3.15: Originating application for judicial review

Case Summary

The Respondent, Alberta’s Minister of Environment and Parks (“AEP”), had issued a Request for Proposals (the “RFP”) in order to award a contract for the operation, monitoring, and servicing of water and wastewater facilities in the Kananaskis region. Among the tender offers received were those of the legacy service provider, Aquatech Canadian Water Service Inc. (“Aquatech”), as well as H20 Innovations Inc. (“H20”). AEP accepted the tender offer of H20. Pursuant to Rule 3.15, Aquatech sought Judicial Review of AEP’s decision. Aquatech alleged that H20’s tender offer should have been rejected because H20 had not satisfied a mandatory term of the RFP, as H20 had failed to provide the names of five certified operators who would perform the day-to-day services.

deWit J. first considered whether AEP’s decision could be subject to Judicial Review, i.e. whether the RFP was the exercise of public authority or a private matter. His Lordship reviewed each of the several considerations set out in Air Canada v Toronto Port Authority, 2011 FCA 347: the character of the matter for which review is sought; the nature of the decision-maker and its responsibilities; the extent to which a decision is founded in and shaped by law as opposed to private discretion; the body’s relationship to other statutory schemes or other parts of government; the extent to which a decision-maker is an agent of government or is directed, controlled or significantly influenced by a public entity; the suitability of public law for remedies; the existence of compulsory power; and whether the matter was of an exceptional quality having attained a serious public dimension.

deWit J. ultimately held that AEP’s decision was subject to Judicial Review, though the considerations opposing Judicial Review were many. Among them were the generally private nature of contracting, AEP’s private discretion in the matter (as distinct from a circumstance where a public entity is acting as an administrative body), and Aquatech’s sophistication which reduced the unfairness of denying a public law override of the RFP’s limitation on damages. There was also some discussion of AEP’s involvement having been on the Alberta Parks side of the Ministry, as opposed to the Alberta Environment side, presumably relevant insofar as Alberta Parks is service-provision focussed (i.e. private in nature) whereas Alberta Environment is policy focussed (i.e. public in nature).

Considerations in favour of Judicial Review included the broad public impact of the management of expansive water treatment facilities, including the relevance of environmental and public safety considerations; the fact that AEP was acting as agent for the Crown (and therefore owed a duty of fairness and transparency); and the limitation of AEP’s discretion by procurement protocols established in trade agreements.

Once engaged in the Judicial Review analysis, deWit J. sought to determine whether the H20 proposal was non-compliant. Ultimately, the RFP was interpreted as requiring a commitment to retain five certified operators, but that the provision of specific names was optional. H20 had committed to retain qualified operators, so the H20 bid was compliant. Alternatively, the Court was prepared to hold that the RFP provided AEP with the authority to waive any minor or inconsequential noncompliance, and that any noncompliance in the circumstances was minor or inconsequential.

Aquatech’s application for Judicial Review was dismissed.

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