



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Murray Purcha & Son Ltd. v. Barriere (District),









2019 BCCA 4




Date: 20190103

Docket: CA45233

Between:

Murray Purcha
& Son Ltd.

Appellant

(Petitioner)

And

District of
Barriere

Respondent

(Respondent)






Before:



The Honourable Madam Justice Stromberg-Stein

The Honourable Mr. Justice Savage

The Honourable Mr. Justice Hunter




On appeal from:  An
order of the Supreme Court of British Columbia, dated
March 19, 2018 (
Murray Purcha & Son Ltd. v. Barriere (District)
,
2018 BCSC 428, Kamloops Docket No. 53392).




Counsel for the Appellant:



R.L.D. Hughes





Counsel for the Respondent:



S. Dubinsky





Place and Date of Hearing:



Vancouver, British
  Columbia

October 3, 2018





Place and Date of Judgment:



Vancouver, British Columbia

January 3, 2019









Written Reasons by:





The Honourable Mr. Justice Hunter





Concurred in by:





The Honourable Madam Justice Stromberg-Stein





The Honourable Mr. Justice Savage








Summary:

The appellant sought
judicial review of a procurement decision in which the contract was awarded to
a party other than the appellant. Judicial review was dismissed. The issue is
whether the District breached a duty of procedural fairness owed to the appellant
and the other proponents. Held: appeal dismissed. The District followed the
procedure laid out in the Request for Proposal and met its obligation of
procedural fairness. The substantive decision met the standard of
reasonableness.

Reasons for Judgment of the Honourable
Mr. Justice Hunter:

[1]

The appellant brings this appeal to challenge a decision of the
respondent, the District of Barriere (the District) to award a winter road
maintenance contract to a company other than the appellant. The contract was awarded
pursuant to a Request for Proposal (RFP). The appellant brought an
application for judicial review from the Districts decision on the ground that
the process followed by the respondent was procedurally unfair.

[2]

In reasons indexed as 2018 BCSC 428, the judicial review judge reviewed
the respondents decision against a standard of reasonableness and declined to
set it aside. The appellant asserts that the judicial review judge applied the
wrong standard of review, and raises five distinct grounds for appeal of the
judges decision. Each relates to decisions made during the assessment of the
proposals, and are said by the appellant to contravene the duty of fairness
owed to the appellant under principles of administrative law.

[3]

In my view, the reasonableness standard utilized by the judicial review
judge applies to the substantive outcome of the decisions made by the District,
including the decision to award the contract to another bidder, but the
standard of review for the issue of procedural fairness is correctness.

[4]

The RFP initiated by the District did not give rise to a contractual
duty of fairness, but insofar as the process initiated by the District engaged
the use of statutory powers, a general duty of procedural fairness was owed to
the participants. In this case, that duty required the District to carry out
the process described by the RFP documents equally for all proponents. In my
opinion, the District met this procedural duty.

[5]

The substantive decisions made by the District were reasonable. Accordingly,
and for the reasons that follow, I would dismiss the appeal.

Background

[6]

The District of Barriere is located north of Kamloops on the North
Thompson River. It requires winter road maintenance services each year for the Districts
roads and contracts out these services to the private sector. The appellant, Murray
Purcha & Son Ltd. (Purcha), had the contract to provide winter road
maintenance from 2013 to 2016, but the contract was not renewed. The amount
paid each year to the appellant was $212,979.83 for the plowing, sanding and
de-icing of the Districts roads.

[7]

The District concluded that it should be able to obtain winter road
maintenance for a lesser price and decided to seek proposals from private
enterprises for these services. The trial judge explained the process followed
by the District:

[8]        On January 25, 2016, the District issued a Request
for Proposal (RFP) described as Winter Road Maintenance Services, Reference
No. 16-01. The closing date and time to receive bids in response to the
RFP was 2 p.m. February 15, 2016.

