection on probation effective the end of business on Monday, July 19, 2004. This decision was taken in light of your continued unsatisfactory performance of your duties as a Research Officer.

…

86        Neither Dr. Raymont nor Dr. Grover testified.

87        In 2003, Ms. Jacobs was a human resources (HR) generalist assigned to the INMS. Her responsibilities involved all aspects of HR management in the INMS, including rejections on probation. Ms. Jacobs testified that she provided Dr. Grover with advice on the grievor’s rejection on probation.

88        Entered into evidence through Ms. Jacobs was the portion of the NRC HR manual that deals with the work performance appraisal process, called the “Performance Planning and Review” (PPR) process, which is a management activity in which employee accomplishments are reviewed, future objectives are assigned, and training and development are planned. It is described as a structured and ongoing management process in which new goals are established at the time progress toward old ones is reviewed. The PPR process provided for supervisors to do the following:

• establish work-related goals and personal developmental recommendations with each employee, along with performance measurement indicators;
• provide feedback to employees on the extents of their achievements and on what was expected of them; and
• prepare a written record on those first two steps for further use by management and employees.

89        According to the NRC HR manual’s section on PPRs, the NRC’s policy is as follows:

• use a formal job-related goal-based PPR procedure for all employees;
• undertake a performance review at least once per year for each employee;
• use the procedure to help establish annual goals and related performance measurement criteria and performance-level expectations for each employee;
• use the procedure to provide feedback to employees on the extent to which they have achieved what was expected of them; and
• consider the results of performance reviews in related decision making such as staffing, deployment, training, career development, and merit pay.

90        Still according to that section, supervisors are responsible for implementing the PPR process, and employees are responsible for participating in it. Employees are also responsible for achieving, at a fully satisfactory or higher level, the work and personal development objectives assigned to them.

91        Still in that section, at the end of the specified performance review period (or sooner, at the supervisor’s discretion and before a supervisor who is leaving departs), the supervisor will meet with the employee to document and evaluate the employee’s accomplishments in relation to the approved work-related objectives and plans from the last PPR period. The section states that the management of employee performance is an ongoing activity, that each employee should have received regular feedback during the review period on progress towards achieving work objectives, and that there should be no surprises at the final stage of the process. Each PPR is completed by the employee’s supervisor, and in addition, a more senior manager, identified as a “reviewing officer”, reviews completed PPRs.

92        From the time the grievor started working at the NRC, he was subject to four PPR periods, as follows:

1. November 16, 2001, to March 31, 2002 (“the 2001-2002 PPR”);
2. April 1, 2002, to March 31, 2003 (“the 2002-2003 PPR”);
3. March 10, 2003, to September 24, 2003 (“the September 2003 PPR”); and
4. September 25, 2003, to December 24, 2003 (“the December 2003 PPR”).

93        The identified supervisor for all the grievor’s PPRs was Dr. Grover. Dr. Lusztyk was the reviewing officer for his first two PPRs, which role Dr. Hackett took on for the grievor’s last two PPRs.

94        Dr. Hackett received his BSc in 1969 from the University of Southampton, England, and in 1972, he received his PhD from that same university, in Photochemistry. His studies included polymer photochemistry. In 1972, after receiving his PhD, he came to Canada. He was employed with the NRC until July of 2004.

95        Dr. Hackett described the assessment criteria for research officers. He stated that no matter their level and no matter whether they are probationary or indeterminate, they are assessed against the same criteria. Each assessment is reviewed by the NRC’s Promotion Committee. The four assessment criteria against which all research officers are assessed are as follows:

1. contribution to science and technology, measured by publications and the development of new technology;
2. contribution to clients, measured by contributions to NRC clients. Each NRC institute has different clients, and research officers contribute to or influence the clients they work with;
3. contribution to outreach, measured by a research officer’s contributions to the community and the educational field and by speaking at conferences or at schools; and
4. contribution to teamwork. Science and technology are developed via teams. This criterion examines a research officer and his or her contribution, participation, and leadership in working with others.

96        Dr. Hackett sat on the NRC Promotion Committee for 10 years and chaired it for 7 of them. He testified that he had in-depth knowledge of the assessment criteria and that he had assessed research officers across the country in all 20 of the NRC’s institutes. He said that depending on the particular institute, the contribution portion of each criterion becomes more specific. He stated that he assessed research officers of all levels on average twice per year over a 10-year period, on average 600 per year, for a total of approximately 6000 assessments over his career.

97        Ms. Jacobs identified a document dated February 2, 2004, which Dr. Grover had provided to her. It was titled “Release on Probation” (“the release recommendation”). Her understanding was that he had created it. It sets out relevant data on the grievor’s hiring and the following expectations of him in his position:

…

1. Make significant contributions to multidisciplinary projects through his research dealing with emerging technologies of optical storage, diffractive optics and waveguide devices, including the identification of novel approaches, the set up and maintenance of laboratories and the mentoring of junior staff.
2. Through publication of research results, generate IP and participate in outreach activities in order to contribute to raising the Institute’s profile.
3. Work with external collaborators and partners in industry, academia and other government departments to contribute to the transfer of technology in this given scientific field.
4. Professionally represent NRC on behalf of the Optics Group to the scientific community, securing partnerships and collaborations.
5. Develop and foster a team environment within the Optics and the Photonic Systems Groups specifically, and the Institute at large.

…

98        The release recommendation set out the grievor’s progress to February 2, 2004, stating as follows:

…

Dr. Boiko was given the freedom to develop projects based on his research experience and interest, within the framework of NRC’s research programs in optics and photonics. The first several months of his employment were devoted to this. Dr. Boiko charted a course for his research: for the short term, Dr. Boiko developed work objectives identified in his March 2002 PPR; and for the long term, Dr. Boiko developed the first draft of a five-year plan, including a list of required equipment.

Since joining NRC in November 2001, Dr. Boiko has made no significant progress in any of the following areas:

1. Contributions to science and technology in the field of optics:

   Prior to his March 2003 PPR meeting, Dr. Boiko had not achieved any journal publications, or patent applications. However, at the time of the PPR, he tried to create the perception of having achieved all of these activities but was unable to substantiate his claims. As the attached PPRs will attest to, Dr. Boiko’s contributions have been far inferior to the level expected of an AcRO. Since joining NRC, he has only produced one potential paper meant for publication in a refereed journal. The results presented in this paper were acquired over a brief period of about two weeks after the PPR meeting in March 2003. Dr. Boiko also prepared two papers for conference presentation which reproduce verbatim the text and data from the above referred paper. These papers were peer reviewed and were determined to be incomplete and below standard. For this reason, permission to publish was denied. Dr. Boiko did not develop any new technologies or processes. In fact, Dr. Boiko has attempted to claim credit for work that had not been done.

   Dr. Boiko is unfamiliar with basic laboratory operations. For example, he did not understand the intended use and purpose of lab books and it was only on detailed instruction and explanation that he began to document his experiments. Furthermore, he subsequently refused to allow review of his lab books until directed by the Director General to do so. In addition, he has shown significant shortcomings in his ability to maintain laboratory equipment.

2. Technology Transfer/Client Interaction:

   Dr. Boiko has made no significant contribution in the area of technology transfer. Dr. Boiko did initiate dialogue with both Queens [sic] University and OZ Optics, supposedly for the purpose of technology transfer and collaborative work; however, neither attempt resulted a [sic] discernible collaboration. It was determined that the extent of the interactions was simply for informal discussion and for the request of materials. Indeed, all collaborative ventures attempted by Dr. Boiko were limited to simple dialogue and the exchange of rudimentary ideas.

3. Outreach and Influence:

   In May 2002, at the urging of the Group Leader, Dr. Boiko attended the OPTO-Canada 2002 Conference organized by SPIE-the International Society for Optical Engineering. It was also proposed that Dr. Boiko attend the Material Research Society’s Conference and Exhibition and visit Tufts University in Boston. Dr. Boiko declined. Furthermore, it was suggested that a trip to the University of Toronto be arranged to facilitate lab visits to the Departments of Chemistry and Biomedical Engineering. Dr. Boiko declined. In September 2003, Dr. Boiko did request to attend, and present at, the Photonics West 2004 Conference, however his request was late since the deadline for abstracts was June 2003, and the paper he proposed was deemed to be inferior. In January 2004, Dr. Boiko requested to attend a “Biology for Biophotonics” course. This was denied on the basis that this course was completely irrelevant to his assigned work objectives. This further shows that Dr. Boiko is unable to make proper judgment for selecting a suitable course for professional development relevant to his assignment.

4. Teamwork:

   Dr. Boiko has never integrated well within the team, socially or professionally.

   For example, the Optics and Photonic Systems Groups regularly schedule in-house seminars for the purpose of presenting research and seeking peer commentary. While these seminars are not mandatory, they are viewed as an ideal learning environment and an opportunity to interact with the team. Dr. Boiko was made aware of this activity upon arrival into his position, and was specifically invited to present, on a number of occasions. Each time, he has declined. While he initially attended a few of the seminars, he has not continued to sit in.

   In addition, contrary to the usual dynamics of a scientific group, Dr. Boiko has chosen to exclude his peers in the reasonable exchange of ideas. This is demonstrated by this requirement that each person with whom he consults on a research idea is required, by him, to sign a non-disclosure statement. When advised that this was not acceptable practice, rather than continue without this agreement, he has chosen not to collaborate at all.

   Dr. Boiko’s co-workers have raised concerns with regard to the sharing of equipment and the subsequent maintenance and upkeep of same; the lack of cooperation from him with regard to the administration of computer equipment; etc.

…

99        The release recommendation set out that the grievor had been coached and mentored by Dr. Grover and noted that he had provided the following assistance:

…

• one on one meetings to discuss work objectives and associate [sic] work plans;
• advice on setting up of labs;
• one on one meetings for the preparation of material for PPR;
• multiple advice sessions regarding the preparation of invention disclosures Form 1 for patent protection;
• review of lab books and visits to lab to offer, and provide, technical direction;
• conference attendance, for the purposes of education and networking opportunities;
• peer review of publications, for the purpose of obtaining subject matter feedback;
• provision, or the offer, of reference materials from Dr. Grover’s personal collection;
• regular PPR and other meetings for formal review of progress and re-alignment, where necessary, of work objectives and plans;
• encouraging close cooperation with other ROs in the Optics and Photonic Systems Groups; and
• directions on NRC practices regarding research projects and expectations of ROs [research officers].

…

100        The release recommendation set out that the situation as of February 2004 was as follows:

…

Dr. Boiko has had formal performance reviews (PPRs) conducted in March 2002, March 2003, September 2003 and December 2003. With the exception of the initial March 2002 review (which spanned only four months), all have resulted in a performance rating of “Unsatisfactory”.

In addition, there has been little, if any, evidence that Dr. Boiko’s productivity, level of performance, and teamwork will improve. In fact, in some instances, for example teamwork, there may be some evidence to indicate that performance has deteriorated.

…

101        The release recommendation set out that Dr. Grover felt that the grievor was not performing at an AcRO level and that he lacked the ability to work productively in a research environment. He recommended that the grievor be released on probation.

102        Between 2002 and 2004, Mary McLaren was the NRC’s DG of HR. She appeared as a witness by summons issued at the grievor’s request.

103        On July 15, 2004, Ms. McLaren sent a memo (“the July 15 memo”) to Dr. Raymont recommending that the grievor be rejected on probation. She stated that at her request, members of her staff had produced it. While she could not recall exactly who, she believed that much of it had come from Ms. Jacobs. It stated in part as follows:

…

… Based on Dr. Boiko’s performance, his manager believes that it would be appropriate to recommend that he be rejected during his probationary period. He bases his recommendation on the following major performance and behavioral issues with Dr. Boiko:

• Minimal contribution to the science and technology in the field of optics. Dr. Boiko has not developed any new technologies or processes and has produced only one paper meant for publication to a refereed journal.
• Technology transfer and client interaction - Dr. Boiko’s collaborative ventures have been limited to simple dialogue and exchange of rudimentary ideas.
• Outreach and influence. During the course of his employment with NRC, Dr. Boiko has participated in only one conference. He has declined participation in other conferences, proposed attendance to a major optics conference in an untimely manner and sought approval to one that no [sic] had no relevance to his assigned work objectives.
• Dr. Boiko does not interact well with the team either socially or professionally.

Four performance evaluation reviews were written for Dr. Boiko over the course of his employment with NRC. With the exception of the March 2002 review (covering a period of four months and rated as fully satisfactory), all others have resulted in a performance rating of “unsatisfactory”.

With the above in mind and taking into consideration the fact that Dr. Boiko had submitted over the last nine months eleven grievances and a harassment complaint, a mediation exercise was undertaken to gauge Dr. Boiko’s interest in submitting his resignation or face a recommendation of rejection during his probationary period. The PIPSC union representative confirmed to Employee Relations on July 7 2004 that Dr. Boiko did not consider the option of resignation to be a viable one.

Recommendation:

Dr. Boiko’s manager believes that the numerous remedial measures/action taken to improve Dr. Boiko’s performance has not yielded the expected results. Therefore, he is recommending that Dr. Boiko be rejected during his probationary period.

Employee Relations has reviewed the matter and supports the recommendation.

…

104        The version of the July 15 memo entered into evidence did not have Ms. McLaren’s signature; nor did there appear that there was a place for her to sign it.

105        Ms. McLaren testified that she could not recall what she saw at the time the July 15 memo was created, albeit she did recall seeing documents. When asked if she had seen the release recommendation that Dr. Grover had provided to Ms. Jacobs, she surmised that she had but had no specific recollection.

106        Ms. McLaren stated that she believed that both her July 15 memo and the release recommendation were provided to Dr. Raymont for his approval. He signed it off, approving the grievor’s rejection on probation.

107        With respect to the information in the July 15 memo, Ms. McLaren said that she did not seek any independent verification of it, stating that she trusted that her staff would consult with Dr. Hackett and Dr. Grover.

108        The 2001-2002 PPR rated the grievor’s performance as fully satisfactory. As part of the PPR process, work objectives were set for him for the 2002-2003 fiscal year and were identified as focusing on research and development in optical materials and technologies for optical storage and waveguide-based photonic devices. Six specific key work objectives in this area of work were identified, along with deadlines. In addition to them, the PPR process also sets out personal work-related development objectives. On March 25, 2002, the grievor and Dr. Grover signed off on the 2001-2002 PPR, which included the work objectives.

109        In the 2002-2003 PPR, the grievor’s performance was assessed as unsatisfactory.

110        Entered into evidence was a copy of an email chain between the grievor and Dr. Grover. The grievor sent the initial email on March 13, 2003, and Dr. Grover responded on March 17, 2003. The emails are as follows:

[Thursday, March 13, 2003:]

…

… Would appreciate if you may allow for me to have a resignation option in return for not making unsatisfactory mark official. My understanding is that it is not an official yet, and I was told that my resignation may allow me to avoid getting unsatisfactory mark on my record. The reason for this enquiry is that you indicate no interest in any suggestions I am coming up with, even those I regard as ones of sufficiently high standard. The reason for making it in writing – your earlier request for not approaching you in person with the questions.

…

[Monday, March 17, 2003:]

…

… I have discussed your proposal of resigning your job with the Institute’s Director General and Human Resources Branch. I am informed that with the acceptance of your resignation there would not be a need to formally complete the review of your performance. This way the “unsatisfactory” rating appearing on your PPR would be avoided. I will wait to hear further from you in this matter. Please do not hesitate to contact me if you have further questions. Please note that I had asked you not to approach me for routine matters while I am attending meetings with others. As you know, it is always a pleasure for me to meet with and listen to the concerns of the employees in my section. …

111        The grievor went on sick leave on or about March 24, 2003, and returned on May 7, 2003.

112        In an email to Dr. Lusztyk dated April 11, 2003, the grievor complained about the unsatisfactory assessment on his 2002-2003 PPR as follows:

…

… I must inform you about serious problems between my supervisor, Dr. Chander Grover, and myself. These problems have affected my health and I am currently on sick leave. I hope that I shall be able to provide you with the detailed comments on this situation in the near future.

I would highly appreciate your assistance in providing me with a copy of the PPR document draft that Dr. Grover presented to me at the end of March but repeatedly refused giving a copy to me. I find it very important to have a copy of this document as soon as possible and under circumstances have to seek your authorisation for obtaining it.

…

113        Dr. Lusztyk forwarded that email to Dr. Grover, who replied by way of a letter dated April 14, 2003 (copied to Ms. Jacobs). Ms. Jacobs confirmed that she received it at or about that time. It stated as follows:

…

Thank you for your e-mail of 11 April 2003 regarding Yuri Boiko.

We had previously discussed Yuri’s situation twice last month, and then again at length in our meeting of Tuesday, 7 April 2003.

As you are aware, I have spent an extensive amount of time meeting with Yuri to discuss his PPR. We held two group meetings to discuss the materials that the employees are required to prepare for the PPR process. In addition, I twice met separately with Yuri when he further sought my advice on the preparation of his work achievements for the review period and the work objectives for the upcoming year.

Following this, I met with Yuri on 7 March 2003 to review the materials that he submitted regarding his achievements and to discuss the work assignment for the next year. The meeting lasted four hours, but we were unable to complete the process. We met again on 10 March 2003 for another four hours.

During this time, Yuri’s work achievements were thoroughly reviewed. Yuri always had an open opportunity to comment on my assessment of his achievements. He made his comments and suggestions, which were incorporated into the review.

I informed Yuri of his unsatisfactory rating, after which he attempted to negotiate other alternatives to circumvent the PPR process. Specifically, he asked me whether he could resign from his position prior to the PPR process for this year, to avoid obtaining an unsatisfactory rating.

I provided Yuri with the PPR document for his signature on 24 March 2003. I spent an additional two hours reviewing each element of the document with Yuri.

Yuri refused to sign the PPR at the end of the meeting. I told Yuri that two options existed: either he could sign the document, or PPR could be completed with a note that the employee had refused to sign it. In either situation, I indicated that I would give Yuri a copy of the PPR.

Yuri was told that the process had already taken a very long time, and that it should be completed without any further delay. I told Yuri that if he wished to challenge his PPR, he had the option of pursuing this with HRB who could advise him of his rights.

As we had proceeded into the lunch hour, Yuri said that he would return after lunch to complete the PPR. He did not return.

Since this period of time, Yuri has been on sick leave and indicated that his physician had relieved him from his work duties. However, he continues to send me e-mails regarding his work and PPR. I have informed him that he should not worry about work and that the PPR can be finalized after he returns to work.

The PPR meetings held with Yuri lasted over 10 hours, not including the initial time for the preparation of the documents. The PPR process for other employees at or about Yuri’s level took about one hour, during which time employees felt they were able to provide adequate comments.

I believe that Yuri has had enough time to review the PPR, and that appropriate decisions have been made regarding his PPR. I never refused to provide him a copy of the PPR once we had completed the process. I would not be correct to continue the PPR process indefinitely after the document had been completed with his full participation.

I suggest that we finalize the PPR process after Yuri returns from his sick leave, as his physician has relieved him of his work duties.

I cannot comment on Yuri’s other complaint of “serious problems” that have affected his health as he has not told me about these in the past, and did not elaborate on them in his e-mail to you.

…

114        On April 17, 2003, Drs. Lusztyk and Grover exchanged emails about the response to the grievor’s April 11, 2003, email. After this exchange, on April 22, 2003, Dr. Lusztyk wrote to the grievor, advising him that he would receive a final version of the 2002-2003 PPR. On April 24, 2003, the grievor replied and advised him that he hoped in the near future to provide him with a detailed account of the contentious and harassing circumstances he had encountered under Dr. Grover’s supervision.

115        On April 17, 2003, Dr. Grover sent a follow-up memo to Dr. Lusztyk. It reiterated a number of points he made in his April 14, 2003, letter and addressed the grievor’s suggestion that he had never been provided with a copy of his draft 2002-2003 PPR. Dr. Grover stated that he spent in excess of 10 hours with the grievor reviewing the PPR and that the grievor had asked for a copy of it only after March 24, 2003 (the date he went on sick leave). Dr. Grover reiterated that the PPR process should not be finalized until the grievor returned from sick leave.

116        On April 25, 2003, Ms. Jacobs emailed the grievor an electronic version of the 2002-2003 PPR.

117        Steven Blais appeared as a witness by summons at the grievor’s request. He retired from the public service in 2010. From 2004 until his retirement, he was the director of labour relations (LR) at the NRC. In May of 2003, he was a senior staff relations officer with the NRC, carrying out HR and LR work.

118        On May 2, 2003, Mr. Blais received a call from Jock Hazeldean of the PIPSC about the grievor and his dissatisfaction over his 2002-2003 PPR. Mr. Blais contacted Dr. Lusztyk about arranging a meeting with the grievor and Mr. Hazeldean.

119        On May 23, 2003, Dr. Lusztyk emailed Dr. Grover, advising him about the request of the grievor and his PIPSC representative to meet and discuss his concerns. The email stated that the purpose of the meeting was to allow the grievor to put forward his concerns and that as of that date, no formal complaint of any kind had been made.

120        Entered into evidence was a copy of an email dated May 26, 2003, from Dr. Grover to Ms. Jacobs requesting a meeting to discuss a number of things, including the 2002-2003 PPR. Ms. Jacobs testified that she had discussions with Dr. Grover about that PPR. She stated that he advised her that he was concerned about the grievor’s performance, that his performance was not what Dr. Grover had expected it should be, and that he discussed the grievor’s performance management.

121        Ms. Jacobs stated that when a supervisor has concerns about an employee not performing up to expectations, she advises the supervisor to meet with that employee more often and to conduct PPRs more frequently. She stated that after the grievor received the 2002-2003 PPR, she suggested that the PPR process for him be shortened to every three months, stating that she felt this would better help him identify and meet performance objectives.

122        On June 16, 2003, the grievor, Mr. Hazeldean, Dr. Lusztyk, and Mr. Blais met (“the June 16 meeting”) so that the grievor could voice his concerns about the 2002-2003 PPR and discuss workplace issues.

123        Dr. Lusztyk, Mr. Blais, and the grievor all testified about that meeting. Mr. Hazeldean did not testify.

124        Mr. Blais stated that his role at the June 16 meeting was to take notes. He created a handwritten record, which he later transcribed (“the June 16 meeting notes”). He stated that his original notes no longer exist.

125        Dr. Lusztyk vaguely recalled the June 16 meeting, stating that he remembered a bargaining agent representative being present and that the issue was a disagreement over the PPR process. He did not recollect any specifics of the meeting or what anyone said. He recollected that while he had still been with the INMS, he had just resigned his DG position on June 9, 2003, effective around June 27, 2003.

126        The June 16 meeting notes indicate that the grievor felt that his unsatisfactory performance rating on the 2002-2003 PPR was unwarranted and that he placed the blame squarely on Dr. Grover. The June 16 meeting notes reflect that Dr. Lusztyk stated that that raised “... a very serious issue and it will be investigated.”

127        Dr. Hackett testified that he assumed the DG role in the INMS on July 1, 2003, but that he was away all that July. He said that although Dr. Lusztyk was the reviewing officer of the 2002-2003 PPR, Dr. Hackett also reviewed it as he had been made aware of the grievor’s complaint to Dr. Lusztyk about it. Dr. Hackett also stated that he was provided with a copy of the June 16 meeting notes.

128        Dr. Hackett testified that upon taking over as the DG of the INMS, he emailed Dr. Grover about the grievor’s concerns and the June 16 meeting. Dr. Hackett’s email stated that the grievor had provided Dr. Lusztyk and Mr. Blais with six documents that he alleged had not been considered during the 2002-2003 PPR. The email further advised Dr. Grover that Mr. Blais would provide him with a copy of the June 16 meeting notes so that he could respond. Dr. Hackett advised Dr. Grover that the grievor wished to publish some articles and that Mr. Blais would provide Dr. Grover with copies of the six documents that the grievor provided to Dr. Lusztyk and Mr. Blais at the June 16 meeting.

129        Those six documents appear to be identified in a June 30, 2003, email that the grievor sent to Mr. Hazeldean, and are as follows:

1. an article for a refereed journal;
2. an article on photochromic materials intended for the Photonics West 2004 conference;
3. an article on two-photon polymerization intended for Photonics West 2004;
4. an invention disclosure (Form 1) on microstructure recording;
5. an invention disclosure (Form 1) on photochromic fiber devices; and
6. “Technical Report 2002”.

130        The article referenced in the June 30, 2003, email as an article for a refereed journal appears to be a version of an article that has since been identified in a number of permutations as “Volume Hologram Recording in Diarylethene Doped Polymer” (“Volume Hologram”).

131        On July 21, 2003, Mr. Blais forwarded a copy of the June 16 meeting notes to Dr. Grover.

132        On July 28, 2003, Dr. Grover provided a lengthy written response, including 15 appendices, to the June 16 meeting notes (“the Grover Response”). The appendices included copies of materials the grievor provided to Dr. Grover during the PPR process in March of 2003.

133        Dr. Hackett testified that his review of the grievor’s performance disclosed serious shortcomings in his work performance, which was inadequate for an AcRO. He stated that the grievor had not published any papers; nor had he attended any conferences. It appeared to Dr. Hackett that the amount of work produced did not correspond to the amount of time the grievor spent in the lab.

134        Dr. Hackett stated that he reviewed the Grover Response and that in his view, it was balanced and fair.

135        On September 4, 2003, the grievor and Mr. Hazeldean met with Dr. Hackett (“the September 4 meeting”) as a follow-up to the June 16 meeting and according to Dr. Hackett to shed some light on concerns raised by the grievor.

136        On an unknown day in September of 2003, the grievor delivered a six-page written harassment complaint dated September 12, 2003 (“the harassment complaint”) to Isabelle Gingras, who at the time was the NRC’s manager of HR planning. The complaint named Dr. Grover as the perpetrator of the harassment.

137        The harassment complaint and investigation shall be addressed later in the decision.

138        On September 16, 2003, Dr. Hackett wrote to the grievor (copying Dr. Grover) with respect to the September 4 and June 16 meetings. The relevant portions of his letter are as follows:

…

To shed light on your concerns, I asked Dr. Grover to review and respond to the notes prepared by Mr. Steve Blais of your 16 June meeting with him and Dr. Lusztyk. On 28 July 2003, Dr. Grover provided a response which in my opinion appropriately addresses the portions of these notes that pertains [sic] to your concerns regarding his assessment of your performance.

Based on this information and my review of your articles, I informed you at the meeting that my conclusion as the Reviewing Officer is that the PPR document prepared by Dr Grover appropriately assesses and reflects your overall performance for the review period 2002-2003.

Before announcing to you the results of this review, I conveyed your offer of mediation to Dr. Grover as an attempt to resolve or dissipate some of the concerns you had raised, however Dr. Grover declined your offer.

I further understand from our meeting that you are somewhat unclear about the work objectives you are to pursue for the current year and that for this reason you are currently pursuing work that may or may not be in line with Dr. Grover’s expectations. It is imperative that you take immediate steps to clarify your work objectives with Dr. Grover and that you ensure that your efforts and NRC’s resources are invested in the appropriate areas as determined by your Director.

In regard to the articles you wish to submit for publication, I wrote to Dr. Grover on 29 August 2003 asking for a status report in this matter. Dr. Grover wrote back to me on 2 September 2003 and indicated that he had a couple of concerns regarding this manuscript and that he would be meeting with you shortly to discuss and resolve these issues. If you have not already done so, please communicate with Dr. Grover to obtain his guidance and agreement before proceeding with the publication. I expect that you and Dr. Grover will be able to resolve this issue in a rather short time frame.

Lastly, I understand from our meeting that you do not feel comfortable dealing one on one with Dr. Grover and that for this reason you intended on dealing with Dr. Grover’s representative or with me. I explained that you continue to report to Dr. Grover, that I do not see any reason to review or modify this reporting relationship and that I do not intend to play an intermediary role between Dr. Grover and yourself. For more clarity, I ask that you and Dr. Grover make every reasonable effort to deal directly with each other regarding your work at NRC and to this end, I respectfully encourage you to resort to the guidance I offered you during our meeting to address and/or overcome your stated communication concerns. Specifically, you could endeavour to meet directly and face to face with Dr. Grover as opposed to writing to him. To be clear on Dr. Grover’s expectations, you could follow-up your meetings with an e-mail confirming your understanding of the conversation and associated agreements. Lastly, if you do not feel comfortable in meeting with Dr. Grover alone, you may seek his permission to be accompanied by an individual of your choice.

139        The September 2003 PPR rated the grievor’s performance as unsatisfactory. It set out his work objectives and plans for September 25 to December 24, 2003.

140        Dr. Hackett confirmed that he was the reviewing officer for the September 2003 PPR. He confirmed that Dr. Grover sought his input with respect to the rating given for it. He stated that he concurred with the unsatisfactory rating. The grievor did not cross-examine him on the rating.

141        On September 29, 2003, the grievor filed three grievances. The first one stated as follows: “Assignment is not clear. Current PPR refers to the outdated plan of previous year and clarifications on that are denied”. As relief, he asked for “clarification of assignments, new assignments”.

142        The second grievance, filed on September 29, 2003, stated as follows: “Upgrade on computer system is denied”. As relief, the grievor asked for “Authorization to upgrade Computer to Pentium 4 . . .”

143        The third grievance, filed on September 29, 2003, stated as follows: “Participation in the conference Photonics West 2004 is not granted; submitting presentations is denied”.As relief, the grievor asked for “Authorization to present results on Photonics West 2004 (San Jose, USA; SPIE)”.

144         The December 2003 PPR rated the grievor’s performance as unsatisfactory. It set out his work objectives and plans for January to March 2004. It identified Dr. Hackett as the reviewing officer. The grievor did not cross-examine him on this rating.

145        It was the grievor’s last PPR. He was not invited to participate in any other assessment with any supervisor or manager after this PPR process and before he was terminated from his employment.

A. Contributions to science and technology

1. The publication of scientific research articles in peer-reviewed journals

146        The grievor’s performance in this area was assessed against research he had carried out.

147        The details of scientific research appear in written articles or papers published in peer-reviewed journals. The timeliness of publication is important, as publishing substantiates the scientist’s claim that the research has been done and provides him or her with scientific credit.

148        Throughout the pre-hearing and hearing processes and in documents submitted to the hearing as part of both pre-hearing discussions and the evidence, the grievor often referred to “novel (or novelty), original (or originality) and significant (or significance)” when referring to the publication of his research in articles either in journals or as part of a conference proceeding.

149        It became clear from the evidence that the concepts of novelty, originality, and significance, with respect to research, play a role in publishing articles in journals. However, the specifics were far from clear as to exactly how novel, original, and significant the research work is and as to what these terms mean in relation to work done in any particular field or to any particular journal or conference proceeding.

150        Articles submitted to journals go through a review process. The first step usually consists of the editor of the proposed journal sending an article to independent outside reviewers (usually two). The reviewers are supposed to be highly knowledgeable in the field in which the article’s research is based and independent of one another, and they review the article and provide comments and suggestions to the journal’s editor. Often, the reviewers suggest revisions to the article before the journal is prepared to publish it. The reviewers are not identified to the author or authors of the article, and they do not communicate. The editor then determines what to do with the submitted article; he or she must accept it, suggest revisions to it, or reject it.

151        Between 2000 and 2004, Dr. Liu was a research officer in the INMS Photonics group, reporting to Dr. Grover. He appeared as a witness under summons at the grievor’s request. The grievor asked him about publications in the Optics and Photonics groups under Dr. Grover. He stated that Dr. Grover tried to control the quality of papers submitted for publication, which means that he believed that Dr. Grover wanted to ensure that the topic was new, the grammar was correct, and the proposed article followed acceptable publication procedure.

152        Dr. Liu stated that novelty in the research described in a paper submitted to a journal for publication is important, to show creativity, innovation, and the development of new technology, whether it is new or it builds on older technology.

153        For the most part, the grievor’s research work was largely reflected in the following two articles, of which several different iterations were filed into evidence:

1. “Volume Hologram Recording in Diarylethene Doped Polymer” (“the Volume Hologram article”); and
2. “Z-scan Approach for Measuring a Threshold of Two-photon Photopolymerization” (“the Z-scan article”).

154        Research is supposed to be recorded in lab books. The evidence disclosed that the lab books used at the NRC came with pre-numbered pages from 1 to 200.

155        The grievor entered into evidence copies of his three lab books.

156        He identified “Lab book 1” and stated that it covered July 2002 to July 2003. It contained only pages numbered 1 through 77 consecutively and then pages 199 and 200.

157        Lab book 1 disclosed the following:

• the first entry is on page 1, is dated July 12, 2002, and contains notations and calculations;
• pages 2, 4, 5, 8, and 9 are blank;
• page 3 is undated and contains notations;
• page 6 is an email dated May 28, 2002, which was cut and pasted and contains two graphs;
• page 7 contains a diagram referencing a dye from Dr. Robert Lemieux identified as KM-V-129 and information cut and pasted from another document;
• page 10 is dated August 12 and contains notations and calculations that were made on a piece of paper and then pasted there;
• pages 11 through 14 are blank;
• page 15 is dated July 16 and 17, 2002, and contains notations;
• page 16 is dated July 18 and 19, 2002, and contains notations;
• page 17 is dated July 26, 2002, and has a limited amount of notations;
• pages 18 through 23 are blank;
• page 24 is dated July 23, 2002, and has notations;
• page 25 is dated July 24, 2002, and has notations and calculations;
• page 26 is dated July 29 and 30, 2002, and has notations and calculations;
• page 27 is dated July 30, 2002, and has notations;
• page 28 is dated August 1, 2002, and has notations and calculations;
• page 29 is blank;
• pages 30 through 37 contain notations and calculations dated August 2, 6, and 14, 2002;
• page 37 has notations continuing from page 36’s August 14, 2002, date, but it also has notations dated November 11, 2002;
• page 38 is titled “Shoud experiment” with the date of August 2002, and has some notations;
• page 39 is dated November 18, 2002, and has a nine-letter and number combination, the word “solution”, and a question mark;
• page 40 is undated and has notations and calculations;
• page 41 is dated September 20 and has notations and calculations;
• page 42 is dated September 26 and has notations and calculations;
• page 43 is undated and has notations and calculations;
• page 44 has the date June 5, 2003, and it is crossed out;
• pages 45 through 50 are blank;
• page 51 contains a copy of an email from Dr. Lemieux dated November 26, 2002, cut and pasted onto the page, and the chemical diagrams of two dyes;
• page 52 is blank;
• page 53 states: “NEXT is continuation after first part of PPR procedure conducted on Friday 1200 – 400 pm, March 7, 2003”;
• page 54 is blank;
• pages 55 through 67 contain a significant amount of notations and calculations. Page 55 is dated March 7, 2003, at 16:00, and the notes appear to deal with the Volume Hologram research but are not all chronological. The last dates that appear on pages 66 and 67 are March 21 and 22, 2003; however, there are notations dated March 21, 2003, on page 62, and notes dated March 8, 2003, on page 65 and March 14, 2003, also on page 66;
• page 68 is dated (Monday) May 26, 2003, and May 27, 2003, and the work notations continue on pages 68 through 72, which continue to note work on what appears to be Volume Hologram that is dated May 27 and June 5 and 6, 2003. There are two copies each of pages 70-71, which are identical except that the duplicate copies of the pages each have cut and pasted to them extracts from published materials;
• page 73 is dated July 2, 2003, and merely states: “Cleaning substrates”; right below it is an entry for July 14, 2003, which continues through page 75;
• page 76 is dated July 28, 2003, and states “copy of above is provided to Dr. [illegible]”, below which are pasted numbers and a statement from other documentation with the handwritten date of July 29, 2003;
• page 77 is undated and is simply a cut-and-pasted document entitled “The Molar Extinction Coefficient Defined”. The author is unidentified;
• there are no pages after page 77 until page 199;
• page 199 is undated and has an address and a reference to what appears to be a product of some type; and
• page 200 is undated and has a few words that appear to reference pages in something (perhaps the lab book itself), along with a reference to two dyes that the grievor used in his Volume Hologram work.

158        The grievor identified “Lab book 2” and stated that it covered November of 2002 to July of 2003. It was not explained to me why the two separate lab books covered roughly the same time frame.

159        Lab book 2 disclosed the following:

• page 1 is undated and contains the following sentence: “page 5 – Coherence length test”; there is nothing else on the page;
• pages 2, 3, and 4 are blank;
• page 5 is dated November 2002 and has cut-and-pasted information, as well as notations;
• pages 6, 8, and 10 are blank;
• pages 7 and 9 contain printed documents pasted onto them;
• pages 11 and 12 are dated November 22, 2002, and contain notations;
• pages 13 and 14 are blank;
• page 15 states: “NEXT will be after PPR period (after 7 March 2003)”;
• pages 16 through 33 are dated between March 11 and 19, 2003, contain notations and calculations about what appears to be Volume Hologram work, and contain cut-and-pasted material that later shows up in the Volume Hologram articles;
• page 34 is dated May 7, 2003 (and coincides with the grievor’s return from sick leave);
• pages 34 through 40 are a number of notations for the following dates: May 7, 8, 23, and 27, and June 4, 5, 9, 10, and 24 to 26, 2003;
• pages 41 through 48 are missing;
• page 49 is dated June 27, 2003, and has notations;
• there are two page 50s that are identical, save and except that the second one has a notation below something that appears to be related to the grievor’s work and states: “28 July 2003 - Copies of the above are provided to Dr. Grover”;
• there are two page 51s; the first is undated and has a cut-and-pasted graph that is in the EPH article;
• the second page 51 is blank;
• there is nothing after page 51 until page 198;
• page 198 is a handwritten receipt signed by Dr. S. Chang confirming the receipt of a computer from the grievor on July 22, 2003;
• page 199 is undated and references what appear to be three part numbers for computers; and
• page 200 is a handwritten receipt signed by Mr. Vandenhoff confirming the receipt of several computer parts; it is dated June 27.

