Nunavut Innovative Health Solutions v. NNI Contracting Appeals Board, 2014 NUCJ 29

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: Nunavut Innovative Health Solutions v. NNI Contracting Appeals Board, 2014 NUCJ 29 Date: 20141021 Docket: 08-13-789 Registry: Iqaluit Applicant: Nunavut Innovative Health Solutions Inc. -and- Respondents: NNI Contracting Appeals Board, The Government of Nunavut, As Represented by the Minister of Health, and VRK Dental Services Inc. ________________________________________________________________________ Before: The Honourable Mr. Justice E. Johnson Counsel (Applicant): Geoffrey M. Bowman Counsel (Respondent NNI): Jonathan P.

Rossall Counsel (Respondent GN): Vincent J. DeRose and Kathleen McDormand Location Heard: Iqaluit, Nunavut Date Heard: September 18, 2014 Matters: Nunavut Rules of Court, N.W.T. R-010-96, Rule 27, as duplicated for Nunavut by s.29 of the Nunavut Act, S.C. 1993, c. 28 . REASONS FOR JUDGMENT _______________________________________________________ (NOTE: This document may have been edited for publication) I. INTRODUCTION

[ 1 ] On November 30, 2012, the respondent, Government of Nunavut Department of Community and Government Services on behalf of the Department of Health and Social Services (“The Contracting Authority”) issued a request for proposals (RFP) for dental services in the Baffin (“Baffin RFP”) and Kivalliq (“Kivalliq RFP”) regions of Nunavut. [ 2 ] On June 7, 2013, the Contracting Authority awarded the contract to provide the dental services in both regions to the applicant, Nunavut Innovative Health Solutions Inc. (“NIHS”). [ 3 ] In June 2013, Kiguti Corporation (“Kiguti”), an unsuccessful proponent in the Kivalliq RFP, filed an application for judicial review requesting this Court quash the decision of the Contracting Authority to award the contract to NIHS and to order the Contracting Authority to re-issue the RFP.

At the same time, VRK Dental Services Inc. (“VRK”), a company related to Kiguti, brought an almost identical application for judicial review requesting the same relief with respect to the Baffin RFP. [ 4 ] Later in June 2013, Kiguti and VRK also filed appeals of the decisions of the Contracting Authority to the respondent, NNI Contracting Appeals Board (“Board”), alleging that the Contracting Authority erred in the application of the Nunavummi Nangminiqaqtunik Ikajuuti (“NNI”) policy.

The Board’s function under the NNI policy is to ensure that a Contracting Authority’s award of a tender is done in accordance with NNI policy and sound procurement policy and practice. [ 5 ] On October 31, 2013, (Kivalliq RFP) and November 25, 2013 (Baffin RFP), the Board issued reasons for decisions that concluded that the Contracting Authority erred in its application of the NNI policy and made a number of recommendations to the Contracting Authority that it has not implemented as of the date of this hearing. [ 6 ] On November 29, 2013 (Kivalliq) and December 20, 2013 (Baffin) NIHS filed applications for judicial review in the nature of certiorari to quash the decisions of the Board alleging that the Board’s decisions were unreasonable and inconsistent with the law of tendering. [ 7 ] On June 12, 2014, the Board filed a motion for

summary judgment under Rule 27 of the Nunavut Rules of Court, NWT R-010-96, Rule 27, as duplicated for Nunavut by s.29 of the Nunavut Act, SC 1993, c. 28 . [Rules] [ 8 ] The applications for judicial review by Kiguti and VRK have been adjourned sine die pending the judgment in this application. [ 9 ] The Government of Nunavut (GN) on behalf of the Contracting Authority and NIHS opposed the application. I heard oral argument on September 18, 2014 and reserved judgment. II.

ISSUES [ 10 ] Does the Board have the right to raise the argument that its recommendations are not subject to review, given that it is the Board’s decision that is being reviewed? [ 11 ] Should this Court conduct a judicial review of the Board’s decisions, given that its authority is limited to making recommendations to the Contracting Authority? A.

Does the Board have the right to raise the argument that its recommendations are not subject to review, given that it is the Board’s decision that is being reviewed? [ 12 ] Neither the applicant nor the Contracting Authority took a position on the authority of the Board to make the application about its own decisions.