[9]        The RFP consisted of 26 pages outlining the
Districts conditions and requirements. Listed in a separate document, are
Winter Road Maintenance Schedules (WRMS) for January 2016. This document
contains a map of the Districts roads listed by name, their approximate
length, the cost of the rescission process, resolution of disputes, liquidated
damages and other matters related to the contract upon it being awarded.

[10]      The RFP was a two-envelope bid. The first envelope
had to contain:

the information necessary to enable the District to
determine how the services will be provided and work completed and to assess
the quality of the Proponents Work Plan and its ability to meet the required
level of service and quality standards [RFP at page 9, paragraph 5].

The second envelope contained the pricing which is the lump
sum amount the proponent would perform the work for and the breakdown of the
lump sum in accordance with Appendix G. In addition, the District could call
upon the proponent to perform additional work (it was not obliged to accept
it), and the proponent was to provide unit prices for additional work in
Appendix H of the RFP.

[11]      The work plan for envelope #1 consisted of six key
components which required the proponent to complete certain appendices. Each of
the key components had a maximum number that could be earned by the proponent
described in Table 1 as weighting. Each key component had a minimum number
that had to be earned, described in Table 1 as minimum requirement.

[12]      The maximum score a
bidder could receive was 110 points. A minimum score of 70 points was required
so the bidders second envelope could be opened. At this stage, the District
may reject a bid and envelope #1 would be returned to the bidder. The bid
advanced by a proponent had to contain mandatory documents and information set
out in paragraph 5.H. of the RFP. Each proposal would then be evaluated by a
formula called the Proposal Factor Adjustment (PFA). The PFA was given a 10%
weight for each bid submitted. The PFA formula is set out in the RFP.

[8]

Five companies, including Purcha, submitted proposals for the contract.
The proposal selected by the District was from Defiance Enterprises Inc. (Defiance).
On the evaluation done by the District, Purcha finished third of the five
companies that responded to the RFP. The other bidders were companies referred
to in the judgment as Tri Service, Borrow and Surespan. They are not involved
in this litigation, but I mention them for the sole purpose of explaining the
results of the Districts evaluation, which was summarized in the judgment in
these terms:

[14]      All the bidders made more than the minimum
requirement contained in Table 1 of the RFP. All bidders had their second
envelopes opened. Mr. Doherty scored each of the bidders RFP Work Plan as
follows:

Tri Service 107;

Borrow  104;

Defiance  102;

Purcha  93; and

Surespan  76

[15]      The pricing component (the second envelope) of the
RFP for each of the proponents bid is as follows:

Defiance  $156,000.00;

Purcha  $179,625.60;

Tri Service  $179,999.98;

Borrow  $194,258.00; and

Surespan  $453,600.00

[16]      After the PFA was applied, the total evaluated
proposal price lump sum scores given to each of the proponents bid is as
follows:

Defiance  $159,120.00;

Tri Service  $181,349.97;

Purcha  $187,259.68;

Borrow  $197,171.87; and

Surespan  $492,156.00

[9]

After the bid evaluation had taken place, the District Council met
in
camera
and awarded the contract to Defiance. A winter road maintenance
services contract was subsequently entered into between the District and
Defiance.

The Judicial Review Application

[10]

Purcha sought judicial review of the Districts decision pursuant to the
Judicial Review Procedure Act,
R.S.B.C. 1996, c. 241. The basis of
the application was the allegation that in awarding the contract to Defiance,
the District had breached the duty of procedural fairness owed to the
proponents who had responded to the RFP. Purcha asserted that the District had
breached this duty in five discrete ways:

1. The District should have disqualified Defiances bid
because Defiances bid was non-compliant. Purcha alleged that the RFP had
required that each bid prove that it had existing insurance or could obtain
insurance, and Defiances bid did not contain such information.

2. The District should have disqualified Defiances bid
because Defiance breached secrecy by revealing its total price in the first
envelope. The price had not been revealed directly, but a reference had been
provided by which the price could have been calculated.