160        The grievor identified “Lab book 3”. It has seven pages.

161        Lab book 3 disclosed the following:

• page 1 is dated August 11, 2003, and has handwritten notes that cover half the page and refer to information on the following dyes: Nos. 179, 181, 182, 129, and 134;
• page 2 is dated August 29, 2003, and has some limited notes and a graph printed from another source also dated that same day; and
• pages 3 through 7 all have affixed to them graphs printed from another source, and all are dated August 29, 2003. At the top of page 3 (before the balance of the document, which is just graphs) is written “September 2, 2003” and the following: “Test of the hologram (#179 high concentration) Hologram recorded in June 2003 - still as good as it was. Exact measurements:”.

162        The graphs and charts contained in Lab book 3, as well as the notes, appear to refer to the grievor’s work with respect to his Volume Hologram research.

163        All three lab books appear to contain materials relating to the Volume Hologram research.

164        No other lab books were entered into evidence.

a. Volume Hologram research and related articles

165        The Volume Hologram research involved using a laser to expose a thick film of polymer to a light particle. The polymer had been created through a process that involved specially produced dyes. Exposing the polymer film to the light created a holographic image.

166        The dyes were created and supplied by Dr. Lemieux and Peng Zhang, both of whom were at the time working at the Department of Chemistry at Queen’s University in Kingston, Ontario.

167        Dr. Lemieux appeared as a witness by summons at the grievor’s request. He is a physical organic chemist, and his specialty is liquid crystals. His work involves synthesizing molecules that form liquid crystals and the study of the molecules’ structures and properties. He obtained his undergraduate degree at Colgate University in 1984 and his PhD from the University of Illinois in 1989. At the time of the hearing, he was a professor of chemistry at Queen’s University; he has been on its faculty for 22 years. He was also the associate dean of research at the Faculty of Arts and Science and had, at the time of the hearing, held that position for almost two years.

168        Dr. Lemieux identified Peng Zhang, who did not testify, as a post-doctoral fellow at Queen’s University who was working with him.

169        Kenneth E. Maly is identified on some copies of the Volume Hologram articles submitted into evidence as being with the Department of Chemistry at Queen’s University. He did not testify. Neither Dr. Lemieux nor the grievor described Mr. Maly’s participation or contribution to the grievor’s research or the research or production of the dyes. From documents submitted into evidence, I have determined that Mr. Maly had also worked with Dr. Lemieux at that chemistry department and was likely Peng Zhang’s predecessor.

170        Dr. Lemieux testified that the number associated with a particular dye type (i.e., “KM-V-129”) identified it by the page number of a lab book from which the formulation to create it was taken. KM-V-129 was from page 129 of a lab book, while a dye with the number 134 came from page 134 of a lab book. Particulars of the specific Queen’s University lab books were not provided. The meaning of the letters attached to the dye name or type (i.e., “KM-V”) was not explained.

171        A series of emails (ending November 5, 2002) between the grievor and Dr. Lemieux, which were forwarded to Dr. Grover on March 11, 2003, were entered into evidence. It is clear from the emails that as of September of 2002, the grievor and Dr. Lemieux were discussing the use of a particular dye that the grievor wanted to use in his experiments. Sometime after September 30, 2002, and before November 5, 2002, the grievor emailed Dr. Lemieux (the email in the series entered into evidence is undated) and stated that he had made some tests and had achieved some efficiency but that it was low. He was looking for more dye. Sometime after Dr. Lemieux’s November 5, 2002, email and the grievor’s March 11, 2003, reply, the grievor sent him another email (the copy entered into evidence is undated) that stated as follows:

Good Day, Prof. Lemieux:

I wrote the first article on the sublect, so it makes it necessary for our internal purposes your formal concent on collaboration. The project title tentatively: Optical Storage in Photochromic Dye-doped Polymers. Please formally confirm (just by e-mail), that you are interested in collaborative effort. In this case I would be able to fill in a formal agreement form, which is required here to maintain the activity. On the actual side – I run out of KM-V-129 and it is needed (quantities needed – you know, I need to make highly doped bulk samples, so 10 mg would be a kind of close to the bottom figure – 100 mg would be much more comfortable, and actually really needed).

…

[Sic throughout]

172        On March 11, 2003, Dr. Lemieux emailed the grievor back with respect to his collaboration request and for more KM-V-129 as follows:

Hi Yuri:

I have a postdoc, Peng Zhang, who is making more KM-V-129 (at least 100 mg). The fact that KM-V-134 is insoluble is not too surprising given it’s [sic] unfavorable (i.e., bent) shape. We’ve seen similar behaviour in liquid crystals.

As per your request, I formally agree on collaborating with you on the project “Optical Storage in Photochromic Dye-doped Polymers”.

The new batch of V-129 should be ready soon. I’ll send it by courier.

…

173        Page 11 of Lab book 2, dated November 22, 2002, notes as follows: “Thick sample of the very first dye from Lemieux: d=1.3 mm?”

174        Pages 55 and 56 of Lab book 1 note as follows:

Friday March 7, 2003 after PPR – i.e. 1600 (pm) EST

…

Dye KM-V-134

…

Second portion of KM-V-134

…

[Emphasis in the original]

175        Page 62 of Lab book 1, dated March 21, 2003, notes as follows:

…

Friday,: March 21, 2003

New batch of KMV 129 arrived – 130 mg. = 0.130 g

…

176        Page 66 of Lab book 1 notes as follows:

March 14, 2003 New dyes from Prof. Lemeiux [sic]

	Dye code
R=CH3	KM-V-179
R=C8H7	KM-V-181
R=C9H(9)	KM-V-182

…

March 21, 2003

For the dye KM-V-129: total = 130 mg

…

177        On May 20, 2003, the grievor emailed Dr. Lemieux, stating as follows:

…

I was away from the office for two months. So, the package from you I found only today – with three dyes in - ## 179, 181, 182. I plan to test them shortly.

I actually wrote the article at the end of March (on data with #129). Am trying to get authorization from the management to send it out as well as send copy to you for review. This should be done in a matter of week or so - I shall inform you shortly, when the meeting on that issue is scheduled.

…

178        Page 68 of Lab book 1 contains a series of notes under the following heading that clearly appear to be a continuation of the Volume Hologram research:

…

Monday 26 May 2003

Again returning to 210503A with 5% of KM-V-129 and 1:4d Monomer S-nvp: SR 9055

…

179        Pages 68 and 69 of Lab book 1, dated May 27, 2003, contain notes and calculations about dye No. 129. Page 70 of Lab book 1 refers to films of dyes and the amount of each of the different types of dyes, Nos. 129, 134, 179, 181, and 182, which the grievor still possessed.

180        On August 6, 2003, Dr. Lemieux emailed the grievor, stating as follows: “We found a reference to incorporation of dithienylethenes in copolymers via free-radical polymerization. Hence, Peng will begin to work on the synthesis of a methacrylate-terminated analogue of the dithienylethene dye you used in the paper.”

181        On October 14, 2003, Dr. Lemieux emailed the grievor, stating as follows:“Peng has finished synthesizing ca. 120 mg of a polymerizable dithienylethene with a methacrylate-terminated end-group. I’m shipping it off to you today by courier. Use it with care. It’s unlikely we’ll be able to make more of this stuff for a while.”

182        It is unclear from that email what specific dye (KM-V-129 or another one) is being referred to. Neither the evidence of the grievor nor Dr. Lemieux clarified if the reference in that email was to KM-V-129.

183        In his evidence, Dr. Lemieux was brought to the reference in that email about not being able to make more of the dye. His recollection was that Peng Zhang was the last person who had the ability to make it. He believed his email inferred that Peng Zhang was leaving his group, which is why he said what he did. He said it was unlikely that more dye would be made as it was not his intention to continue the line of investigation he was following that led him to those dye formulations.

184        The Volume Hologram articles reference the use of the KM-V-129 dye in the experiments the grievor conducted.

185        According to the Grover Response, during the PPR meeting of March 7, 2003, the grievor submitted one graph as evidence of this research and article and did not provide an actual draft article until March 10, 2003, which was referred to as the “Refereed Journal Article” and as a “[m]anuscript of the paper for publication ... titled ‘Volume Hologram recording in diarylethenes’, consisting of 2 1⁄2 pages of text, 1 figure and 2 graphs ...”. Later in the Grover Response, it is referred to as: “Volume holography on diarylethene-doped polymers”. In this context, it is referenced as “... a 3-page document with two graphs and one figure ...”. Both references in the Annex of the Grover Response also refer to the article as “Document No. 7”. Although all are identified somewhat differently, they all reference the same manuscript, which I have identified as “VH No. 1”; it does not list any authors.

186        According to the Grover Response, the grievor stated that at the time of the 2002-2003 PPR process, VH No. 1 was incomplete and that it required more research. He disagreed with that.

187        According to the Grover Response, on March 6, 2003 (as part of the 2002-2003 PPR process), the grievor submitted a document entitled, “Specialty polymers for optical and photonics technologies – Status report of work done during the period of April 2002-March 2003” (“the Specialty Polymers Report”). It contained a section identified by the number “5” and titled “Volume hologram recording in diarylethenes”. That section is almost identical to VH No. 1. However, while VH No. 1 appears to have more written material, section 5 has more figures.

188        On March 31, 2003, the grievor emailed to Dr. Grover a revised version of the Volume Hologram article (“VH No. 2”) and sought his approval to send it to journals to be published. VH No. 2 identified the grievor and Dr. Lemieux as authors. VH No. 2 is 13 pages long and includes a list of references, one table, and six figures and graphs.

189        On April 3, 2003, the grievor emailed Dr. Grover with respect to VH No. 2, reiterating that he was seeking Dr. Grover’s approval to send it to journals.

190         The June 16 meeting notes refer to the grievor presenting a number of documents to Dr. Lusztyk, including one referred to as the “Refereed Journal Article” and alluding that it was submitted on March 31, 2003. The next two bullet points note that the grievor stated as follows:

• Dr. Grover did not accept anything presented after March 7, 2003;
• review period was to end of March 2003, therefore document should have been considered … .

191        On June 30, 2003, the grievor emailed Mr. Hazeldean, enquiring if there had been any progress made with respect to the articles discussed at the June 16 meeting, which would have included the Volume Hologram article. On July 2, 2003, Mr. Hazeldean forwarded this email to Mr. Blais and asked if Dr. Lusztyk was prepared to approve the articles for publishing.

192        On July 17, 2003, the grievor emailed Dr. Lusztyk. He forwarded it to Mr. Hazeldean, who that same day sent it to Dr. Lusztyk, copying Mr. Blais. As Dr. Lusztyk had left the INMS by then, the email was sent to Dr. Hackett and Dr. Arthur Carty (the NRC’s president). It stated as follows:

Ref – Publication of Article on Volume Hologram Recording in Diarythelene [sic] Doped Polymer

By means of this message let me respectfully seek indication if NRC management has any objections with my sending out the Article to a refereed journal.

A full version of the article was initially submitted to the attention of Dr. Grover on March 31, 2003 for his consideration. Later in May 2003 I invited Dr. Grover to comment on this Article. To date I have received no reply, comments or approval from him regarding publication.

You may recall that at our meeting on June 16 2003 the matter of publication of the Article was one of the issues we discussed and a copy included in the documentation I provided.

As a follow up to our meeting a further request was sent to Mr. Steve Blais on July 2, 2003 asking him to inquire into the status of my request (for approval to publish) however I still have had no response from him.

I believe it is crucial to have this Article submitted in a timely fashion. Accordingly I would appreciate an early indication from you as to whether or not you have any objections to my sending this Article for publication.

…

193        On August 29, 2003, Dr. Hackett emailed the grievor and copied Dr. Grover with respect to VH No. 2, advising him that he had received the grievor’s July 17, 2003, letter, had made the request known to Dr. Grover, and had asked for Dr. Grover’s opinion.

194        On September 2, 2003, Dr. Grover responded to Dr. Hackett’s email, stating that he had indicated his opinion (in the Grover Response) on the publication of the Volume Hologram article. He went on to state that issues remained outstanding with the manuscript and that he proposed meeting with the grievor to address the issues but that the grievor was reluctant to discuss his work with him.

195        On September 5, 2003, the grievor emailed Dr. Grover three times (copying Dr. Hackett), seeking instruction from him on how to proceed with the materials he had prepared for publication, including the Volume Hologram article, and asking specifically for instructions on deficiencies, if any, in the material submitted. On September 10, 2003, Dr. Grover replied, confirming his receipt of the emails about publishing and stating that he was not privy to any discussion the grievor might have had with Dr. Hackett. Dr. Grover mentioned that he had provided comments to Dr. Hackett, that he was awaiting a response from him, and that he would meet with the grievor to discuss things once he received that response.

196        On September 24, 2003, the grievor provided a revised version of the Volume Hologram article (“VH No. 3”) to Dr. Grover, seeking his approval so that it could be submitted to outside independent journals to be published. The grievor identified a copy of VH No. 3 in his evidence as the version he provided to Dr. Grover on that date.

197        VH No. 3 identified as authors, in addition to the grievor and Dr. Lemieux, Peng Zhang, Mr. Maly, and Dr. Nickolai Kukhtarev, who is identified as being from the Physics Department of Alabama A&M University.

198        I was not provided any evidence as to what, if any, contribution Dr. Kukhtarev made to the Volume Hologram research or the drafting of the article or articles.

199        Dr. Kukhtarev did not testify.

200        There are subtle differences between VH Nos. 2 and 3. VH No. 3 omits some words and sentences in some places and in some places changes the paragraph structures a little. The figures and graphs in VH No. 3 are all the same as those in VH No. 2; however, the table in VH No. 3 is completely different from the one in VH No. 2 and is found at the end of the article as opposed to within the body. VH No. 3 has 17 references, while VH No. 2 has only 12. VH No. 3 lists four authors, while VH No. 2 lists only two.

201        In his testimony, the grievor stated that Dr. Grover had the original version of the Volume Hologram article (VH No. 1) in March of 2003. The grievor’s evidence was that Dr. Grover sat on it for four to six months. However, in the grievor’s PPR for March 10, 2003, through September 24, 2003, the comment on the VH article he submitted in March of 2003 was that he informed Dr. Grover that the work was incomplete and the article needed more work. The grievor submitted that while Dr. Grover stated this in the PPR, it was bad faith on his part.

202        In cross-examination, the grievor was brought to a memo dated September 26, 2003 (“the September 26 memo”), authored by Dr. Grover and addressed to the grievor, which discussed meetings they had had with respect to the September 2003 PPR. On the third page is a reference to a refereed journal article that deals with the Volume Hologram research and paper. The reference states as follows:

…

You informed me that you have not yet submitted to me the final version of the manuscript titled, “Volume hologram recording in diarylethene polymer”. I advised you that I would provide you with my comments on this paper after you have given me a copy.

…

I indicated to you that I had doubts about the relative advantages of these materials for applications under consideration and I advised you that I would have the paper reviewed by others prior to making a decision on this paper.

Also, I indicated to you that the issue of authorship is a matter of concern to me.

…

203        Sometime after September 24, 2003, and before October 15, 2003, Dr. Grover provided two versions of the Volume Hologram article to an unidentified NRC colleague of the grievor (“the NRC VH Reviewer”) to be reviewed. Although there was no documentary evidence on which versions were provided, from all the evidence, I have concluded that they would have been VH Nos. 2 and 3.

204        On October 15, 2003, Dr. Grover emailed the grievor the NRC VH Reviewer’s comments, stating as follows:

… I have also received today the comments from an independent reviewer on you [sic] paper titled, “Volume hologram recording in diarylethene doped polymer” which I am attaching herewith. Please provide me with your response to the reviewer’s comments as soon as possible. After I have received your response, I will meet with you to discuss your response as well as the authorship issue which continues to remain as a matter of concern for me… .

205        The grievor emailed his reply that same day as follows:

…

I have read the review.

The question is whether I am under obligation to respond to this review and why.

As I have indicated earlier, I need to know whether there are restrictions for me to pursue independent reviews and publication of those article [sic] in refereed journals and present those results to scientific conferences.

…

206        On October 17, 2003, Dr. Grover emailed the grievor, stating as follows:

The reviewer has expressed serious concerns regarding the merit of the paper and the research contained therein. I must have your response to the reviewer’s comments in order for me to determine as to where we should go from here. Please send me your response by 22 October 2003 morning.

207        On October 22, 2003, the grievor and Dr. Grover exchanged emails, as follows:

[Dr. Grover to the grievor at 8:47 a.m.:]

Please be advised that your response to the reviewer’s comments on the paper, “Volume hologram …” is due now and must be received by me no later than noon today.

[The grievor to Dr. Grover at 9:30 a.m.:]

Verification of the one of the reviewer’s statement regarding holographic data available in references of J Org Chem from 1988 (refs. 4-6) requires access to the arhive, which is available in 24 hours only. I am ordering those references now, but delivery is within 24 hours. Possibility for today (noon) still exist, but not guaranteed.

Please advise if it is acceptable to delay the commenting finalization to address this issue.

[Dr. Grover to the grievor at 11:45 a.m.:]

I note that you had one week to order the references. Please send me your comments as I have previously requested.

[Sic throughout]

208        On October 22, 2003, at 12:03 p.m., the grievor emailed Dr. Grover his response to the NRC VH Reviewer’s comments (with which he largely disagreed).

209        On October 28, 2003, at 12:52 p.m., the grievor sent Dr. Grover a second response on those comments (again, with which he largely disagreed). However, it contained much more specific comments.

210        The grievor formatted his responses by setting out in numbered paragraphs those comments (or portions of them) on the Volume Hologram article (either VH No. 2 or 3). After each one, and below a line of asterisks, he made his rebuttal comments.

211        In cross-examination, Dr. Hackett explained that the grievor’s responses to Dr. Grover were part of a process to determine if the article was ready for publication. He stated that going through the review point-by-point, like the grievor did in his exchange with Dr. Grover, was of little value.

212        Without getting into the specific detail of the research, an issue identified by the NRC VH Reviewer with respect to the underlying research and the Volume Hologram articles was identified as performance degradation at temperatures above room temperature (“the degradation issue”). The NRC VH Reviewer stated in part as follows:

…

The diffusion or transport of small molecules in polymers is inevitable at evaluated [sic] temperatures, even when the material is ideally uniform at room temperature… .

…

Although the authors acknowledge that a degradation problem exists and that it can be rectified by introducing covalent bonds between the dye molecules and the polymers, they make no attempt to resolve the issue… .

…

213        With respect to the degradation issue, in his response to Dr. Grover on October 28, 2003, the grievor stated as follows:

…

The covalent bond attachment is mentioned by authors as a possible approach to increase the margins of hologram’s temperature stability based on the data in the presented article. Authors do not guarantee that this will work. This route had not been tested, even though it can be planned and implemented, but would be a separate research, which is linked to this article, but would not cancel it. Basically, it seems that the reviewer tends to agree with that projection of the article, but he is not happy with the fact, that this had not been done yet. The routes to enhance hologram stability are to be subject of the other research efforts. In present article the particular system’s performance is studied and measured.

…

214        The grievor’s position is that he knew of the degradation issue when he carried out the Volume Hologram research and wrote the articles. He admitted that because of it, he conducted further research, which resulted in him drafting an article entitled, “Enhancement of Photochromic Hologram Thermal Stability” (“EPH No. 1”), which addresses and deals with that issue.

215        On December 19, 2003, the grievor emailed Dr. Grover and attached a copy of EPH No. 1, which along with the grievor listed as other authors Dr. Lemieux, Mr. Maly, and Peng Zhang.

216        The Optical Society of America (OSA), publishes a journal called “Applied Optics”. On February 12, 2004, the OSA wrote the grievor and provided comments with respect to the publication of a version of the Volume Hologram article that he had sent to it. The OSA did not identify the specific version. According to a document submitted into evidence by the grievor, the article had been sent to the OSA in August of 2003. In cross-examination, he admitted that he had sent it without Dr. Grover’s knowledge. Enclosed with the letter of February 12, 2004, were the comments of two unidentified reviewers (“the OSA reviewers”, “OSA Reviewer No. 1”, and “OSA Reviewer No. 2”).

217        During his evidence, the grievor identified another version of the Volume Hologram article (VH No. 4), which he stated was the version submitted to the OSA. Along with the grievor, it listed as authors Dr. Lemieux, Mr. Maly, Peng Zhang, and Dr. Kukhtarev.

218        Dr. Hackett testified that in his career, he has presented 200 articles and has been the editor of two scientific journals. He stated that he is extremely familiar with the process involved in submitting articles for publishing in peer-reviewed journals and in obtaining approval to have articles published.

219        In his examination-in-chief, Dr. Hackett was brought to the comments of the OSA reviewers and was asked to explain them. His interpretation inferred that the grievor’s work, as set out in the Volume Hologram article, was not made in context and was of no significance. His interpretation of one OSA reviewer’s statements was that the article needed to be improved before it would be ready to be published.

220        In cross-examination by the grievor, Dr. Hackett was brought back to the OSA reviewers’ comments. He stated that with respect to OSA Reviewer No. 1’s comments, they were “damning with faint praise.” He said that this meant that the work the grievor was doing with polymers was not superior to anything that had already been cited. Dr. Hackett conceded that the work was novel, and with respect to originality, he stated that in the context of the time (2002), it was original. He stated that had he authored the article and had he received the OSA’s reviews, he would have wanted to improve it.

221        OSA Reviewer No. 2 stated the following:

…

Following is my review of the Manuscript Number IP 18210 “Volume hologram recording in diarylethene doped polymer” by Boiko et al.

Authors describe an experiment where they characterize volume diffraction properties of a new photochromic polymer guest-host material based on diarylethene chromophore. This paper is generally well written and is understandable for a broad audience. However, the actual data presented is rather scarce, which limits the analysis to a qualitative discussion.

Following questions need to be addressed before the manuscript can be further considered for publication.

1. Authors measure the effective recording sensitivity of the material, but do not provide any information how is this [sic] related to the efficiency of other existing recording materials.
2. In particular, the quantum efficiency of the forward- and backward photochemical transformation reactions should be provided.
3. Data on figure 3 shows that at extended exposure time the diffracted signal decreases to less than 20% of the maximum value. The authors interpret this effect as erasure of the hologram due to interference with diffracted light. Such self-erasure may take place if the diffraction efficiency is quite high. However, data presented in Table 1 shows that the maximum diffraction efficiency in this experiment was less than 4%, which makes the above interpretation not obvious. Authors need to present more convincing arguments such as performing a quantitative calculation of the erasure process.

In conclusion, current manuscript needs to be revised to make it suitable for publication in Applied Optics.

222        During his evidence, the grievor did not address OSA Reviewer No. 2’s comments; nor did he put them to Dr. Hackett.

223        The first published version of the Volume Hologram article, which the grievor identified as the “long version” (“VH No. 5”) was published in 2008 by Allerton Press Inc. (“Allerton”) in the journal called “Optical Memory and Neural Networks (Information Optics)”. Another version, described by the grievor as the “short version” (“VH No. 6”), was published in 2009 by the International Society for Optics and Photonics (SPIE) in its journal “Practical Holography”. The grievor stated that the long version was published as a journal article while the short version was produced for a conference presentation.

224        There was no evidence that the grievor attended a conference where VH No. 6 or the research was presented.

225        VH Nos. 5 and 6 are almost identical, except that in No. 6, a few sentences and figures have been removed and some figures have been moved around. Most curious is that No. 5 lists 17 references, while No. 6 lists only 15. Also curious is that while four references in No. 5 do not appear in No. 6, No. 6 has two that do not appear in No. 5. When the 17 references in No. 5 are compared to the 17 in VH Nos. 2 and No. 3 (which are identical in Nos. 2 and 3), 2 references in No. 5 are not in Nos. 2 and 3, and 2 references in Nos. 2 and 3 are not in No. 5 but are in No. 6.

226        EPH No. 1 appears to have been revised and published in February of 2009 by the SPIE in Volume 7233 of Practical Holography with the title “Thermal stability enhancement of photochromic holograms” (“EPH No. 2”), which lists only the grievor as an author. It was published a second time in April of 2009 by the OSA in Volume 34 of “Optics Letters”, with the title “Improvement of thermal stability in photochromic holograms” (“EPH No. 3”), which also lists only the grievor as an author.

227        All three EPH articles are all about the same research and results and are almost verbatim copies of each other. They all list seven references, but they are not all the same ones. In EPH No. 1, three references are to versions of the grievor’s unpublished VH articles. In EPH No. 2, the grievor’s VH No. 6 article is referenced together with six other published papers; of these six, four were also referenced in EPH No. 1, and two different papers are added. In EPH No. 3, the grievor’s VH No. 5 article is referenced, and of the six other papers referenced, three are the same as in EPH Nos. 1 and 2, but the other three are not listed in either of those versions.

228        There was no evidence that Dr. Grover ever sent EPH No. 1 (the only version that existed before the grievor was terminated) to anyone at the NRC for review. However, during the course of the grievor’s December 2003 PPR, Dr. Grover commented on EPH No. 1 under the heading “Additional work undertaken outside the scope of his assigned work objectives”, stating as follows:

…

Yuri was instructed not to initiate new research experiments. Despite this, Yuri initiated new experiments on 3 November 2003 and, based upon the results which he achieved over a short period of time, has prepared documents as follows:

• Form 1 for the invention “Photochromic materials with enhanced thermal stability of holographic recording”
• A paper titled “Enhancement of photochromic hologram thermal stability”, prepared for publication/presentation at a conference

The Form 1 does not include a full-length description of the technology, including design and engineering details. It did not include experimental results, and was again vague and minimal in content. It was not done according to guidelines previously provided to Yuri.

The paper contains limited new information and is judged to be unsuitable for publication or conference presentation in its present form. This decision is based on the entries in Yuri’s laboratory record book and comments received from two reviewers. The paper describes covalent bonding to achieve thermal stability in dye attached polymers. The use of covalent bonding is a well-known technique for the stabilization of materials as a function of both temperature and time. The paper makes no reference to this fact. There is no originality in terms of sample preparation, hologram recording and measurements. The techniques used are simplistic and prone to contributing substantial errors. However, the paper completely ignores the issue of measurement errors. Finally, a substantial portion of the manuscript reproduces verbatim the text, figures, graphs and data contained in Ref. 4 (Boiko et al), without making any mention of this in the paper.

…

229        There are no lab book references for work done after September 2, 2003.

230        The grievor and Dr. Grover exchanged emails about the December 2003 PPR. In response to Dr. Grover’s email at 9:34 a.m. on January 28, 2004, the grievor replied in a series of emails that same day (seven were entered into evidence, sent between 10:45 a.m. and 12:45 p.m.) posing a number of questions about the PPR.

231        Dr. Grover’s emails, which elicited the grievor’s replies, were as follows:

[January 23, 2004:]

…

In our meeting of this morning (from 10:00 to 10:30), I provided you with a copy of your completed PPR containing my review of your performance for the period from 25 September 2003 to 24 December 2003. The PPR document also contains your next assignment until 31 March 2004. I have advised you to remain focused on the assigned key work objective and put off all other research activities to a future time.

…

[January 28, 2004:]

Yuri: Please advise me of your decision regarding the signing of your PPR document, a copy of which was provided to you in our meeting of 23 January 2004. If you are available, we can meet this afternoon for the signing of the PPR document and for discussions that you might wish to have on this subject. Should you decide not to sign the PPR document, I will forward it to the reviewing officer with my comments to this effect. …

232        The grievor’s email at 10:45 a.m. posed two questions, as follows:

…

Question #1. The article submitted to your attention “Enhancement of photochromic hologram thermal stability” is judged to be unsuitable for publication or conference presentation in its present form. Does it mean that you agree to pursue the publication based on the “limited new information” which you admit to be present in the article? And most importantly in terms of the PPR document itself – does the “limited new information” suffice for the pursuit of publication, provided the required changes in presentation form are made?

Question #2. Issues raised with regard to the value of this article such as:

• reference to the fact that covalent bonding is known to be successfully employed for improving the stability of the other materials with temperature and time can be added; as such this fact is treated in the reference 4 as a logical prediction for the recording material under investigation and the article states in part:

  One possible route to improve thermal stability of the hologram was suggested in [2, 4] as covalent bonding of the photochromic dye to the polymer matrix. This concept was the direct logical consequence of the suggested interpretation of the hologram erasure due to enhanced by the temperature elevation diffusion of the dye. Still such concept remained unpublished and unverified experimentally. Here the experimental demonstration is presented on the enhancement of the thermal stability of the photochromic holograms via covalent dye bonding to polymer matrix.

  Please note that words “one possible route” does mean that this route is possible based on known nature of the covalent bonding and its expected effect on thermal stability.

• conclusion about technique used to be prone to substantial errors lacks specific on which errors are meant – errors in absolute measurements or in relative ones, used in the article; please note that the primary importance in the article is attributed to the relative values of the hologram’s efficiency, which depends only on accuracy of the tools used and as such is within acceptable range; the analysis of the errors can be conducted if you consider it as a requirement; please elaborate on how to proceed with this issue;

• the text reproduced from unpublished article 4 is reproduced exactly because the article is not published; reproduction of the unpublished material is permitted, so this fact can be mentioned in the article, if you insist on that - please advice on how to proceed with that;

…

[Sic throughout]

233        Dr. Grover responded by email on February 3, 2004, as follows:

…

I have reviewed your comments in the eight e-mails that you sent me on 28 January 2003 [sic]. Based on these comments, I do not feel that there is a need for making any further changes to your PPR. I confirm that the statement in paragraph 2 on page 2 of the PPR where the quote, “an additional two years of work”, appears is accurate.

With regard to your request for authorization to perform duties outside of your current assignment, I re-iterate [sic] that you should remain focused on the assigned key work objective and put off all other research activities to a future time. Please try to finish your key work objective as assigned.

…

234        Dr. Zhiyi Zhang appeared as a witness by summons at the grievor’s request. At the time of the hearing, he was still employed at the NRC. In 2003 and 2004, he was a research officer in the Photonics group. In either 2005 or 2006, he became that group’s leader. He has a PhD in polymer science from Zhongshan University in China, specializing in polymer physics and processing. He confirmed that he was not an expert in holography.

235        Dr. Zhang testified that at times, Dr. Grover asked him to review articles written by other research officers in the Photonics and Optics groups. He could not state how often he was asked or the specifics of the instructions he received from Dr. Grover when he was asked. He did state that he was asked to review them usually from a technical standpoint before they were submitted to journals for publication.

236        When the grievor asked him why Dr. Grover tasked him with this work, Dr. Zhang replied that he understood it was because Dr. Grover did not have the time to do it. He stated that sometimes Dr. Grover requested a review in writing, but not always.

237        Dr. Zhang stated that he would carry out a review for the person who asked him to do it. He stated that sometimes, Dr. Grover requested him to review other research officer’s articles and that sometimes, other research officers asked him to review their articles. He stated he would review an article based specifically on what he was tasked to look at and that he would provide comments.

238        Dr. Zhang testified that sometimes people disagreed with his opinion, which was a normal part of the scientific review process. If he reviewed a paper and the person he reviewed it for disagreed with his comments, it was not uncommon to discuss things. He stated sometimes his opinion won out and that sometimes it did not. Dr. Zhang stated that when he carried out reviews at a colleague’s request, they could often have a discussion. He did not recollect Dr. Grover bringing his reviews to him and discussing them with him.

239        Dr. Zhang stated that if he felt that the area he was asked to review was outside his area of expertise, he would refuse to do it. He stated he only reviewed work that he was comfortable reviewing.

240        The grievor showed Dr. Zhang a copy of the written review of VH Nos. 2 and 3 carried out by the NRC VH Reviewer. After looking at it, Dr. Zhang stated that the style of writing certainly appeared to be his. When asked what specifically he was asked to review, he stated that he could not remember, but given the nature of the comments in the review, he suspects that he was asked to comment upon issues of reliability, stability, and degradation, as he had confidence reviewing in those areas.

241        The NRC VH Reviewer was Dr. Zhang. Despite that fact, the grievor did none of the following:

• ask Dr. Zhang any questions about the comments he made in his reviews of VH Nos. 2 or 3;
• put to Dr. Zhang any of the comments contained in the grievor’s lengthy reply to Dr. Grover on October 28, 2003, in which the grievor addressed in detail the NRC VH Reviewer’s October 22, 2003, review; or
• put to Dr. Zhang either VH Nos. 2 or 3; nor did he ask Dr. Zhang any questions about either one.

242        The grievor did not ask Dr. Zhang any questions about EPH Nos. 1, 2, or 3 despite that this article was based on research that the grievor stated he carried out to address concerns Dr. Zhang raised in his review of the VH Nos. 2 and 3 articles on the degradation issue.

243        The grievor did not ask Dr. Zhang any questions about OSA Reviewer No. 2’s comments on the Volume Hologram article.

244        The grievor’s 5 proposed experts produced 20 reports. At least 10 of them dealt with the NRC VH Reviewer’s review of VH Nos. 2 and 3. In some places in the 10 reports, the proposed experts are critical of Dr. Zhang’s review comments. None of those critical comments were put to Dr. Zhang, despite that the grievor possessed the reports, was familiar with their contents, and knew that they were critical of Dr. Zhang’s reviews.

245        Dr. Zhang’s reviews of VH Nos. 2 and 3 referenced the degradation issue, which the grievor said was dealt with in the research that led to the EPH articles. The five proposed experts also reviewed comments related to that work and made their own comments. While Dr. Zhang did not review the EPH articles, his reviews of VH Nos. 2 and 3 led to further research and the writing of the EPH articles. That said, the grievor did not put to Dr. Zhang any of the comments that the five proposed experts made in each of their reports about the EPH article or articles.

246        Shoude Chang appeared as a witness by summons at the grievor’s request. At the time of the hearing, he was employed at the NRC. When the grievor was employed with the NRC, Dr. Chang was his colleague in the Optics group. He stated that he joined that group in 1999.

247        The grievor asked Dr. Chang about publishing articles in journals. He stated that in his experience, about 90% of draft articles sent for potential publication come back with suggested revisions. He stated that it is common that some reviewers will reject an article and that other reviewers will accept it.

248        Dr. Chang testified that he has reviewed many articles and that his practice is to reject them based on science.

249        Dr. Chang stated that in 2003, he had three articles published. He said that there is no normal rate of publication but that he thought that two or three articles per year for INMS members was normal at that time.

250        The grievor also asked Dr. Chang for his opinion of the journals in which the grievor’s Volume Hologram, Z-scan, and EPH articles were published. Dr. Chang stated that he thought that they were pretty good.

251        Dr. Chang was not asked any questions about the grievor’s research or the Volume Hologram and EPH articles.

252        The grievor asked Dr. Liu about the procedure for reviewing articles and then publishing them in peer-reviewed journals within the INMS at the time the grievor was employed there. Dr. Liu stated that he believed that Dr. Grover tried to control the quality of the papers that would be submitted for publication. He said that this included whether the research was new, along with grammar and structure.

253        When the grievor asked him for the NRC criteria to authorize a paper to send to a journal for potential publication and for the publication policy in 2003, Dr. Liu said that he did not know. When Dr. Liu was asked what happens after a paper is sent to a journal for publication, he stated that sometimes it comes back with comments and suggestions for revisions before the journal will publish it. Sometimes it is accepted, and sometimes it is rejected.

254        Dr. Liu stated that most research officers would routinely give their papers to other members of the group to look at and would solicit comments and opinions. He stated that he found that helpful when it came to the publication process. He said that routinely, he would receive requests from colleagues to review their papers before they were sent to journals. He stated that if someone is working in a particular area and so are that person’s colleagues, then that person will not only know their work, methods, and research but also will learn things. He said that this was a normal practice and that it was usually done, especially for new work. He said: “You are not 100% sure it is right or new, so you have someone do a review. Sometimes the comments are more extensive. It is to help; external reviewers; it will help for publication.” He also said that he wanted comments and that some from a different perspective could help get a paper published.

255        The grievor asked Dr. Liu if it was normal for Dr. Grover to see proposed articles before they were sent to journals, to which Dr. Liu replied that it was. However, he stated that it was his practice to send his potential articles to a colleague first because everyone has different viewpoints, which he stated helped improve his papers and their publication chances.

256        The grievor asked Dr. Liu about negative comments. He replied that he did not see comments as negative or positive. He stated that if he made a mistake, it would need to be corrected. He stated that the process helps an article get published.

257        The grievor asked Dr. Liu if he always agreed with the comments on papers he submitted to others for review. He said that if he thought he was 100% right, he would discuss the topic or issue with the colleague. He stated that a scientist cannot guarantee that every other research officer thinks the same as he or she does. A scientist must convince everyone why his or her idea, theory, and experiment are right.

258        Dr. Liu defined “first author” as the person who contributed most to writing a paper, namely, the person who had the idea, did the technology development, created the theoretical model, ran the experiment, and did the data processing or acquisition. When asked to clarify how many articles he had published naming him as first author, he said he could not remember.

259        Dr. Liu testified that any publication related to product development had to be intensively reviewed because the NRC did not want new technology in the public domain without the proper legal protections in place. He stated that it was important not just to publish but to protect the information.

260        In cross-examination, Dr. Liu stated as follows:

• when he received feedback on a paper, he would revise it and send it to Dr. Grover; he said that the point was to supply a good quality paper to the group leader;
• if he had not circulated a paper to his colleagues and Dr. Grover circulated it to others for their input, he agreed that that would be reasonable;
• the scientists who worked in his group had to have authorization from the NRC to get their research papers published; and
• Dr. Grover had the authority to determine if a research paper would be published under the NRC’s name.