[13] The general rule set out in Northwestern Utilities Ltd v Edmonton, (SCC), [1979] 1 SCR 684, [1978] SCJ No 107,is that the administrative body whose decision is at issue before a court should play a very limited explanatory role. That principle wasapplied in Baffin Plumbing & Heating Ltd v Northwest Territories, (NWT SC), [1993] NWTJ No 111, [1993] NWTR301 (Labour Standards Board). [14] Timberwolf Log Trading Ltd v Commissioner 2011 BCCA 70, [2011] BCJ No 229 (LN) (pursuant to s 142.11 of the Forest Act),recognized exceptions to the general rule where the attack on the administrative body alleged that the decision was unreasonable. Thoseare:

a) where the question is whether the tribunal has made a patently unreasonable

interpretation of a statutory right to be heard;

b) where the tribunal is defending a long standing policy; and

c) where there is no one else. [15] I am satisfied that the third exception applies to this application and that the Board has the right to make the application. B. Should this Court conduct a judicial review of the Board’s Decisions, given that its authority is limited to making recommendations to the Contracting Authority? (i). Arguments B.i.1 Board [16] As held in Canada (Attorney General)v Beyak, 2011 FC 629, [2011] FCJ No 811 (LN) [Beyak], the general rule is that non-binding recommendations from an administrative tribunal are not reviewable. [17] The general rule can be set-aside in two instances.

One is when the body making recommendations is established under statute andits decision affects the rights of an individual. Canada (Attorney General) v Symtron Systems Inc, [1999] 2 FC 514, (FCA), [Symtron], is an example of the first exception. In that case, the Federal Court of Appeal conducted a judicial review of theCanadian International Trade Tribunal’s [CITT] decision regarding the application of procurement policy under the North American FreeTrade Agreement even though the Tribunal could only make recommendations to the ultimate decision maker. However,

section 30.18(1) of the Canadian International Trade Tribunal Act [CITTA], provided that the ultimate decision maker was required to implement therecommendations to the greatest extent possible. The Court of Appeal held that this provision made non-adherence an “awkward andunusual occurrence”. [18] The similar

section of the NNI policy does not require the Contracting Authority to comply with the recommendations of the Board.When the Contracting Authority does not comply it simply has to provide reasons. [19] The second exception is where the recommending body is established by policy and the recommendations form the basis of adecision maker’s decision. Jada Fishing Co Ltd v Canada (Minister of Fisheries and Oceans), 2002 FCA 103, 41 Admin LR (3d) 281[Jada], is an example of the second exception.

In that case, the Atlantic Fisheries Licence Appeal Board made recommendations to theMinister that the Minister could accept or reject. The Federal Court of Appeal held that although the Board Panel’s decision was notreviewable, the decision of the Minister was because the Minister’s decision was in part based on the recommendation.

This approachwas affirmed in Beyak, where the Court of Appeal held the recommendations would be reviewable where the recommendation wasinexorably connected to the Minister’s decision and they affected the rights or interests of a party. [20] The Board submits that a recommendary body cannot have its recommendations subjected to judicial review except in those caseswhere the recommendations are “inexorably connected” to the decision made by the ultimate decision maker or where thoserecommendations affect legal rights and there is no evidence to support the recommendations made.

[21] The Contracting Authority, to date, has refused to implement any of the recommendations made by the Board. Since the ContractAuthority has not used the Board’s recommendations as a basis for a decision, they cannot be said to be “inexorably connected” to anydecision made in this matter.

Further, because the Contract Authority has not made a decision, the recommendations do not affect anyrights NIHS may have. [22] Upon the Minister responsible for the Contracting Authority accepting and implementing any of the recommendations, they wouldthen become “inexorably connected” to the Minister’s decision and would be reviewable in a judicial review application.

B.i.2 Government of Nunavut [23] The GN devoted a substantial part of its written submission to arguments to establish that the Board was a tribunal under Rule 591of the Rules and was bound by a duty of fairness as held by this Court in Qikiqtaaluk Corp v Nunavut, 2009 NUCJ 6 , 2009NUCJ 06, [2009] NuJ No 8 (LN), [Qikiqtaaluk]. However, in oral argument, counsel for the Board conceded that the Board was atribunal under Rule 591 of the Rules and was bound by a duty of fairness.