3. The District should have disqualified Defiances bid
because Defiance appeared to improperly influence the District to pick its bid.
This allegation was based on the same reference by which the total price could
have been calculated. Defiance stated that its policy was to donate 3% of its
revenue back to the community. This was said to be an attempt to improperly
influence the selection process.

4. The District did not follow a fair process because the
District relied on un-disclosed criteria in evaluating the bids. The evaluator
had relied on his personal knowledge that Defiance was capable of plowing snow.

5. The District did not follow a
fair process because the District breached the legitimate expectations of the
Petitioner by not complying with its stated process for evaluating bids. This
argument was based on the proposition that the District had historically
followed the province of British Columbias procurement policy, and that not
all of the provincial policy had been followed in this case.

[11]

The judicial review judge reviewed these allegations against a standard
of reasonableness. She reviewed the circumstances of each allegation carefully
and concluded that none of the decisions of the District was unreasonable as
that term is understood in the context of judicial review. Her one
qualification concerned the statement in Defiances response concerning its
donation policy, which would allow the reader to calculate its bid without the
necessity of opening Envelope #2. She accepted the evidence of the evaluator
that this calculation had not been made, but commented that Defiance should
not have disclosed the amount it would have contributed to the community based
on envelope #1 (para. 81).

[12]

Although the judicial review judge concluded that the reference to
Defiances donation policy did not breach the Districts obligations of
procedural fairness, she went on to consider the discretion afforded a
reviewing judge under the
Act
. She noted that the judicial review
proceeding had not been commenced until after the contract for snow removal
with Defiance had been signed. Purcha had initially invoked an arbitration
procedure available to it but then had abandoned this remedy. She concluded
that even if the indirect revealing of the contract price constituted a breach
of the Districts duty of procedural fairness, she would have exercised her
discretion not to provide a remedy in these circumstances.

Issues

[13]

The appellant submits that the chambers judge applied the wrong standard
of review and then erred in concluding that the District did not breach a duty
of fairness to the appellant.

[14]

The errors alleged by the appellant concerning the judicial review
judges decision are substantially the same as the appellants allegations of
error by the District. Purcha asserts that the judicial review judge erred:

(i)       in finding that the respondent did not have to
disqualify Defiance for breaching secrecy;

(ii)      in finding that the respondent did not have to disqualify
Defiances bid for attempting to improperly influence the respondent;

(iii)      in finding that Defiances bid was compliant with
respect to insurance;

(iv)     in finding that the respondent did not take into
account undisclosed criteria in scoring Defiances bid; and

(v)      in finding that Defiances
scores were within a range of possible acceptable outcomes that are defensible
in respect of the facts and the law.

[15]

The appellant seeks an order that the contract between Defiance and the
District of October 1, 2016 be set aside and that the District re-issue the RFP
for winter road maintenance. Alternatively, the appellant seeks a declaration
that it is entitled to damages for lost profits and an order remitting the case
to the Supreme Court for an assessment of damages.

Standard of Review

[16]

The role of this Court in appellate review of a judgment of a superior
court on an application for judicial review is to determine whether the
reviewing court identified the appropriate standard of review and applied it
correctly. To do this, the appellate court is required to step into the shoes
of the lower court and focus on the administrative decision:
Agraira v.
Canada (Public Safety and Emergency Preparedness),
2013 SCC 36 at paras. 45
‒
46.

[17]

The judicial review judge concluded that the standard of review was
reasonableness, following the decision of the Court in
Metercor Inc. v.
Kamloops (City)
, 2011 BCSC 382. The District supports this conclusion.

[18]

The appellant argues that the standard of review is correctness on the
basis that the central question was whether the respondent had correctly
applied its duty of fairness in respect of a decision that influenced the
rights of bidders.