261        When the grievor asked Dr. Liu about confidential internal reviews in the INMS, he replied that he did not think they happened. However, he further stated that he did not think it mattered whether someone confidentially reviewed an article. He said that he did not understand the distinction that the grievor was making. He stated that at the NRC, research results and projects have to be presented every year and that everyone knows what everyone else is working on. People have to be informed as to what is being worked on so that work can be justified and research can be funded. He stated that it was normal that everyone knew what everyone else was working on.

262        Dr. Liu stated that journals have rejected some of his draft articles but that Dr. Grover never did. However, he did state that Dr. Grover asked him several times to revise his articles.

263        Dr. Liu stated that the research being carried out dictates the journals that draft articles should be sent to for review and potential publication. An article that meets all the publication criteria could still be rejected by a particular journal.

264        Dr. Liu testified that he published three or four articles in journals per year.

265        The grievor did not ask Dr. Liu any questions about the grievor’s research or about any version of the Volume Hologram or EPH articles.

b. Z-scan research and articles

266        The Z-scan research involved using a laser to focus light energy on a specific spot and moving the laser along an axis (the “Z” axis) to determine the appropriate location where, when the light was emitted, the energy would contact a liquid monomer, causing it to change into a solid polymer.

267        According to the Grover Response, during the PPR meeting of March 7, 2003, the grievor submitted a conference paper entitled, “Z-scan approach for two-photon polymerization threshold measurement” (“Z-scan No. 1”), and indicated that the research had been done in August of 2002. He also indicated that its form as submitted during the PPR review was not suitable for publication through peer review. Z-scan No. 1, as referenced in and attached as an appendix to the Grover Response, totalled five pages, which included a little more than one page of references.

268        The Grover Response referred to the grievor submitting the Specialty Polymers Report. In it is a section marked “3” and entitled, “Polymers for 3D photonic circuits writing, including photonic crystal structures”. It is clearly a version of the Z-scan article (“Z-scan No. 2”). It sets out the same content as Z-scan No. 1, except that the title is different, and in this version, a short subheading appears just before the reference that reads, “Current status of the materials development”, comprising two paragraphs that do not appear in Z-scan No. 1.

269        In addition to Z-scan Nos. 1 and 2, the grievor submitted into evidence four more versions of the Z-scan article. For the one entitled, “Z-scan approach for measuring a threshold of two-photon photopolymerization” (“Z-scan No. 3”), he and Dr. Grover are identified as the authors. The grievor testified that Z-scan No. 3 is the one he provided to Dr. Grover in August of 2002; however, when pressed on this in cross-examination, he conceded that there are no documents that disclose when this version was delivered. In addition, after he conceded to counsel for the NRC that he sent a number of different versions of the article over the probationary period, when pressed if he was sure this was the version provided to Dr. Grover in August of 2002, the grievor’s answer was, “Well, maybe”. When further pressed, he answered that he could not recall.

270        The grievor identified two other versions of the Z-scan article, both titled, “Z-scan approach for measuring a threshold of two-photon photopolymerization” (“Z-scan No. 4” and “Z-scan No. 5”), as versions he provided to both Dr. Grover and Dr. Lusztyk, although he could not state when he provided them. Nor were they attached to any email.

271        Z-scan No. 4 is identical to Z-scan No. 3, except that in Z-scan No. 4, Dr. Grover’s name was removed as an author. The page numbering, font, titles, and figures are all the same. Z-scan No. 5 is almost exactly the same as Z-scan No. 4 in that it does not list Dr. Grover as an author. However, it has a different font, its titles are numbered, its paragraphs are altered a little, and a four-line paragraph that appears in Z-scan Nos. 3 and 4 just before Table 1 is missing. In addition, Z-scan No. 5 contains an entirely new paragraph that is not found in Z-scan Nos. 3 and 4. It has six lines, is located just before the paragraph titled “Conclusions” and is the same paragraph in Z-scan No. 2 in the Specialty Polymers Report, but it is not found in Z-scan No. 1.

272        The evidence disclosed that by October 17, 2003, Dr. Grover had sent a copy of the Z-scan article to two unidentified NRC reviewers. It was unclear which version was sent to them.

273        By email dated October 17, 2003, Dr. Grover forwarded the Z-scan reviewers’ comments to the grievor and asked him to review them and provide a response so that he could determine where they should go with the article and the research work described in it. That email did not contain the two sets of Z-scan reviewers comments (“Z-Scan Review No. 1” and “Z-Scan Review No. 2”); the grievor submitted them separately. The Z-scan reviewers are not identified. Z-Scan Review No. 1 is a little more than one page long, and Z-Scan Review No. 2 is two-and-a-half pages long.

274        No one was identified to me as a Z-scan reviewer.

275        None of Drs. Hackett, Zhang, Liu, or Chang was asked any questions about the Z-scan research or about any of the versions of the Z-scan article.

276        On October 21, 2003, the grievor sent two emails to Dr. Grover, at 11:36 a.m. and at 12:01 p.m. The first is his response to Z-Scan Review No. 1, and the second is his response to Z-Scan Review No. 2. In both, in very short and concise statements, he addressed the comments. Sometimes, he responded simply with the following: “This is a wrong statement.”

277        On October 27, 2003, at 7:55 a.m., Dr. Grover wrote to the grievor and referred to both the Volume Hologram and Z-scan articles. He stated as follows generally about them and specifically about the Z-scan article:

…

I am in receipt of your response to the reviewers’ comments on your manuscripts entitled “Z-scan approach for measuring a threshold of two-photon photopolymerization” and “Volume hologram recording in diarylethene doped polymer”.

I have reviewed your response and contrasted it to the points raised by the reviewers of the two papers. Upon review, I do not believe that your response adequately deals with many of the concerns raised by the reviewers.

(1) “Z-scan approach …”

Many of your statements were global denials of the reviewers’ concerns; oftentimes [sic], you provided no argument whatsoever to support your response. I have concluded that the reviewers’ concerns regarding originality, significance and completeness of your work are justified.

…

As such, I cannot sanction the publication of these manuscripts as NRC documents. You retain the right as an individual researcher to publish these manuscripts, but, if you choose to do so, please remove any reference to the Optics Group, the Institute for National Measurement Standards and the National Research Council.

…

278        The grievor replied in two emails. It is difficult to determine the exact times he replied, as he embedded his comments into the body of Dr. Grover’s email. Dr. Grover replied on October 27, 2003, at 12:12 p.m., stating that he had informed the grievor of his decision on the two manuscripts, that his decision was based on the reviewers’ overall comments and concerns as provided to the grievor, and that the concerns were justified.

279        On October 28, 2003, the grievor sent Dr. Grover three emails, at 3:51 p.m., at 4:39 p.m., and at 5:01 p.m. The 3:51 p.m. email is the grievor’s comprehensive reply to Z-Scan Review No. 1; the 4:39 p.m. email is his comprehensive reply to Z-Scan Review No. 2. In the 5:01 p.m. email, he asks Dr. Grover to review his more comprehensive comments.

280        Dr. Grover responded to the grievor on October 30, 2003, at 1:20 p.m., and advised him that he had considered the grievor’s recent correspondence with respect to both the Z-Scan and Volume Hologram articles. He advised the grievor that he did not see any reason to change his decision. The grievor forwarded Dr. Grover’s email to Dr. Hackett.

281        The first published version of the Z-scan article, entitled “Z-scan approach for measuring the threshold of two-photon photopolymerization” (“Z-scan No. 6”), was in 2005 and was done by the World Scientific Publishing Company (“World Scientific”) in its “Journal of Nonlinear Optical Physics & Materials”. A second published version, entitled, “Z-Scan Approach for Measuring a Threshold of Two-Photon Photopolymerization” (“Z-scan No. 7”) was published by Allerton in “Information Optics” in 2008. Z-scan Nos. 6 and 7 are in essence the same article with very minor format differences and are variations of the other Z-scan articles.

282        A third published version of the Z-scan article, with another variation of the name, “Threshold measurement of two-photon laser induced photopolymerization via Z-Scan” (“Z-scan No. 8”), was published in 2010 by the SPIE.

283        Counsel for the employer showed a document to the grievor, which he purported was a copy of a memo dated October 23, 2003, from Dr. Grover to the grievor that advised him that he could not submit articles to publishers without authorization from management. The grievor denied ever seeing the memo. When counsel pushed him on whether he knew that he required authorization, he maintained his denial; however, he conceded that he had doubts that he could send the articles without authorization.

284        The grievor admitted in cross-examination that over the course of his probationary period, he submitted a number of versions of his articles to Dr. Grover. The grievor suggested that he had submitted a particular version of one of his Z-Scan articles in August of 2003. Later on, he stated “Well, maybe”, as to whether he had actually done so. Later still, he stated that he could not recall if he had. He became confused when he was pushed on what document was provided to Dr. Grover, and when.

285        The grievor admitted in cross-examination that he sent a copy of Z-scan No. 6 to the publisher in June of 2004, before he was rejected on probation. He admitted to sending it to the publisher without management’s authorization; in fact, when pressed, he admitted that he had ignored Dr. Grover’s instructions not to send it. The grievor testified that he believed it was alright to send it to publishers as long as they did not publish it.

286        Dr. Hackett’s evidence-in-chief lasted a little more than two hours. The grievor had him in the witness box for two days to cross-examine him. At no point during the cross-examination did the grievor put to him any of the points in dispute over the reviews anyone at the NRC conducted of any of the Volume Hologram, Z-scan, or EPH articles.

2. The February 2004 grievance against the reviews of the grievor’s research papers

287        On February 2, 2004, the grievor filed a grievance (“the February 2004 grievance”) with respect to the Volume Hologram and Z-scan articles, as follows:

…

I grieve the lack of impartiality in the process of reviewing my articles. (Please see separate sheet for details).

Restoration of impartiality to the review process. (Please see separate sheet for details).

…

B) Details of Grievance, ctd. 1) Reviewers have been selected by Dr. Chander Grover, at a time when I was in an official dispute with him over alleged harassment.

2) Feedback from reviewers was denied me after I commented on the reviews, despite some seriously erroneous statements made in the reviews and despite Dr. Grover’s earlier promise to the effect that I would be receiving such feedback.

C) Corrective Action Requested, ctd.

1) Selection of outside reviewers by an expert from outside NRC (e.g., the editor of a scientific journal in the field of optics). 2) Establishment of a process through which I can provide feedback to the reviewers after they have completed their reviews.

[Emphasis in the original]

288        On April 22, 2004, Dr. Hackett presided over a final-level grievance hearing on the February 2004 grievance. The grievor was present with his bargaining agent representative.

289        On July 28, 2004, after the grievor was rejected on probation, Dr. Hackett issued the following final-level reply to him:

…

This is further to the final level grievance hearing held in my office on 22 April 2004, which you attended with your union representative, Mr. Jon Pierce.

At this meeting, you presented evidence in support of your grievance submitted on February 2, 2004 where you grieved the lack of impartiality in the review process of specific articles you submitted to your manager in March 2003. As corrective action, you requested that there be a selection of outside reviewers by an expert outside of NRC as well as the establishment of a process through which you could provide feedback to the reviewers after they completed their reviews.

…

I have thoroughly assessed the evidence you presented at the grievance hearing as well as the arguments brought forth by you and your representative. In assessing the evidence you presented in support of your grievance, I believe that your arguments do not conclusively demonstrate that there was a lack of impartiality in the review of your articles. In support of your argument that there was a lack of impartiality by your manager in relation to the review of articles submitted in March 2003, you presented the fact that those articles had been accepted at conference proceedings, however you failed to mention that only abstracts of the articles discussed and not the full manuscripts were approved by the conferences mentioned in the grievance. In addition, I have concluded that your manager did provide you with appropriate feedback in regards to your articles as part of the PPR process that is consistent with the feedback you received from the reviews conducted by the Optical Society of America on a journal article submitted in 2004. This suggests that your manager’s comments were not out of line with those expressed by the reviews conducted by reputable external organization [sic].

In light of our discussions during the grievance hearing concerning NRC’s process for reviewing scientific articles, I would like to inform you that NRC is currently reviewing its scientific paper review process and as a result, a new policy will soon be presented to the Senior Executive Committee for approval.

In conclusion, taken [sic] the above into consideration I cannot grant the corrective action sought in the grievance. Therefore your grievance is denied.

…

3. Proposed expert reports on volume hologram, Z-scan, and EPH articles

290        As set out earlier, the grievor identified five proposed experts who provided reports to him, and the parties entered into evidence the Agreement on Experts, which stated as follows in part:

…

5. Each of these individuals were [sic] provided a copy of the Grievor’s following research articles to review (hereafter referred to as the “four (4) research articles”):

1. Z-Scan Approach for Measuring a Threshold of Two-photon Photopolymerization - reviewed by NRC Reviewer 1 [“Z-Scan-NRC Reviewer No. 1 article”];
2. Z-Scan Approach for Measuring a Threshold of Two-photon Photopolymerization reviewed by NRC Reviewer 2 [“Z-Scan-NRC Reviewer No. 2 article”];
3. Volume Hologram Recording in Diarylethene Doped Polymer [the Volume Hologram article];
4. Enhancement of Photochromic Hologram Thermal Stability [“the Enhancement article”].

6. More particularly, these five (5) individuals in paragraph (4) above were specifically tasked by the Grievor to assess, based on a spectrum of categories the Grievor designed, the legitimacy of various comments made by the internal NRC reviewers concerning the Grievor’s four (4) research articles in paragraph (5) above and of the Grievor’s rebuttals to the NRC reviewers’ comments; and

7. These (5) individuals did so provide such assessments in the form of twenty (20) Reports collectively (i.e. 5 individuals x 4 articles) and it is the foregoing Reports that the Grievor intended to tender at adjudication as ‘Expert Reports’.

THEREFORE THE PARTIES AGREE AS FOLLOWS:

8. That solely for the purposes of this hearing, these five (5) individuals in paragraph four (4) above are to be deemed as experts in the field of Optics. This recognition of their expertise is based solely on the decision to accept the content of their curriculum vitaes on their face and without further verification;

9. That the aforementioned twenty (20) Reports may be tendered into evidence on consent, with the following noted qualifications:

1. That it is recognized that the Grievor and Vladimir Solovjev have several joint publications that predate the issuance of Dr. Solovjev’s Reports in this matter;
2. That it is recognized that Eli Simova previously worked for Dr. Chander Grover at the National Research Council of Canada in which a well-documented personality dispute existed between them resulting in Dr. Simova having been deployed to another Institute (IMS) in October 2003; and
3. That these five (5) individuals were not asked by the Grievor, nor did they provide in any one of their cumulative twenty (20) Reports, an overall assessment as to the suitability of his research articles for publication.

…

291        None of Drs. Simova, Solovjev, Barachevsky, Keshtov, or Kuchmiy testified.

292        Each of the 20 reports was a template document created by the grievor and sent to each of the 5 proposed experts, via an electronic drop box, with instructions. Copies of the materials he provided to them were not included in the reports. The employer requested them, and I ordered the grievor to produce them. However, he stated that they could not be recovered.

293        According to the grievor, he provided the following material to each proposed expert, in addition to the electronic template that formed the basis of the reports:

• the version or versions of his scientific article that were given to the NRC reviewer;
• all other versions of the same scientific article he published after the review by the NRC reviewer or reviewers;
• all articles referred to either by the NRC reviewer or reviewers or the author;
• the NRC reviewer’s comments on the article; and
• his response to the NRC reviewer’s comments.

294        Included in the proposed experts’ reports with respect to their assessment of the Z-scan article and review and set out in the same place in each report provided to them via a drop box was the following published article: “Y. Boiko, Z-scan approach for measuring the threshold of two-photon photopolymerization,- J. Nonlinear Optical Physics & Materials, Vol.14, No 1 (2005), pp. 79-84”, which is Z-scan No. 6.

295        The 20 reports from each of the 5 proposed experts are not independently written reports that they authored. In essence, they are made up of four separate template documents all prepared by the grievor. A slightly different template was used for the comments on each of the following articles: the Z-Scan-NRC Reviewer No. 1 article; the Z-Scan-NRC Reviewer No. 2 article; the Volume Hologram article; and the Enhanced Stability (EPH) article. Each proposed expert filled in all four templates.

296        On the first page of each of the 20 reports is the description of the material. In addition to what the grievor sent each of the five proposed experts was the following:

EXPERT REPORT

1. Description of the material

Presented herewith is the peer review evaluation of the article submitted to National Research Council (NRC) of Canada by the principal author, at a time the Research Officer of NRC, seeking authorization to pursue publication in professional editions, such as peer reviewed conference proceedings and/or academic refereed journals. The author supplied the National Research Council with his comments to the points of the evaluation. The expert is asked to evaluate the merits of both, the evaluative comments of the peer (herewith “the Reviewer” and the responsive comments of the principal author (herewith “the Author”).

…

Based on the supplied material and other relevant information sources deemed necessary, analyze and evaluate the below statements of the Reviewer and comments to those by the Author within the context of the peer review evaluation of the article material (i.e. aiming to establish the correctness as well as reasonableness of evaluation by the Reviewer of the novelty, originality, significance and contribution of the material presented in the article). In the below preformatted tables select your evaluation of the merits of the statements made by the Reviewer as well as those made by the Author by typing “X” inside the chosen option cell. Adopt the following scale for the marking:

The mark	The meaning of the mark
False	- statement which is untrue, contrary to the facts or evidences;
No merit	- statement which is not supported with the evidence or facts;
Disputable	- statement which is open to debate;
Strong merit	- statement which has solid foundation and/or ground for support;
True	- statement which is opposing the one qualified as false;

(Note: “False” and “True” marks would go in pairs in case if one’s party “False” statement is opposed by the other party with statement to the contrary and whose statement should be marked with the opposite to “False” mark, which is “True”).

After placing your mark, in the space provided do explain your choice and position on the issue. Answer specific questions, if there are supplied herewith for the points below, via making the appropriate choice by typing “X” in the relevant choice-cell of questionnaire and explain your position, if needed. Summarize the marks and draw conclusive judgment with regard to the value of the presented peer review.

…

[Emphasis in the original]

[Sic throughout]

297        Each template set out what the NRC reviewer stated in their review of the grievor’s article. However, the comments were not always in the context in which they were written but were set out in the manner in which the grievor set them out and created his responses to them.

298        At the end of each report is a section entitled “Summary of the Report”. In it, the total number of “False”, “No merit”, “Disputable”, “Strong merit”, and “True” votes attributed to each NRC reviewer and the grievor (identified in the reports as “Author”) was tabulated. A box followed the tabulation to permit the proposed experts to summarize their findings about the review. Following that section is one entitled “Conclusions”, which consists of very brief statements. That is followed by a section entitled “An acknowledgement of the expert’s duty”, which states as follows:

I, the undersigned for this Report, acknowledge the duty to provide evidence that is fair, objective and non-partisan; to provide opinion evidence that is related only to matters that are within my area of expertise; to provide such additional assistance as the tribunal may reasonably require.

I also acknowledge that these duties prevail of [sic] any obligation which may be owed to the party who retained the expert.

…

299        As part of the process, three of the five proposed experts provided a copy of their CVs.

300        Dr. Simova’s CV disclosed that she was employed by the NRC as a research officer from April of 1997 until 2000 and as an AcRO from January 2002 until December of 2007. As part of her work experience, she stated that she reviewed scientific journals. Her CV set out her educational background, her employment and work experience, her area of work expertise and publications in refereed journals, at technical conferences, and in conference presentations and posters.

301        A CV was not attached to the five reports from Dr. Keshtov. Instead, attached was a document entitled “Credentials of the expert”. It was not made known to me if Dr. Keshtov or the grievor had drafted it. It sets out in template form his name, the highest degree he obtained (a PhD in chemical sciences in 2002), his current position (as a senior scientist at the A.N. Nesmeyanov Institute of Organoelement Compounds of the Russian Academy of Sciences, Moscow, Russia), and his home address. Dr. Keshtov’s work experience was not set out. However, the document sets out that he contributed to 41 articles between 2006 and 2013 and that his experience is in the fields of polymer materials synthesis and characterization, polymer material science, polymer physics and chemistry, and optical polymers.

302        I was not provided any information as to what the A.N. Nesmeyanov Institute was, is, or does.

303        A CV was not attached with the five reports from Dr. Solovjev. Like Dr. Keshtov, a document was attached and identified as the credentials of the expert. It was set out in the same template form as Dr. Keshtov’s. It listed his name, the highest degree he has obtained (a PhD in physical-mathematical sciences in 1992), and his home address. It stated that his current position was as a senior scientist in the Department of Physics at Moscow State University. It did not list any other education, his employment history, his work experience, or any publications. It was not made known to me whether Dr. Solovjev provided the document to the grievor or if the grievor produced it. It did state that Dr. Solovjev has 20 years’ experience in the fields of laser optics and optical polymers, photopolymerization, research in the field of laser diffraction optical elements with liquid photopolymerizable compositions, optics, and diffractive optics.

304        Dr. Barachevsky’s CV sets out that he has a PhD in physical-mathematical sciences and that at the time the CV was prepared, he was the head of the laboratory of the Photochemistry Centre of the Russian Academy of Sciences. He has 885 publications, including 11 books on photochromism and photographic and holographic recording media, 365 scientific papers, 385 conference abstracts, and 102 patents.

305        Dr. Kuchmiy’s CV sets out that he has a PhD in chemistry that he obtained in 1971 from the L.V. Pisarzhevskii Institute of Physical Chemistry of the National Academy of Sciences of Ukraine. The CV sets out that at the time it was written, he was a professor of chemistry and a department head of the Department of Photochemistry at that same institute. It also sets out selected publications of his.

306        As Dr. Simova lived in Ottawa and worked there for the NRC, I have assumed that she likely could read, write, and speak either English or French. With respect to Drs. Keshtov, Solovjev, Barachevsky, and Kuchmiy, all appeared to work and live in either Russia or Ukraine. I was provided with no evidence of their ability to read, write, or speak in English or that any of the communications that they had with the grievor were in English.

307        While in one document that is with the Board’s registry, the grievor did intimate that the proposed experts from Russia and Ukraine had rudimentary English skills, their levels of proficiency were unclear. Discussions about their anticipated testimonies also involved the provision of translation services.

308        The overall assessment ranking in the proposed expert’s reports is heavily in favour of the grievor, as follows:

• Z-scan article and Z-scan Review No. 1

There were 10 comments; therefore, a total of 50 ratings were made for each of the grievor and the NRC reviewer.

                                                                 

The five proposed experts evaluated the NRC reviewer as follows:
False statements:	20
No merit statements:	20
Disputable statements:	10
Strong merit statements:	0
True statements:	0

                                                                               

The five proposed experts evaluated the grievor as follows:
False statements:	0
No merit statements:	0
Disputable statements:	0
Strong merit statements:	30
True statements:	20

• Z-scan article and Z-scan Review No. 2

There were 15 comments; therefore, a total of 75 ratings were made for each of the grievor and the NRC reviewer.

                                                                                 

The five proposed experts evaluated the NRC reviewer as follows:
False statements:	6
No merit statements:	22
Disputable statements:	47
Strong merit statements:	0
True statements:	0

                                                                                  

The five proposed experts evaluated the grievor as follows:
False statements:	0
No merit statements:	0
Disputable statements:	10
Strong merit statements:	59
True statements:	6

• Volume Hologram article and review

There were 27 comments; therefore, a total of 135 rating points were made for each of the grievor and the NRC reviewer.

                                                                                

The five proposed experts evaluated the NRC reviewer as follows:
False statements:	18
No merit statements:	66
Disputable statements:	51
Strong merit statements:	0
True statements:	0

                                                                                

The five proposed experts evaluated the grievor as follows:
False statements:	0
No merit statements:	0
Disputable statements:	0
Strong merit statements:	117
True statements:	18

• Enhanced Stability article and review

There were 5 comments; therefore, a total of 25 rating points were made for each of the grievor and the NRC reviewer.

                                                                               

The five proposed experts evaluated the NRC reviewer as follows:
False statements:	1
No merit statements:	19
Disputable statements:	5
Strong merit statements:	0
True statements:	0

                                                                                  

The five proposed experts evaluated the grievor as follows:
False statements:	0
No merit statements:	0
Disputable statements:	5
Strong merit statements:	14
True statements:	1

309         On May 8, 2014, the grievor emailed the Board’s registry and counsel for the employer with respect to some of the content in his proposed expert reports, stating the following:

…

In my responses to the Dr. Grover and his reviewer-subordinate I would object only to openly false statements, or those which are not supported with the facts. Otherwise I did agree with the reviewer and only go to disputing mode for issues I see as disputable… .

…

[Sic throughout]

310        At no point did the grievor put to Dr. Hackett any of the comments of any of the proposed experts in their 20 reports.

4. Specialty Polymers Report

311        According to the Grover Response, the grievor also requested that the Specialty Polymers Report be published internally at the NRC.

312        The September 26 memo also referred to an internal report. It stated as follows:

…

You have asked that this report be filed as internal publication.

I informed you that we have no provision or mechanism for publishing this report internally. The only reports that we file for internal use are typically technical reports of protocols, procedures and codes.

I informed you that your document consists of duplicate material from other reports that you have created.

I further indicated that no credit could be given for this report as a publication.

…

313        Dr. Hackett testified that there was no mechanism for internal publication at the NRC.

5. Patent applications

314        Intellectual property is protected by obtaining a patent from the Canadian Intellectual Property (or patent) office.

315        On page 13 of the Grover Response, the NRC process for dealing with research, inventions, and patents is set out summarily as follows:

…

I discussed the Form 1’s (Invention Disclosure) documents with Dr. Boiko in great detail. I described to him the practice that we follow in the Optics and Photonic Systems Groups. Specifically I told him that the Form 1 must be accompanied by a full-length description of the technology, including design and engineering details. The description should include experimental results as proof of concept. Also, the description should lay down all claims in consideration of the existing technology. Finally, the description should include a thoroughly researched bibliography. I showed him a copy of one such attachment to Form 1 concerning an Invention Disclosure. I advised Dr. Boiko that several of his colleagues in the Optics and Photonic Systems Groups had developed such documents and encouraged him to consult with them. I also advised him to see Sherry Sharpe in the INMS Business Office… .

In addition, Dr. Boiko was informed that given high [sic] cost of filing a patent and the large number of patent requests, we pursue the following practice with four potential scenarios:

1. If a company is willing to license the technology, we may discuss a licensing agreement using non disclosure agreements. A provisional patent application can also be considered. All patent cost [sic] can be downloaded to the company as part of the licensing agreement with the company.
2. If we are confident about the value of the technology, we can file a provisional patent and decide on the company for licensing it. It is required that we identify a short list of about five potential companies identified for this purpose.
3. We can apply for a full patent application and pay for it provided we are certain that a large size market exists and the funds are available.
4. If the technology is not fully developed we can enter into a collaborative agreement with a company for the completion of the technology. We have the possibility of negotiating the terms of a collaboration-cum licensing agreement with the collaborating company.

…

316        As part of the Grover Response, Dr. Grover attached Two Form 1s, which have his handwriting on them, both of which state: “Received from Yuri on 10 March 2003.” One of the Form 1s identifies the invention as “3D optical circuits and photonic crystal structures recorded with computer generated hologram”, while the other identifies the invention as “Optically tunable fiber optics filter”.

317        The September 26 memo also referred to invention reports, stating as follows:

…

I indicated that the two invention reports that you have submitted to me are incomplete. I also indicated to you that I had previously discussed the Form 1’s documents with you in great details [sic]. I reiterated that as per the practice that we follow in the Optics and Photonic Systems Groups, the Form 1 must be accompanied by a full-length description of the technology, including design and engineering details. The description should include experimental results as proof of concept. Also, the description should lay down all claims in consideration of the existing technology. Finally, the description should include a thoroughly researched bibliography.

In addition, I informed you again that given the high cost of filing a patent and the large number of patent requests, we pursue the following practice with four potential scenarios:

1. If a company is willing to license the technology, we may discuss a licensing agreement using non-disclosure agreements. A provisional patent application can also be considered. All patent cost [sic] can be downloaded to the company as part of the licensing agreement with the company.
2. If we are confident about the value of the technology, we can file a provisional patent and decide on the company for licensing it. It is required that we identify a short list of about five potential companies identified for this purpose.
3. We can apply for a full patent application and pay for it provided we are certain that a large size market exists and the funds are available.
4. If the technology is not fully developed we can enter into a collaborative agreement with a company for the completion of the technology. We have the possibility of negotiating the terms of a collaboration-cum licensing agreement with the collaborating company.

…

318        There is no evidence that during the course of his employment, the grievor submitted any applications for any patents.

319        On December 19, 2003, the grievor forwarded to Dr. Grover via email a Form 1, which identifies the invention as “Photochromic materials with enhanced thermal stability of holographic recording”. The Form 1 was not fully completed. The email merely had it attached. There was no request, comment, or statement in the email. The grievor testified that it was a draft that he forwarded to Dr. Grover as per the NRC guidelines and that it shows that he attempted to obtain a patent with respect to this work.

320        The grievor testified that he submitted a patent application in June of 2008 with respect to his Z-scan research. A copy of a “Canadian Patent Application” from the Canadian Intellectual Property Office dated June 12, 2008, was submitted into evidence, which, save and except the cover page and a page indicating the application number, appears to be with respect to his Z-scan research.

321        There was no evidence that any patents were issued for the work that the grievor carried out while he was employed at the NRC; nor was there any evidence that any patents were issued for it after he had been terminated from his employment.

6. The post-termination publication of research papers

322        As set out earlier in this decision, after the grievor’s employment was terminated, he submitted several versions of the Volume Hologram, Z-scan, and EPH articles to different journals. He then published some of those versions under his own name.

323        Dr. Hackett stated that he made a detailed analysis of the grievor’s papers, which, in his opinion, were not ready for publication. He further said that he conducted an in-depth scientific review of all the grievor’s papers, including those that were prepared while he was in the NRC’s employ as well as before and after that.

324        Dr. Hackett stated emphatically that the grievor was a serial self-plagiarizer. Dr. Hackett stated that when someone takes data and publishes it more than once, it is a duplicate publication or self-plagiarism. The three papers that the grievor worked on while at the NRC were published multiple times in different journals.

325        The grievor stated that he sent his Z-scan article (what became Z-scan No. 6) to a publisher for the same reason he sent the Volume Hologram article to the OSA — to have it reviewed.

326        Z-scan No. 6 was published by the Journal of Nonlinear Optical Physics & Materials in 2005, and named the grievor, of the INMS at the NRC, as the sole author. Z-scan No. 7 was published by Allerton in Information Optics in 2008. It named only the grievor as the author, and it identified his organization as “YBBR Inc.”

327        The grievor testified that he did not know that Z-scan No. 6 was published when he sent Z-scan No. 7 to Allerton for review and that Z-scan No. 6 was published without his knowledge. He said that when he sent Z-scan No. 6 out for review, he was still employed with the NRC (the date on the published version shows it was received for review on June 20, 2004), and that he did not send it out with the intention of getting it published but only for an independent review.

328        In his evidence-in-chief, the grievor stated that he did not receive notification that the Z-scan article had been published by World Scientific. After his employment had been terminated, he felt that the material was worthy of publication, so he submitted it to Allerton.

329        The grievor testified that the duplicate publication was brought to his attention by Dr. Hackett during the course of his evidence at this hearing. He stated that Allerton contacted him to sign a copyright agreement, which he could not sign without World Scientific agreeing, as it held the copyright. So Allerton removed the publication from its Internet sites.

330        The employer requested copies of all the grievor’s correspondence with Allerton and World Scientific with respect to Z-scan Nos. 6 and 7 that were published. I ordered it produced. To comply, the grievor produced three documents, parts of which were not in English but Cyrillic (assumed to be Russian, as the documents were sent to and received from Allerton’s Moscow office). A copy of an email chain between the grievor and Andrey Leonovich Mikaelian, dated February 19 and March 28, 2008, was introduced in the grievor’s cross-examination. It is in Russian. The third document appears to be a side-by-side translation of the email chain by the grievor.

331        The first email in the chain is from Mr. Mikaelian to the grievor. According to the translation, it states that the Volume Hologram article was accepted and was planned for publication in the first issue of 2008. It states that forms were being sent to be filled in electronically and returned. It further states that the Z-scan and EPH articles were approved by the editor in chief and “referee review” were attached.

332        The second email in the chain is the grievor’s reply to Mr. Mikaelian. According to the translation, it states that the grievor has attached a corrected version of the Z-scan article in which certain referee recommendations have been made and then states that more time is needed to make corrections to the EPH article. He also refers to returning the copyright form for the Z-scan article to Mr. Mikaelian.

333        None of the documents attached and referred to in the emails was presented into evidence.

334        It would appear from the evidence that the grievor submitted Z-scan No. 7 to the Moscow office of Allerton for review and publication. I was not provided any evidence as to the language the article was submitted in.

335        On July 10, 2014, Allerton’s Information Optics retracted its publication of Z-scan No. 7. The retraction note as published stated as follows:

…

Retraction Note to: “Z-Scan Approach for Measuring a Threshold of Two-Photon Photopolymerization” …

…

The article published in volume 17, no. 2, pp. 126-130, DOI: 10.3103/S1060992X08020057 has been retracted by the Publisher. After careful investigation it was found that it has considerable over with an earlier article by the same author “Z-Scan Approach for Measuring a Threshold of Two-Photon Photopolymerization”, published in Journal of Nonlinear Optical Physics and Materials, 2005, vol. 14, no. 1, pp. 79-84, DOI: 10.1142/S0218863505002505.

336        The grievor was vigorously cross-examined on the issue of the duplicate publication of his work. With respect to the Z-Scan article, he stated the following about World Scientific:

• it did not seek his approval for publishing after he sent in his article for review;
• it did not contact him after he sent the paper in for review;
• it published without his approval; and,
• it published without him seeing and approving proofs of the paper.

337        The grievor stated that he was not sent any copyright agreement from World Scientific.

338        The grievor stated that he never followed up with World Scientific after he sent in his Z-Scan paper for its review. On cross-examination, he was asked whether he ever looked into the status of what would eventually be Z-scan No. 6, published by World Scientific, given that he had sent it there specifically for feedback and review. He answered, “Peter Hackett says it doesn’t matter.”

339        When counsel for the employer suggested that the grievor could have checked to see if the article had been published, he stated as follows: “I never looked because I don’t need to.” Counsel then confirmed that it was the grievor’s evidence that at no time between 2005 and 2008 did he ever look at online databases to see if the article was published, to which he stated as follows: “That is correct. Z-Scan was out of my interest by this time.” Yet in the next breath, when counsel suggested that he did have an interest in getting the Z-scan article published, he stated: “Yes, to prove to the court that it could be published.”

340        The employer brought the grievor back to his evidence-in-chief, when he said that he sent the Z-Scan article to Allerton for the same purpose as World Scientific, namely, only for feedback. He denied saying it.

341        Z-scan No. 8 was a shorter version of Z-scan Nos. 6 and 7 and was submitted to and published in the SPIE’s “Volume 7585”, in 2010 under the name: “Threshold measurement of two-photon laser induced photopolymerization via Z-scan.” The grievor admitted in cross-examination that it is a shorter version of Z-scan Nos. 6 and 7 setting out the same research in a different article format (one specified for conference proceedings).

342        The grievor confirmed in cross-examination that conference proceedings are meant to be works in progress, not completed work. However, he further confirmed that Z-scan No. 8 as published is just a shorter version of the completed Z-scan research project and that it was not a work in progress. In essence, the difference is that two paragraphs in the introduction were omitted, and the name of the article is different. The grievor stated it got past the copyright because it had been changed.

343        The grievor admitted in cross-examination that an article cannot be reproduced if it has been published. He agreed that when an article is submitted for publication, a copyright agreement is signed, and that article cannot be submitted anywhere else.

344        In cross-examination, the SPIE’s code of ethics was put to the grievor. He admitted that he was aware of it. Its third page states as follows:

…

Duplicate submission

SPIE does not allow or sanction duplicate or concurrent submissions of a paper to more than one peer-reviewed journal. SPIE’s journal guidelines state explicitly that “papers should describe the original work of the authors that has not been previously published in a refereed journal and is not currently under consideration for publication elsewhere.” Duplicate submission abuses the resources of all affected journals, including the valuable time of editors, reviewers, and staff, and is unprofessional and unacceptable.

Duplicate publication

Duplicate publication in more than one peer-reviewed journal, which may be verbatim publication or publication of essentially the same paper, is a serious breach of professional conduct with potentially severe ethical and legal consequences. Prior publication or preliminary publication in a conference proceedings or similar publication or research report is allowed by SPIE provided that information is disclosed to the journal editor and the submission complies with the guidelines established for that journal.

…

345        A blank copy of the SPIE agreement entitled “Transfer of Copyright to Society of Photo-Optical Instrumentation Engineers (SPIE)” was also put to the grievor in cross-examination. He stated that he was familiar with it and that he would have signed it when submitting Z-scan No. 8 for publication. It comprises one page and states the following:

…

The undersigned hereby assign(s) to Society of Photo-Optical Instrumentation Engineers (SPIE) copyright ownership in the above Paper, effective if and when the Paper is accepted for publication by SPIE and to the extent transferable under applicable national law. This assignment gives SPIE the right to register copyright to the Paper in its name as claimant and to publish the Paper in any print or electronic medium.

…

By signing this Agreement, the authors warrant that (1) the Paper is original and has not previously been published elsewhere; (2) this work does not infringe on any copyright or other rights in any other work; (3) all necessary reproduction permissions, licenses [sic], and clearances have been obtained; and (4) the authors own the copyright in the Paper, are authorized to transfer it, and have full power to enter into this Agreement with SPIE.

