Boiko v. National Research Council of Canada

Federal Public Sector Labour Relations and Employment Board Act and Federal Public

Sector Labour Relations Act

 Date: 20180207

 File: 166-09-37649

 Citation: 2018 FPSLREB 11

Before a panel of the Federal Public Sector Labour Relations and Employment Board

BETWEEN

YURI BOIKO

Grievor

and

NATIONAL RESEARCH COUNCIL OF CANADA

Employer

Indexed as

Boiko v. National Research Council of Canada

In the matter of an individual grievance referred to adjudication

Before:

John G. Jaworski, a panel of the Federal Public Sector Labour Relations and

Employment Board

For the Grievor:

Himself

For the Employer:

Ron Snyder, counsel

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

14

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

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

26

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

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

87

Neither Dr. Raymont nor Dr. Grover testified.

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:

…

a. 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.

b. Through publication of research results, generate IP and participate in outreach

activities in order to contribute to raising the Institute’s profile.

c. 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.

d. Professionally represent NRC on behalf of the Optics Group to the scientific

community, securing partnerships and collaborations.

e. 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:

a. 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.

b. 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.

c. 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.

d. 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

156

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

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]

R=CH₃

R=C₈H₇

R=C₉H₍₉₎

…

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 ½ 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

200

Dr. Kukhtarev did not testify.

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

230

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

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

265

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

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

275

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

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”):

i.

ii.

Z-Scan Approach for Measuring a Threshold of Two-photon Photopolymerization

- reviewed by NRC Reviewer 1 [“Z-Scan-NRC Reviewer No. 1 article”];

Z-Scan Approach for Measuring a Threshold of Two-photon Photopolymerization

reviewed by NRC Reviewer 2 [“Z-Scan-NRC Reviewer No. 2 article”];

Volume Hologram Recording in Diarylethene Doped Polymer [the Volume

Hologram article];

iii.

iv.

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:

i.

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;

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

ii.

iii.

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

292

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

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

- statement which is untrue, contrary to the facts or evidences;

False

No merit

Disputable

Strong merit

True

- statement which is not supported with the evidence or facts;

- statement which is open to debate;

- statement which has solid foundation and/or ground for support;

- 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:

No merit statements:

Disputable statements:

Strong merit statements:

True statements:

The five proposed experts evaluated the grievor as follows:

False statements:

No merit statements:

Disputable statements:

Strong merit statements:

True statements:

 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:

No merit statements:

Disputable statements:

Strong merit statements:

True statements:

The five proposed experts evaluated the grievor as follows:

False statements:

No merit statements:

Disputable statements:

Strong merit statements:

True statements:

 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:

No merit statements:

Disputable statements:

Strong merit statements:

True statements:

The five proposed experts evaluated the grievor as follows:

False statements:

No merit statements:

Disputable statements:

Strong merit statements:

True statements:

 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:

No merit statements:

Disputable statements:

Strong merit statements:

True statements:

The five proposed experts evaluated the grievor as follows:

False statements:

No merit statements:

Disputable statements:

Strong merit statements:

True statements:

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:

i.

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.

ii.

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.

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.

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.

iii.

iv.

…

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:

i.

If a company is willing to license the technology, we may discuss a licensing

agreement using non-disclosure agreements. A provisional patent application