As a result, there is no need to review those arguments here. [24] Relying on Irving Shipbuilding Inc. v Canada, 2009 FCA 116 , [2009] 314 DLR (4th) 340 (Fed CA), 2009 CarswellNat3243 [Irving], the GN argues that this Court’s supervisory authority must also extend to the decisions and recommendations made by theBoard because it is contradictory for the rules of natural justice and procedural fairness to apply but not judicial review. [25] Air Canada v Toronto Port Authority, 2011 FCA 347 , [2013] 3 FCR 605 (Fed CA), [2011] FC J No 1725, and AdventureTours Inc v St.

John’s Port Authority, 2012 FC 305 , [2012] 406 FTR 282, [2012] FCJ No 342 (LN) [Adventure Tours], bothconcluded that judicial review of a decision or recommendation is appropriate in “circumstances where conduct had triggered rights onthe part of the applicant, for example legal rights, obligations or prejudicial effects”. [26] The Board’s decisions affect the rights of parties in these cases. The Board is mandated to investigate and adjudicate claims madeunder the NNI policy.

Although the Board issues recommendations rather than binding decisions, its findings and recommendations can,and do, have a significant impact on the legal rights of the parties. In these cases, the Board has recommended that the term of thecontracts between the GN and the NIHS be reduced from three years to one year and that a new Baffin and Kivalliq RFP be issued. Bothof these decisions would have a significant impact on NIHS and the GN.

Conversely, if the Board had dismissed the appeals of Kigutiand VRK the decision would have had an impact on the legal rights of Kiguti and VRK. [27] Symtron held that the Government of Canada should, to the greatest extent possible, implement the CITT recommendations. [28] The Contracting Authority’s obligation to issue reasons if it chooses not to implement the Board’s recommendations also generatesa similar expectation. [29] While noting to the greatest extent possible of the wording in CITTA, the Board’s Hearing Brief omitted

section 30.18(2) thatsimilarly requires a government institution to provide reasons to the Tribunal if it does not intend to fully implement therecommendations. [30] The GN concludes its argument by submitting that the Board and CITT are much more similar than suggested by the Board. Bothare independent tribunals that review specific aspects of government procurement practice and make recommendations to a governmentminister. The Federal Court of Appeal regularly reviews CITT decisions in judicial review applications.

There is no reason at law for theBoard to not also be subject to judicial review. [31] If the Board’s recommendations are not subject to judicial review then the type of mischief that occurred in this case would prevailand the integrity of Nunavut’s bidding process would be compromised. [32] The Board’s findings raise serious questions of law and mixed fact and law that must be reviewed by this Court. In particular, the

Board’s finding that the Contracting Authority should consistently permit bid repair where such repair would result in an increase to NNIpolicy adjustments is entirely inconsistent with the following cases: (

a) MJB Enterprises Ltd. v Defence Construction

(1951) Ltd., (SCC), [1999] 1 SCR 619, 44 CLR (2d) 163; (

b) Maystar General Contractors Inc. v Newmarket (Town), 2009 ONCA 675 , [2009] OJ No 3939, 82 CLR (3d) 169; (

c) Vachon Construction Ltd. v Cariboo (Regional District), (BC CA), [1996] 136 DLR (4th) 307, 28 CLR (2d) 145. [33] There is also academic authority on the impropriety of bid repair in Government Procurement . [34] If the Board’s recommendations may be contrary to law, it is this Court that should review them to ensure they are consistent withCanadian procurement law and not the GN. B.i.3.

NIHS [35] NIHS adopts the GN submissions regarding the applicability of judicial review to the Board’s decisions. [36] As held in Martineau v Matsqui Disciplinary Board, (SCC), [1980] 1 SCR 602, 50 CCC (2d) 353, the decisions ofany public body with the power to decide any matter affecting rights, interests, property, privileges, or liberties of any person areproperly open to judicial supervision by judicial review. [37] The basic premise of the Board’s argument that the Contracting Authority has not acted on the recommendations is that NIHS’sapplication for judicial review is premature.

This argument ignores the impact the Board’s decision may have on the applications forjudicial review launched by Kiguti and VRK that deal with the same procurement issue. [38] The Board decided that the Contracting Authority erred in applying the NNI policy. The Board’s decisions on the NIHSapplications have the potential to affect NIHS interests regardless of whether they are implemented by the Contracting Authority.