…

[Emphasis in the original]

346        The grievor admitted that when he submitted Z-scan No. 8 to the SPIE for publication, he had already signed a copyright agreement with Allerton. He knew that he was required to obtain its permission to publish with the SPIE, which he admitted that he had not done.

347        The grievor admitted that journals hold a dim view with respect to republishing articles.

348        The grievor was shown a copy of the Allerton copyright documents and admitted that he was aware of them and that nothing in them permits someone to publish an article in multiple journals in the same form.

349        The grievor maintained that publishing Z-scan Nos. 7 and 8 did not give rise to self-plagiarism, despite that he admitted that he should have obtained permission before publishing No. 8 in the face of a signed copyright agreement with Allerton.

350        The grievor admitted that in 2008, when Allerton published VH No. 5, he signed a copyright agreement with it. In 2009, he also published VH No. 6, with the SPIE. He admitted that he would have signed a copyright agreement with the SPIE for VH No. 6, which stated to the SPIE that it was original and that it made no reference to the earlier published work (VH No. 5).

351        The grievor stated that he had to publish the Volume Hologram articles multiple times for the Court.

352        The SPIE published EPH No. 2 in 2009. The grievor admitted to signing a copyright agreement with the SPIE at that time. EPH No. 3 was also published in 2009, but by the OSA. He admitted to signing a copyright agreement with it at that time. He said he did it to prove to the courts that his articles were worthy of publication. He stated that that was the sole reason for his multiple publication, despite that he knew that doing so was considered unethical.

353        The grievor was shown an article titled “High dynamic range cationic two-photon photopolymerization”(“the Cat 1 article”), which was published in 2001 in the SPIE’s “Volume 4279”. He was named as the first author. He was also shown an article titled “Cationic two-photon induced polymerization with high dynamic range” (“the Cat 2 article”), which was also published in 2001 by the OSA. The Cat 2 article also names the grievor as the first author. The other three named authors of both articles are the same.

354        Those articles appear to be about the same research, and much of the Cat 2 article appears to be a verbatim reproduction of the Cat 1 article.

355        In cross-examination, when the Cat 1 and Cat 2 articles were put to the grievor and it was suggested to him that he had signed a copyright agreement with the SPIE (for Cat 1) and that he did not have permission to reproduce it in the OSA (as the Cat 2 article), he responded that his “co-authors could have”. He agreed that he was the lead author. When it was put to him that he decided to submit the Cat 2 article to the OSA, he admitted that he probably did not obtain the permission from the SPIE, but he did not remember. When counsel for the employer pressed him on it, he stated that “… if the article has the same data but you change the title, you are okay to submit to a different journal to publish.”

356        While the grievor stated that on multiple occasions he had to publish his articles because of court proceedings, I was provided with no evidence of what those court proceedings were or of how the articles had any relevance to any court proceedings.

B. The grievor’s laboratory

357        In the release recommendation, under the heading “Progress to Date” and the subheading “Contribution to science and technology in the field of optics”, is a reference that the grievor was “unfamiliar with basic laboratory operations” and that he had “… shown significant shortcomings in his ability to maintain laboratory equipment.”

358        In the September 2003 PPR, Dr. Grover stated the following:

…

Yuri continues to show severe deficiencies in technical skills. These include, but are not limited to, the maintenance of the Ar-Ion laser and the operation of the Zeiss microscope and of the CCD camera… Personal effects such as suitcases, food products, coolers, toaster ovens and other items were found in his laboratory. His laboratory was littered with computer parts from dismantled machines. Yuri claims that some of these computer parts were his personal property.

Yuri also shows a lack of understanding of the role of the Group Leader. Last spring, he transferred a Kr laser into the group without consultation with or the authorization of the Group Leader. The laser was discarded by another group and required major repairs. To date, he has not informed the Group Leader about this transfer… .

…

359        While Mr. Vandenhoff originally attended the hearing and gave evidence pursuant to a summons that the grievor obtained, the grievor did not ask him any questions about his laboratory. During the course of the grievor’s evidence, it became evident that Mr. Vandenhoff had evidence with respect to the laboratory issues identified as part of the termination on probation, so the employer called him in reply after the grievor had finished his case.

360        In the spring and summer of 2003, a process within the Optics group was initiated involving the group’s information technology (IT) needs. Mr. Vandenhoff wrote a summary of what occurred and emailed it to Dr. Grover on July 25, 2003 (“the IT memo”). That email and Mr. Vandenhoff’s reply evidence describe computer issues involving the grievor.

361        Mr. Vandenhoff identified his summary and email. The summary indicated that on May 29, 2003, all members of the Optics group were to identify their computer needs to Dr. Chang who would assess the needs, recommend purchases of new computer equipment, determine a reassignment of the existing inventory, and declare some computer equipment surplus.

362        The IT memo further identifies that on June 27, 2003, all Optics group members would be approached by Dr. Chang to identify and retrieve obsolete and non-functional computers. At this time, the summary identified that the email advised all personnel that one computer per person was the norm.

363        The IT memo disclosed the following, which Mr. Vandenhoff testified to:

• on July 18, 2003, the grievor was advised that he would receive a new computer to replace his office computer and that a single computer would be assigned to him for his lab;
• the grievor was asked to define requirements for his laboratory computer and was told to provide all his other computers to Dr. Chang for inventory;
• the grievor had an array of computers and computer parts, in different conditions and in pieces;
• some of his equipment was returned, but some was not; and
• he required Dr. Chang to sign a receipt for the equipment he returned to him, which is in the back of Lab book 2.

364        Mr. Vandenhoff was brought to the third page of the September 2003 PPR. At the fourth full paragraph, it states as follows: “He has ignored and even defied instructions given to him to return borrowed computers in his possession, thus antagonizing the staff charged with the responsibility of preparing a computer inventory”. He was asked about this comment. He stated that the grievor’s actions made it difficult for him and Dr. Chang to address the IT issues, move forward with the inventory, and arrange the purchase of new equipment. He characterized the grievor’s actions as putting up a roadblock to obtaining newer and better computers. He stated while other members of the Optics group were happy and enthusiastic about getting computer upgrades, the grievor was uncooperative. He stated that the grievor was not willing to give up his equipment. He stated that during this process, he visited the grievor’s lab on one occasion, and a computer was there. But when he came back on another day, it had disappeared.

365        The IT memo contained the following statement:

Some time ago, Yuri Boiko borrowed several computers and monitors from Photonics Systems Group of M-50. He swapped parts for computer to computer to make a few systems work and collected many computers for spare parts. As a result, most of the computers appeared to be in a state of repair with parts missing. Yuri’s lab and office of became cluttered with near-obsolete computers. A particular computer could do what another could not, but perhaps could not do what another computer was capable of, and so on. Yuri also began fixing computers and giving parts to be used in other computers within the group.

…

However, instead of returning the computers from the lab, Yuri provided explanations, time after time of how the computers were being used. Surrendering computers, even broken ones, was done with reluctance, and with demands of proof of receipts signed by Shoude. In the frequent visits to the lab over several weeks to record inventory numbers and count equipment, nothing was being done in the lab. Yuri was told to return the lab computers and work with Shoude on the requirements for a single computer to be used for all laboratory needs. He was also reminded several times to complete this task.

It now seems that the computers are gone from the lab, but have not been returned to Shoude. Yuri appears to like to have many computers around him. He also appears to enjoy tinkering with them. He is reluctant to surrender computers even when instructed… There is a problem of computer clutter in the lab. Efforts to try and clean this up and offer him solutions with greater computing power strangely seem to be met with resistance. He is not conforming to the requests clearly and directly made of him by his supervisor.

366        Mr. Vandenhoff stated that even when the array of computers, pieces, and parts were removed from the grievor’s lab, he described the lab as less cluttered but not neat and tidy.

367        In his evidence, the grievor stated that computer parts, including some that had been dismantled, were in his lab. He stated that he had no shelves in his lab, so the parts were “here and there on desks and in different places”.

C. The grievor’s lab books

368        On July 28, 2003, at 1:20 p.m., Dr. Grover emailed the grievor, asking him for access to his lab books for an hour so that Dr. Grover could review them. He wrote that if the grievor could not do it on that day, he should let him know when they could be provided. That same day, the grievor provided Dr. Grover with photocopies of portions of his lab books (from March 7, 2003, forward) by leaving them on the corner of Mr. Vandenhoff’s desk. At 4:47 p.m., Dr. Grover thanked the grievor for providing them. However, he reiterated his request to see the actual lab books for an hour on the following day at 9:00 a.m. At 4:57 p.m., the grievor objected to Dr. Grover seeing his original lab books and suggested to him that they be verified by a representative of Dr. Grover in the grievor’s presence.

369        On July 29, 2003, at 9:43 a.m., Dr. Grover emailed the grievor, stating that he wanted to see the original lab book containing the grievor’s research work and that as his supervisor, he was entitled to have access to them without any representative. He reiterated his request to view the originals for an hour.

370        The grievor refused and advised that he had sought the guidance of Dr. Lusztyk. When Dr. Grover advised the grievor that Dr. Lusztyk was away from the office, the grievor responded that only Dr. Lusztyk could deal with the issue. A series of email chains was entered into evidence including emails between the grievor, Dr. Grover, Dr. Lusztyk, and others on this issue.

371        At some point, the grievor, at his own behest, turned over Lab books 1 and 2 to the DG’s office. From the evidence, it would appear that it happened sometime after Dr. Grover’s July 29, 2003, request and an email exchange he had with the grievor on September 25, 2003. Despite being asked later on by the DG’s office to retrieve his books, it appears that he never did.

372        On page two of the release recommendation, under the heading “Progress to Date” and the subheading “Contributions to science and technology in the field of optics”, is a reference that the grievor took credit for work not done. He cross-examined Ms. Jacobs on this point. She stated that her understanding of this was related to the lab books. She stated that Dr. Grover was frustrated by the grievor’s lab books as the information in them did not substantiate the work that he allegedly claimed was done during his PPR process.

D. Lasers

373        The evidence disclosed that the research officers in the Optics and Photonics groups used lasers in their work. I was not provided much detail about the number or types of lasers or of what they were capable. From the evidence before me, it is clear that the grievor had at least one laser in his laboratory and that he used at least one other laser, which was in Dr. Costel Flueraru’s laboratory.

1. Ar ion laser

374        The grievor confirmed in his evidence that a laser identified as the “Ar ion laser” had been in his lab. On June 27, 2003, he received an email from Dr. Grover about it, which stated as follows:

…

I thought I should write to advise you of an issue of concern regarding upkeep of the equipment in your lab (B-119). You took over the lab from Costel in November 2001.

The Ar ion laser is part of your lab. It is your responsibility to properly maintain it. I wish to remind you that it is important that the Ar ion laser should be turned on periodically, even if you are not using it for your experiments. This is required for the efficient work of the laser and to ensure that the tube does not go over pressure.

Based upon the record that you have submitted, I notice that the laser has not been turned on periodically.

When I was in your lab the other day, I found that cooling water for the laser was dripping and instead of getting it fixed, a big funnel was placed under the drip to collect the water into a beaker. I immediately suspected that the line was blocked because the filter had not been changed. I asked Costel to look into this problem and to immediately change the filter; he has since told me that the problem has been fixed. It is still likely that there has been deposition in the cooling line.

The Ar ion laser is an expensive piece of equipment and, as I mentioned the other day, we lost a tube previously under similar circumstances.

The laser should be run periodically, and the filters should be changes [sic] periodically as well. If you are unable to perform this duty, please inform me.

…

375        The grievor responded on June 30, 2003, denying that he had not been running the laser periodically. In his testimony, he admitted to putting the funnel to catch the water leakage in 2001 but stated that the laser was maintained.

2. The Krypton laser

376        On May 21, 2013, at the end of the hearing day, the grievor produced a 12-page document entitled “Transcript of the group meeting dated 16 September 2003” (“the September 16 transcript”). He wanted it admitted into evidence. According to him, it is a transcript of a tape recording of a meeting held on September 16, 2003 (“the September 16 meeting”), involving a number of members of both the Optics and Photonics groups. The grievor made the recording surreptitiously with a device hidden within his clothing. He confirmed that he had transcribed the recording.

377        The employer was unaware of the September 16 transcript and the underlying recording. It stated that neither had ever been mentioned to it, let alone produced. It initially objected to its introduction, although a copy was left with it.

378        On August 29, 2014, during the grievor’s evidence, the employer withdrew its objection and consented to entering into evidence the September 16 transcript. The recording was never put into evidence.

379        The September 16 meeting appeared to have been convened due to an accident that occurred with respect to a Krypton laser that was kept in one of the laboratories. According to the grievor’s testimony and the September 16 transcript, two scientists (one of whom was Dr. Liu) went to use the laser. There was an issue with the electrical connection, which caused serious damage to the laser. The two scientists narrowly escaped being injured.

380        The September 16 transcript discloses that a plug or connection had been opened and appeared to have been tampered with. During the course of the discussions between the scientists who had tried to use the laser and Dr. Grover, the grievor also becomes involved. However, it appears that he also had a separate conversation with Dr. Flueraru. The general discussion around the room and the grievor’s separate private discussion appear to meld into one discussion. They are set out in the September 16 transcript as follows:

…

[YB = the grievor]

[CPG = Dr. Grover]

[CF = Dr. Flueraru]

YB      (to CF in low voice) They plugged it in, they turned it on and something happened? I think we did the same and nothing happened, right?

…

YB      (to CF in low voice) I think we did not manage to do it, because the key was broken, that is what I think.

…

YB      (to CF in low voice) The key was broken – we did not turn it on

…

YB      (to CF in low voice) We wanted, have taken a look – and the key was broken.

…

YB      Myself, I remember, long-long time ago, its in 2002,

…

I think it’s like beginning of 2002. It was like kind of inventory of the lasers, and we were looking at all the lasers. And I asked Costel if he can show me this laser, and we, we approached this laser.

CPG   With who?

YB      Me and Costel, and

CF      I don’t remember. I don’t remember.

YB      Yes, but I remember. Because I asked Costel “How about”

CPG   Come on, Yuri, talk to everybody.

YB      I am talking to everybody.

CPG   OK, look at everybody.

YB      So, I asked Costel to show me how does it work, the laser, if he knows anything, and we approached the laser.

CPG   When was that, 2002 you said??

YB      It was long, long, time ago.

CPG   When was “long time ago”?

YB      Long time ago – like, may be, could be March 2002.

So, and I remember, there was something wrong with the key and the panel. And we concluded immediately, that the laser is not operational. After that I called to Coherent to find out how to fix it. And they told me that only visit of technician would cost about thousand of dollars.

CPG   What, what?

YB      Thousand of dollars visit of technician from Coherent, so,

CPG   Are you sure this was the laser?

YB      Yes, I am sure, because there was only one.

CF      The laser was under the table and connected to the water.

CPG   Kripton laser.

YB      Kripton laser, in 2002.

CPG   Nothing was wrong with the key of that laser.

YB      No, as I remember, there was key broken.

CPG   Why would it cost thousand of dollars?

YB      No, no, visit of technician would cost anyway, even if the laser was operational, it would cost anyway, so afterthat I dropped the case.

CPG   Did you talk to me? Did you try to talk to me [how to fix?]?

YB      Yes, I did. I approached you asking who is, how to, in case if laser is not operational, who can help, and you advised me to go to Shoud [Chang] because Shoud -- there was some fellow in Toronto, who was in like business about lasers. And I was trying to identify the fellow, but

CPG   Why …

YB      Because,

CPG   Did you approach Shoud?

YB      Right, I approached Shoud and ask if he knows and he told me that there was another guy, before, who was in charge of this laser, but he left the group. And we called this guy – if he knows anything, but he did not.

CPG   [asking Shoud] Do you recall such conversation?

SC      [negative].

YB      Right, but this was only kind of theoretical kind of conversation, we did not

CPG   You needed?

YB      We did not really start the laser, and the way it looked, it was kind of, there was indication that something wrong with the key, to my understanding. So we did not really turned it on, because if something wrong with the panel, we would not take any risk, I remember, but

CPG   (asking CF) The manual of laser was there?

CF      Yes, there was the key and I found some papers.

YB      Yeah, but this was enough for me not to turn it on. Because it was shaky, I withdrew immediately.

CPG   You dropped the case because of thousand of dollars?

YB      I have taken a look, the key was shaky, and I called Coherent immediately and ask them and they told me - thousand dollars.

CPG   What happened to laser? Did you open the plug?

YB      No, I did not.

CPG   Did you approach laser afterwards?

YB      No, I did not approach the laser at all.

CPG   So you have not done anything with Kripton laser?

YB      No, because I was totally convinced that the laser is totally broken and there is no way to fix it. So, I did not have any reasons to [proceed].

CPG   Why did you decide that the laser was broken?

YB      Because, the shaky key was - looked to me, as it’s not operational. So, because of this reason. Because I am not familiar with this model, so I did not take a risk to even attempt turning the key.

…

[Sic throughout]

[Emphasis in the original]

381        Dr. Liu testified about his recollection of what happened. He described setting up the laser and an incident occurring after which a technician was called from the manufacturer, Coherent. Dr. Liu stated that the technician told him that wires in the commercial optical plug had been switched. Dr. Liu stated that no one knew who had switched them.

E. Technology transfer and client interaction

1. Dr. Kukhtarev

382        The grievor introduced into evidence an email dated February 28, 2003, from Dr. Kukhtarev, with an undated letter attached to it. Dr. Kukhtarev was referred to earlier in this decision as an author of one or more of the Volume Hologram articles.

383        Dr. Kukhtarev did not testify; nor were any of his credentials brought into evidence. According to the grievor’s evidence, the undated letter attached to the February 28, 2003, email, and the Volume Hologram article with his name on it, Dr. Kukhtarev in or about 2003 was a research professor in the Department of Physics at Alabama A&M University.

384        The grievor stated that he forwarded the email and the letter to Dr. Grover. The letter states as follows:

To Whom It May Concern

With this letter I wish to express my strong support for the Project

Ultra-High Density Optical Storage Via Near field and Atomic Force Techniques

Project Managers: Dr. C.P. Grover

This project is devoted to development of the effective holographic media for optical storage. Optical storage is now on the new stage of a renewal interest in research and business communities.

Physics department of the Alabama A&M University is involved in optical information processing research through grants with NASA, NSF and other agencies. One of the ongoing projects with NASA is related to development of fast spatial-temporal optical modulator based on holographic diffraction optical elements. The main issue of the project is development and investigation suitable holographic recording materials. For this reason we consider that project related to the development of an effective holographic media is very important for our program.

Latest information on progress in the development of optical storage materials (LaserFocus World, February 2003 on the cover page about fast holographic storage data retrieval with a Gbits/sec rates. Engineers in Aprilis, Maryland MA achieved this impressive result). Their holographic optical disk is quickly searchable and has data density of greater than 100 Gbit/in2. Now we can say that holographic storage emerge like a real player on the information technology market.

On my opinion, project is related to important practical problems of modern information technology, and has efficient team of experts, needed for implementation of its goals.

I strongly recommend this project for support, and I am interesting in establishing cooperation with the Canadian Institute for National Measurement Standard, aiming at joint research efforts with NASA-related grants.

…

[Sic throughout]

385        The grievor testified that Dr. Grover did not consider this a collaborative effort; the grievor stated that it was his effort at collaboration with respect to holography elements. He stated that he considered it for a big-budget project but that it would have had to go through a committee. He could not recall its name.

386        There was no further documentation or evidence of what it was or of Dr. Kukhtarev’s participation or collaboration with the INMS or the grievor.

2. Local (Ottawa-based) high-tech company

387        The grievor introduced some email exchanges that he engaged in with a consultant working with an Ottawa-based high-tech company in February of 2003. The grievor stated that they emailed about research.

388        The consultant did not testify.

389        The September 2003 PPR contains a comment that refers to the grievor dealing with a consultant at that company and requesting that he keep the discussions secret from Dr. Grover. This is evidenced by an email chain between them on February 15 and 17, 2003. Specifically, the consultant confirmed that at the grievor’s request, he had not discussed or mentioned his research results to his supervisor, who was to meet with Dr. Grover.

390        In his evidence, the grievor stated that he had asked the consultant not to spread information prematurely; specifically, he called and asked him to keep their discussions confidential. He did not want the researcher to talk about the research results because, according to the grievor, he believed the consultant was exaggerating what the grievor was doing and the results he was obtaining.

3. Dr. Lemieux and Queen’s University

391        Dr. Lemieux’s group at Queen’s University was the source of the dye supplied to the grievor, which was used in the Volume Hologram research and the experiments building on that work that led to the EPH article.

392        Dr. Lemieux confirmed that in the past, he has collaborated with physicists in their experiments. He testified and described collaboration in the scientific research community. He stated that often, collaborative opportunities arise at meetings or conferences when scientists who have a common interest meet and talk. Collaborative efforts can be both formal (a written agreement) or informal. He stated that a formal written agreement is normally in place when a grant proposal is submitted for funding. If funding or grants are not an issue, the evidence of collaboration is often found in the eventual research paper publication.

393        Dr. Lemieux could not recall how his group and the grievor had met and how their relationship had begun. His recollection of their (that of him, Peng Zhang, and possibly Mr. Maly) contribution to the Volume Hologram research was that the grievor was interested in one of the compounds that they had created, which underwent a structural change when laser light was sent through it. The compound was not produced commercially.

394        Dr. Lemieux stated that supplying the compound was the extent of his group’s collaboration with the grievor. He stated that he did recall receiving a version of the Volume Hologram article, to which he recalled making some stylistic suggestions, but that the work was not something he had any expertise in.

395        The grievor put to Dr. Lemieux some of the comments referred to by the NRC VH Reviewer. His response was that he would have to review the manuscript; however, he believed that at the time, he thought that the grievor’s comments about the NRC VH Reviewer’s comments were appropriate.

396        In cross-examination, Dr. Lemieux confirmed that there are several levels of collaboration between scientists in their research. He identified the lower end of the spectrum of collaboration as a chemist going into a cabinet and supplying a flask of materials to others. On the other hand, he identified as high-end collaboration scientists working as a group on a research project. Dr. Lemieux confirmed that he had no discussions with the grievor with respect to the industrial property interests in his Volume Hologram research and no discussions about royalties, liabilities, or limiting warranties. He recalled no telephone calls from either Dr. Grover or Dr. Hackett about the research and his involvement.

397        Dr. Lemieux confirmed that his (and his organization’s) participation was to design and supply the dye and to provide advice with respect to it.

4. Dr. Taylor and the NSOM

398        The grievor introduced a chain of three emails dated October 24 and 27, 2003, and exchanged with another NRC scientist, Dr. Rod Taylor, with respect to acquiring a near-field scanning optical microscope (NSOM). The grievor’s initial email indicated that he had forwarded a research proposal to Dr. Hackett about the “nanoresponse of photochromic polymers”. The chain was as follows:

[October 24, 2003 at 11:59 a.m.; the grievor to Dr. Taylor:]

…

As a follow up to our previous discussion on nanoresponse of photochromic polymers I would appreciate your kindness in further consideration. Last week I reported about such possibility to Director General Dr. Hackett as well as transferred him a fully written Research Proposal on the subject. It is currently under consideration and I would highly appreciate you favourably consider possibility of the internal collaborative effort in this direction. The appropriate authorizations and paper work I believe can be obtained if pursuied. Basically without access to the NSOM such effort would be inefficient. I hope that combining our resources we could make an important contribution to a technological development in this area and thus to benefit NRC’s scientific positions. Prospects for industrial collaborations exist, in particular, with IBM on optical storage. In order to successfully pursue these opportunities, your kind support of the effort would be highly beneficial. Please possibly advise on whether we could proceed with the particular steps to this target.

…

[October 24, 2003 at 12:57 p.m.; Dr. Taylor to the grievor:]

…

In order to go forward with this project I would need resources. Let me know if Peter [Dr. Hackett] wants to proceed.

…

[October 27, 2003 at 10:55 a.m.; the grievor to Dr. Taylor:]

…

I need to explore with Dr. Hackett on how he may support the effort. In order to proceed with this I needed at the very least your indication on whether you may consider supporting the effort. Taking your message as a positive indication of that I shall pursue support from the management to set up the collaborative project as on the subject of nano-response of recording materials.

…

[Sic throughout]

399        This research proposal was not explained to me. “Nanoresponse of photochromic polymers” was not explained to me.

400        However, it appears that the research proposal required an NSOM.

401        Dr. Taylor did not testify.

402        While Dr. Hackett was asked some general questions about a major research proposal, its specifics were never discussed in the evidence. The email chain was never put to Dr. Hackett, and the grievor entered it into evidence when he testified, which was well over a year after Dr. Hackett had testified.

403        When cross-examining Dr. Hackett, the grievor put nothing about an NSOM to him.

404        In an email exchange on October 24 and 30, 2003, the grievor and Dr. Grover discussed using an NSOM in relation to the grievor’s research. In a response to the grievor’s request to acquire or potentially use another organization’s NSOM, Dr. Grover advised him that if one was required, he was prepared to authorize the expenditure to pay another organization for the use of its equipment. However, he also stated that he did not consider acquiring the use of that equipment research collaboration.

5. Outreach and influence (attending conferences)

405        The grievor testified that he attended a conference in Ottawa in 2002 but that he did not present any products of his work. The Grover Response indicated that he was approved to attend the Opto-Canada 2002 conference in Ottawa on May 9 and 10, 2002. The grievor also confirmed that he was offered the opportunity to go to a nanonics conference but that he did not go; he stated that he had nothing to present at it or any need to attend.

a. Photonics West 2004 and the Symposium on Electronic Imaging

406        The grievor’s evidence was that on August 8, 2003, he submitted two abstracts for consideration for the conference Photonics West 2004, which the SPIE hosts annually. The evidence disclosed that in fact two separate conferences were held in San Jose, California, during the same time frame, Photonics West 2004 (from January 24 to 29, 2004), and the Symposium on Electronic Imaging (January 18 to 22, 2004), which the SPIE also sponsored. According to the evidence, it was proposed that the grievor present the Volume Hologram research at the Symposium on Electronic Imaging, while the Z-scan research was to be a poster presentation at Photonics West 2004. Emails dated June 1, 2004, from the SPIE and submitted into evidence by the grievor confirm that both abstracts were received on August 8, 2003. In addition, the emails indicated that for Volume Hologram, the primary authors were listed as the grievor, Mr. Maly, and Peng Zhang, and that the secondary authors were Dr. Lemieux and Dr. Kukhtarev. With respect to the Z-scan work, the author listed was the grievor.

407        On September 4, 2003, at 5:48 p.m., the grievor received email confirmation from the SPIE that it had accepted his Volume Hologram abstract for the Symposium on Electronic Imaging. It advised him that the presentation of his paper would be on January 20, 2004. It set out suggestions and stipulations with respect to his participation in the conference, which included a requirement that he provide a copy of the manuscript before December 22, 2003, and a final 200-word summary before November 17, 2003. It also stipulated that he or a co-author would be required to present the paper at the conference; otherwise, the SPIE would not publish the manuscript.

408        On September 5, 2003, at 10:20 a.m., the grievor emailed his contact person at the SPIE with respect to the Symposium on Electronic Imaging and stated as follows:

…

Due to Intellectuall Property considerations with regard to my presentation 5290-28 Volume holographic imaging of diarylethene doped polymer I need to withdraw the article.

I shall be able to get back to you with it if this issues are resolved soon enough to reinstate the presentation.

[Sic throughout]

…

409        On September 26, 2003, the grievor emailed Dr. Grover (copying Dr. Hackett, Mr. Hazeldean, and Ms. Gingras) as follows:

…

This is to confirm my strong interest in presenting results of the two articles, submitted to your attention on the scientific conference Photonics West 2004:

Photonics West 2004

Featuring SPIE International Symposia:

• Biomedical Optics
• Integrated Optoelectronic Devices
• Lasers and Applications in Science and Engineering
• Micromachining and Microfabrication

24-29 January 2004

San Jose, California USA

The conference offers publication of the presentations in the form of conference Proceedings.

The two presentations suggested are based on two articles submitted to your office:

1. Z-scan approach for two-photon polymerization threshold measurement.
2. Volume hologram recording on dierythelene doped polymers.

Sofar I have not been granted any opportunity to report these results to scientific community. For the conference in Ottawa in 2002 (spring of 2002) thses results were not available, another conference you offered me to go to for a business trip related to Nanonics NSOM to meet with the representative of the Nanonics Company – was not for these presentations and was offered as a business trip only.

…

[Sic throughout]

410        In cross-examination, the grievor was brought to the September 26 memo, which was addressed to him and discussed meetings that he and Dr. Grover had had with respect to the September 2003 PPR.

411        The memo referred to conference papers. It would appear that the Z-scan research is referenced under this section. It stated as follows:

…

I indicated that it is surprising that you want to submit these papers in conference proceedings rather than publishing them in peer reviewed journals. I elaborated that this means that the papers are either of lesser quality, are incomplete, or are based on otherwise reported work.

With respect to the first conference proceedings paper (Z-scan …), I indicated that I have previously discussed with you its shortcomings, including the explanation of the interference phenomenon described therein. Furthermore, this paper was never submitted to a conference; you only wanted it to be published in conference proceedings. Also, no follow-up work is planned for this project. I find it unusual for a researcher to plan work solely for the goal of publishing it in conference proceedings.

I informed you that I have no difficulty if you want to submit this work to a peer reviewed journal, and indicated to you that you look into the possibility of doing further work as I think it is required before it could be subjected to the peer review process.

I indicated to you that I would like to get the paper reviewed by others prior to making a decision.

…

412        On October 1, 2003, at 1:12 a.m., the grievor received email confirmation from the SPIE that it had accepted his Z-scan abstract for Photonics West 2004. It advised that he would present his paper on January 27, 2004. It also set out suggestions and stipulations with respect to participating in the conference, including that he was required to provide a copy of the manuscript before December 29, 2003, and that a copyright form was required for it.

413        On October 1, 2003, at 6:23 a.m., the grievor emailed the SPIE with respect to Photonics West 2004, stating as follows:

…

I would need to withdraw the presentation at this point, in order to sort out the problems with authorization from my supervisor for going ahead with this presentation. I hope to be able to re-install [sic] the presentation as soon as the uathorization [sic] is granted from my supervisor.

…

414        Dr. Grover replied to the grievor’s September 26, 2003, email on November 4, 2003, as follows:

…

I am writing to you regarding your interest in presenting articles at the Photonics West 2004 conference in San Jose. I note that you first brought this to my attention on 26 September 2003, but that the deadline for submission to this conference was 30 June 2003.

I have already conveyed to you NRC’s decision regarding the publication of these two articles. I wish to also advise you that the current budgetary situation cannot support your attendance at this conference aside [sic].

…

415        On November 5, 2003, the grievor forwarded an email to Dr. Hackett and Gerry Gauthier, the senior employee relations officer in HR at the NRC, with respect to his exchange with Dr. Grover (the emails of September 26 and November 4, 2003, were attached). In his email, the grievor took issue with Dr. Grover’s statement that the first request for participation in the Photonics West 2004 was made on September 26, 2003, stating that he had submitted the Z-scan article to Dr. Grover in August or September of 2002 with a request to present at Photonics West 2003. He also testified that he had provided the Z-scan article to Dr. Grover in 2002.

416        On September 30, 2003, the grievor filed a grievance with respect to his attendance at the Photonics West 2004 and Symposium on Electronic Imaging conferences not being approved. The relief sought was approval to present research results at the conferences. The grievance was denied at the final level by Dr. Hackett. It was referred to adjudication and subsequently withdrawn.

417        There is no document in evidence that confirms that the grievor submitted a version of the Z-scan article to Dr. Grover in August or September of 2002 or at any other time in 2002. The earliest version of it is found in the Specialty Polymers Report, which is dated March of 2003.

418        There is no document in evidence that suggests that the grievor asked to attend or to present the Z-scan research or article at Photonics West 2003.

419        Also in his email to Dr. Hackett of November 5, 2003, the grievor stated the following with respect to submitting the papers to Photonics West 2004:

… In March 2003 this manuscript [Z-scan]was listed in the PPR by Chander Grover as having status of “conference presentation” (as Photonics West 2003” have past – next conference, suitable for the topic was targeted, provided the permission is granted for presenting this manuscript). However the request was denied. After assignment was denied on May 12, 2003, the request was transferred to Director General to allow presentation to Photonics West 2004. Another manuscript “Volume hologram recording on diarylethene doped polymers” in two formats - conference proceeding (in early March) and refereed journal (31 March 2003) were presented to the attention of Chander Grover. Requested were authorization to pusue conference presentation and refereed journal publication. Both requests were not granted. As far as conference presentation requested - it was not specifically meant Photonics West 2004 in March, as it was too early at that time, but rather any suitable conference was meant, provided authorization is granted. After denial of the assignment on 12 May 2003, the request was transferred to Director General Dr. Luzstyk. To the attention of Dr. Luzstyk the updated versions of all of the manuscripts were submitted, and also the authorization was sought for presentation of two of the above manuscripts on Photonics West 2004… .

[Sic throughout]

420        When cross-examining Dr. Hackett, the grievor brought him to that email, with the attachments of September 26 and November 4, 2003, but he did not ask him any questions about the Photonics West 2004 or the Symposium on Electronic Imaging conferences. Instead, he referred to a different conference that was also referred to in that same email, an SPIE-hosted conference on optical science and technology that took place in Denver, Colorado, in August 2004 (after the grievor had been terminated).

421        The grievor did not put any questions to Dr. Lusztyk about attending any conferences or presenting any papers or abstracts at any conferences, despite that there was a reference to Photonics West 2004 and his research in the June 16 meeting notes.

422        The grievor filed in evidence a series of emails with respect to the actions he took to participate in the conferences, including presenting articles with respect to the Volume Hologram and Z-scan research as well as email exchanges he had with HR or LR personnel at the NRC, Dr. Hackett, his PIPSC representative (at the time), and Philip Chodos (who was investigating his harassment complaint).

423        The exchanges that included HR or LR personnel and the grievor and then Dr. Hackett included a request, as part of the grievance process in June of 2004, for copies of either the abstracts or manuscripts submitted to the Photonics West 2004 and Symposium on Electronic Imaging conferences and confirmation of the dates on which that material was submitted. In response to that request, the grievor provided copies of abstracts of his two submissions (one each of Volume Hologram and Z-scan), which he had submitted on August 8, 2003. The abstracts were attached to the email he sent to HR.

424        An email submitted into evidence by the grievor and dated June 2, 2004, from Joseph Silva, an employee relations officer in HR at the NRC, to Dr. Hackett and copied to Mr. Gauthier, stated as follows:

…

We asked him [the grievor] to provide the abstracts and the dates when he submitted the abstracts to the conferences. He did so today June 1, 2004.

I can confirm that Dr. Boiko did not have his manuscripts accepted at the conferences as he led us to believe during the grievance meeting of April 22, 2004. The conferences accepted Dr. Boiko’s abstracts (the manuscripts were never submitted). Dr. Boiko confirmed that the two abstracts were submitted on August 9, 2003 and accepted on September 04, 2003 and October 01, 2003. He then withdrew from both conferences on September 05, 2003 and October 01, 2003 (as soon as he received his acceptance).

We have discovered that only one article was submitted to the West 2004 conference, the other was submitted to the Symposium on Electronic Imaging 2004 which took place January 18-22, 2004 while Photonics West 2004 was booked for January 24-29, 2004.

…

425        The evidence submitted by the grievor further disclosed that abstracts for Photonics West 2004 were due June 30, 2003, but that late abstracts were accepted. Manuscripts were due by December 29, 2003. The evidence also disclosed that abstracts for the Symposium on Electronic Imaging 2004 were due on June 16, 2003; however, like Photonics West 2004, late submissions were accepted. Manuscripts were due by December 22, 2003, at the latest.

426        The grievor’s evidence disclosed that part of the conditions stipulated to submit abstract guidelines for Photonics West 2004 was that before submitting them, authors were expected to secure funding for registration fees, travel, and accommodations independently of the SPIE, through their sponsoring organizations. The evidence did not disclose that the grievor had secured any authorization to attend Photonics West 2004, let alone funding, by the date he submitted his abstract.

F. Teamwork

427        The release recommendation stated that the grievor never integrated well into the team, socially or professionally. It gave as an example the Optics and Photonics groups’ regularly scheduled in-house seminars, which were not mandatory but had as their purpose research discussion and peer commentary. It stated that while the grievor was aware of the seminars and had been invited to attend, he never presented at one and attended only a few.

428        The release recommendation also commented on the grievor requiring his colleagues to sign non-disclosure agreements when consulting on research ideas and on him sharing and maintaining equipment.

429        In his evidence, the grievor confirmed that in 2003, he did not attend meetings because he was being harassed. His evidence was that once the harassment started, he avoided all group meetings and social events. He introduced an email dated June 3, 2003, declining attendance at a barbeque.

430        The grievor stated that sharing equipment was an issue and that schedules were required for using it. He stated that while he had a laser for the Z-scan research, he also had to use Dr. Flueraru’s laser, and that sharing it was an issue. He stated that he tried to schedule its use with Dr. Flueraru but that doing so was a problem, and he could not secure a time slot. He stated that the approached Dr. Grover over this and that Dr. Grover did nothing. So, his research went nowhere.

431        The grievor testified that no one wanted to share. He stated that Dr. Grover should have exercised leadership and dealt with it. He introduced an email dated September 30, 2002, which he sent to Dr. Flueraru. It stated as follows:

…

Please advise on what laser usage timetable could I plan for this week, so that to minimize interference with your activity.

I would take on 1-st harmonic for the pattern generator (would block the central spot thus trying to avoide overheating in the center).