[19]

In
Agraira
, the process for determining the standard of review was
summarized in this way:

[48]      As this Court held in
Dunsmuir
,
a court deciding an application for judicial review must engage in a two-step
process to identify the proper standard of review. First, it must consider
whether the level of deference to be accorded with regard to the type of
question raised on the application has been established satisfactorily in the
jurisprudence. The second inquiry becomes relevant if the first is unfruitful
or if the relevant precedents appear to be inconsistent with recent
developments in the common law principles of judicial review. At this second
stage, the court performs a full analysis in order to determine what the
applicable standard is.

[20]

In this appeal, Purcha challenges the decision of the District to award
the contract to Defiance on both procedural and substantive grounds. It is not
necessarily the case that the standard for judicial review will be the same for
each ground.

[21]

The standard for reviewing the merits of procurement decisions has not
been definitively established by this Court or the Supreme Court of Canada, but
there is authority for the proposition that the standard for substantive review
of such decisions is reasonableness:
Metercor
at para. 4;
Bot
Construction Ltd. v. Ontario (Ministry of Transportation)
, 2009 ONCA 879 at
paras. 8 and 18;
Mastermeter Products Canada Inc. v. Corporation of the
City of North Bay
, 2012 ONSC 1887 at para. 25. In the case at bar, the
substantive decisions were based on considerations of subjective evaluation,
discretion and policy considerations, which supports reasonableness review
under the
Dunsmuir
standard:
Dunsmuir v. New Brunswick
, 2008 SCC
9 at para. 51.

[22]

Purcha argues that a correctness standard should apply to the
substantive review on the basis that the question at issue is one of general
law that is both of central importance to the legal system as a whole and
outside the adjudicators specialized area of expertise. I do not agree. The
substantive decision of the District rests on a discretionary assessment of the
material submitted to it, and is reviewable on a standard of reasonableness.

[23]

By contrast, compliance with the duty of procedural fairness is not
assessed on a standard of reasonableness. The process undertaken by the
decision-maker either complies with the duty of fairness or it does not. No
deference is given by the reviewing court to the views of the decision-maker on
this issue.

[24]

As a result, it is sometimes said that the standard of review for
determining whether a decision-maker has complied with its duty of procedural
fairness is correctness. The leading expression of this principle is found in
the Supreme Court of Canadas decision in
Mission Institution v. Khela
,
2014 SCC 24 at para. 79:

[79]      Third, the ability to
challenge a decision on the basis that it is unreasonable does not necessarily
change the standard of review that applies to other flaws in the decision or in
the decision-making process. For instance, the standard for determining whether
the decision maker complied with the duty of procedural fairness will continue
to be correctness.

[25]

The proposition that the standard of review for procedural fairness is
correctness has been followed by a number of appellate courts, including this
Court in
The Cambie Malones Corporation v. British Columbia (Liquor Control
and Licensing Branch)
, 2016 BCCA 165 at para. 14; the Federal Court of
Appeal in
Henri v. Canada (Attorney General
), 2016 FCA 38 at para. 16;
the Manitoba Court of Appeal in
Boeing Canada Operations Ltd. v. Winnipeg
(City) Assessor,
2017 MBCA 83 at paras. 32
‒
36
;
and the Alberta Court of Appeal in
Springfield Capital Inc. v. Grande
Prairie (Subdivision and Development Appeal Board)
, 2016 ABCA 136 at para. 10.

[26]

I note that it is not clear that the concept of standard of review
applies at all to an allegation of breach of procedural fairness. In
Canadian
Pacific Railway Company v. Canada (Attorney General)
, 2018 FCA 69, the
Federal Court of Appeal stated that the standard of review is applied to
consideration of outcomes, and, as a doctrine, is not applied to the procedure
by which they are reached (para. 44), citing the dictum of Binnie J. in
C.U.P.E.
v. Ontario (Minister of Labour)
, 2003 SCC 29:

[102]    The content of procedural
fairness goes to the manner in which the Minister went about making his
decision, whereas the standard of review is applied to the end product of his
deliberations.