If leftunchallenged and undisturbed, the decisions of the Board may preclude this Court from considering the same issue in the Kiguti andVRK applications because rearguing the same issue already decided by the Board could be regarded as a collateral attack or abuse ofprocess by relitigation. [39] As held in British Columbia (Worker’ Compensation Board) v Figliola, 2011 SCC 52, [2011] 3 SCR 422, the rule against collateralattack attempts to protect the fairness and integrity of the justice system by preventing duplicative proceedings.

It prevents a party fromusing an institutional detour to attack the validity of an order by seeking a different route from a different forum rather than through thedesignated appellate or judicial review route.

Canadian Union of Public Employees, Local 79 v City of Toronto, 2003 SCC 63, 17 CR(6th) 276, similarly applied the principles of abuse of process and issue estoppel to prevent duplicative litigation. [40] These legal principles operate to require NIHS to either challenge the Board’s decision directly by judicial review or not reargue theissue before this Court in the hearing of the Kiguti and VRK judicial review applications.

In the context of these principles, as discussedin Black v Advisory Council for the Order of Canada, 2012 FC 1234, 268 CRR (2d) 255, NIHS’ application for judicial review is notpremature. [41] The Board argues that its decisions and recommendations make findings that have no weight or force until implemented by theContracting Authority. NIHS submits that, as indicated at p. 177-178, 182 and 188-191 in exhibit “I” of Shayler affidavit # 1, and 179-180, 184 and 190-192 in exhibit “J” of the Shayler affidavit # 2, the Board clearly identified separate sections for decisions as opposed torecommendations.

The NNI policy supports the conclusion that the Board is intended to make both decisions and recommendations.Article 18.21 states that after hearing an appeal “the Board may dismiss the appeal or allow the appeal and make recommendations”. [42] Throughout

Article 18, there are numerous references to decisions of the Board, separate and distinct from the recommendationsthat flow from them. The Board has not advanced any argument that its decisions, as opposed to its recommendations, are not judicially

reviewable. [ 43 ] NIHS relies on Swanson v Institute of Chartered Accountants (Saskatchewan), 2007 SKQB 480 , 308 Sask R 32 [Swanson] , to negate the Board’s argument that recommendations cannot be subject to judicial review. [ 44 ] The Contracting Authority must accept or reject the Board’s recommendations.

As a result, the recommendations affect NIHS’ interests by making its contractual rights subject to an election that did not exist, but for the Board’s recommendations. [ 45 ] As noted in the Board’s submissions, the Board’s function under the NNI policy is to ensure that a Contracting Authority’s award of tender is done in accordance with the NNI policy and sound procurement policy and practice. It follows that the NNI policy is intended to be consistent with tendering law.

As held in Tercon Contractors Ltd. v British Columbia (Ministry of Transportation and Highways), 2006 BCSC 499 , 51 CLR (3d) 227 [Tercon] , procurement processes such as tendering and RFPs are governed by principles of tendering law which is a subset of contract law. [ 46 ] A fundamental notion in tendering law is the implied duty of fairness.

As noted in Double N Earth Movers v Edmonton (City), 2007 SCC 3 , 58 CLR (3d) 4 [Double D] ; Continental Steel Ltd v Mireau, 2007 BCCA 292 , [2007] 11 WWR 63 ; and Martel Building Ltd v Canada, [2000] 2 SCR 860 , 2000 SCC 60 , this duty requires an owner to treat all proposals fairly and equally, including applying evaluation criteria evenly and not relying on any undisclosed criteria. [ 47 ] NIHS included arguments on the merits of the Board’s reasons that are useful in illustrating the serious issues facing this Court in the judicial review applications but such arguments are not germane to the issues in this application. [ 48 ]

Article 7.1(

a) of the NNI policy states that one of the objectives of the policy is to secure goods and services using a contracting process that is clear, fair, and equitable. The Board’s decisions are inconsistent with this

article and the duty of fairness derived from tendering law. [ 49 ] The Board reasoned that any and all changes to proposals should be permitted after the close of an RFP if those changes would have the effect of greater NNI adjustments for an RFP proponent. NIHS submits that the reasoning is flawed. Allowing a bidder to change its bid after closing is obviously unfair.