…

[Sic throughout]

432        Mr. Vandenhoff testified that the Optics and Photonics groups held seminars, which he attended. He was asked if he recalled the grievor ever presenting anything at these seminars. He stated that he did not.

433        The grievor summonsed Drs. Zhang, Liu, and Chang, and did not ask any of them any questions about sharing equipment, teamwork, collaboration within the Optics group, group meetings, seminars, or group events.

G. The grievor’s harassment complaint and the investigation

434        Chapter 10 of the NRC HR Manual is entitled “Human Rights”, and section 10.2 is entitled “Harassment in the Workplace”. Paragraph 10.2.4 is entitled “Complaint Procedure”. Subparagraph 10.2.4.4 provides that an employee may submit a formal written complaint or file a grievance and may also complain to the CHRC. Paragraph 10.2.5 is entitled “Process for the Mediation of Complaints”. The mediation process is engaged when both parties to the harassment complaint agree in writing to participate. If mediation fails, the complainant has a choice of proceeding with the complaint process, a grievance, or a complaint to the CHRC.

435        Paragraph 10.2.6 is entitled “Process for the Investigation of Complaints”. According to subparagraph 10.2.6.2, the NRC will not investigate a harassment complaint if a grievance or complaint has been made to the CHRC. Subparagraph 10.2.6.6 provides for the appointment of an investigator who is not directly involved with the complaint, which includes hiring someone from outside the NRC. Subparagraph 10.2.6.7 provides that the responsible DG may take appropriate measures without prejudice to have the respondent to the complaint and the complainant physically and hierarchically removed from one another during the complaint resolution process. Subparagraph 10.2.6.11 provides that once the investigation is complete, the investigator shall provide a written report with findings and conclusions and will provide to the DG of HR his or her complete investigation file, including notes. Subparagraph 10.2.6.12 provides for the dissemination process of the investigation report.

436        Sometime in September of 2003, the grievor delivered a six-page harassment complaint against Dr. Grover to Ms. Gingras. The exact date it was delivered is not certain. However, it appears that Ms. Gingras made Dr. Hackett aware of the complaint via an email dated September 29, 2003. According to it, she stated that the complaint had been received about a week-and-a-half earlier.

437        Ms. Gingras testified that at the material times, 2003 and 2004, as the NRC’s manager of HR planning, she was responsible for the overall processing of harassment complaints. However, since the complaint had come to the HR Branch, Ms. McLaren, the DG of HR and to whom she reported, was the complaint process manager who would have dealt with the matter directly. Dr. Hackett was the responsible DG as defined by the NRC’s HR Manual and was responsible for whether the parties would be separated under subparagraph 10.2.6.7.

438        In an email dated September 29, 2003, among other things, Ms. Gingras advised Dr. Hackett of the grievor’s complaint and of the following:

1. that Dr. Grover had to be advised of the complaint;
2. that Dr. Hackett had to make a decision with respect to separating the parties; and
3. that HR was aware of the discussions that had occurred since the summer of 2003 about potentially rejecting the grievor on probation.

439        Dr. Hackett informed Dr. Grover of the harassment complaint on the morning of October 3, 2003. However, no evidence disclosed as to when Dr. Grover was provided with a copy of it.

440        The evidence disclosed that at least as of October 16, 2003, the grievor wished to be assigned someone other than Dr. Grover as a supervisor. Ms. Gingras brought this to Dr. Hackett’s attention. By email on October 17, 2003, she recommended that, which Dr. Hackett confirmed, since both parties had agreed to mediation, they should continue to try to work together rather than being separated.

441        Ms. Gingras stated that she recommended to Dr. Hackett to not separate the grievor and Dr. Grover because each situation was reviewed in its context, and they preferred to keep the parties working together, usually due to a work perspective.

442        In cross-examination, Ms. Gingras stated that usually, separating the parties is appropriate when there is an imminent risk of a health, physical, or emotional impact or when there is inappropriate behaviour. It depends on the nature of the allegations and on the specific facts of the case. She stated that a number of factors need to be considered.

443        Ms. Gingras testified that when the mediation process failed in January 2004, her recommendation was that the parties be separated. Dr. Hackett agreed, which led to Mr. Vandenhoff being appointed as the grievor’s supervisor pending the completion of a harassment investigation.

444        In 2003 and 2004, Mr. Vandenhoff was a research council officer. There was no evidence that his education, background, and experience qualified him to supervise the grievor’s substantive scientific work. In his evidence, Mr. Vandenhoff stated that he understood his role was to be an administrative supervisor for the grievor and with respect to substantive issues, to be a buffer between the grievor and Dr. Grover while the harassment investigation was pending. Mr. Vandenhoff reported to Dr. Grover.

445        After the mediation failure in January of 2004, the NRC retained Mr. Chodos to conduct an investigation into the allegations. He was a PSSRB deputy chairperson.

446        Mr. Chodos appeared as a witness by summons at the grievor’s request. He brought his investigation file to the hearing. Pursuant to a request by the grievor, Mr. Chodos’s interview notes were ordered disclosed, which was to be limited to one copy each to the grievor and the NRC. The notes were not to be disclosed further; nor were they to be copied, and they were to be returned to the Board for disposal upon completion of the hearing, except for those notes submitted into evidence. The original notes were returned to Mr. Chodos. None of his notes was put forward as evidence. Both the grievor and counsel for the NRC returned the notes to the Board for disposal. They were destroyed.

447        Mr. Chodos’s evidence was brief. There was no cross-examination. He confirmed that he was retained to conduct an investigation into the harassment allegations in the complaint dated September 12, 2003. He described the investigation process as best as he could recall it. He stated that he interviewed the grievor multiple times over several weeks in the presence of his PIPSC representative. Mr. Chodos confirmed that he also spoke to several other potential witnesses but could not recall who they were. He did not recall any of the interviews. He further stated that he had started interviewing Dr. Grover but that it had not been completed.

448        Mr. Chodos stated that the investigation was not completed. He stated that upon completing interviews and obtaining all relevant documentation, his practice was to write a report. However, since the investigation was not completed, he did not write one. When asked if he wrote a partial, preliminary, or status report, Mr. Chodos did not recall doing so. The grievor asked him about several allegations. Mr. Chodos replied that he had no recollection of them.

449        When examined by the grievor, Mr. Blais testified that in a conversation, Mr. Chodos conveyed to him that there was no evidence of harassment. Mr. Blais stated that he believed that he conveyed that information to his supervisor, Ms. McLaren. In cross-examination by counsel for the employer, Mr. Blais stated that he believed that his discussion with Mr. Chodos took place sometime in the late spring or early summer of 2004. In an email dated August 10, 2004, to Ms. Gingras, Mr. Blais stated as follows:

…

… I hark … back to the fact that Phil had indicated, based on what he had uncovered to date, (investigation 75% completed if memory serves me correctly) that he had no evidence to support the allegations of harassment. I would be willing to accept that and wager that he would uncover nothing to contradict his findings to date if he were to proceed… .

…

450        Ms. McLaren testified that despite Mr. Chodos not issuing a report, she understood that he did not believe that there was any harassment. No one asked her about the source of her belief.

451        The grievor asked Mr. Chodos if he recalled discussing the investigation’s status with Mr. Blais. Mr. Chodos stated that he recalled speaking with Mr. Blais but that he did not recall what they spoke about.

452        On April 11, 2008 (coincident with the dismissal of the grievor’s termination grievance), the NRC dismissed the grievor’s harassment complaint on the grounds that it was moot. According to testimony from Ms. McLaren and Mr. Blais, it was moot because both the grievor and Dr. Grover were no longer employed by the NRC and the purpose of the harassment policy was to prevent harassment in the workplace.

453        The grievor applied to have the NRC’s decision to dismiss his harassment complaint judicially reviewed. On July 27, 2010, the Federal Court dismissed his application.

454        Mr. Vandenhoff did testify that in his view, in 2003 and 2004, the Optics and Photonics groups’ work environment was dysfunctional and that the employees there were generally unhappy. He testified that he was tasked to meet with both groups and to convey to them Dr. Hackett’s message that if any of them felt distressed, they could approach him.

455        The grievor asked Mr. Vandenhoff if he recalled events relating to the grievor and his interactions with Dr. Grover. Mr. Vandenhoff’s response was as follows: “When you went to see Chander, it never went well.” When the grievor asked Mr. Vandenhoff how the grievor’s work relationship with Dr. Grover affected his work performance, Mr. Vandenhoff stated that he did not know.

456        In cross-examination by counsel for the employer, Mr. Vandenhoff testified that he was not aware of the grievor’s unsatisfactory performance appraisals; nor did Dr. Grover consult him about the grievor’s work performance or objectives.

H. Dr. Cheben

457        Dr. Pavel Cheben is employed at the NRC.

458        The grievor requested and the Board issued on more than one occasion a summons to witness for Dr. Cheben. The grievor submitted to the Board in support of his request for the summons that Dr. Cheben would testify to the disciplinary actions Dr. Grover took against the grievor. During the course of the hearing, he submitted to me that Dr. Cheben was also of Eastern European descent and had been discriminated against by Dr. Grover. The grievor’s inference was that Dr. Grover had issues with persons of Eastern European descent.

459        Dr. Cheben did not testify.

460        During the course of his evidence, the grievor identified a copy of his application for employment dated July 12, 2001, which had attached a copy of his CV and that listed his published articles up to that date. One publication was identified on page 6 as “A14” and titled “Switchable optical element with Bragg mode diffraction”. It was published in Volume 26 (No. 11) of Optics Letters on June 1, 2001. The other listed authors are M. Kulishov and S. Sarkisov.

461        Counsel for the employer showed a copy of an abstract of that article to the grievor to identify, which he did. Dr. Cheben is also an author. The grievor confirmed that the article was published before he submitted his employment application to the NRC. When counsel for the employer suggested to the grievor that he knew that Dr. Cheben was an author of the article, the grievor stated that he did not; however, when pushed by counsel for the employer, the grievor admitted that he did. He suggested that he did not know that his CV was inaccurate when he sent it to the NRC in July of 2001.

462        Counsel for the employer suggested to the grievor that when he applied for the AcRO position at the NRC in 2001, he knew Dr. Cheben and believed that Dr. Cheben and Dr. Grover had issues. Not wanting to hinder his employment chances, he deliberately removed Dr. Cheben’s name from the authorship of that article as listed in his CV submitted to the NRC. The grievor denied doing so.

I. Other grievances and Mr. Silva’s email of June 30, 2004

463        In addition to the February 2004 grievance and the one that was the subject of the hearing, the grievor filed the following others, as follows:

1. On September 30, 2003, against the 2002-2003 PPR, alleging that his assignments were not clear. The relief sought was clarifying his assignments and gaining new ones. Dr. Hackett denied the grievance at the final level on December 11, 2003. There was no further action on it.
2. On September 30, 2003, requesting an upgrade of his computer system. Dr. Hackett upheld the grievance at the final level on December 11, 2003.
3. On November 3, 2003, against the impartial review process with respect to his Volume Hologram and Z-scan articles. This grievance appears to have become part of the February 2004 grievance.
4. On November 13, 2003, against what the grievor identified as an unfocused, unrealistic, and unspecific work plan being forced upon him. The relief sought was the cancellation of the work plan and a clear, specific, realistic, and focused work plan consistent with NRC policy. The grievance was withdrawn on January 23, 2004.
5. On November 13, 2003, alleging that his lab computer was taken away. The relief requested was a computer. The grievance was withdrawn on January 23, 2004.
6. On November 17, 2003, alleging that the NRC failed to respond in a timely manner to his earlier grievance on his unclear assignment. The relief requested was the intervention of a senior NRC manager. The grievance was withdrawn on December 2, 2003.
7. On November 17, 2003, alleging that the NRC had failed to respond to his earlier grievance, on the denial of his participation in the Photonics West conference, in a timely manner. The grievance was withdrawn on December 2, 2003.
8. On July 6, 2004, alleging that the NRC failed to respond to his earlier grievance on the non-impartial review process. The status of this grievance is unknown.
9. On July 6, 2004, alleging that the NRC failed to provide meaningful supervision during the probationary period. The relief sought was to have a provisional scientific supervisor assigned. The grievance was determined moot as of October 27, 2005.

464        The evidence disclosed that in or about June of 2004, there was a flurry of activity with respect to other grievances the grievor had filed that were in the grievance process at the NRC.

465        On June 30, 2004, at 10:38 p.m., Mr. Silva emailed Mr. Gauthier. The subject line of the email was “Boiko info”. It appears to be about a number of ongoing issues involving the grievor at the time, including grievances. The email was sent late in the evening on the eve of the July 1 statutory holiday, just 10 days before the grievor was rejected on probation. In the first line, Mr. Silva states as follows: “I didn’t have a lot of time to look for the information but I tried and was getting a ‘Boiko headache’ so I took off for 45 minutes before the mediation to clear my head so this is what I came up with ...”.

466        There is no evidence that anyone other than Mr. Gauthier saw the email at the time.

467        Neither Mr. Silva nor Mr. Gauthier testified.

J. Remedy

468        At the time she testified, Dr. D’Iorio was the executive director of the NRC’s National Institute for Nanotechnology, Security and Disruptive Technologies, located in Edmonton. She had been in that position since June of 2011. Before that, from 2003 to 2011, she was the DG of the NRC’s Institute for Microstructural Sciences (IMS) in Ottawa.

469        Dr. D’Iorio testified that in the summer of 2004, a reorganization took place at the NRC, and the Optics and Photonics groups were moved out of the INMS to the IMS in December of 2004. She stated that the Optics group did not align well with the IMS and that in September of 2007, the Optics and Photonics groups were disbanded. Cuts were made throughout the NRC, and a number of positions were eliminated. She said that research officers who were part of the Optics group at the time it was disbanded moved to either other IMS units or other NRC institutes. One position was eliminated. Term positions were not renewed.

470        Dr. D’Iorio also confirmed that at the end of the process of disbanding and realigning, the following was the case:

• only one person from the Optics group lost a position;
• that person was a term employee; and
• a number of the members of the Optics group were deployed to the Imaging Devices group.

471        Dr. D’Iorio was shown the grievor’s CV and asked whether, if the grievor had been an indeterminate employee, he would have survived the reorganization and cuts that took place in 2004 through 2007. Her opinion was that he would not have survived. She stated that the INMS’s and later the Optics group’s disbanding required the employees in these groups to align with other groups, a task that she said proved difficult for many people.

472        When she reviewed the grievor’s CV, Dr. D’Iorio commented that it raised red flags for her. She stated that post-doctoral fellowships usually are for a period of two to four years. The grievor’s post-doctoral fellowship was for about 13 years and took place in a number of different institutions. She noted that his experience was in a very narrow field. She commented that she noted 12 articles in 11 journals over that 13-year period, while the bar for incoming staff was 3 to 5 per year. In her view, the grievor’s rate of publication of roughly an article per year was very low.

473        Dr. D’Iorio also said that a good indicator of outreach activities on a CV is that a person is either invited to present at a conference or is a conference organizer; this demonstrates if the person is known in the scientific community in which he or she is working. She said that there was none of this in the grievor’s resume. She stated that on the basis of what she saw on his resume and what happened with the disbanding of the INMS and the Optics group, the grievor would not have been hired into another group at the IMS.

474        When Dr. D’Iorio was asked what she thought would have happened to the grievor in 2007, with the disbanding of the Optics group, if he had still been employed by the NRC, she said that based on what she knew, he likely would have been workforce adjusted.

475        In cross-examination, Dr. D’Iorio confirmed that when the Optics and Photonics groups moved to the IMS, there was an all-day project meeting to ensure that researchers could find areas to contribute to. There were plenty of projects and opportunities. Every program held open-planning sessions.

K. Dr. Grover

476        While at the grievor’s request, I signed several summonses for the attendance of Dr. Grover, he did not attend the hearing. I do not know if he was properly served them.

477        It is abundantly clear from the evidence that the grievor largely lays blame for almost everything negative that befell him in his NRC employment squarely at the feet of Dr. Grover. He also alleged that while Dr. Hackett is not quite as responsible for it as Dr. Grover, he aided and abetted Dr. Grover.

478        Decisions rendered by the Board, the Federal Court, and the Federal Court of Appeal disclose that Dr. Grover filed several grievances against the NRC for a number of different issues that more or less arose at the same time as the issues involving the grievor.

479        A review of these decisions disclosed that Dr. Grover was absent from the office for a significant period between January and August of 2004. This was also the testimony of Mr. Blais when the grievor questioned him about the release recommendation and the briefing process behind the decision to reject him on probation.

480        In Grover v. National Research Council of Canada,2005 PSLRB 150, the evidence disclosed that Dr. Grover started to report to Dr. Hackett in August of 2003 (when he replaced Dr. Lusztyk). It disclosed that their relationship was rocky at best. Paragraphs 12, 13, and 17 state as follows:

[12] Dr. Hackett was appointed Acting Director General for the INMS on August 1, 2003.

[13] This appointment of Dr. Hackett triggered a noteworthy investigation of a harassment complaint against Dr. Arthur J. Carty, President of the NRC (Report of May 2004, Exhibit G-7). In a letter dated September 8, 2003, Dr. Grover alleged that the real purpose of the appointment of Dr. Hackett was to address his own situation: “… I believe that this arrangement is directly linked to my situation, and that Dr. Hackett has been sent to deal with me. I consider this to be harassment”… .

…

[17] As the months went by, Dr. Grover seemed to become more and more uncomfortable with Dr. Hackett’s managerial style and decisions. They would again openly disagree during another management meeting on January 20, 2004. Dr. Grover again contacted Dr. Carty directly (Exhibit E-2). He indicated in that correspondence that he was “being routinely subjected” to discrimination by Dr. Hackett. …

VII. Summary of the arguments

A. For the employer

481        The threshold the employer is required to meet to establish that an adjudicator has no jurisdiction is extremely low. The employer is required to merely establish some minimal evidence that the rejection on probation was for employment purposes. The employer referred me to Chaudhry v. Canada (Attorney General), 2007 FC 389, and Monette v. Parks Canada Agency,2010 PSLRB 89.

482        All research officers, including the grievor, were assessed against the same four criteria: contribution to science and technology, contribution to clients, contribution to outreach and influence, and contribution to teamwork. The employer has established that over the period of 21 months, the grievor had three unsatisfactory performance appraisals on his PPRs.

1. Contribution to science and technology

483        Dr. Hackett was involved in the PPR process and confirmed in cross-examination that Dr. Grover did not have a free hand. Dr. Hackett reviewed everything that Dr. Grover wrote and all the documents used in assessing the grievor.

484        The grievor stated in his evidence that his work plans made no sense, were contradictory, and were a sham. In addressing one session he had during a PPR process with Dr. Grover with respect to his work plans, the grievor sent seven emails about the PPR’s content. He wanted answers before signing it. Dr. Grover’s responses were that he had prepared the PPR (the work plan), he had offered to discuss it with the grievor, he had offered to meet with the grievor, and the grievor had chosen not to meet with him. In the end, Dr. Grover instructed the grievor that if he had any issues, they should be sent to Dr. Hackett. The grievor ignored Dr. Grover’s instructions and continued to ask him questions. In the absence of any further responses from Dr. Grover, he did send the questions to Dr. Hackett. Yet, at no time when Dr. Hackett was at the hearing and giving evidence did the grievor examine him on these issues or on the grievor’s emails to Dr. Grover.

485        The grievor filed a number of grievances during his tenure at the NRC. One of them was that his work plans or objectives were not clearly set out. Those grievances were denied and were not pursued.

486        The grievor did not cross-examine Dr. Hackett on the PPRs, despite his involvement in preparing some of them and in the overall PPR process. The grievor violated the rule in Browne v. Dunn, (1893) 6 R. 67 (H.L.), with respect to his evidence of his work plans. No weight should be given to his evidence with respect to his attack on his work plans.

487        The grievor spent a significant amount of time and focus on the employer’s finding that his scientific articles were not suitable for publication. He characterized the internal reviewer’s comments on his articles as giving rise to a disguised disciplinary termination.

488        Before the hearing, the grievor was required to provide to the employer a list of his disguised discipline allegations. He provided a five-page list. One allegation was that Dr. Grover controlled the internal review process, which resulted in the grievor’s articles not being impartially reviewed, and the review process was biased. He also filed the February 2004 grievance, which alleged bias in the article review process. In his evidence when responding to this allegation in the February 2004 grievance reply, Dr. Hackett stated: “Dr. Boiko’s evidence fell far short re the impartiality of these internal referees.”

489        With respect to the allegation of bias and lack of impartiality in the review process, Dr. Zhang confirmed that he was the NRC’s reviewer of the two Volume Hologram articles. The allegation of a lack of impartiality in the review process was the largest issue in contention at the hearing, yet the grievor did not challenge Dr. Zhang’s comments on the Volume Hologram articles. At no point did the grievor ever suggest to Dr. Zhang that Dr. Grover pressured him or suggested to him to ascribe a negative review to the grievor’s Volume Hologram articles.

490        The grievor’s allegation that the NRC reviewers were controlled by Dr. Grover and were required to give negative reviews to his articles is without merit.

491        The grievor did not challenge Dr. Hackett’s confirmation of Dr. Grover’s position that the grievor’s articles were not suitable for publication under the NRC banner, despite that Dr. Hackett had read the reviews of the articles and Dr. Grover’s assessment and had testified that he concurred with them.

492        What is clear is the grievor’s failed obligation to follow the rule in Browne v. Dunn and his evidence-in-chief in which he tried to demonstrate through self-serving statements that the NRC reviewers were wrong and that his articles were suitable for publication because they were published later on. No weight should be given to his self-serving evidence on this point.

493        Dr. Grover did not merely rely on the NRC reviewers’ reviews; he also was of the opinion that the grievor’s lab books were deficient. He commented that they were incomplete, had blank pages, and were disorganized.

494        The grievor tendered into evidence copies of his three lab books, to demonstrate that they were in perfect order. In cross-examination on them, he struggled for 45 minutes to decipher his notes, which reinforced Dr. Grover’s assessment that the lab books were disorganized and incomplete. If the grievor took exception to the criticism of the lab books, he should have cross-examined Dr. Hackett on it; he did not.

495        It became apparent during the hearing that the grievor’s primary objective was to have the adjudicator make a finding on the novelty, originality, and significance of his work. Unless the Board Member has a PhD in physics, it is highly unlikely that a finding could be made. Even if the grievor could convince an adjudicator that his articles were novel, original, and significant (which in the employer’s view would be insufficient for the purpose of the hearing), he would have to show that the employer’s assessment of his work was a sham, a camouflage, or in bad faith and that it amounted to disguised discipline.

496        The evidence of Drs. Hackett, Zhang, and Liu was that scientists do disagree with each other and that it happens all the time. There can be dispute and debate. However, Dr. Hackett did agree with Dr. Grover’s assessment that the grievor’s articles were not suitable for publication at the point Dr. Grover made that determination. Indeed, the grievor acknowledged as much in an email dated May 8, 2014, at 5:35 p.m., and sent to the Board’s registry, in which he agreed with some of the comments of one of the NRC reviewers. During his testimony, the grievor went through the NRC reviewers’ comments point by point. He acknowledged that some were valid.

497        While the grievor expended numerous days in his evidence explaining why the NRC reviewers’ comments were incorrect, it violated the rule in Browne v. Dunn since he failed to question anyone about the substance of the reviews, particularly Drs. Hackett and Zhang.

498        A close review of the 20 proposed experts’ reports submitted by the grievor disclosed that they did not all agree on the same points.

499        The most important point with respect to the proposed experts is found in the Agreement on Experts at paragraph 9(iii), where it states “[t]hat these five (5) individuals were not asked by the Grievor, nor did they provide in any one of their cumulative twenty (20) Reports, an overall assessment as to the suitability of his research articles for publication.”

500        Dr. Hackett testified that the grievor’s approach to reviewing the evaluations of his articles line-by-line was “futile” or “silly”. He stated that instead of treating the NRC reviewers as adversaries, the grievor should have taken the comments and revamped his article or convinced the referees that the statements were correct. Both Drs. Zhang and Liu expressed that same sentiment.

501        While the grievor took issue with the reviewers’ comments, he failed to establish that the reviewers were biased or that Dr. Grover’s assessment amounted to disciplinary action, which were critical deficiencies on the grievor’s part.

502        Dr. Liu testified that on occasion, Dr. Grover would not allow him to publish his work under the NRC’s banner.

503        The grievor claimed that his articles being published after he was terminated is evidence of the NRC’s bad faith in failing to allow them to be published. The evidence does not support this.

504        Applied Optics reviewed a version of the Volume Hologram article and concluded that the paper, as presented, was not suitable for publication. The unidentified reviewers of that article made comments, one of which mirrored the conclusions of Dr. Zhang, who had stated that the article did not bring any new knowledge of scientific significance. The unidentified reviewer from that journal stated that: “… the article was not superior to anything else that is out in the scientific field.” Dr. Hackett commented on the unidentified reviewer’s comments, stating that they are “damning with faint praise.”

505        The NRC exercised its legitimate authority, and the grievor did not submit any evidence that its standard was established in bad faith.

506        The fact that the grievor was able to get his articles published post-termination is not significant. Anything can get published; it does not mean that what is published is significant. There have been media exposés on gibberish being published in journals.

507        Even had the grievor’s articles been published before he was terminated, his volume of work paled in comparison to that of his peers. The Grover Response disclosed the output of another research officer, which in 2002-2003 was 10 articles in journals and 12 papers at technical conferences. Both Drs. Zhang and Liu testified that they publish three or four articles per year. Thus, even if the grievor was right and his articles were published, he would still have been deficient in his work output as compared to his peers in the Optics group.

508        The grievor’s failure to meet the NRC’s standards for publishing articles is just one of the reasons set out as deficiencies in his PPR and one of the reasons he was rejected on probation. He was also deficient in the other three remaining categories under which he was assessed.

2. Contribution to teamwork

509        The release recommendation stated that the grievor was not a team player. The December 2003 PPR addressed this, stating that he made little attempt to collaborate with colleagues in the Optics and Photonics groups and that in some cases, he required colleagues to sign non-disclosure agreements.

510        The grievor summonsed many of his colleagues. They testified. He did not put the observation about him not being a team player to any of them.

511        In his testimony, the grievor provided a rationale for not participating in professional and social gatherings at work, stating that the alleged harassment by Dr. Grover drove him to avoid all group events. Perhaps avoiding Dr. Grover was plausible. However, avoiding his co-workers was not a legitimate position to take. There is absolutely no evidence that the grievor was harassed by his peers or that they were difficult to work with.

512        The grievor tendered no evidence with respect to the employer’s finding of his lack of interaction with his peers.

513        A review of the September 16 transcript, with respect to the mishap with the Krypton laser, disclosed that the grievor referred to a person named Karl Xi. That person was in the office right next to him, yet the grievor did not seem to know him.

3. Contribution to clients

514        Dr. Hackett’s evidence, in addition to the release recommendation, was that the grievor failed miserably in this category. The grievor did not challenge those criticisms when he cross-examined Dr. Hackett.

515        The grievor testified moderately about this at the hearing.

4. Contribution to outreach and influence

516        This category deals with the grievor’s collaborative efforts with others.

517        In his evidence, the grievor suggested that his efforts in this area met the requirements. Yet, at the same time, Dr. Grover interfered with them.

a. Dr. Kukhtarev

518        On February 23, 2003, the grievor emailed Dr. Grover an undated letter he had received from Dr. Kukhtarev, confirming his support for a project proposed by the grievor. The grievor submitted that it was a potential collaborative effort that could have been accommodated. He testified that it would have overlapped with the Volume Hologram research and that it would have been a high-budget project.

519        Dr. Hackett was forwarded a copy of that letter. In cross-examination, he spoke about the NRC’s Major Initiatives Committee. It meets once per year to review major initiatives on a nationwide basis for which large amounts of capital are approved (projects with budgets of between $1 000 000 and $30 000 000) and that involve numerous NRC personnel. Dr. Hackett testified that the project referred to in the letter was a complete non-starter. He stated that while researchers absolutely have the right to make proposals, managers have the right to reject them.

b. Dr. Lemieux

520         The grievor testified at length about the collaboration with Dr. Lemieux on the Volume Hologram research. The employer submitted that the evidence actually suggests otherwise.

521        Dr. Lemieux was called as a witness by the grievor. His evidence did serious damage to the grievor’s allegation that they had collaborated.

522        The evidence disclosed that in the 2002-2003 PPR, with respect to the alleged collaboration between the grievor and Dr. Lemieux, Dr. Grover stated as follows: “He reconfirmed that his chosen informal collaboration with Professor Lemieux of Queen’s University was limited to requests for dyes for experiments. He did not elaborate on any other collaboration with Queen’s University.” This is a correct statement of the situation. Dr. Grover reached this conclusion based on email correspondence as set out in the Grover Response, in which he speaks in more detail about the alleged collaboration.

523        Dr. Lemieux’s evidence reinforced Dr. Grover’s conclusions. Dr. Lemieux confirmed that the collaboration with the grievor was at the low end of the spectrum.

524        Whether or not the relationship with Dr. Lemieux was truly a collaboration is a matter of perception and opinion. Dr. Lemieux made the following admissions:

• Our contribution [Queen’s Chemistry Department] was to simply provide the compounds to Dr. Boiko to enable him to conduct his experiments; we provided the dye material.
• We didn’t contribute to the drafting [of the Volume Hologram article].
• On a scale [with respect to collaboration] of 1-10, we would be a 2.
• We provided very superficial collaboration.
• If we had a joint publication, that is evidence of a joint collaboration.

525         There was no joint publication of the article by Dr. Lemieux and the grievor. The published versions of the Volume Hologram articles list only the grievor as the author. He relegated Dr. Lemieux’s participation to one sentence in the article stating that Dr. Lemieux supplied dyes to the research. The evidence is that the grievor did not view Dr. Lemieux’s collaboration as sufficient to warrant co-authorship of the article, and Dr. Lemieux did not state that his contribution warranted co-authorship.

526        The bottom line is that Dr. Grover’s conclusion in the 2002-2003 PPR that no real collaboration took place is reasonable and justifiable.

c. The NSOM

527        The grievor introduced a chain of three emails dated October 24 and October 27, 2003, which involved an exchange with another NRC scientist, Dr. Taylor, with respect to acquiring an NSOM. The grievor required it to further his Volume Hologram research. What he did not state in his evidence-in-chief was a clear attempt to mislead. Dr. Grover did not consider the grievor accessing the NSOM a collaborative activity.

d. Local high-tech company

528        The grievor submitted a series of emails exchanged with an individual at a local Ottawa high-tech company as evidence of an attempt to collaborate, which Dr. Grover interfered with. However, the evidence suggests otherwise.

529        Dr. Grover acknowledged that the grievor was working on something called “DIC Imaging”. However, in acknowledging the email traffic on the Grover Response, Dr. Grover set out that that work was purely technical in nature and not a collaborative effort. While the emails do indicate that the grievor was doing work and would provide samples, it did not equate to a collaboration. The grievor’s note to file with respect to the 2002-2003 PPR states as follows: “Have conducted successful imaging of Bragg Grating supplied by …” The local high-tech company simply supplied the grating to the grievor, much as Dr. Lemieux provided dyes. No collaboration took place.

530        The grievor submitted no evidence to counter Dr. Grover’s reasonable assessment that the grievor’s contribution to collaboration was either seriously insufficient or non-existent, depending on the PPR reviewed.

531        Based on the documentation produced, there is no doubt that the grievor was provided with ongoing feedback on the assessment areas and on the need to improve in all of them; he never alleged otherwise.

532        Therefore, the employer submitted that it has overwhelmingly met its burden of establishing that the grievor’s rejection on probation was employment related.

5. Ontario Superior Court action, file number 09-044541

533        The grievor commenced a civil action in the Ontario Superior Court against Drs. Grover and Hackett, Ms. McLaren, and the NRC (“the defendants”). In his statement of claim, he alleged that the release recommendation and the four unsatisfactory PPR assessments, aimed to misrepresent facts and events, his qualifications, and his contribution at the NRC from 2002 to 2004.

534        On October 15, 2013, the defendants were successful in a motion to strike the statement of claim in its entirety. In granting its judgment, the Court stated as follows at paragraph 71: “There is a legitimate interest on the part of an employer to be able to end a probationary period of employment where there is an honest and reasonably supported belief that an employee has not performed in a satisfactory fashion.”

535        The grievor’s appeal of this decision was dismissed in early May of 2015.

536        The only question at the hearing was whether the grievor met his burden of establishing that the termination of employment was disguised discipline.

537        Wright v. Treasury Board (Correctional Service of Canada),2005 PSLRB 139, stands for the proposition that in cases such as these, the onus is on the grievor to demonstrate that the rejection on probation was a sham or in bad faith. Wright, in quoting Dhaliwal v. Treasury Board (Solicitor General Canada - Correctional Service), 2004 PSSRB 109, which quoted McMorrow v. Treasury Board (Veterans Affairs), PSSRB File No. 166-02-23967 (19931119), [1993] C.P.S.S.R.B. No. 192 (QL), stated as follows:

…

… if it can be demonstrated that the effective decision to reject on probation was capricious and arbitrary, without regard to the facts, and therefore not in good faith, then that decision is a nullity… .

It is trite to say that a determination of whether there is good faith or not must be gleaned from all the surrounding circumstances; there can be a multitude of sets of facts that may result in a conclusion of bad faith, … keeping in mind of course that good faith should always be presumed.

…

538        Wright goes on to hold that it is important to note that the burden rests on the grievor to show bad faith; there is no requirement on the employer to prove that it acted in good faith.

539        Maqsood v. Treasury Board (Department of Industry), 2009 PSLRB 175, quoting Canada (Attorney General) v. Leonarduzzi, 2001 FCT 529, stated that “ … the employer need not establish a prima facie case norjust cause but simply some evidence the rejection was related to employment issues and not for any other purpose.” The standard that the grievor is held to in a case such as this is very high.

540        Maqsood is elaborated upon in Fell v. Deputy Head (Correctional Service of Canada), 2013 PSLRB 2 at para. 108, in which the PSLRB discussed the change to the jurisprudence after the PSEA was amended. Despite the amendments, the burden remained on the grievor to show that the employer’s action was a contrived reliance on the PSEA, a sham, or a camouflage.

541        According to Fell, the changes, as set out in Tello v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 134, place an extremely heavy burden on a grievor challenging a rejection on probation; it is not sufficient to show that the employer made mistakes, that the reasons it gave for the termination were well-founded, or even that the grievor was not given sufficient chance to respond to the allegations of shortcomings in his or her performance. It is necessary for the grievor to show that the grounds related to his or her suitability to perform the duties of his or her position were a disguise for improper and unacceptable reasons for the rejection.

542        Thus, in this case, even if some aspects of evidence of the PPR are not correct, the termination does not amount to disciplinary action.

543        Canada (Attorney General) v. Bergeron, 2013 FC 365, held that shortcomings in an employee’s performance constitute an employment-related reason and that mere disagreement with the conclusions in a performance evaluation is not enough to establish bad faith by the employer.

544        The grievor has taken issue with the contents of his PPRs, particularly the assessment of his research articles. He failed to discharge the heavy burden he was required to meet.

6. Credibility

545        While the employer’s evidence was consistent and forthright, the same cannot be said of the grievor’s evidence. With respect to credibility, the employer submitted that when the grievor’s evidence diverges with its evidence, then its evidence should be accepted.

546        Throughout the hearing, and particularly during cross-examination, the grievor displayed serious deficiencies of honesty and integrity. The employer submitted that little to no weight be placed on any assertions he made.

547        The grievor displayed a constant pattern of misconstruing documents, as pointed out in the numerous times his statements made in examination-in-chief were shown to be false when cross-examined.

548        The grievor displayed repeated fraud with respect to copyright violations.

549        The grievor demonstrated that he would mislead to obtain his objective.

550        The grievor only reluctantly admitted to submitting an inaccurate CV to obtain the NRC job.

7. The harassment complaint

551        There is no jurisdiction to determine harassment.

552        The grievor did not submit his complaint until well after his unsatisfactory 2002-2003 PPR had been completed in September of 2003.

553        When the grievor received the 2002-2003 PPR, his first thought was not to file a harassment complaint but to ask if he could resign.

554        Despite the harassment complaint, Dr. Hackett had taken on an independent role to ensure that the grievor’s PPRs were done correctly. Dr. Hackett fully supported the PPR findings attributed to the grievor by Dr. Grover.

555        The best evidence brought forward at the hearing with respect to the harassment complaint is that of Mr. Blais, who shared his thoughts based on his discussions with the investigator. They disclosed that the investigator found that Dr. Grover was credible and that he could back up his statements, while the grievor had failed to substantiate his claims.

556        The witnesses that the grievor identified to the investigator did not corroborate his harassment allegations.

557        While it would have been nice to have a completed harassment investigation report that stated that there was no harassment, one was not written. The case is not about a popularity contest. Suggestions were made that the grievor and his supervisor did not get along; however, that is not determinative of the case. The probationary period was coming to an end, and in the final analysis, the employer had sufficient data to reject the grievor on probation.

558        Salib v. Canadian Food Inspection Agency, 2010 PSLRB 104, stands for the proposition that the test with respect to the rejection on probation of an employee in a separate agency is no different. The test is whether the employer has shown an employment-related reason for the discharge; if so, then the employee is required to demonstrate that the termination was a sham or a camouflage or that it was done in bad faith. It is not a just-cause test as would be required for the termination of an indeterminate employee.

559        In Hajjage v. Canada Revenue Agency, 2011 PSLRB 5, the grievor in that case, like the grievor in this one, did not state that there was disguised discipline. At paragraph 8,the adjudicator asked Mr. Hajjage to provide the employer all his information supporting his argument that the employer’s decision to terminate him had been disguised discipline. Only when the employer in this case submitted its objection to jurisdiction did the grievor allege that the termination of his employment was disguised discipline. His grievance only alleges harassment. Only after the employer objected to jurisdiction did the grievor claim that it was discipline. It was an afterthought.