[27]

The Ontario Court of Appeal came to a similar conclusion in
Brooks v.
Ontario Racing Commission
, 2017 ONCA 833:

[5]        Before turning to the
issues, there is the question of the appropriate standard of review. When
considering an allegation of a breach of procedural fairness or natural
justice, no standard of review analysis is necessary. Rather, the court is only
required to analyze whether the rules of procedural fairness or natural justice
have been adhered to.

[28]

Whether expressed as a standard of review in the
Dunsmuir
sense,
or simply the standard by which procedural fairness is assessed, it is clear
that no deference is to be paid to the decision-maker in determining whether
the duty of procedural fairness has been met. In that sense, the standard of
review to be applied on judicial review when the issue is compliance with the
duty of procedural fairness can reasonably be characterized as one of
correctness. For purposes of this appeal, I will use that nomenclature, which
is consistent with the most recent pronouncement by the Supreme Court of Canada
in
Khela
.

[29]

Accordingly, I conclude that there are two standards of review at play
in this judicial review proceeding: correctness for the question of procedural
fairness and reasonableness on the merits of the Districts decision, including
intermediate decisions made in assessing the proposals.

Was the District under a duty of Procedural Fairness to Purcha?

Fairness as a Contractual Duty

[30]

A threshold question is whether the District was under a duty to be
procedurally fair to Purcha. The District takes the position that the RFP
process did not give rise to a Contract A, and therefore either no
free-standing enforceable duty of fairness arises, or such a duty is
circumscribed, citing this Courts judgment in
Powder Mountain Resorts Ltd.
v. British Columbia
, 2001 BCCA 619.

[31]

Purcha argues that the response to the RFP did create a Contract A, on
the basis that the District was committed to a specifically defined project,
invited proposals from eligible proponents, and evaluated them according to
specific criteria outlined in the RFP, relying on the trial decision in
Tercon
Contractors Ltd. v. British Columbia (Ministry of Transportation and Highways)
,
2006 BCSC 499, affd 2010 SCC 4.

[32]

Whether a Request for Proposal creates a contractual duty of fairness
under a Contract A analysis is determined by whether the parties intended to
initiate contractual relations by the submission of a response to the RFP. If
such a contract arises, its terms are governed by the terms and conditions of
the RFP:
M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd.
,
[1999] 1 S.C.R. 619 at para. 19.

[33]

Both
Powder Mountain
and
Tercon
were actions in breach of
contract. It was necessary in each case to determine whether the terms of the
RFP indicated an intention to create contractual relations, the precondition to
a Contract A analysis. The case at bar has been framed in judicial review on
administrative law grounds, not breach of contract. As a consequence, the
chambers judge gave no consideration to a contractual analysis and accordingly
made no finding as to whether the terms of this RFP were intended to create
contractual relations, as was found in
Tercon
.

[34]

In this case, the terms of the RFP make it clear that the parties did
not intend that a response to the RFP would create contractual obligations in
the nature of a Contract A or otherwise. The General Conditions of the RFP are
stated in this way:

E.  General Conditions

1.  No Contractual Obligations Arising from
this RFP or the Submission of a Proposal

This RFP is not a
call for tenders or a request for binding offers and no contractual or other
legal obligations shall arise between the District and any Proponent as a
result of the issuance of this RFP or the submission of any Proposal in
response to this RFP, until and unless the District and a Proponent enter into
a contract for the services sought by the District under this RFP. For clarity
and without limiting the foregoing, this RFP does not commit the District in
any way to treat Proponents in any particular manner, to select a Proponent, to
proceed to negotiations with any Proponent or to enter into any contract and
the District may reject any and all Proposals, re-issue a new RFP or end this
RFP process at any time, at its sole discretion.

[35]

There is nothing in the record before us to mitigate this clear language
in the RFP. Accordingly, I conclude that no Contract A was formed by the
responses to the RFP, and no contractual duty of fairness arises in this case.