8. Remedy

560        If the grievance is allowed, the employer submitted that the grievor had a duty to mitigate. During his evidence, he stated he was unemployed. He failed to tender any evidence of mitigation. On this alone he should be denied compensation.

561        The grievor has been responsible for the inordinate delay in hearing this matter. It should be taken into account.

562        The evidence disclosed that there was a high expectation that employees would work in teams at the NRC, which the grievor failed at. The evidence disclosed that his peers produced more articles than he did, and his history demonstrates that he has a poor record of producing research articles. Compensation should be limited to December of 2004, when he would have been transferred.

563        In the alternative, the Optics group was disbanded in 2007. According to Dr. D’Iorio’s assessment, the grievor’s area of specialization was narrow and would not have survived the 2007 disbanding of the Optics group. As such, he would have been subject to workforce adjustment in September of 2007.

B. For the grievor

564        The grievor submitted that the rejection on probation was a sham, a camouflage, in bad faith, done with ulterior motives, and disguised discipline.

565        The grievor stated that the release recommendation should have been made known to him before his termination; it was sent to HR in secret to effect the rejection on probation. It was a secret communication. The grievor submitted that he was deprived of the opportunity to challenge it, which amounts to bad faith. The NRC gave no reason as to why it was not provided to him or as to why he was not given the opportunity to challenge its content.

566        The grievor’s position was that Dr. Hackett gave Dr. Grover a free hand. His approval of the release recommendation without any specifics proves his ulterior motive in agreeing with Dr. Grover’s ulterior motive, along with bad faith.

567        The grievor said that the employer assumed that all the statements in the release recommendation were true. It partially relied on statements in the PPRs. However, many of the statements in it are not contained in the PPRs; nor are they supported by evidence. Neither Dr. Raymont nor Ms. McLaren challenged the release recommendation. They relied on Dr. Grover’s integrity and Ms. McLaren’s subordinates in HR and LR.

568        Virtually none of the statements in the release recommendation is true. They are either false or misrepresentations and are twisted or outright lies. The grievor submitted that his PPRs were full of false statements concocted by Dr. Grover.

569        The grievor referred to a sentence in the release recommendation, which stated that “… Dr. Boiko has attempted to claim credit for work that had not been done.” He said that this is evidence of a sham, as it appeared in no other document or communication. It is designed to destroy a career, which was Dr. Grover’s aim. The grievor submitted that when Ms. Jacobs was brought to this sentence, she said that it referenced the incompleteness of the lab books; however her explanation does not make sense. He submitted that that alone, if it were true, would be enough to justify a rejection on probation; however, there are no details of this fact. This false statement was made knowingly, and there are no specifics set out because none exist.

1. Contribution to science and technology

570        The grievor stated that Dr. Grover deeming his work inferior meant that there was no potential for improvement as there was no novelty, originality, or significance. No one can address a lack of novelty; if there is no novelty, the rest is irrelevant. Both Dr. Hackett and Dr. Grover stated that there was no novelty, which equates to a sham and a camouflage; if there is no novelty, the work cannot be improved to become novel. By stating that the grievor should have worked to improve his article, Dr. Hackett either falsely denied the novelty or it was a sham and a camouflage because there was no novelty.

571        The grievor submitted that Dr. Grover built his assignments around the fact that none of the grievor’s work was novel. Dr. Grover constructed an employment-related rationale by stating that nothing the grievor did was novel; therefore, it had to be abandoned. He assigned the grievor to write proposals, which were built on what the grievor alleged that Dr. Grover stated that the grievor had achieved was not true.

572        The grievor submitted that building an employment-related rationale on a false statement to achieve a rejection on probation has nothing to do with the truth. Therefore, the rationale is not employment related; it is an ulterior motive.

573        The grievor submitted that he did not disagree that some things could have been improved; they could have been, and he worked towards that end. However, they are correct only if Dr. Grover’s major point is incorrect.

574        The release recommendation, under the heading “Contributions to science and technology in the field of optics”, states as follows: “Dr. Boiko did not develop any new technologies or processes.” The grievor submitted that if this is true, the line that immediately preceded it, which stated that his papers were determined incomplete and substandard, would be false, as publication is allowed only for new technology and processes. If his work was not new or original, then the articles he produced could not have been written or could not have been improved because the research was not new or original. This reflects the camouflage being perpetrated by Dr. Grover. If there was no new technology, how could the grievor possibly write a paper? Either there was new technology or a new process and therefore a paper could have been written that could have been substandard or incomplete, or there was no new technology or process, and as such, no paper could have been written. Therefore, a paper written on no new technology or process could not be substandard or incomplete.

575        The grievor submitted that all his articles were about new technology, yet Dr. Grover did not recognize that. This was important to Dr. Grover in building his sham and camouflage. The technology was new, original, and significant.

576        The OSA’s review of VH No. 4 found that the worthiness of the article was not in question; however, the internal reviewer states as follows: “The paper does not bring any new knowledge or ideas of scientific significance.” Dr. Hackett stated that the comments of the grievor’s manager were not out of line with those expressed by the reviews conducted by a reputable external organization. However, if there is no significance, the reviewer should go no further with the review.

577        The grievor submitted that the NRC reviewer’s review was nothing more than a camouflage if there is no significance to the work. If so, then why should the grievor have responded to the NRC reviewer? It is not logical.

578        The grievor submitted that the NRC reviewer cited a number of articles, all of which were incorrect.

579        The grievor submitted that Dr. Hackett’s approach, which was that the grievor should have taken the NRC reviewer’s suggestions and worked with him, was irrelevant because according to him, Dr. Hackett viewed the work as not novel; therefore, the only logical result would have been to cease the research. Only if the reviewer was wrong would it have been logical to continue the research. Both Dr. Hackett and Dr. Grover, as supervisors, should have seen the lack of logic to this reasoning; ignoring it is evidence of a sham and camouflage.

580        The grievor responded to the NRC reviewer’s comments; it was a legitimate response that he and Dr. Grover could have dealt with. Dr. Grover did not care about the content of the grievor’s concerns; he just wanted to build his sham and camouflage.

581        The grievor and the employer were deprived of credit for the work that was carried out. Dr. Grover pretended to protect the NRC’s high standards.

582        Section 3.2.2.1(g) of the NRC’s policy manual on PPRs states that it is the NRC’s policy to support the procedure with supervisory training aimed at achieving open communication and consistency, fairness, and reasonableness in decision making. Dr. Grover was required to be consistent and fair in his reviews and decision making. His decision to suggest to the grievor that he publish his articles on his own was inconsistent with this policy. Dr. Grover’s communication was neither consistent nor fair. The grievor submitted that his relevant responses were deemed irrelevant and that his argument dealing with the crux of the matter is said to not, which was neither reasonable nor fair and was against NRC policy.

583        The grievor responded to Dr. Grover and provided appropriate answers to the NRC reviewer’s comments. The grievor stated that despite what Dr. Grover was doing, he cooperated despite his view that the NRC reviewer’s review was not impartial. He stated that he formulated specific questions, which Dr. Grover ignored. Dr. Grover was avoiding specific issues; his review was a sham to create a foundation to derail the grievor’s work.

584        The NRC reviewer was Dr. Zhang, who was not an expert in holograms. He focused on material stability, without understanding holograms. The value of the review is very limited. Holograms and their stability are two different things. Dr. Zhang’s explanations are behind the contradictions in his review, which were addressed in the expert reports.

585        Dr. Grover interrupted communication between Dr. Zhang and the grievor. He should have let them communicate. In fact, the grievor did not know that Dr. Zhang was the reviewer.

586        The grievor submitted that the Z-scan research was completed in August of 2002 and that the Volume Hologram research was completed in November of 2002. Dr. Grover attempted to build a sham and camouflage by stating that the Volume Hologram work was done in the span of three weeks in March of 2003. It had been ongoing from 2002.  

587        A copy of the Volume Hologram article was emailed to Dr. Grover on March 31, 2003. At that time, the grievor sought comments from both Dr. Grover and Dr. Flueraru. The grievor wanted to publish this article internally in the Specialty Polymers Report he had written. He submitted that the PPR review period was April 1, 2002 to March 31, 2003, and that he submitted his Specialty Polymers Report and VH No. 1 article within the deadline. They should have been evaluated for the period ending March 31, 2003; instead, they were accounted for in the next evaluation period (March 10, 2003, to September 24, 2003), which was wrong.

588        When Dr. Grover responded to the grievor’s allegations about the 2002-2003 PPR, he did not take into account the newest versions of the Specialty Polymers Report and the revised Volume Hologram articles, which was a direct violation of the NRC’s policy manual on PPRs; it did not enhance communication.

589        The grievor took issue with the cut-off date for submitting his work for the 2002-2003 PPR. He submitted that he was required to submit it in early March, rather than by the end of March, which was the end of the assessment. He submitted that that was bad faith.

590        The grievor submitted that after the 2002-2003 PPR, his work plans were nothing more than make-work projects. There was nothing in them to achieve or to further his work. They were a sham, a camouflage, and bad faith by Dr. Grover.

591        The grievor submitted that the objective set in the September 2003 PPR was to complete the work he had been carrying out. Dr. Grover suggested that the grievor did not do the work he was supposed to but that he carried out work that he had been instructed not to do. This was bad faith by Dr. Grover and evidence that he punished the grievor.

592        The grievor submitted that Dr. Grover had ulterior motives. Dr. Hackett denied the grievance with respect to his work assignments because he did not want to get between Dr. Grover and his ulterior motives. When the grievor completed his research, Dr. Grover stated that it did not follow the work plan and then punished him when he submitted his articles seeking approval for publishing them. Dr. Grover was building a sham and a camouflage. He did it in such a way that no matter what the grievor did, it could be made to appear that he was not doing what he was supposed to be doing. That was the sham or camouflage.

593        The comments in the Grover response that Dr. Grover attributed to the grievor about the Volume Hologram work being incomplete are incorrect. The work was being updated, and the article was updated and resubmitted. The work was completed with additional data. The work was complete, and new work was being done to update the research. Dr. Grover attributed to the grievor the comment that the work was not complete so that Dr. Grover could justify not authorizing the paper’s publication. The grievor submitted that he was improving the paper, which was counted against him.

594        The grievor submitted that the NRC’s review process was not transparent. There was no open discussion. He could not review his papers with the NRC reviewers because he did not know who they were. He submitted that this was bad faith by Dr. Grover. It defied the purpose of the review.

595        The grievor pointed to the emails Dr. Grover sent him about the NRC reviewer’s comments in which Dr. Grover was looking for a response from him. He submitted that the review process of his papers was part of the sham and camouflage Dr. Grover was building to release him on probation.

596        With respect to the NRC reviewer’s comments on the Volume Hologram articles, Dr. Grover had given the grievor a deadline of October 22, 2003, to provide his comments. The grievor did so. Dr. Grover assessed them as blanket denials. The grievor submitted that while some of his comments appeared to be blanket denials, it was because he had made substantive comments earlier in his response, so he did not see the need to provide more detail. The grievor stated that later on, he made more substantive comments; however, his view was that they did not necessarily add much other than bringing his earlier comments into context.

597        The grievor submitted that Dr. Grover prevented him from speaking with the reviewer. Had he had that opportunity, he could have answered the reviewer’s concerns, and the issues might have been ironed out easier.

598        The grievor stated that the September 2003 PPR was given to him on October 16, 2003. By then, Dr. Grover had the NRC reviewer’s comments on the Volume Hologram article but not the grievor’s response to them. The grievor submitted that his reply comments were sent to Dr. Lemieux on October 23, 2003, who stated in an email in response that he felt that the grievor’s response was fine and that he did not think that the reviewer had been very constructive.

599        The grievor submitted that in the September 2003 PPR, if the NRC reviewer was correct in his assessment of the Volume Hologram article, Dr. Grover could not assign the grievor work based on the Volume Hologram research, as the reviewer stated that there was no practical application potential in the area of photonic and optical storage. This was a sham and a camouflage by Dr. Grover; it was a set-up. If the NRC reviewer was right, then nothing could come of that research, and therefore, Dr. Grover could not assign the grievor work to build on it. However, if the NRC reviewer was wrong, then the article was good.

600        The grievor submitted that he took the NRC reviewer’s comments about the degradation issue, followed up on them, and implemented them in the EPH article sent to Dr. Grover on December 19, 2003. He said that it was not a separate article but that it fit within the framework of the Volume Hologram article.

601        The grievor submitted that in the December 2003 PPR, Dr. Grover characterized the EPH article as being outside the scope of the grievor’s assigned work objectives. He submitted that it was not new research but a continuation of his research based on his September 2003 PPR objectives. He stated that Dr. Grover criticized the EPH paper, suggesting that it was a “rip-off” of the Volume Hologram article and that it ignored what the NRC reviewer had stated about the degradation issue. Dr. Grover’s comments were disingenuous given that he criticized the grievor for using the Volume Hologram research and article in the EPH article, knowing full well that it had not been published and that Dr. Grover was the impediment to that publication. The grievor submitted that this is evidence of bad faith and that it amounted to a set-up and sham. He filed a grievance on it.

602        The grievor submitted that the comments in the December 2003 PPR are evidence of Dr. Grover’s bad faith. Given that the NRC reviewer had established that the Volume Hologram research had no potential, how could the grievor develop technology based on it, as set out in his September 2003 PPR?

603        The grievor stated that Dr. Grover’s intent was to keep him out of the lab. If he was kept out of the lab, he could not produce results, which Dr. Grover would then have had to assess. When he did assess the grievor’s results, he stated that they were outside the grievor’s scope of work.

604        According to the grievor, Dr. Grover had him write proposals that were not logically connected to his work objectives.

605        The grievor submitted that Dr. Lemieux testified that 90% of papers that are submitted for publication require some revisions.

606        The grievor stated that the fact that his articles were submitted to journals after his NRC employment is proof that his articles and work were original, novel, and of significance.

607        The OSA’s comment about his article is a sham.

a. Expert reports

608        The grievor submitted that the expert reports were set up to show that Dr. Grover arranged the reviews of the grievor’s articles and that they were done in bad faith as part of a camouflage.

609        While the NRC submitted that Dr. Simova was biased because she both worked at the NRC and had been engaged in a dispute with Dr. Grover, she left the NRC in 2007 and wrote her report in December of 2012. She offered a technical argument with respect to the evaluation. The NRC also submitted that Dr. Solovjev was potentially biased, as he had previously worked with the grievor. Dr. Solovjev was not involved with any of the articles that he reviewed.

610        The publication issue was not part of the proposed experts’ mandate.

611        The grievor referred to section 5(iii) of the Agreement on Experts. It states that he did not ask the proposed experts for and that they did provide in any of their reports an overall assessment of his articles’ suitability for publication. He stated that this fact was the indirect issue before the NRC reviewers appointed by Dr. Grover. The only issue the proposed experts and the NRC reviewers dealt with was whether the articles were presented in a form suitable for reader understanding.

612        All the proposed experts were sent the material from the NRC’s reviews and the grievor’s responses. He submitted that the proposed experts had the same material that was provided to the NRC reviewers, as well as the NRC reviewers’ comments and his responses to those comments. The proposed experts were asked to rate those comments on a scale and to provide comments if they deemed them necessary.

613        The grievor submitted that the proposed experts all found that his responses to the reviewers’ comments either had merit or were disputable (which does not necessarily mean without merit). The purpose was to demonstrate that the comments he sent to Dr. Grover in October of 2003 had merit.

614        The grievor submitted that if the NRC reviewers made serious errors, they could have affected the review. If so, then how could Dr. Grover’s evaluation of his work as unsatisfactory have been based on the reviews? The NRC reviewers’ errors should not be held against the grievor.

615        The NRC reviewers assessed the suitability of the grievor’s articles for publication. Dr. Grover relied on their comments to dismiss discussion of the material, and he assessed a lack of novelty, originality, and significance in the grievor’s articles.

616        The grievor made a number of submissions with respect to the proposed experts’ findings, which supported his position. (Largely, this was a matter of counting the number of positive rankings attributed by the proposed experts in favour of the grievor’s comments.) He said that none of the proposed experts graded any of his comments as having no merit. The ranking of “disputable” that he received from the experts was with respect to clarity and form of presentation.

617        The grievor addressed a number of points specifically made by the NRC reviewer about the Volume Hologram review. The NRC reviewer specifically suggested that the grievor was using the same technology or “well known” technology. It could have been a false assessment of the work; if it was, and Dr. Grover accepted it, then it would go to the accuracy of comments in the PPR and the release recommendation.

618        With respect to the EPH article, there do not appear to be comments from internal NRC reviewers. The grievor said that while there were and are multiple false statements in the review he received with respect to the EPH article, he never actually saw a review; he received comments only in his December 2003 PPR, which references two reviewers.

619        The grievor submitted that while the reviews of the Volume Hologram and Z-scan articles were not transparent, as he was cut off from the NRC’s reviewers, the process with respect to the EPH article was closed; either there was no NRC reviewer or at the least, none was identified to him, as he did not see the reviews.

620        The grievor stated that this was Dr. Grover improving his camouflage; with respect to the Volume Hologram and Z-scan articles, the grievor saw the reviews and could respond to the errors in them. However, with respect to the EPH article, Dr. Grover stopped the flow of information to him by the reviewers. If there were errors in the reviews, the grievor could not see them, and hence, could not comment upon them. He said that he wrote to Dr. Grover and asked him specifically about the comments on the EPH article and that he never responded.

b. Copyright

621        When an author signs a copyright agreement with a publisher, the publisher becomes the copyright owner. If the author then assigns it to another publisher, this is incorrect. If it happens, the author’s credibility is jeopardized, and the copyright agreement is breached.

622        According to the grievor, the employer’s submissions do not take the following into account:

• that the papers were duplicated after the employment relationship ended;
• that the reason he published them was to prove to the Court that they could be published; and
• the copyright defences.

623        Waldman v. Thomson Reuters Corporation, 2012 ONSC 1138 at para. 61, sets out the defences for copyright infringement. The grievor submitted that one of the Waldman defences to the breach of copyright is that the author “wishes to use the idea of the document, but cannot practically avoid taking the expression”. The grievor stated that he needed to take the expressions; there was an impossibility for taking these expressions. The documents were publishable in the form in which he submitted them, so for those reasons, he could not avoid taking the expression to present the evidence to the Court. He submitted that he had to publish the papers in the form they were in when he presented them to Dr. Grover to prove to the Court that they could be published in that form.

624        The grievor submitted that the exemptions for breach of copyright apply to all his instances of duplicate publication, except for the first article, Z-scan No. 6, which was published without his permission and knowledge. He said that he did not know it was published until after it occurred a second time (Z-scan No. 7).

625        With respect to the multiple publications of the Z-scan research, the grievor submitted that while there is significant overlap between some of them, there is some difference in the data reported. Three times more data is set out in the second publication even though a substantial amount of the text is the same.

2. Contribution to teamwork

a. Teamwork

626        On page 4 of the release recommendation, under the heading “Teamwork”, the following is stated: “This is demonstrated by this requirement that each person with whom he consults on a research idea is required, by him, to sign a non-disclosure statement.” The grievor submitted that this meant that before asking him for help, he required his colleagues to sign a non-disclosure agreement. There is nothing in any of the evidence that suggests that this occurred. He stated that he never asked his peers for non-disclosure agreements. The comments in that section are pure fantasy; they are in bad faith and are a camouflage.

627        However, the grievor admitted that once, he tried to record a discussion with a colleague. He suggested they write it down and present it to Dr. Grover. He stated that Dr. Grover turned it upside down and said it was a non-disclosure agreement. This was a deliberate action by Dr. Grover that had been written secretly to HR without the grievor’s knowledge, since Dr. Grover knew that the grievor could not challenge it.

628        The comment about teamwork in the release recommendation, which was that he never attended seminars, is false. The grievor stated that the comment that he never had anything to present is also false. How could he submit anything if Dr. Grover determined that his work was inferior?

629        The grievor submitted that the allegation that he chose to not collaborate is wrong and is a camouflage. It is suggested that he chose not to collaborate because his colleagues would not sign non-disclosure agreements. He stated that his assignment at the relevant time did not allow for collaboration. Had Dr. Grover wanted collaboration, he could have assigned someone to collaborate with the grievor. He said that his work did not allow for collaboration; Dr. Grover could have made an assignment that required it.

630        The grievor submitted that there is nothing in his PPRs about not attending seminars or not participating with his peers. He stated that he solicited comments from his colleagues, that he emailed them, and that Dr. Grover blocked access to his peers.

631         Also on page 4 of the release recommendation, under the heading “Teamwork”, the last line in that paragraph states that “… he has chosen not to collaborate at all.” The grievor stated that Dr. Grover was building a fantasy that the grievor was avoiding working with other group members. This accusation should have been communicated to the grievor; it never was, and it does not appear in any of the PPRs. As it is not in any PPR, therefore, it is to be attributed an ulterior motive. Dr. Hackett is also guilty for spreading that accusation around the NRC.

632        Dr. Grover’s comment that the grievor chose not to collaborate is incorrect; if the NRC reviewers were kept secret from him, then how could he have collaborated with them?

b. Dr. Lemieux

633        The grievor submitted that initially, Dr. Lemieux sent the dyes, and his collaboration was to be more extensive, but Dr. Grover ended it. The grievor submitted that the collaboration with Dr. Lemieux progressed as Dr. Lemieux changed the chemical formulation. The release recommendation disregards the change in the level of collaboration with Dr. Lemieux. The grievor submitted that the key work objectives set out in the September 2003 PPR clearly illustrate Dr. Grover’s view that Dr. Lemieux’s collaboration consisted of nothing more than supplying dyes. This is not correct; the dye had to be modified and then tested.

634        Peng Zhang created new dye in July of 2003 and continued to make more through to October of 2003. The grievor submitted that Dr. Grover said that continuing work on the Volume Hologram research was outside the grievor’s objectives. He submitted that his assignment was to prepare the article, which could not be done without completing the research. The objectives are evidence of Dr. Grover setting the grievor up to fail. Dr. Grover prohibited experimentation; he said, “Just write!” But an article cannot be written if the experiment is not completed.

635        Dr. Lemieux’s work helped create the new photochromic materials. Dr. Grover discounted the work as not valuable; he discounted Dr. Lemieux’s contribution as not being collaboration, and he discounted the work as being outside of the scope of the grievor’s assignment.

636        The grievor submitted that according to Dr. Grover, he was supposed to develop technologies based on materials already on the shelf at Queen’s University, which was wrong because the material did not exist. He was developing it; the wording of his assignment was contradictory. It had as a condition developing the material; Dr. Grover was aware of this, so his statements in the PPRs and the other documents were bad faith.

637        The collaboration between Dr. Lemieux and the grievor was much more than an exchange of rudimentary ideas and simple dialogue.

3. Contribution to outreach and influence

638        With respect to attending conferences, the grievor stated that the statement that he did not want to attend them had come out of the blue. He submitted that Dr. Grover did not finalize a trip to a conference for him after he had requested a letter for a visa. When Dr. Grover did not provide it, the grievor declined attending the conference, which was the only thing brought forward. That was secretive behaviour by Dr. Grover.

639        On page 3 of the release recommendation, under the heading “Outreach and Influence”, is the following statement: “It was also proposed that Dr. Boiko attend the Material Research Society’s Conference and Exhibition and visit Tufts University in Boston, Massachusetts. Dr. Boiko declined.” The grievor stated that the first time he heard of this was in the release recommendation. It was not recorded in any PPR. He submitted that if Dr. Grover ever notified him of it, he would testify that he needed a visa to enter the United States. The grievor submitted that the conference that Dr. Grover proposed for him to attend at Tufts University had nothing to do with his research; it was time consuming, and there was no reason for him to attend. He admitted that he agreed to attend, but he needed a visa and a letter to obtain it, which he never received.

640        The grievor further submitted that the conference at Tufts University would not have consisted of outreach and influence because it had nothing to do with his work, and he was never approved to attend. While on the surface, it appears logical, in reality, there was no basis for attending; it was about an NSOM. Dr. Grover used the term “attendance” to include “visit”, while the grievor submitted that he understood that that term meant “participation”. It did not involve outreach and influence, because for that to happen, material must be submitted. Listening to material in an area that one does not work in cannot be outreach. Dr. Grover misused the term “attendance”. The fact that this is set out in the release recommendation shows that his ulterior motive dated as far back as 2002. Therefore, it was not done in good faith, and suggesting that the grievor declined to attend was a sham.

641        Still on page 3 and under the same heading is the following statement:

In January 2004, Dr. Boiko requested to attend a “Biology for Biophotonics” course. This was denied on the basis that this course was completely irrelevant to his assigned work objectives. This further shows that Dr. Boiko is unable to make proper judgment for selecting a suitable course for professional development relevant to his assignment.

642        The grievor submitted that that was never brought to his attention.

643        Again on page 3 and under that same heading is the statement about the Photonics West 2004 Conference. The grievor stated that his conference submission was accepted, albeit after the deadline. However, Dr. Grover would not approve his attendance until Dr. Grover approved his material. So the grievor withdrew from the conference. The withdrawal was caused because Dr. Grover found that the material was inferior and unsuitable and that there was no novelty, originality, or significance. The grievor’s position was that his work was novel, original, and significant. In addition, he did not attend due to a lack of funding.

644        With respect to the Photonics West 2004 and the Symposium on Electronic Imaging conferences, the grievor said that when he submitted that he was ready to attend, Dr. Grover created excuses as to why he could not, such as, he was past the deadline, his article or articles were deemed inferior, and there were budget constraints. If there were budget restraints, then the fact that the grievor could not attend could not be used as a reason to reject him on probation.

645        The grievor stated that when he was considering reapplying for the Photonics West 2004 and the Symposium on Electronic Imaging conferences, he received a response from Dr. Grover that stated that he was out of time to submit his papers and that there was no money in the budget to send him. This was a camouflage that Dr. Grover was building. The release recommendation, where it discusses outreach, states that the grievor’s request was late; however, that is part of the camouflage as the conferences had accepted his articles. In the July 15 memo, Ms. McLaren said that the grievor’s proposed attendance to a major optics conference was untimely. He submitted that that was all part of the camouflage and sham.

646        The grievor submitted that on December 23, 2003, when he asked Dr. Grover if he could attend the Photonics West 2004 Conference, his response was to add new criteria for attending, which was that the work had to be beneficial to the NRC and that professional development had to occur within the framework of the assignment. This was in addition to budget considerations.

647        The email of December 23, 2003, listed six conferences from January to October of 2004 that in the grievor’s view should have been considered for him to attend. In his view, this showed that he made a significant effort to participate in conferences.

648        While another trip to the University of Toronto was suggested, the grievor stated that it was just a shopping trip. He stated that he never declined it; it was just never finalized.

649        There were no suitable courses available for professional development.

650        The grievor stated that he did not have any valid work assignments and objectives and that he was given make-work activities. In the end, there was no prospect for meaningful communication with his supervisor.

651        The allegations about the Krypton laser were false, which the transcript of the September meeting proves. There is no evidence that the grievor moved the Krypton laser, let alone in the spring. The September 2003 PPR stated that he transferred a Krypton laser into the group without consulting with and gaining the authorization of the group leader. The laser had been discarded by another group, and it required repair. The September meeting transcript accurately reflects his connection to the Krypton laser.

652        The grievor stated that Dr. Grover’s comments about the local high-tech company and about keeping information secret from him are a misrepresentation. He did not intend to conceal anything.

653        The grievor submitted that Dr. Grover misrepresented what happened with the lab books. He stated that Dr. Grover wanted the original lab books. He submitted that he was concerned about the record he had made on the back pages of the lab books about the computers, for which he stated that Dr. Grover refused to give him a receipt when he asked for one.

654        Dr. Grover suggested that the grievor attempted to claim credit for work not done; this was made up and is not true. While the grievor admitted that work is not reflected in the lab books, he stated that the work could have been done and just not reflected there. He submitted that if he presented results of work not actually done, it would have been grounds for termination. In fact, he submitted that if this is true, then nothing else matters.

655        The grievor submitted that he did supply Dr. Grover the lab books, just not the originals. He negotiated copying with Dr. Grover. The grievor provided him with copies of the lab books. The suggestion that the grievor was insisting on being present while Dr. Grover reviewed them is a misrepresentation. It is part of the camouflage. Dr. Grover hid his reason for wanting the lab books, which was the receipt for the computers.

656        The allegation that the grievor could not maintain lab equipment is also untrue and inaccurate. He stated that he advised Dr. Grover of equipment problems.

657        With respect to technology transfer, the grievor pointed to his collaboration with Queen’s University and with the local high-tech company.

658        With respect to sharing equipment, the grievor submitted that he produced evidence that demonstrated that he shared equipment with his colleagues. He stated that the evidence disclosed that he took reasonable steps to not upset his co-workers.

659        The grievor stated that there was no mention of issues with respect to cooperation about computer inventory and replacement. He submitted that this is part of the bad faith directed at him by Dr. Grover. The grievor pointed to a specific act of sharing a floppy drive with Dr. Chang. In support, he pointed to a receipt he had Dr. Chang sign for the drive on February 6, 2002. He submitted that it shows that he contributed to interpersonal relations as he did not benefit from the sharing; Dr. Chang did.

660        The grievor also pointed to an email in September of 2002 that disclosed that he worked with another colleague in trying to schedule laser usage time.

661        The grievor pointed to his work on an optical table. He stated that because he could not design one cheaper than one the NRC could purchase, he received a negative performance evaluation.

662        The grievor submitted that there was no one-on-one meeting with Dr. Grover with respect to setting up for the PPR process. The grievor submitted that there was a surprise deadline and a surprise meeting.

663        The grievor submitted that Dr. Grover’s comments that he had provided guidance and advice are all fantasy and that it never actually happened. He merely criticized the grievor. He said that while Dr. Grover visited his lab, he did none of the following:

• offer advice;
• provide technical direction;
• encourage co-operation;
• provide directions on NRC practices;
• provide remedial assistance;
• address problems; or
• offer assistance as to how to address problems.

4. Other

664        The grievor submitted that the release recommendation contains barely one truthful sentence; there is quite a bit of fantasy and quite a bit of material supported by the false reviews of his articles. Dr. Grover was the problem. His camouflage began in March of 2002 and continued until he wrote the release recommendation. He created a poisonous work environment; he made sure that the grievor had make-work assignments, which would not allow for an increase in productivity. The grievor could not produce results in the lab when he was given make-work writing assignments.

665        The grievor submitted that Dr. Hackett contributed to the camouflage. The grievor stated that he did so by requiring him to continue to report to Dr. Grover after he had filed his harassment complaint, which allowed Dr. Grover to continue to build his camouflage. Dr. Hackett’s motive had nothing to do with improving the relationship between the grievor and Dr. Grover and had everything to do with not interfering with Dr. Grover.

666        Dr. Hackett eventually removed the grievor from Dr. Grover’s supervision and assigned Mr. Vandenhoff as an administrative supervisor, who in his evidence stated that his duties involved being an intermediary between the grievor and Dr. Grover, which ostensibly left the grievor with no one to report to. Mr. Vandenhoff was not a scientific supervisor, and Dr. Hackett was not in a position to provide scientific and professional leadership. By this decision, the grievor submitted that he was left on his own with no supervisory contact and no one to speak with and that he had assignments due. He submitted that that was part of the camouflage and that it was the finishing step for the release recommendation.

667        The grievor submitted that assigning Mr. Vandenhoff as his administrative supervisor nailed the door closed on his ability to improve, as Mr. Vandenhoff had no scientific background and could provide only minimal supervision. That assignment made sure that the grievor could not improve and paved the way for the next step, which was the release recommendation. The harassment complaint investigation was a mere formality. This arrangement was dysfunctional from the very start; it was meant to be. It did not address the situation between the grievor and Dr. Grover. It created a new problem. The previous poisonous work environment was changed into a dead one. The grievor submitted that he was put in a tenuous position.

668        The grievor pointed to a document he introduced, which was an email chain he had with Dr. Taylor between October 24 and October 27, 2003, as evidence that he did not require his colleagues to sign non-disclosure agreements.

669        The grievor submitted that Dr. Grover never provided any technical or remedial assistance.

670        Ms. McLaren relied on the fantasies that Dr. Grover drew up in the release recommendation, which was based in part on PPRs that were not entirely true. The grievor stated that no attempt was made to verify which of its comments were true and which were not. It was kept confidential from him.

671        The grievor stated that the environment was hostile to him. He pointed to Mr. Blais’s memo that referred to him giving Mr. Blais a “Boiko headache.” This displays the openly hostile environment he was working in. The grievor submitted that he was blamed for filing grievances and the harassment complaint.

672        The list entered into evidence disclosed that four grievances were decided and that five were withdrawn. Therefore, in her memo, Ms. McLaren misled Dr. Raymont with respect to the grievances.

673        The grievor submitted that both Dr. Grover and Dr. Hackett were in positions to understand the NRC reviewers’ comments in their reviews of his work. Dr. Grover was in a position to understand and correct the errors in those comments, and Dr. Hackett was in a position to understand and correct the errors both in the reviewers’ comments and in those of Dr. Grover. He did not.

674        The grievor submitted that Dr. Hackett and Dr. Grover knew Dr. Lemieux, yet neither one contacted or spoke to him. This proves that they had an ulterior motive.

C. The employer’s reply

675        The grievor made submissions as follows:

• alleging facts that ran contrary to the evidence;
• asserting facts taken out of context; and
• asserting facts that were not in evidence.

676        Given the unreliability of the grievor’s submissions, the employer urged that little or no weight be given to them.

677        The grievor never challenged Dr. Hackett on issues that he was fully aware of and could speak to.

678        The grievor alleged that the issue of non-disclosure agreements was never raised until the release recommendation when in fact it is in the December 2003 PPR, for which Dr. Hackett was the reviewing officer. On the third page, it states that the grievor obligated co-workers to sign non-disclosure agreements. While the grievor suggested that this was never communicated to him, it is in the PPR. And he summonsed Drs. Zhang, Liu, and Chang. He never asked them if he ever required them to sign non-disclosure agreements.

679        With respect to not attending conferences, the grievor submitted that this was not found in his PPRs. This is incorrect. It was set out in both the September 2003 PPR and the December 2003 PPR.

680        With respect to the trip to Tufts University, the grievor stated that he needed a visa, that he did not want to go, and that Dr. Grover did not insist that he go or order him to go. There were opportunities for the grievor to fulfil his outreach and influence requirements, on which he would be assessed. He declined them.

681        Not attending the Photonics West 2004 conference was a collateral attack as a grievance about it was filed in September of 2003 and dealt with by Dr. Hackett, who was in a better position to deal with it than the Board is now.

682        The grievor made submissions about copyright infringement. He stated that he was required to publish the articles to prove that they were publishable. That they were published multiple times goes directly to the grievor’s credibility. His argument about the use of the copyright defence is without merit. In addition, there is absolutely no justification for the serial publication of an article before he was employed by the NRC.

683        The grievor submitted that Dr. Grover’s actions violated the NRC’s PPR policy. He submitted that there was no legitimate feedback during the probationary period. This is incorrect. The documentation created at the time and presented to the grievor sets out that he was given feedback. He suggested that it did not happen. The employer pointed out that his behaviour at the hearing mirrored his behaviour in the workplace, as set out in the PPRs. The employer submitted that more weight should be given to the documentation created at the time than to the grievor’s oral testimony.

684        The PPRs disclosed that the grievor failed to follow direction at work. He also failed to follow direction at the hearing; deadlines were set, which he failed to meet. Suggestions and recommendations were made, which he failed to follow. He was obstinate and uncooperative. The behaviours that he displayed at the hearing are the same as are set out in the three unsatisfactory PPRs.

685        While the grievor spent a great deal of time directing his anger and blame towards Dr. Grover, Dr. Hackett reviewed the 2002-2003 PPR and was active as the reviewing officer on the September 2003 PPR and the December 2003 PPR. There is nothing to suggest that there was any bad faith on his part. There was no love lost between Dr. Grover and the NRC or between Dr. Hackett and Dr. Grover.

686        The grievor made submissions about Dr. Zhang not being a holography expert. However, Dr. Zhang was qualified to assess certain areas, which he admitted and did.

687        The grievor took issue with statements made in the 2002-2003 PPR that work was still to be done on his articles. He denied that he ever told that to Dr. Grover. Why would Dr. Grover make this up? At the end of the day, the issue was whether the articles were suitable for publication. The actual review of the articles is of little value; the real issue is the quality of the papers produced.

688        The grievor submitted that the objectives in the September 2003 PPR were make-work projects, which suggests that Dr. Grover was designing failure for him by assigning these objectives and that they were in bad faith and a camouflage. This is another collateral attack. A grievance was filed on September 30, 2003, and responded to by Dr. Hackett at the final level on December 11, 2003. As set out in that final-level response, the objectives were drafted by the grievor and were based on his previous work and research experience. In any event, Dr. Hackett not only heard and determined the grievance at the final level, but also he was part of the PPR process as the reviewing officer. The grievor should have questioned him on this topic; he did not.

VIII. Reasons

689        This is a unique case. First and foremost, it is old and has been subject to many delays. It started in 2004 under the PSSRA and was referred to adjudication in 2008 under the PSLRA. By the time I heard it, over the course of 2014 and 2015, much of the evidence was in excess of 10 and sometimes 12 years old.