Procedural Duty of Fairness

[36]

This leaves the question whether the District was under a duty of
procedural fairness based on principles of administrative law. The doctrine of
procedural fairness has been a fundamental component of Canadian administrative
law for many years. Every public authority making an administrative decision
which affects the rights, privileges or interests of an individual must comply
with a duty of procedural fairness. This general rule will yield only to clear
statutory language or necessary implication to the contrary:
Canada
(Attorney General) v. Mavi
, 2011 SCC 30 at paras. 38
‒
39.

[37]

It was at one time thought that procurement decisions of a municipality
were immune from judicial review, but that view was rejected by the Supreme Court
of Canada in
Shell Canada Products Ltd. v. Vancouver (City)
, [1994] 1
S.C.R. 231 at 239
‒
241
(per McLachlin J. dissenting, but not on this point) and 273
‒
274 (per Sopinka J.).

[38]

In my view, the chambers judge was not in error when she concluded that
the decision of the District to award the road maintenance contract to another
proponent was reviewable on administrative law grounds. The District had an
obligation of procedural fairness towards proponents who responded to the RFP.

[39]

The difficulty in this case is not whether the District owed the
proponents responding to its RFP a duty of procedural fairness, but what the
content of that duty was.

[40]

The underlying statute does not assist. The District has the authority
through s. 8(2) of the
Community Charter
, S.B.C. 2003, c. 26
to provide any service that the council considers necessary or desirable, and
may do this directly or through another public authority or another person or
organization. No statutory guidelines constrain the manner in which a
municipality must award road maintenance contracts. Procedural duties will
arise from the manner in which a municipality chooses to carry out these
responsibilities.

[41]

The concept of procedural fairness has been described as eminently
variable and to be decided in the specific context of each case:
Knight
v. Indian Head School Division No. 19
, [1990] 1 S.C.R. 653 at 682. In
Baker
v. Canada (Minister of Citizenship and Immigration)
, [1999] 2 S.C.R. 817,
the Court identified five factors that were relevant to determining the content
of the duty. Of these factors, the most significant for this case arises from
the legitimate expectations of those parties who responded to the RFP.

[42]

The application of the doctrine of legitimate expectations to
representations of administrative process was summarized by Justice Binnie in
Mavi
:

[68]      Where a government
official makes representations within the scope of his or her authority to an
individual about an administrative process that the government will follow, and
the representations said to give rise to the legitimate expectations are clear,
unambiguous and unqualified, the government may be held to its word, provided
the representations are procedural in nature and do not conflict with the
decision makers statutory duty.

[43]

Justice Binnie went on to explain the meaning of clear, unambiguous and
unqualified:

[69]       Generally speaking,
government representations will be considered sufficiently precise for purposes
of the doctrine of legitimate expectations if, had they been made in the
context of a private law contract, they would be sufficiently certain to be
capable of enforcement.

[44]

The doctrine of legitimate expectations cannot give right to substantive
rights:
Agraira
at para. 97.

[45]

These principles apply to the fairness requirements for procurement
decisions to which the Contract A analysis does not apply. In
Government
Procurement,
4
th
ed. (Toronto: LexisNexis Canada, 2017) at 112,
Paul Emanuelli expressed the principle in this way:

a government procurement
decision can be compromised by procedural irregularities when pre-established
process rules are not properly followed or where those process rules were
inherently flawed due to unlawful or hidden requirements, conditions, criteria
or procedures.

[46]

In the case at bar, there is no suggestion that the procedures set out
in the RFP were inherently flawed or unfair to the proponents. On the other
hand, the general procedure to be adopted by the District in reviewing the
proposals has elements that are clear, unambiguous and unqualified. Proponents
responding to the RFP could legitimately expect that the District would follow
these general procedures before making a decision on the road maintenance
contract.

[47]

The RFP states that the District intended to make its decision based on
what would provide the maximum value for money advantage to the District. The
District stated that it would first assess the ability of the proponent to do
the work and if the assessment was positive, would then look at the second
envelope to determine the price. The price represented 90% of the decision, but
would be modified by the Districts assessment of ability to perform the
required services.

[48]

The only two mandatory requirements for the proposals were that they
must contain the mandatory information and documents indicated in the RFP and
they must be submitted by a specified date. Unlike in
Tercon
, the
proponents were not limited to pre-selected companies or individuals.

[49]

The procedure for awarding the contract outlined in the RFP consisted of
the following:

(a)      proponents were to submit two envelopes providing
the information required by the RFP;

(b)      the information in envelope #1 would be assessed by
the District in quantitative terms to determine whether the proponent qualified
to do the work; if so, envelope #2 would be opened to determine the proposed
price;

(c)      the scoring from envelope #1 would be combined with
the price from envelope #2 according to a specified formula to determine the
lowest adjusted price proposed for the work; and

(d)      the proponent with the
lowest adjusted price would be offered a contract for the work.

[50]

If this process was followed equally for all proponents, the Districts
duty of procedural fairness would be met. Any remaining questions relating to
the substantive fairness of the decisions made by the District would be reviewable
on the deferential standard of reasonableness.

Did the District breach its Duty of Fairness?

[51]

The first observation I would make is that the District did follow the
procedure outlined in the RFP. Each proponent submitted two envelopes, the
first containing the information the District required, and the second
containing the proposed price. The District did assess each proponent for its
ability to do the work according to the process it established, scored each
proponent in largely subjective terms, and then factored in the price from Envelope
#2 according to the formula set out in the RFP. On its face, the legitimate
expectations of the proponents as to how the process would be carried out were
met.

[52]

A similar argument to the one at bar was made in
Agraira
, where
the Court emphasized at para. 95 the requirement that the practice or
conduct said to give rise to the reasonable expectation must be clear,
unambiguous and unqualified. In
Agraira
, Guidelines issued by the
Government created a clear, unambiguous and unqualified procedural framework
for the handling of relief applications, and thus a legitimate expectation that
that framework would be followed: para. 98. The Court analysed the
compliance issue in this way:

[99]      The appellant has not shown that his application
was not dealt with in accordance with this process outlined in the Guidelines.  
The appellants submission and its supporting documentation, the CIC officers
report, and the CBSAs recommendation were all forwarded to the Minister, and
the Minister rendered a decision on the application. As counsel for the
appellant rightly acknowledges, [i]n the Appellants case, the Ministerial
relief process followed the process set out in the IP 10 guidelines (A.F., at para. 53).
His legitimate expectation in this regard was therefore fulfilled
.

[Emphasis added.]

[53]

The objection of Purcha in this Court is not so much that the procedure
was not followed, but that the way in which the procedure was followed gave
rise to an unfairness. This focuses on a series of judgments of a more
substantive nature that are more appropriately assessed on a standard of
reasonableness than correctness.

[54]

The appellants theory as to obligations of fairness amounts to two separate
arguments:

(i)       it was unfair to the other proponents for the
District to consider the Defiance proposal at all, as the Defiance proposal
should have been disqualified from consideration, either for breaching secrecy,
or for attempting to improperly influence the District, or because the proposal
was non-compliant with respect to insurance; and

(ii)      it was unfair to the
other proponents for the District to take into account undisclosed criteria in
scoring Defiances bid.

[55]

The reasonableness of what may be described as intermediate decisions on
the path to the ultimate outcome was reviewed in detail by the judicial review
judge. I agree with her conclusions that, subject to one matter that I will
discuss, the decisions made in the review of the applications were not
unreasonable. The requirement to afford procedural fairness is not an
invitation for courts to second-guess the subjective assessments of a
municipality as to the ability of a proponent to perform the requisite
services.