690        Second, the very nature of the grievor’s job, the work he did, and the work of the NRC presented very challenging technical subject-specific material, which in and of itself led to complications as the process moved forward both during the pre-hearing and hearing phases. This often required me to make decisions with reasons to follow. That said, those decisions are largely entangled with not just the evidence as it was presented but also with the process in which the evidence was brought forward. While I would normally set out at the outset of my reasons separate headings dealing with these interlocutory findings, in this case doing so is difficult given the nature of the proceedings and the way the evidence, or sometimes lack of it, unfolded. Given these circumstances, I have set out my rulings in these reasons at those points at which it makes the most sense.

A. The sealing of documents

691        The grievor submitted as evidence two versions of allegations relating to the harassment complaint he filed against Dr. Grover. While the complaint was not put into evidence, the documents filed contain allegations and statements that appear to be specifics of the complaint alleging harassment. The allegations in the complaint are at least 14 years old, and while an investigation was commenced, it was never completed, and no determination was made. A subsequent judicial review application was dismissed. In addition, Dr. Grover is no longer employed by the NRC, and the INMS and Optics and Photonics groups no longer exist.

692        Basic v. Canadian Association of Professional Employees,2012 PSLRB 120 at paras. 9 to 11, states as follows:

[9] The sealing of documents and records filed in judicial and quasi-judicial hearings is inconsistent with the fundamental principle enshrined in our system of justice that hearings are public and accessible. The Supreme Court of Canada has ruled that public access to exhibits and other documents filed in legal proceedings is a constitutionally protected right under the “freedom of expression” provisions of the Canadian Charter of Rights and Freedoms; for example, see Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76, Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41(CanLII).

[10] However, occasions arise where freedom of expression and the principle of open and public access to judicial and quasi-judicial hearings must be balanced against other important rights, including the right to a fair hearing. While courts and administrative tribunals have the discretion to grant requests for confidentiality orders, publication bans and the sealing of exhibits, it is circumscribed by the requirement to balance these competing rights and interests. The Supreme Court of Canada articulated the sum of the considerations that should come into play when considering requests to limit accessibility to judicial proceedings or to the documents filed in such proceedings, in decisions such as Dagenais and Mentuck. These decisions gave rise to what is now known as the Dagenais/Mentuck test.

[11] The Dagenais/Mentuck test was developed in the context of requests for publication bans in criminal proceedings. In Sierra Club of Canada, the Supreme Court of Canada refined the test in response to a request for a confidentiality order in the context of a civil proceeding. As adapted, the test is as follows:

…

1. such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and
2. the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings.

…

693        The allegations in the harassment complaint are unsubstantiated. Although neither party requested that documents be sealed, given that the matter before me was not whether harassment against Dr. Grover was founded, I find that the salutary effects of keeping confidential the allegations against Dr. Grover (he was not a party to these proceedings; nor did he attend and hear any of the allegations made) outweigh the deleterious effects, including the right to free expression, which in this context includes the public interest in open and accessible court proceedings, of not making these contentious and potentially damaging allegations public. As such, I have ordered the following documents sealed:

1. Exhibit G-18: an 11-page email dated June 28, 2004, from the grievor to Mr. P. Chodos titled “Major allegations for harassment investigation”.
2. Exhibit G-19: a 5-page document also titled “Major allegations for harassment investigation”.

B. Objection to jurisdiction

694        The employer objected to me hearing and determining this matter, stating that it falls under s. 28(2) of the PSEA that was in effect when the termination occurred (in 2004; “the former PSEA”) and s. 92(3) of the PSSRA.

695        On April 1, 2005, the PSLRA, enacted by s. 2 of the PSMA, came into effect, replacing the PSSRA. Section 61 of the PSMA provided that any grievance presented in accordance with the PSSRA that was not finally dealt with before the day on which s. 208 of the PSLRA came into force was to be dealt with on and after that day in accordance with the provisions of the PSSRA.

696        The PSMA also made significant changes to the former PSEA. On December 31, 2005, the current PSEA, enacted by s. 12 of the PSMA, came into effect, replacing the former PSEA. Before December 30, 2005, the rejection on probation provision was as follows:

28 (2) The deputy head may, at any time during the probationary period of an employee, give notice to the employee that the deputy head intends to reject the employee for cause at the end of such notice period as the Commission may establish for that employee or any class of employees of which that employee is a member, and the employee ceases to be an employee at the end of that period.

697        After December 31, 2005, that provision was replaced by the following in the PSEA:

62 (1) While an employee is on probation, the deputy head of the organization may notify the employee that his or her employment will be terminated at the end of

1. the notice period established by regulations of the Treasury Board in respect of the class of employees of which that employee is a member, in the case of an organization named in Schedule I or IV to the Financial Administration Act, or
2. the notice period determined by the separate agency in respect of the class of employees of which that employee is a member, in the case of a separate agency to which the Commission has exclusive authority to make appointments,

and the employee ceases to be an employee at the end of that notice period.

698        The relevant provisions dealing with the jurisdiction of an adjudicator did not change significantly between the PSSRA and the PSLRA. Subsections 92(1) to (3) of the PSSRA stated as follows:

92 (1) Where an employee has presented a grievance, up to and including the final level of the grievance process, with respect to

1. the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award,
2. in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4),
   1. disciplinary action resulting in suspension or a financial penalty, or
   2. termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, or
3. in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or financial penalty,

and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication.

(2) Where a grievance that may be presented by an employee to adjudication is a grievance described in paragraph (1)(a), the employee is not entitled to refer the grievance to adjudication unless the bargaining agent for the bargaining unit, to which the collective agreement or arbitral award referred to in that paragraph applies, signifies in the prescribed manner its approval of the reference of the grievance to adjudication and its willingness to represent the employee in the adjudication proceedings.

(3) Nothing in subsection (1) shall be construed or applied as permitting the referral to adjudication of a grievance with respect to any termination of employment under the Public Service Employment Act.

699        Subsection 209(1) of the PSLRA stated as follows:

209 (1) An employee may refer to adjudication an individual grievance that has been presented up to and including the final level of the grievance process and that has not been dealt with to the employee’s satisfaction if the grievance is related to

1. the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award;
2. a disciplinary action resulting in termination, demotion, suspension or financial penalty;
3. in the case of an employee in the core public administration,
   1. demotion or termination under paragraph 12(1)(d) of the Financial Administration Act for unsatisfactory performance or under paragraph 12(1)(e) of that Act for any other reason that does not relate to a breach of discipline or misconduct, or
   2. deployment under the Public Service Employment Act without the employee’s consent where consent is required; or
4. in the case of an employee of a separate agency designated under subsection (3), demotion or termination for any reason that does not relate to a breach of discipline or misconduct.

700        Section 211 of the PSLRA stated as follows:

211 Nothing in section 209 is to be construed or applied as permitting the referral to adjudication of an individual grievance with respect to

1. any termination of employment under the Public Service Employment Act; or
2. any deployment under the Public Service Employment Act, other than the deployment of the employee who presented the grievance.

701        The grievance was filed on July 26, 2004. The legislation governing the grievance process at that time was the PSSRA. On May 8, 2008, the grievor referred the matter to the PSLRB for adjudication. As the grievance was not finally dealt with before the PSLRA came into force, pursuant to s. 61 of the PSMA, it is to be dealt with in accordance with the PSSRA.

702        On November 1, 2014, the PSLREBA came into force and provided that any proceeding commenced under the PSLRA and pending before the PSLRB would continue before the PSLREB. On June 19, 2017, the PSLRA became the Act,and the PSLREB became the Board.

703        The NRC is a portion of the public service specified in Part II of Schedule I to the PSSRA.

704        The jurisprudence, either under the PSSRA (s. 92(3))or the PSLRA (s. 211), is quite settled. Terminations of employment that are made under the PSEA, either the version in effect currently or the former PSEA, could not be referred to adjudication under either the PSSRA or the PSLRA. The significant difference between the former PSEA and the current PSEA is the removal of the phrase “for cause”, which modifies the reference to the deputy head’s reasons for the termination of employment.

705        The Federal Court, at paragraphs 51 and 53 of Chaudhry, succinctly set out the generally accepted jurisdictional test with respect to terminations of employment for which a rejection while on probation is at issue under s. 28(2) of the former PSEA and s. 92(3) of the PSSRA, as follows:

[51] In these circumstances, the employer satisfied the adjudicator that it had met the burden of proof which required it to show some evidence of an employment-related reason for a rejection on probation. In this regard see Canada (Attorney General) v. Leonarduzzi (2001), 205 F.T.R 238, at para. 37, where Lemieux J. wrote:

Specifically, the employer need not establish a prima facie case nor just cause but simply some evidence the rejection was related to employment issues and not for any other purpose.

…

[53] Once the employer’s onus was met, the burden shifted to the employee to show bad faith. In this regard, the adjudicator concluded that the Applicant had not shown that the Rejection on Probation was a sham or made in bad faith.

706        Under the former PSEA, the employer could terminate an employee during the probationary period, and that termination was outside the PSSRB’s jurisdiction if the employer showed that it was for cause. The jurisprudence under the former PSEA and PSSRA discloses that once an employer demonstrated that the termination was within the probationary period and that there was a valid employment-related reason for it, the PSSRB did not have jurisdiction over it.

707        The evidence disclosed that the grievor was offered his position as an AcRO with the NRC by letter dated October 12, 2001. The letter, which had an attachment, provided that his appointment was effective November 16, 2001, and was subject to a three-year probation period.

708        On July 15, 2004, Dr. Raymont terminated the grievor’s employment, stating only that it was done in light of the continued unsatisfactory performance of his AcRO duties.

709        The basis for the statement that the grievor’s performance was unsatisfactory appears to have been found in the release recommendation, which Dr. Grover provided to Ms. Jacobs. The evidence also disclosed that that document was the basis on which the DG of HR, Ms. McLaren, recommended (via her July 15 memo) to Dr. Raymont that the grievor be rejected on probation. As Ms. Jacobs was an HR generalist and Ms. McLaren was the DG of HR, the specifics of the grievor’s unsatisfactory performance were based on Dr. Grover’s opinion. He was the grievor’s immediate supervisor.

710        The release recommendation set out that based on the assessment criteria against which all research officers were assessed, which were contributions to science and technology, technology transfer and client interaction, outreach and influence, and teamwork, the grievor was not progressing.

711        It identified under each assessed criteria heading the shortcomings in the grievor’s performance. All the shortcomings set out are valid employment-related reasons, as established by the jurisprudence under the former PSEA and the PSSRA, to reject an employee on probation. As such, the employer has established that the facts relating to the termination of the grievor’s employment while on probation show that it was for cause. Thus, by virtue of s. 28(2) of the former PSEA and s. 92(3) of the PSSRA,as an adjudicator, I have no jurisdiction to deal with the termination.

712        However, that does not end the inquiry.

713        A grievor may be able to satisfy an adjudicator that he or she has jurisdiction if it is established that, on a balance of probabilities, the reason for the termination was not legitimate and employment-related but was something contrived, a sham, a camouflage, or bad faith, which amounted to disguised discipline, which would bring the grievance under s. 92 of the PSSRA and, thus, within my jurisdiction.

714        Before addressing the grievor’s case, the employer argued that a portion of the evidence he led was a collateral attack.

C. Collateral attack

715        The employer took the position that the grievor’s evidence relating to the assessment of his articles was a collateral attack as it had been raised and addressed in the February 2004 grievance. That grievance alleged that there was a lack of impartiality in the process of reviewing his articles and that Dr. Grover chose the reviewers while he was in an official dispute with the grievor over alleged harassment.

716        The grievance further alleged that feedback from the reviewers was denied to the grievor despite erroneous statements they made and despite Dr. Grover’s promise to him that he would receive feedback. As corrective action, he asked for outside reviewers to be selected by an expert also from outside the NRC and for a process through which he could receive feedback from the reviewers after they completed their reviews.

717        The NRC argued that Dr. Hackett dealt with the grievor’s evidence with respect to his articles at the final level of the grievance process in addressing the grievance. As such, based on the principle of collateral attack, the grievor was estopped from taking issue with the findings with respect to the articles. I disagree.

718        The rule against collateral attack is grounded in the concept of not allowing a party to a litigation process to argue against a finding of fact made by another court or tribunal of competent jurisdiction. An obvious example found in the context of labour and employment law is when an employee is disciplined for a specific action and in addition to being disciplined is charged criminally for what he or she has done. If that employee is tried and convicted in a criminal trial (for which there is either no appeal or all appeal rights have been exhausted), he or she cannot come before the tribunal hearing the discipline grievance and attempt to lead evidence that he or she did not commit the offence or present different evidence than what was found as fact in the criminal proceeding. Doing so would be a collateral attack.

719        The facts involving the February 2004 grievance and the evidence the grievor led about his research and articles that contributed to his termination are not necessarily the same.

720        His grievance dealt with what the grievor perceived was an unfair process, not the substance of the scientific research, the articles, their assessment as part of the PPR process, or his suitability for continued employment. Indeed, in the grievance, he stated that he grieved “… the lack of impartiality in the process of reviewing …”

721        While I am mindful of the fact that some of the grievor’s evidence did focus on the process involved in reviewing his articles and that on the surface it may appear that his termination grievance and the February 2004 grievance are the same, it is clear to me that there is a subtle but important difference with respect to the specific issue he complained of in the February 2004 grievance and the evidence he led about his grievance at this hearing.

722        The summary of what happened at the final-level grievance hearing of the February 2004 grievance before Dr. Hackett was summarized in his grievance response on July 28, 2004. He said that the grievor had done the following:

…

… presented evidence in support of your grievance … where you grieved the lack of impartiality in the review process of specific articles you submitted to your manager in March 2003. As corrective action, you requested that there be a selection of outside reviewers by an expert outside of NRC as well as the establishment of a process through which you could provide feedback to the reviewers after they completed their reviews.

…

723        When the grievor filed the February 2004 grievance, he had not yet been rejected on probation. The grievance reply was issued at the final level after he had been terminated from his employment on July 28, 2004. The July 15 letter terminating his employment does not set out any specifics for his discharge from the NRC, save and except to state that it “… was taken in light of [his] continued unsatisfactory performance of [his] duties as a Research Officer.”

724        While in the larger sense, the basis for the grievor’s termination was his overall employee performance, the specifics that led to Dr. Raymont’s decision to end the relationship was set out in documents that the grievor was never privy to: the release recommendation and the July 15 memo. The evidence disclosed that he was not aware of the release recommendation and its contents until it was produced to him as part of this hearing process.

725        As the grievor was still employed when he advanced his arguments on the February 2004 grievance and more importantly did not know that issues involving his research and articles would be part of the reasons for his rejection on probation (let alone the specifics of those reasons) until almost 10 years later, the employer has not satisfied me that the evidence he advanced was a collateral attack.

D. Credibility

726        The truth lies somewhere in the vast amount of facts set out, some of which were based on limited or no recollections of events that occurred often more than a decade before I heard the evidence. The accuracy and the credibility of the evidence are extremely important, especially when it is so old.

727        Issues of credibility are dealt with by the test articulated in Faryna v. Chorny [1952] 2 D.L.R. 354, in which the British Columbia Court of Appeal stated as follows:

…

If a trial Judge’s finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility … A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie.

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions… .

…

728        As the hearing proceeded, and most notably when the grievor testified, it became apparent that his rendition of events in many respects was not in harmony with the preponderance of the probabilities, which a practical and informed person would readily recognize as reasonable. These will be set out as I proceed in assessing his case.

E. Sham, camouflage, bad faith, and disguised discipline

729        The grievor’s difficulties came to light in early March of 2003 at the time of his meetings for the 2002-2003 PPR. The appraisal was carried out by Dr. Grover, who did not testify. Most of the evidence relating to the 2002-2003 PPR process was contained in documents produced either by Dr. Grover or by the grievor.

730        The Volume Hologram and Z-scan work and articles were the subjects of much of the comments in the release recommendation covering three of the areas of assessment: contribution to science and technology in the field of optics, technology transfer/client interaction, and outreach and influence. This research and these articles were also the main thrust of the grievor’s case with respect to his allegations of sham, camouflage, and bad faith resulting in disguised discipline.

731        Out of the Volume Hologram research came nine iterations of two articles that were produced (VH Nos. 1 through 6, and EPH Nos. 1 through 3) and four that were eventually published (VH Nos. 5 and 6, and EPH Nos. 2 and 3). Out of the Z-scan research, eight iterations of one article were produced, and three were published (Z-Scan Nos. 6 through 8). The research involving both projects was 11 to 12 years old before this hearing commenced.

732        As a component of the grievor’s theory of his case, to be able to publish scientific research in a journal, it must be novel, original, and significant. According to him, the fact that the employer did not allow him to publish his work was an indication that it believed that his work was not original, novel, or significant. He based this on some of the comments made in reviews of his articles by internal NRC reviewers that he contends was incorrect.

F. Contributions to science and technology in the field of optics

1. Proposed experts and expert reports

733        The evidence from an expert witness is often, although not exclusively, opinion based.

734        As a prerequisite to hearing testimony from someone proposed to give expert evidence, the person must be recognized by the court (or tribunal) as having acquired specialized knowledge through skill, experience, training, education or all of them in a particular field or area that can assist the court or tribunal.

735        The process to establish whether a proposed witness is an expert in a particular field begins with the presentation to the tribunal of the person’s credentials. Often, the witness is required to provide detail through oral testimony, tested under cross-examination, as to the extent of his or her knowledge, skill, and experience in the field in which the party is seeking to establish that person as an expert. Sometimes the parties may agree that a particular person has certain qualifications in a particular field that establish him or her as an expert in that field. However, it is the judge, or in the case of this Board the member hearing the case, who determines whether the proposed expert is in fact an expert and, if so, in what field or area.

736        It may be trite to state that it is important for a party wishing to establish a person as an expert witness in a particular field to the judge or in this case Board member that the proposed expert must actually have the qualifications, be it through knowledge, skill, experience, or all three in that particular field.

737        To be more precise, a person may have a university degree in medicine and be licenced to practice medicine as a generalist. However, that person may or may not be a specialist in any given field of medicine. So, while a doctor may have many years of experience as a generalist, and as such some knowledge with respect to issues dealing with many different medical issues, he or she likely does not have the same knowledge in a particular field as a specialist doctor in the field would have.

738        Taking this one step further, in some medical fields there are sub-specialists in the specialist fields. For example, a family doctor could well have sufficient knowledge, skill, and expertise to diagnose a heart ailment in a patient but not sufficient skill, knowledge, and expertise to diagnose and treat it precisely. So, that doctor would send the patient to a specialist in the field, who would be a cardiologist. While the cardiologist may be able to precisely diagnose and perhaps treat the ailment or recommend treatment, the treatment may be surgery, and so the cardiologist would refer the patient to a cardiac surgeon.

739        Therefore, depending on the evidence being dealt with in a particular hearing, a person may or may not be considered an expert depending on the extent of the evidence and his or her knowledge, skill, or expertise in the field or subfield with which the tribunal needs assistance.

740        Some of the stated reasons for recommending the grievor’s rejection on probation included that his performance was not up to the standard of an AcRO. His case turns largely on evidence about his research set out in the Volume Hologram, EPH, and Z-scan articles.

741        The grievor possesses a PhD in physics and works in the area of optics. The evidence disclosed that he was conducting research using lasers, polymers, and holograms. To establish that I have jurisdiction, the grievor would have to show that the employer’s assessment of his work and work product, as set out in his articles, was in fact a sham, camouflage, or in bad faith, amounting to disguised discipline.

742        I do not possess a university degree in science or physics, let alone at the masters or PhD level. The grievor’s theory of his case required me to understand the work he did (or should have been doing) as well as the work of the INMS and the Optics group. Evidence from one or more experts in the field appropriate to the work carried out at the NRC in the INMS and Optics group and the grievor’s specific area of research would have been helpful to me understanding much of the evidence that was submitted as it was highly specialized and very technical.

743        Before the start of the hearing, in early June of 2011, the grievor indicated that he had made arrangements for potential expert witnesses to give evidence as part of his case. Indeed, during attempts to arrange the initial hearing dates (and later, continuation dates), a common thread he put forward for not being able to proceed was either the unavailability or inability of his proposed expert witnesses to attend. As the pre-hearing moved to the hearing, it also became evident that four of his five proposed experts lived and worked in either Russia or Ukraine.

744        Shortly before the hearing began, in the early spring of 2014, the grievor delivered to the employer a series of 20 reports, 4 from each of the proposed experts, which he indicated would be presented as part of the testimonies of his proposed expert witnesses.

745        The reports are what I would describe as cookie cutters of each other. They are similar to a multiple-choice questionnaire.

746        According to the evidence, the grievor sent the same information to each of the five proposed experts, which was identified as follows:

• copies of VH Nos. 3 and 4;
• copies of the reviews of VH Nos. 3 and 4 completed by the NRC reviewer (Dr. Zhang);
• copies of the grievor’s comments to Dr. Grover on Dr. Zhang’s reviews of VH Nos. 3 and 4;
• a template report form to be filled in by the proposed experts for Dr. Zhang’s reviews of VH Nos. 3 and 4;
• copies of the two published versions of the Volume Hologram articles;
• an unpublished version of the Z-scan article (an unknown version);
• copies of the reviews of the Z-scan article by NRC Reviewer Nos. 1 and 2;
• the comments he sent to Dr. Grover on the reviews of the Z-scan article by those NRC reviewers;
• template report forms to be filled in by the proposed experts for the Z-scan reviews by NRC Reviewer Nos. 1 and 2;
• copies of the three published versions of the Z-scan article;
• an unpublished version of the EPH article (an unknown version);
• a copy of comments provided to the grievor with respect to the EPH article;
• the comments the grievor sent to Dr. Grover with respect to the comments provided to him about his EPH article;
• a template report form to be filled in by the proposed experts for the unknown EPH review; and
• copies of the two published versions of the EPH article.

747        Received into evidence was a series of completed template report forms prepared by the grievor and filled in assumedly by the proposed experts. At the outset of each template document was the following statement and instruction:

…

Based on the supplied material and other relevant information sources deemed necessary, analyze and evaluate the below statements of the Reviewer and comments to those by the Author within the context of the peer review evaluation of the article material (i.e. aiming to establish the correctness as well as reasonableness of evaluation by the Reviewer of the novelty, originality, significance and contribution of the material presented in the article). In the below preformatted tables select your evaluation of the merits of the statements made by the Reviewer as well as those made by the Author by typing “X” inside the chosen option cell. Adopt the following scale for the marking:

…

False	- statement which is untrue, contrary to the facts or evidences;
No merit	- statement which is not supported with the evidence or facts;
Disputable	- statement which is open to debate;
Strong merit	- statement which has solid foundation and/or ground for support;
True	- statement which is opposing the one qualified as false;

(Note: “False” and “True” marks would go in pairs in case if one’s party “False” statement is opposed by the other party with statement to the contrary and whose statement should be marked with the opposite to “False” mark, which is “True”).

After placing your mark, in the space provided do explain your choice and position on the issue. Answer specific questions, if there are supplied herewith for the points below, via making the appropriate choice by typing “X” in the relevant choice-cell of questionnaire and explain your position, if needed. Summarize the marks and draw conclusive judgment with regard to the value of the presented peer review.

…

[Emphasis in the original]

[Sic throughout]

748        Each of the four template documents set out, in numbered sections, a comment from the NRC reviewer and the grievor’s corresponding response. After the comments, the template contained the following instruction (or similar instruction), to the proposed experts: “Select your evaluation of the merit for the above statements of the Reviewer and that of the Author.” Immediately after that were five boxes assigned to the NRC reviewer and the grievor (identified as the author) with an option of one of the following rating choices: true, false, strong merit, disputable, or no merit. Each of the proposed experts had to choose a rating for each statement of the NRC reviewer and the corresponding response that the grievor had made and then had to mark the box with an “X” corresponding to the rating chosen. Below each box was a space in which the proposed experts could comment if they chose to.

749        According to the evidence, a version of the grievor’s Z-scan article was given to two unidentified reviewers at the NRC who each provided written comments to Dr. Grover. Two different versions of the Volume Hologram article (VH Nos. 2 and 3) were given to an unidentified reviewer (later determined to be Dr. Zhang) at the NRC who provided written comments to Dr. Grover. And there are comments about the (albeit of unknown version) EPH article (there is no evidence that it was reviewed by anyone other than Dr. Grover). The grievor in turn had responded in writing to the written reviews about his articles. His responses determined how many sections the proposed experts were to assess in each of the four template reports.

750        The 20 reports submitted are, in essence, 4 different surveys completed by each of the 5 proposed experts.

751        None of the proposed experts testified.

752        Drs. Keshtov, Solovjev, Barachevsky, and Kuchmiy all live and work in either Russia or Ukraine and were all educated in those countries, where the predominant language is not English. While their reports were submitted in English, I am not satisfied that they are proficient in English. I have concerns that the reports may not have been written in English because of the following:

• in an email to the Board dated June 1, 2012, when discussing potential hearing dates, the grievor stated that interpretation services from Russian to English and English to Russian would be required;
• in that same email, the grievor suggested that his potential expert witnesses had a technical knowledge of English that might not be sufficient for legal proceedings;
• until the employer and grievor reached the Agreement on Experts on January 9, 2015, discussions took place to make arrangements for the proposed experts to attend, which included the responsibility for language translation services between Russian and English;
• until the employer and grievor reached that agreement, but after I had ordered that evidence from the proposed experts could proceed via teleconference, discussions took place to make arrangements for language translation services between Russian and English; and
• during the hearing, I ordered the grievor to provide documentation that he had exchanged with one of the journals in which one of his articles was published. The little material produced was in Russian, which the grievor translated to English.

753        In addition, early in the hearing, counsel for the employer requested that the grievor provide the hearing with copies of all the materials sent to the experts in the format they were sent. On July 10, 2014, I ordered that he provide to counsel for the employer all emails, letters, correspondence, and similar documentation (including any notes made of discussions) between him and his five proposed experts, from the initial date of contact requesting their participation to the dates on which they issued their reports. I further ordered him to provide this information in the manner in which the employer requested the documents and that to deliver them no later than 4:00 p.m. on July 15, 2014. He advised the hearing that none of those documents was available.

754        This brings into question whether the material provided to the proposed experts was in English or translated, for some or all, into Russian or Ukrainian. It is equally unclear if their contributions were in English or in Russian or Ukrainian and were later translated into English. If it was translated, the translator was not identified.

755        The Agreement on Experts provides that the parties agreed that the proposed reviewers were experts in the field of optics. Unfortunately, no one at the hearing defined that field for me. The Canadian Oxford Dictionary, Second Edition, defines optics as the scientific study of sight and the behaviour of light, other radiation, or particles. This did not help me determine if any of the five proposed expert witnesses had the required skill, knowledge, and training to be qualified by me as an expert in the field of optics or a subfield of optics with respect to the grievor’s work.

756        It is not clear to me, from the information provided either through any witness testimony or by the documents submitted, exactly what field or subfield of science, physics, and optics I heard evidence about or if the evidence I heard (with respect to the grievor’s research and subsequent articles, either Volume Hologram, EPH, or Z-scan) had a nexus with other branches of science and physics. Without knowing this, it is impossible for me to determine whether the five proposed people should be considered experts and whether their comments set out in the reports have any value in assisting me.

757        Finally, and most importantly, it is unclear what assistance the 20 reports provide. They critique the NRC reviewers’ comments of specific versions of the grievor’s papers, which elaborate on his research. Without the benefit of testimony from the proposed experts and the testing of their opinions as by Drs. Hackett and Zhang, it is impossible to assess their reports. Perhaps, had they attended and provided oral testimony, they could have shed light on the issues before me. However, they did not, and I am left with a number of reports that appear to contain nothing more than a multiple-choice questionnaire comparing comments about research topics of which I have limited understanding.

758        The grievor’s position was that the articles were worthy of publication and that the NRC’s assessment of them by its internal reviewers was wrong. His position was that based on these internal reviews, his supervisor deemed that his articles were unsuitable for publication, yet the evidence of their publication, albeit years after his termination of employment, proves that the employer’s position was wrong.

759        The task of the expert is to assist the trier of fact, in this case, me, in assessing the evidence. Simply submitting to me 20 reports, which are the views of third parties on the comments of other third parties who were commenting on a version of the grievor’s articles, is not helpful. Typically, an expert prepares a report in advance of testimony such that it will assist the tribunal in understanding the expert’s testimony. That testimony, with perhaps the assistance of a report, allows the trier of fact to make certain findings.

760        In this case, what the grievor has submitted by way of the 20 reports, based on the parties’ Agreement on Experts, is not helpful. They do not assist me in understanding the following:

• the grievor’s work in relation to the INMS’s mandate;
• his work in relation to the Optics group’s mandate;
• his work in relation to other work in the field of optics generally;
• the quality of his work;
• the quality of his work in relation to other work done in the Optics group;
• the quality of his work generally in relation to other work in the field of optics; or
• the quality of his work in relation to other work in the specific area of the optics field that he was working in.

761        For all the reasons set out in this section, I am not prepared to give any weight to any of the comments or opinions set out in the 20 submitted reports from the grievor’s 5 proposed experts.

2. Volume hologramresearch and article, the degradation issue, and the EPH research and article 

762        The Volume Hologram and EPH research involved creating holograms by using a laser, polymer, and dyes. The dyes were produced and supplied by Dr. Lemieux, Mr. Maly, and Peng Zhang at Queen’s University.

763        The first version of the Volume Hologram article was in a section of the Specialty Polymers Report identified by the number “5” and titled “Volume hologram recording in diarylethenes”. The report has handwriting and a stamp on it that it was received on March 6, 2003. However, VH No. 1 is a different document that was received separately and that has handwriting and a stamp on it that it was submitted on March 10, 2003.

764        The following is from the Grover Response:

• Dr. Grover met with the grievor with respect to his PPR on March 7, 10, and 24, 2003;
• the meeting on March 7, 2003, lasted four hours, and the appraisal was not completed;
• the PPR meeting continued for a further four hours on March 10, 2003, and again was not completed;
• the PPR meeting continued again on March 24, 2003; and
• the grievor went on sick leave after the March 24, 2003, PPR meeting.

765        The grievor remained on sick leave until May 7, 2003.

766        The evidence disclosed that the grievor had three separate lab books. Two of the three overlap in terms of time in that Lab book 1 covers July 12, 2002, to July 28, 2003, and Lab book 2 covers November 2002 to July 15, 2003. Lab book 3 covers August 11, 2003 to September 2, 2003. There are large gaps in time in the first two, and the entries are not necessarily in chronological order. In addition, there are often entries on consecutive pages that are then followed by empty pages.

767        The grievor did not provide me with any of the following about the lab books:

• any explanation as to why two overlap the same time frames and why neither one is exclusive to either the Volume Hologram or Z-scan research;
• any explanation with respect to their format;
• any explanation of why he did not provide a walk-through of the research and articles and cross-references of them with the material in the lab books.

768        While it is often difficult to decipher what work the notations in the lab books reference, I did hear enough evidence about the grievor’s research to be able to decipher notations that relate to some of the work he was doing, mostly on Volume Hologram. In Lab book 1, between July 1, 2002, and the reference to the March 7, 2003, PPR, there are 22 pages of notations (this does not include documents printed from other sources). After the reference to the March 7, 2003, PPR, there are 13 pages of notations before the grievor left on sick leave, and another 10 pages were made after his return on May 7, 2003. Then what appear to be the last work notations are made on July 14, 2003. In Lab book 2, the reference to the March 2003 PPR appears on page 15; before that are 3 pages of notations (this does not include documents printed from other sources). After the reference to the March 2003 PPR, there are 13 pages of notations before the grievor went on sick leave and another 8 after he returned. Work referenced immediately after the March 7, 2003, reference to the PPR, in both Lab books 1 and 2, can be identified as involving the Volume Hologram research.

769        The grievor stated that the Volume Hologram article written with respect to this research was complete and ready to go as of the time of the 2002-2003 PPR meetings. However, the Grover Response said that the grievor stated at the time of those meetings that the article was not complete, as follows: “We discussed the contents of this paper and it was evident that the paper had other shortcomings, including the explanation of the interference phenomenon described therein.”

770        The activity in the lab books clearly supports the contention in the Grover Response that the grievor’s Volume Hologram work was not completed before the 2002-2003 PPR process. It is clear that he continued to work on it after the March PPR meetings. Indeed, the lab books disclose a flurry of activity, some of it related to Volume Hologram research, following the initial March PPR meeting and continuing up to and including March 24, 2003, when the grievor left on sick leave. The activity in the lab books also discloses that Volume Hologram research took place after he returned to work in May of 2003.

771        The evidence disclosed that while still in the NRC’s employ, the grievor produced three more versions of the Volume Hologram article in addition to VH No.1 and the version in the Specialty Polymers Report. Given the extent of the work documented in his lab books immediately following the initial PPR meeting of March 7, 2003, and during the continued PPR process before his departure on sick leave and after his return, it is evident that the Volume Hologram research was not complete and that the article was not ready for publication in early March of 2003, as he alleged.

772        The evidence disclosed that two unknown reviewers for the OSA and the journal Applied Optics reviewed VH No. 4 and that at least one of them raised concerns about it. An NRC internal reviewer, later determined to be Dr. Zhang, also reviewed two versions of the Volume Hologram article (VH Nos. 3 and 4). He made some comments about the articles and identified at least one issue, degradation.

773        As set out earlier, the grievor stated that VH No. 1 (submitted at the time of his 2002-2003 PPR) was complete and ready to be published. However, later on, when the degradation issue was discussed, he acknowledged that he was aware it, that he had done follow-up research on it, and that he then had written the EPH article. His evidence was that the EPH research was an extension of the Volume Hologram research.

774        This is not helpful to the grievor. If the Volume Hologram research was complete as of March 6 or 10, 2003, and VH No. 1 was ready for publication, as he stated, then his admission that he was aware of the degradation issue (it did exist because not only did the grievor admit to it but also Dr. Zhang pointed it out in his review of VH Nos. 2 and 3) means that the Volume Hologram research could not have been complete and the article ready for publication in early March of 2003.

775        The grievor made changes to his Volume Hologram articles. As previously set out in the evidence, while some appear to be clearly matters of form, some include the addition and deletion of parts of the article and of references. The grievor never explained these changes.

776        No article on the Volume Hologram research was published while the grievor was in the NRC’s employ.

777        The grievor published two different versions of the Volume Hologram article and later two versions of the EPH article (in 2008 and 2009), some five and six years after the research was complete. While there was some debate over when he carried out the initial Volume Hologram research, the evidence disclosed that the degradation issue research was done only after he received Dr. Zhang’s October 2003 review of VH Nos. 3 and 4. All the evidence suggests that all the research was complete by the beginning of 2004. That being the case, why did the grievor submit four articles for publication years after that, when, if I accept that the EPH article is an extension of the Volume Hologram research, one rewritten article would have been sufficient? His explanations are just not credible.

778        In his evidence-in-chief, the grievor suggested that his research was complete as of the time of his 2002-2003 PPR. He argued the same thing in his submissions. This is not so, as work was clearly being done, at the very least on the Volume Hologram research, after the initial March PPR meetings until he went on sick leave in late March of 2003 and again immediately upon his return from sick leave in May of 2003.

3. Z-scan

779        The Z-scan work also involved the use of a laser. Focusing a beam of laser light through a particular type of lens at the appropriate spot coverts a liquid monomer to a polymer (which is a solid).

780        Unlike the Volume Hologram work, which involved a supply of dyes from Queen’s University Department of Chemistry, there did not appear to be any other scientist or research facility involved in that work.

781        Like the Volume Hologram research, the Z-scan work was articulated in a number of iterations of the same article. The first two were submitted at the time of the March PPR meetings. Both a stand-alone version (Z-scan No. 1) as well as a version in the Specialty Polymers Report identified by the number “3” (Z-scan No. 2) were written.

782        Three more unpublished versions of the Z-scan article were submitted into evidence (Nos. 3, 4, and 5). Three published versions were entered into evidence too (Nos. 6, 7, and 8). Like the Volume Hologram article, the different iterations of the Z-scan article all refer to the same research; however, they sometimes have subtle changes in form and sometimes have more significant differences, such as paragraphs added or deleted.

783        The evidence disclosed that the first published version of the Z-scan research (No. 6) arrived in 2005; however, the grievor said that he was unaware that this version was published until after his dismissal and after he had submitted Z-scan Nos. 7 and 8 for publication.

784        Like the Volume Hologram article, a version of the Z-scan article was submitted to two unidentified NRC reviewers, who provided Dr. Grover with their comments. Unlike the Volume Hologram review, which Dr. Zhang determined would be done internally at the NRC, no specific reviewer was identified.

785        That said, in addition to evidence from Dr. Zhang, I also heard evidence from Dr. Chang and Dr. Liu. The grievor did not ask any of these three colleagues if they had reviewed his Z-scan article.

786        With respect to Z-scan No. 6, which was published in 2005, the evidence disclosed that the grievor had submitted a version of his Z-scan article to World Scientific while he was still employed with the NRC. However, he denied knowing that it had been published and said that after he submitted it to World Scientific, he never heard anything further about it until Dr. Hackett disclosed this fact in his testimony. He said it was “out of [his] mind”.

787        I simply do not believe that Z-scan No. 6 was published without the grievor’s knowledge. The first reason is that his evidence about his knowledge of that publication goes against other evidence that he introduced, namely, 10 of his proposed experts’ reports that were set out in three separate volumes (Exhibits G-163, G-164, and G-165). While the grievor testified that he was unaware of that publication until Dr. Hackett mentioned it, 10 proposed expert reports about the Z-scan reviews referenced it, 2 from each proposed expert. Each reference was exactly the same in each proposed expert’s template review document. In the same place, each one disclosed that via a drop box, the following had been provided: “… (Y. Boiko, ‘Z-scan approach for measuring the threshold of two-photon photopolymerization’,- J. Nonlinear Optical Physics & Materials, Vol.14, No 1 (2005), pp.79-84)”, which is Z-scan No. 6.

788        The grievor obviously knew that Z-scan No. 6 had been published and by World Scientific in 2005. He had to know because he sent it via drop box, together with the other two published versions (Z-scan Nos. 7 and 8) to his proposed experts as part of the material they were to review. He did so before the hearing commenced and therefore before Dr. Hackett disclosed it in his testimony.

789        Secondly, the evidence, largely obtained from cross-examining the grievor, disclosed that journals that publish articles, as part of the publishing process, require authors to assign to them the copyrights for the articles. The grievor had published papers before his NRC employment and admitted in his evidence to being familiar with copyright agreements and to signing some with the journals for each version of the articles published after his termination (save and except Z-scan No. 6).

790        Thirdly, it just does not make any sense that World Scientific would not have required the grievor to sign a copyright agreement before publishing Z-scan No. 6.

791        Fourthly, the grievor was a researcher. He had published articles in the past and was familiar with the process. It is simply not believable that he would forget authorizing the publication of his work. His suggestion in his evidence that it was “out of [his] mind” is not convincing since that clearly was not so because he went on to submit it not once but twice, to two other publishing organizations.

792        Like Volume Hologram and EPH, the grievor went on to publish two more versions of the Z-scan article. He admitted in both his evidence and argument that while there might have been some significant overlap in the publications, there is more data in one article than in the other. I find this argument disingenuous. The duplicate versions of the articles published, be they Volume Hologram and EPH or Z-scan, are about exactly the same research; the shorter versions merely omit some information and data.

793        The grievor testified to a number of different things with respect to the duplicate publications of his research. At one point in his testimony, he stated that it is improper if an author signs away his copyright to articles to a publisher and then submits them for publishing with another publisher. Yet, he later said that it was alright to publish an article that is virtually identical to one already published as long as the title has been changed. The grievor’s statements are contradictory. If a copyright to an article has been signed away, changing its name does not legitimize breaching the copyright.

794        While the grievor also suggested that his duplicate publications were legal and permitted by virtue of a defence to copyright infringement, he did not explain how that was so. He cited paragraph 61 of Waldman,which quoted Professor David Vaver in “Copyright in Legal Documents” (1993) at page 670, of which the third bulleted defence is “wishes to use the idea of the document, but cannot practically avoid taking the expression”.

795        In his evidence and argument, the grievor said that he had to publish his articles because he had to demonstrate to the Court that his work could be published. I do not accept that testimony and argument for the following reasons:

• he did not explain which court, or why, or if he meant the Board;
• publishing one copy of each article would have been sufficient — there was no need to publish them a second time;
• the published formats of the articles did not match the formats in which they were originally submitted to Dr. Grover; and
• in some instances, the grievor could not identify which version was the final one he had submitted to Dr. Grover for publication; he often submitted different versions of the same article.

different versions of the same article.

796        A suggestion was made in the evidence that the shorter versions of the articles would have been for conference proceedings as opposed to for publishing in peer-reviewed journals. The difficulty with this that is that none of the grievor’s articles (let alone the shorter ones) were ever presented as part of conference proceedings. They were published in journals, like the longer versions, long after the research was completed.

797        The duplicitous publication of the Volume Hologram, Z-scan, and EPH articles was not the first time the grievor’s work had been published on more than one occasion. He had carried out research while employed at the University of California at San Diego, which was also published twice, under the following titles:

• “Threshold enhancement in two-photon photopolymerization”; and
• “Cationic two-photon induced polymerization with high dynamic range”.

range”.

798        It is clear from a review of those two articles that they are virtually the same, a fact that the grievor admitted to on cross-examination. When pushed, he suggested that perhaps one of the other authors published the article the second time without his knowledge. Given that he was the first named author, which is accepted is the person who contributes the most to the research and article, I find it highly unlikely that someone who was not the main researcher would have submitted it to a second journal to be published.

799        The grievor could have simply admitted that he had made an error or had been wrong or at the very least, could have said that he did not understand. He did none of that. Instead, he did a number of other things. He started by saying copyright cannot be infringed and then tried to suggest that the copyright had not been infringed because he had changed the name of the article. He then tried to justify his actions by stating that he had had to do it because he had to prove that he could publish his work. Finally, he argued that his breach of the copyright agreements was allowed by a defence set out in Waldman. Like his evidence on publishing the Volume Hologram paper, the grievor’s rendition of his actions with respect to duplicate publication were not in harmony with the preponderance ofthe probabilities that a practical and informed person would readily recognize as reasonable; they make no sense and are not believable.

G. The grievor’s articles in general

800        The employer’s evidence was not that the grievor’s articles could not be published but that there were issues with them that needed to be addressed before publishing them. This was obvious when Dr. Hackett answered a question about the comments made by one of the OSA reviewers of VH No. 4 by stating that if he received those comments about an article he had written, he would want to improve it. He later characterized the OSA reviewer’s comment as “damning with faint praise.”

801        The grievor submitted that the OSA reviewer’s comments about his Volume Hologram article are a sham. This argument made no sense, as the grievor submitted this article to the OSA. There is absolutely no evidence whatsoever that this OSA reviewer had any connection to the NRC or Dr. Grover, whoever the reviewer was.

802        In argument, the grievor submitted that the only issue the proposed experts and the NRC reviewers dealt with was presenting the articles in suitable form for reader understanding. This is not correct. While it is possible that the grievor might have instructed his five proposed experts along those lines, there is no evidence that Dr. Zhang or the NRC reviewers of the Z-scan article were instructed that way. Looking over Dr. Zhang’s review of VH Nos. 3 and 4 indicates that he had identified the degradation issue, which is certainly not a matter of form but of substance. There was no question put to Dr. Zhang or any testimony from him about reviewing the Volume Hologram articles only for the purpose of suitability of form.

1. The NRC’s reviews of the grievor’s articles

803        A considerable amount of the grievor’s evidence and his argument was focused on the reviews of his articles, so much so that he went to the trouble of obtaining 20 reports from 5 proposed experts in which they compared and commented on the NRC reviewers’ reviews of his articles.

804        While the grievor submitted that Dr. Grover did not allow him to speak to the NRC reviewers, and it would appear that this was in fact the case, I am troubled by the fact that the grievor, once it was determined that Dr. Zhang was the reviewer of two of his Volume Hologram articles, did not put any questions to him about his reviews. The grievor had sent two emails to Dr. Grover with his comments in response to Dr. Zhang’s review of VH Nos. 3 and 4, and his five proposed experts submitted between them five reports allegedly comparing and contrasting the grievor’s and Dr. Zhang’s comments and assessments. The grievor’s testimony and his comments in October of 2003 about Dr. Zhang’s reviews of VH Nos. 3 and 4 were extremely critical. Dr. Zhang was summonsed by the grievor and certainly was not hostile to him. The grievor should have done the following:

• questioned Dr. Zhang about his review of VH Nos. 3 and 4;
• put to Dr. Zhang his concerns and comments as reflected in his emails of October 22 and 28, 2003, to Dr. Grover about Dr. Zhang’s reviews; and
• put to Dr. Zhang all the comments and concerns identified by the five proposed experts in their reports.

five proposed experts in their reports.

805        Dr. Hackett testified that he had done a thorough review of all the grievor’s research and articles. At the relevant time, Dr. Hackett was the VP of research at the NRC and, as of August of 2003, the DG of the INMS. While Dr. Grover carried out the grievor’s PPRs, and Dr. Lusztyk was the reviewing officer for the 2002-2003 PPR, Dr. Hackett stated that he was the reviewing officer for the September 2003 PPR and the December 2003 PPR, and he reviewed the 2002-2003 PPR. In addition, the grievor, in his allegations of disguised discipline, his evidence, and his submissions, suggested that Dr. Hackett contributed to and collaborated with Dr. Grover in his sham, camouflage, and bad faith activities that led to the grievor’s termination. It was incumbent on the grievor to do the following:

• question Dr. Hackett about his review of the Volume Hologram research and follow-up research on the degradation issue and the Volume Hologram and EPH articles;
• put to Dr. Hackett his concerns and comments as reflected in his emails of October 22 and 28, 2003, to Dr. Grover about Dr. Zhang’s review; and
• put to Dr. Hackett all the comments and concerns identified by the five proposed experts in their reports.

the five proposed experts in their reports.

806        In his disguised discipline allegations and in his submissions, the grievor suggested that the NRC reviewers were controlled by Dr. Grover and that their reviews were nothing more than a camouflage. The grievor never asked Dr. Zhang about these allegations, despite him being identified as the reviewer of VH Nos. 3 and 4. The grievor also alleged that the NRC reviewer of Volume Hologram articles (again Dr. Zhang) either incorrectly or falsely made assertions about the references relating to his Volume Hologram papers. The grievor never put any of these allegations to Dr. Zhang when he was giving evidence.

807        The grievor both testified and made submissions on Dr. Zhang’s review of VH Nos. 3 and 4, stating that Dr. Zhang had focused on material stability without understanding holograms. This is not what Dr. Zhang stated. The only question the grievor posed to Dr. Zhang about the issue of holograms was whether he was an expert on them, to which Dr. Zhang answered that he was not. This does not presuppose that Dr. Zhang knew nothing about holograms or did not understand the grievor’s research or article or articles. The extent of Dr. Zhang’s knowledge in this area was not provided because he was never asked. He did state that he would not have reviewed work he was not comfortable reviewing. This indicates to me that he certainly had some knowledge in this area that he had been prepared to and then did provide comments on.

808        The grievor argued that a version of the Volume Hologram article was submitted on March 31, 2003. Thus, it was incorrect for Dr. Grover to assess his article as part of the September 2003 PPR process. As part of his argument, the grievor submitted that the early March 2003 cut-off date for the 2002-2003 PPR process was evidence of bad faith. It was not. The evidence clearly demonstrates the following:

• the 2002-2003 PPR process assessed the grievor’s work up to the point he submitted it;
• it also assessed his Volume Hologram and Z-scan articles as they existed at that time; and
• the September 2003 PPR and December 2003 PPR processes assessed the versions of the Volume Hologram and Z-scan articles that existed at those times.

809        While no NRC reviewer was identified for either NRC Review No. 1 or 2 of the Z-scan article, given the allegations he was making and the evidence he would lead, it was incumbent on the grievor to put to Dr. Hackett the following comments and concerns:

• those he had with the comments in NRC Review No. 1 and 2, including all the comments he made in his emails to Dr. Grover on October 22 and 28, 2003; and
• those identified by the five proposed experts in their reports about the NRC’s reviews of Z-scan.

810        The grievor’s failure to question Dr. Hackett on cross-examination with respect to the substance of the Volume Hologram reviews carried out by Dr. Zhang, and NRC Review Nos. 1 and 2 with respect to the Z-scan article, breached the rule in Browne v. Dunn. Dr. Zhang was called by the grievor to testify. He was by no means a hostile witness. It was incumbent on the grievor to put questions to Dr. Zhang in his examination in chief concerning Dr. Zhang’s reviews. He did not put any such questions to Dr. Zhang. As I have previously stated, I place no weight on the grievor’s proposed experts’ reports. Therefore, to support his allegation of disguised discipline as it pertains to his articles, all I am left with is the grievor’s evidence with respect to the alleged errors in the Volume Hologram and Z-scan reviews carried out internally at the NRC before his termination of employment. His evidence in this regard was not in harmony with the preponderance of the probabilities, which a practical and informed person would readily recognize as reasonable. For these reasons, I place little weight on his evidence where it differs from that of Dr. Zhang and Dr. Hackett concerning the reviews of his articles.

811        The grievor also summonsed two other colleagues, Dr. Chang and Dr. Liu. He put no questions to them with respect to the two Z-scan reviews by the unidentified NRC reviewers. Given that these two scientists worked with the grievor and Dr. Grover at the relevant times, it was certainly a missed opportunity by the grievor to shed light on whether either colleague could have been a reviewer of his Z-scan articles or whether they could have provided me with some assistance in understanding the research and the articles.

812        In both his evidence and submissions, at times, the grievor referred to the unknown NRC reviewer or reviewers of the EPH article. Although he spoke of it, no other documentary evidence that the reviewers existed or reviews were done was put forward. In the case of both the Volume Hologram and Z-scan article or articles and research, documentary evidence was put forward in the form of copies of reviews that were sent to the grievor, his responses to those reviews, and his email exchanges with Dr. Grover. The same cannot be said with respect to the EPH article.

813        With respect to the EPH article, the grievor sent his proposed experts what Dr. Grover wrote on page 3 of the December 2003 PPR, as follows:

…

The paper contains limited new information and is judged to be unsuitable for publication or conference presentation in its present form. This decision is based on the entries in Yuri’s laboratory record book and comments received from two reviewers. The paper describes covalent bonding to achieve thermal stability in dye attached polymers. The use of covalent bonding is a well-known technique for the stabilization of materials as a function of both temperature and time. The paper makes no reference to this fact. There is no originality in terms of sample preparation, hologram recording and measurements. The techniques used are simplistic and prone to contributing substantial errors. However, the paper completely ignores the issue of measurement errors. Finally, a substantial portion of the manuscript reproduces verbatim the text, figures, graphs and data contained in Ref. 4 (Boiko et al), without making any mention of this in the paper.

…

814        The reference to two reviewers could be Dr. Zhang’s reviews of VH Nos. 3 and 4 and Dr. Grover’s review of the EPH article and his comments in the PPR. This is possible since the evidence clearly indicates that the EPH article was to address the degradation issue identified with respect to the Volume Hologram research. Without any further documentation, it is simply speculation on the part of the grievor that there was more to this than meets the eye.

815        The evidence is insufficient to convince me that the reviews of the grievor’s articles were incorrect or inaccurate. Even if I had been so convinced, the evidence falls woefully short of what was necessary to convince me that they could constitute the basis for a finding of sham or camouflage by Dr. Grover, or could be considered to have been made in bad faith.

I. Contribution to clients

816        It became obvious that there was a distinct difference in opinion as to what collaboration meant in respect of assessing work at the NRC. A simple definition of “collaboration” is to work with one or more persons. What was clear from the evidence is that there are varying levels of collaboration. In describing collaboration, Dr. Lemieux used a scale of 1 through 10, 1 being the lowest level and 10 the highest.

817        The grievor testified about different things that happened over the course of his tenure at the NRC. Largely, they amounted to situations of co-operation between co-workers, including co-ordinating the use or purchase of equipment. They are not what would be described as scientific research collaboration. They are what can best be described as normal day-to-day interactions between persons who work in the same environment and who use and share facilities and equipment.

818        There is evidence of only one real potential scenario that involved the grievor collaborating in his work; this was with Dr. Lemieux and the Volume Hologram research. There are three other minor scenarios that I will also address, involving Dr. Kukhtarev, the NSOM, and a local Ottawa high-tech company.

1. Dr. Lemieux

819        The evidence disclosed that over the course of 2002 to 2003, Dr. Lemieux supplied to the grievor several dye compounds that were produced by his Department of Chemistry laboratory at Queen’s University. The evidence was that he and colleagues had been working with specific types of dyes that somehow (the evidence did not disclose how) came to the grievor’s attention. He determined that some of them might be suitable for the research he was conducting, which later was identified as Volume Hologram.

820        That was the extent of Dr. Lemieux’s involvement with the grievor’s research and articles. Dr. Lemieux testified that he played no role in the theory, design, planning, or execution of the research or the writing of any of the articles. Other than supplying the dyes, Dr. Lemieux confirmed that he did review one version of the Volume Hologram article when the grievor sent it to him.

821        The grievor’s evidence in this respect did not help him. While initially he listed at times Dr. Lemieux, Peng Zhang, Mr. Maly, and Dr. Kukhtarev as authors in versions of the Volume Hologram article, they were removed from authorship as subsequent versions were prepared. The two versions of the article published named only the grievor as an author.

822        While Dr. Lemieux did explain his involvement, and to a lesser extent that of Peng Zhang and Mr. Maly, who were graduate students working with him, no one explained what Dr. Kukhtarev had done either with respect to the research or in writing the article.

823        Dr. Lemieux categorized his participation in the Volume Hologram research at the low end of the collaboration scale (a 2 on a scale of 1 to 10).

2. Dr. Kukhtarev

824        Dr. Kukhtarev was listed as an author on some of the initial versions of the Volume Hologram article. I heard no evidence with respect to what he did to merit this inclusion. His name disappeared as later versions of the Volume Hologram paper were produced.

825        There was evidence that Dr. Kukhtarev was interested in working with the grievor. A short letter was produced into evidence in his name, which set out that he was interested in working with the grievor on a project the grievor was proposing for funding. This project, which the grievor presented in hopes of obtaining funding, never was approved. There was no evidence before me to suggest that any actual collaboration took place. While it appeared from the letter that Dr. Kukhtarev was prepared to play a role in research, there was no evidence of what, if any, role he had in the grievor putting the proposal forward.

826        Perhaps Dr. Kukhtarev’s involvement was more substantial with the grievor than it appeared; however, no such evidence was put forward.

3. The NSOM

827        Quite simply put, the evidence disclosed that the grievor needed or wanted a particular type of microscope for research. It is evident that if more than one scientist would use the equipment, then it would have made the proposal to purchase it more likely to succeed. It appeared to be an example of the grievor attempting to secure the microscope, with the cooperation of work colleagues, and not of any scientific or research collaboration, as defined in the assessment process.

4. The Ottawa high-tech company

828        The grievor had discussions with an employee of a local high-tech company, and it appeared that the grievor did some work at its behest. Again, it appeared that depending on the results of some work he was doing, potentially, something could have come of it. Unfortunately, the exact nature of the collaboration was unclear. Again, although there were some discussions, the exact nature of the relationship and the potential project did not seem to get past some very initial discussions. Nothing further came of it. Without anything further, there is no evidence with respect to this contact that is sufficient to convince me that the employer’s assessment of the grievor’s collaboration was inaccurate, let alone amounting to a sham, camouflage, or in bad faith.

829        The evidence before me is insufficient to convince me that the employer’s assessment of the grievor’s collaboration was incorrect or inaccurate, let alone so woefully wrong that it could be found to be a sham or a camouflage or considered to be in bad faith.

J. Contribution to outreach and influence

830        The evidence disclosed that the grievor’s accomplishment in this category was lacking. The release recommendation speaks of him attending one conference in May of 2002 but otherwise not demonstrating any participation in any other conferences.

831        The grievor made a number of submissions about not attending conferences; some were to the effect that there were no conferences that related to his work.

1. Conference and visit to Tufts University

832        At an unidentified time, the grievor was offered an opportunity to attend a conference and to visit Tufts University in Boston. He did neither. He testified that he did not attend because he was not required to and because he would have needed a visa.

2. Visit to the University of Toronto

833        Again, at an unidentified time, the grievor was offered an opportunity to visit the University of Toronto chemistry and bio-medical engineering labs; he did not.

3. Photonics West 2004 and the Symposium on Electronic Imaging

834        The grievor was interested in attending and in presenting his Volume Hologram and Z-scan research at two different conferences in California in January of 2004: the Symposium on Electronic Imaging and Photonics West 2004.

835        The grievor did not attend. He was not approved to attend either one. His position was that Dr. Grover thwarted his attempt at attending and presenting his research, and as such, it is part of the sham, camouflage, and bad faith and should not have been held against him in his performance appraisal or used as a reason to terminate his employment.

836        While the evidence did disclose that the grievor was not approved to attend these conferences, it also disclosed that the facts were not as straightforward as requesting to attend and Dr. Grover refusing to allow it.

837        From the evidence, it appeared that the grievor applied too late to present his research at these conferences, but that is certainly not determinative. What the evidence did not disclose was whether he sought approval from Dr. Grover (or Drs. Hackett or Lusztyk for that matter) before applying to attend the conferences as a participant and presenter. The evidence disclosed that the grievor sent his applications to the conference organizers in August of 2003 (the deadline was in June of 2003) and that they responded in September and October 2003, advising that they were prepared to accept him as a participant and presenter with respect to his Volume Hologram and Z-scan work.

838        The evidence disclosed that late in the day on September 4, 2003, the grievor received an email from the Symposium on Electronic Imaging accepting his abstract for his Volume Hologram research as part of that conference and setting out the criteria of presenting his research, including the deadline of providing the conference organizers with his manuscript. The next morning, he replied by email, advising them that he was unable to confirm his participation at that time and stating as follows:

Due to Intellectuall Property considerations with regard to my presentation 5290-28 Volume holographic imaging of diarylethene doped polymer I need to withdraw the article.

I shall be able to get back to you with it if this issues are resolved soon enough to reinstate the presentation.

[Sic throughout]

839        The evidence disclosed that on October 1, 2003, the grievor received an email from the organizers of the Photonics West 2004 conference of the acceptance of his Z-scan abstract and setting out the criteria for presenting this research, including the deadline for providing the conference organizers with his manuscript. A short five hours later, he replied by email, advising them that as with the organizers of the other conference, he was not able to commit at that time and stating that:

I would need to withdraw the presentation at this point, in order to sort out the problems with authorization from my supervisor for going ahead with this presentation. I hope to be able to re-install [sic] the presentation as soon as the uathorization [sic] is granted from my supervisor.

840        None of the grievor’s costs related to attending either conference would have been covered by the conferences or the organizers. He would have been required to secure travel, hotel, and other related expenses, assumedly out of his own pocket or from his employer.

841        Introduced into evidence was a copy of a memo that Dr. Grover wrote as part of the September 2003 PPR process, which stated in part as follows:

I indicated that it is surprising that you want to submit these papers in conference proceedings rather than publishing them in peer reviewed journals. I elaborated that this means that the papers are either of lesser quality, are incomplete, or are based on otherwise reported work.

With respect to the first conference proceedings paper (Z-scan …), I indicated that I have previously discussed with you its shortcomings, including the explanation of the interference phenomenon described therein. Furthermore, this paper was never submitted to a conference; you only wanted it to be published in conference proceedings. Also, no follow-up work is planned for this project. I find it unusual for a researcher to plan work solely for the goal of publishing it in conference proceedings.

I informed you that I have no difficulty if you want to submit this work to a peer reviewed journal, and indicated to you that you look into the possibility of doing further work as I think it is required before it could be subjected to the peer review process.

I indicated to you that I would like to get the paper reviewed by others prior to making a decision.

…

842        On September 30, 2003, the grievor filed a grievance with respect to allegedly being denied permission to attend Photonics West 2004.

843        The grievor began his employment on November 16, 2001. By the end of September of 2003, almost two years into it, his contribution in this category was minimal. Even had he been successful in attending these two conferences, they were scheduled for early 2004.

844        The grievor submitted that on December 23, 2003, when he asked Dr. Grover if he could attend the Photonics West 2004 conference, Dr. Grover imposed new criteria for his attendance, namely, the work had to benefit the NRC and his professional development, and it had to be within the framework of his assignment.

845        The evidence disclosed that there were ongoing issues with the grievor’s research articles when he approached the conferences about participating and that he was aware of those concerns. It is unclear exactly when he sought Dr. Grover’s approval to attend the conferences. It would appear that he had put the cart before the horse, so to speak. While his application to attend the conferences was late, it was not fatal to him participating, from the conferences’ perspective. However, there were issues that he was clearly aware of that should have been dealt with before he applied to participate.

846        The grievor submitted that one of the reasons he did not get to go to the conferences was budgetary constraints, which should not have been held against him. While this argument does have some merit, it does not prove that the employer’s use of his lack of participation in conferences, up to that point, was somehow a sham, camouflage, or bad faith in assessing his performance with respect to the decision to reject him on probation. It is clear that the grievor’s participation in this area, up to the fall of 2003, two years into his tenure, was clearly lacking. By the time the conferences had come to the forefront, NRC management and LR had been engaged in discussions about terminating his employment. As such, not spending money on two conferences in southern California on an employee whose tenure was by that time tenuous, is understandable.

847        Although the grievor made some efforts to participate in the conferences, without success, and there might have been issues not wholly of his own making that prevented him from securing his attendance, the evidence put forward did not disclose that the employer’s actions in dealing with him on these issues amounted to a sham, camouflage, or bad faith that led to disguised discipline.

K. Contribution to teamwork

848        In short, Dr. Grover assessed the grievor as not a team player and as someone who did not interact well with his colleagues. There is a subjective element to assessing this category, which makes it difficult for a third party such as an adjudicator to assess related evidence.

849        The grievor summonsed Drs. Chang, Zhang, and Liu and Mr. Vandenhoff, all his former colleagues, who testified. He did not ask any of them about his interactions within the Optics group or the larger INMS group, either socially or professionally. Simply put, had they had come forward and testified that he was a team player, would help them, and attended and participated in group meetings and functions, it would be hard to not find that there might be something amiss in this assessment. While that in and of itself would not be enough to show a sham, camouflage, or bad faith, it would certainly be a good first step. However, that evidence did not appear.

850        The evidence, even from the grievor, disclosed that he had some difficulties in this category, not the least of which is that it is clear that he did not get along with his supervisor, against whom he filed a harassment complaint.

851        The grievor attempted to explain his lack of participation in group events, such as a group barbeque, as being due to his harassment dispute with Dr. Grover. While that explains somewhat his lack of participation, he did not offer any explanation as to why he did not attend other group meetings or seminars.

852        While the evidence in this vein was somewhat limited, Mr. Vandenhoff did testify about the process of the computer inventory and upgrade. His evidence, and documents produced as part of this process, including some by the grievor, indicated that during the documenting and collecting process, the grievor was not cooperative with him and with Dr. Chang, who had been tasked with the process, thus making their work more difficult.

853        A person can certainly be shy and introverted or perhaps feel more comfortable working on his or her own. There is certainly nothing wrong with that, but it could make it difficult for that person to interact within a work environment. This could explain things and perhaps convince a third party that this “not a team player and doesn’t interact well” assessment of the grievor was incorrect. There was no such evidence put forward.

854        The evidence put forward by the grievor in this vein was very limited and largely documentary. It showed that he did interact with his colleagues now and again. However, it was not sufficient to convince me that the assessment of the grievor by his supervisor was incorrect, let alone so woefully wrong that it could be found to be a sham or a camouflage or considered to be in bad faith.

L. Other

1. The grievor’s lab books

855        The grievor submitted that Dr. Grover misrepresented what happened with the lab books. The only oral testimony about the lab books came from the grievor. The balance of the evidence was in email exchanges between different parties.

856        Copies of three lab books were put into evidence. If there were more lab books, I did not see them. The grievor alleged that Dr. Grover wanted his lab books for the nefarious purpose of removing a receipt for the return of computer equipment that Dr. Chang had signed, which was in the back of Lab book 2. There is absolutely no evidence of this.

857        The grievor further submitted that he had negotiated with Dr. Grover to submit to him copied pages from his lab books. This is just not true. The documents reflect that Dr. Grover was steadfast in his request for originals and that the grievor was steadfast in his refusal. In the end, unexplained to me, the documents disclose that the original lab books ended up in the DG’s office and remained there. I do not know if Dr. Grover received the originals from the DG’s office, reviewed them, and returned them there or that he merely looked at the photocopied pages the grievor gave him and then advised the grievor when he was done. From the evidence before me, there does not appear to be any agreement on the lab books.

858        The grievor’s lab books appeared disorganized, and they were confusing and difficult to follow. They had extended gaps in time. They were not always in chronological order. If there was an organizational structure to them, it was certainly not obvious, and he did not explain what if any such structure he followed. The last entry is September 2, 2003, in Lab book 3. I was led to believe that research was done after that date; however, it is not reflected in any lab book entered into evidence.

2. The grievor’s harassment complaint

859        The grievor submitted that Dr. Grover started his camouflage in March of 2002 and that he continued with it until he wrote the release recommendation. The evidence disclosed that it appeared that the grievor was hired either on the recommendation or with the support of Dr. Grover in fall 2001. In March of 2002, Dr. Grover gave the grievor a satisfactory performance rating.

860        There does not appear to be any evidence that predates the 2002-2003 PPR that discloses a soured relationship between the grievor and Dr. Grover. The evidence disclosed that only when he received his 2002-2003 PPR, which rated his performance unsatisfactory, did he begin to complain, and quite aggressively, about Dr. Grover. Shortly after the PPR meetings in March of 2003, the grievor was on sick leave for an extended period. It was also at or about this time that Dr. Grover had discussions with Ms. Jacobs about performance managing the grievor and potentially rejecting him on probation. The evidence disclosed that by the time the grievor made his harassment complaint, sometime after September 12 and before September 29, 2003, discussions were already underway about terminating his employment by rejection on probation.

861        The grievor suggested that Dr. Hackett played a role in contributing to Dr. Grover’s active camouflage in moving to have him dismissed. I do not accept this for a number of reasons. First and foremost, it is clear from other litigation before the Board, the Federal Court, and the Federal Court of Appeal that the relationship between Dr. Grover and Dr. Hackett was rocky at best. It was described in Grover that Dr. Grover felt that he was being harassed by Dr. Hackett.

862        The 2002-2003 PPR process was underway in early March of 2003. The evidence disclosed that the grievor was aware then that he was going to receive an unsatisfactory rating, as on March 13, 2003, he emailed Dr. Grover, enquiring if his resignation would forestall the assessment of that rating. Only some six months later did he file his harassment complaint against Dr. Grover. While an investigation was initiated, it was never completed, and a subsequent judicial review with respect to the cancelling of the investigation was dismissed by the Federal Court.

863        The employer terminated the grievor by rejecting him on probation. The grievance states that his supervisor was harassing him to such an extent that it was impossible for him to receive a fair evaluation on his performance appraisals.

864        Harassment does not equate to discipline. That does not mean that evidence of harassing behaviour is irrelevant in disciplinary situations or to alleged disguised disciplinary actions; however, even if the grievor could establish that Dr. Grover had harassed him, it would not automatically give the Board jurisdiction.

865         The Board has no jurisdiction over terminations of employment that are rejections while on probation. The jurisprudence established by this Board (and its predecessors) and upheld by the Federal Court and Federal Court of Appeal is that an adjudicator or Board member seized with the grievance will have jurisdiction if there is a case of disguised discipline (currently, s. 209(1)(b) of the Act in the context of the PSSRA, s. 92(1)(b)(i)).

866        According to the grievor, part of Dr. Hackett’s collaboration with Dr. Grover was evidenced by the grievor being required to continue to report to Dr. Grover despite the grievor having filed his harassment complaint against him.

867        While the employer’s policy contemplates separating a complainant from the alleged perpetrator of the harassment, it is not a requirement. The evidence also disclosed that Dr. Hackett sought advice that Ms. Gingras then provided. She was responsible for handling harassment complaints. She testified that she felt that, which Dr. Hackett also testified to, given the workplace and that the parties had agreed to mediation, separating them initially, in October of 2003, was not the best course of action. When it was clear that the situation would not be resolved, Dr. Hackett did nominally remove Dr. Grover’s supervisory position over the grievor, assigning Mr. Vandenhoff to it instead.

868        It cannot be said that assigning Mr. Vandenhoff was the best solution; however, no one involved in the harassment complaint who testified before me suggested a better one. It was clear that the highly specialized nature of the INMS, the Optics group, and the grievor’s work made the task of finding a supervisor challenging. All this must also be considered in the context that while indeed the grievor had alleged harassment, none had been proven. Perhaps that role could have been undertaken by Dr. Hackett. However, no one broached this topic with any of the witnesses. Quite frankly, it appeared from the evidence before me that Dr. Hackett already had his hands full with his substantive position as the VP of research, and he had already taken on additional tasks as the INMS’s acting DG after Dr. Lusztyk’s departure.

3. Delay

869        It is trite to state that a delay is not conducive to the memories of witnesses.

870        The first hearing day in this matter was on April 14, 2014, very close to 10 years after the grievor lost his employment. The bulk of the evidence I heard related to research and events he either carried out or involving him as far back as 2002, some 12 years before I started to hear the case. By the time I heard details of the research from the grievor in early 2015, some of the evidence was 13 years old.

871        Under the grievance process set out under the PSSRA and the Public Service Staff Relations Board Regulations and Rules of Procedure (“the PSSRB Regulations”), a grievor may force the movement of a grievance through it in a matter of days and months. This process remained largely static over the years and through the legislative changes with the PSLRA, the PSLREBA, and the Act.

872        Sections 71 through 77 of the PSSRB Regulations provided the time frames within which a grievor had to initially file a grievance and then was entitled to move it through a number of grievance levels and finally to the PSSRB for adjudication. At each level, the employer was required to provide an answer to the grievor. If the grievor was not satisfied with the response, he or she could move the grievance to the next level in the process. If the grievor was not happy with the response he or she received at the final level, then the grievor could refer the grievance to the PSSRB (now the Board).

873        The PSSRB Regulations clearly put the grievor in the driver’s seat with respect to the speed at which a grievance, which had not been satisfactorily resolved, could make its way to the PSSRB for adjudication.

874        The grievance was dealt with at the final level of the grievance process only on April 8, 2008, and was referred to the Board on May 8, 2008, almost four years after the grievor’s termination. While on the face of it, this initial delay could be said to have been caused by the employer because it did not reply at the final level, the grievor acquiesced to the employer’s request to extend the time for it to reply. He could have refused. Thus, even if his grievance had to go through four grievance levels, it could have been referred to adjudication as early as late September of 2004.

875        The documentation on the Board’s file also disclosed that while there was some delay in initially scheduling the grievor’s hearing in November of 2008, it was first tentatively scheduled for a hearing in mid-March 2009. However, he requested that it be delayed pending the resolution of Federal Court proceedings. The employer did not object, and his proceedings were disposed of by early 2010. However, he requested further delays with respect to other court proceedings. While the employer acquiesced on the one occasion in late 2008 to the delay of the March 2009 dates and advised the Board of a scheduling difficulty on another, the balance of the delay in getting the hearing scheduled and heard between late 2008 and 2014 is largely attributable to the grievor.

876        The grievor also delayed the hearing every day, largely by his late arrivals and multiple stoppages to either locate documents or photocopy them or both. This despite the fact that I constantly reminded him of the requirement to have sufficient copies of documents he wished to submit into evidence.

877        The delays during the course of the hearing led to it being prolonged, which required the Board to schedule more hearing days.

878        Many of the events that I heard evidence about, largely from the grievor, also involved or implicated other witnesses who testified. However, in addition to sometimes having a different recollection of events relevant to these proceedings, these other witnesses often had no memory, or only a vague recollection, of these events. This is not surprising, as many of the things that took place happened to the grievor, and the other witnesses were involved only tangentially.

879        The witnesses that the grievor called often had very limited recollections of interacting with him or of events involving him. Much of their evidence was often confirmation of documents that they had either authored or received in some fashion. That said, I expect that these witnesses certainly could have had a more fulsome recollection had they been requested to recall within a relatively short period after events occurred or if they had made notes of the events themselves. However, given that the events relevant to the proceedings were largely personal to the grievor and not necessarily of import to these other witnesses, it meant that not surprisingly, the excessive delay likely hampered their recollections.

880        These delays, which the grievor could have avoided and that were in many respects largely within his control, certainly did not benefit him; nor should they have. A party that delays matters to the extent that months turn into years and in this case a decade should not be allowed to benefit from that delay. Resolving workplace disputes through arbitration or adjudication should not, in the end, be a case of success going to the last person standing. The processes involving the resolution of workplace disputes in the federal public sector have been set up in such a manner to lend themselves to efficiency. While there will always be some unforeseen circumstances and scheduling issues given that there are only so many resources, such excessive delays do not promote the effective resolution of workplace disputes.

881        I suspect that had this matter been moved forward through the grievance process with diligence, light could have been shed on many of the issues potentially relevant to the grievor’s allegations. Unfortunately, with the passage of time, memories of these events that are clearly tangential to many of the witnesses who appeared before me have completely faded. Of particular note was the evidence of Dr. Lusztyk, who was central to the June 16 meeting. In short, he really had no recollection of the meeting whatsoever. Mr. Blais’s recollection was based on his June 16 meeting notes, and he stated that he attended to take those notes.

882        I am left to sort through testimony based on documents created at that time.

883        Another particular telling example is the evidence brought forward about the Krypton laser. The September 2003 PPR mentions the grievor’s workspace and the laser, and it states that at some point, the laser was discarded by another group and damaged. I heard evidence and was provided with a transcript with respect to a Krypton laser and an accident that occurred with it. The transcript was of a surreptitious recording of a group meeting that the grievor made with a recording device in his pocket. He later transcribed what was said. It is clear that an accident happened but that no one was injured. He equates this event to the reference in the September 2003 PPR. The issue of this event was brought up with Dr. Liu, who had a very limited recollection of a problem with a Krypton laser.

884        The grievor brought these forward as alleged evidence of Dr. Grover’s ongoing sham, camouflage, and bad faith.

885        It certainly seems that there were some issues, and perhaps there is more to them. Given that in essence I am being asked to speculate that these events were acts by Dr. Grover as part of a sham or camouflage or were in bad faith, much more substantial and direct evidence is required. Perhaps it existed, but the delay has made this impossible to assess in a meaningful way.

M. Conclusion

886        The grievor was required on a balance of probabilities to establish that what occurred was not in fact a rejection on probation but disguised discipline, rooted in a sham, a camouflage, or bad faith.

887        While the grievor presented some evidence that perhaps the process of evaluating his research articles could have been done more transparently, on a balance of probabilities, for the reasons set out earlier, he has not satisfied me that the employer’s actions in assessing his performance amounted to a sham, camouflage, or bad faith such that a situation existed that could be construed as disguised discipline.

888        For all of the above reasons, I make the following order:

IX. Order

889        I do not have jurisdiction to hear the grievance.

890        The grievance is dismissed.

February 7, 2018.