[56]

This is so particularly here in light of the provision of the RFP that
was clearly intended to allow the District to retain a discretion to consider
proposals that were not compliant with the proposed information requirements:

If a proposal fails in some way
to comply with the requirements of this RFP, the District may nevertheless
choose, at its discretion, to retain that proposal for consideration.

[57]

The single issue that gave the judicial review judge pause was the
argument that Defiance had indirectly indicated its proposed price in Envelope
#1, thereby compromising the purpose of the two-envelope procedure. This
argument arises from the following passage that was included in the Defiance
proposal:

As a reminder we donate 3% of our
Revenue back directly into our Community which would in effect cover most of
your additional unforeseen work maintenance costs. 3% of the bid =
approximately $4,600.00 returned back to Barriere so therefore, we could put
these towards any of District of Barriere needs, for any Projected Projects.

[58]

To determine the proposed bid price, it would have been necessary to
perform a simple calculation. The evidence was that the District employees had
not made the calculation and were unaware of the Defiance price until they
opened Envelope #2.

[59]

The chambers judge came to the following conclusion about this issue:

[81]      Although it is
necessary for a bidding process not only to be fair, but to be perceived to be
fair, the disclosure by Defiance did not affect the duty of fairness to all
bidders based on the manner in which the RFP was structured. I find that the
District at this stage did not breach their duty of fairness to the other
bidders as a result of the comments by Defiance. However, if I am wrong, I will
comment later in these reasons about the remedy sought by the petitioner. Defiance
should not have disclosed the amount it would have contributed to the community
based on envelope #1.

[60]

In her comments later in her reasons, the judicial review judge
explained why she would not have exercised her discretion to set aside the
Districts decision even if she had concluded that consideration of the
Defiance proposal breached the Districts obligations of procedural fairness to
the other proponents.

[61]

I agree that Defiance should not have included in Envelope #1 the
information that made it possible to calculate its proposed price. There are
circumstances in which consideration of the Defiance proposal might well be
considered procedurally unfair. For example, if the evidence was that the
District employees had made the necessary calculation, thereby becoming aware
of the Defiance proposed price before scoring their ability to do the work, a
reviewing court could reach the conclusion that the process represented to be
followed in the RFP was not in fact followed. Additionally, if fairness was being
assessed in the context of contractual obligations, a term of a Contract A
might be implied that would invalidate consideration of the Defiance proposal.
Neither of these considerations apply in the case at bar.

[62]

On balance, I do not consider that this error by Defiance leads to the
conclusion that the promised procedure was not followed, or that the proposals
were not considered equally. There is nothing in the record to suggest that the
scoring of Defiances proposal was enhanced by this donation disclosure.
Defiance in fact scored third of the five proponents for their work plan
(Purcha scored fourth).

[63]

I conclude that the District did not breach the duty of procedural
fairness it owed to the appellant and the other proponents.

Reasonableness of the Substantive Outcome

[64]

The final argument of the appellant was that the judicial review judge erred
in finding that Defiances scores were within a range of possible acceptable
outcomes that are defendable in respect of the facts and law. It is more
accurate to frame the issue as whether the judge erred in finding that the
Districts decision to award the contract to Defiance was within a range of
possible acceptable outcomes that were defensible in respect of the facts and
the law. It was not the responsibility of the judicial review judge to evaluate
Defiances scores. The question for the judge on this issue was whether the
decision under review met the reasonableness standard.

[65]

In my view, the Districts decision meets this standard of review. The
District followed the process outlined in the RFP, applied the appropriate
formula, and offered a contract to the proponent with the lowest adjusted
price, as it said it would.

Disposition

[66]

I am satisfied that the proponents were treated fairly in this process. The
decision reached is supportable on the facts and the law. I would dismiss this
appeal.

The
Honourable Mr. Justice Hunter

I AGREE:

The Honourable Madam Justice
Stromberg-Stein

I AGREE:

The Honourable Mr. Justice
Savage