As noted in Tercon, unfairness operates in a way that undermines the integrity of the competitive procurement processes that is at the heart of tendering law. [ 50 ] In Double D, the Supreme Court of Canada stated that the best way to ensure that all bids receive the same treatment is for an owner to weigh bids on the basis of what is actually bid and not to weigh them on the basis of subsequently discovered information. [ 51 ] The Board’s decision that the terms of the RFP should be ignored is inconsistent with NNI policy and with tendering law. It should not be permitted to stand undisturbed.

The Board’s decisions should be reviewed and reconciled with the established principles of tendering law and the clear instructions in these RFPs. C. Analysis [ 52 ] In Beyak , the Chairperson of the Public Service Staffing Tribunal, under the Public Service Employment Act SC 2003, c 22 , recommended that the Public Service Commission revoke two staffing appointments. The Federal Attorney General applied for judicial review of the decision. The respondent argued that the Court did not have jurisdiction to intervene in a challenge to a non-binding recommendation.

At para 60, Mandamin J. stated that it was generally accepted that non-binding recommendations of an administrative tribunal are not reviewable. He went on to state that there were a number of exceptions to this general rule. The first exception is a Jada type legislative scheme where an administrative tribunal makes recommendations that can be accepted or rejected by the Minister as occurred in Jada and in Waterman v Canada (Attorney General), 2009 FC 844 , 350 FTR 88 . In both cases, the Minister had adopted the administrative tribunals’ recommendations and they were “inexorably connected” to his decision.

In those cases, the court found that the Minister’s decision was subject to judicial review rather than the recommendations of the tribunal. [ 53 ] Mandamin J. also recognized that another important exception was where a recommendation would affect the legal rights or

interests of a party. He cited Morneault v Canada (Attorney General), (FCA), [2000] FCJ No 705, 189 DLR (4th) 96[Morneault], as authority for that proposition.

In Morneault, Stone J. for the Court of Appeal pointed out that in Moumdjian v Canada(Security Intelligence Review Committee), [1999] 4 FC 624, (FCA) [Moumdjian], a recommendation to a Minister ofthe Crown by an investigative tribunal which by reasonable expectation would lead to a deportation was considered reviewable. [54] In Moumdjian, Robertson J. for the Court of Appeal provided a detailed review of the changes that had occurred in thejurisprudence about the generally accepted proposition that non-binding recommendations could not be the subject of judicial review.

Henoted that inroads were made in Anheuser-Busch v Carling O’Keefe Breweries of Canada Limited 7, (FCA), [1983] 2FC 71 (CA), 142 DLR (3d) 548, where the Court of Appeal reviewed an interlocutory order. While in Canadian Tobacco Manufacturers'Council v National Farm Products Marketing Council, (FCA), [1986] 2 FC 247 (CA), 26 DLR (4th) 677 [CanadianTobacco], the Court of Appeal judicially reviewed a recommendation.

At para 18, Robertson J. described the key principle emergingfrom Canadian Tobacco which was that administrative agencies with specific expertise can cause adverse consequences to some partieseven though they are only authorized to inquire and advise.

In those situations courts will ensure that the agency has complied with therules of procedural fairness. [55] The final case Robertson J. relied on was Saulnier v Quebec Police Commission 9, (SCC), [1976] 1 SCR 572, 57DLR (3d) 545, where the Supreme Court of Canada approved the following quote from the dissenting judgment in the Quebec Court ofAppeal: Appellant has rendered a decision that may well impair if not destroy Respondent's reputation and future.

When I read the first andfourth considerants and the conclusions of the sixth recommendation and when I recall that the whole purpose of these reports is topresent facts and recommendations on which normally the Minister will act the argument that no rights have been determined and thatnothing has been decided is pure sophistry. [56] Further authority for the reviewability of recommendations can be found in Swanson and in the Principles of Administrative Law .The authors cite the following cases in support of their statement that the development of the fairness doctrine now means that somemere recommendations and investigations will be reviewed: Irvine v Canada (Restrictive Trade Practices Commission, (SCC), [1987] 1 SCR 181, 34 CCC (3d) 481; Baker v Canada (Minister of Citizenship & Immigration), (SCC), [1999]2 SCR 817, [1999] SCJ No 39; and British Columbia (Securities Commission) v Branch, (SCC), [1995] 2 SCR 3, 97CCC (3d) 505. [57] The jurisdiction of the Federal Court at the time of the Moumdjian application came from section 28(1) of the Federal Courts Act,RSC 1985, c F-7 [FCA] that stated: Notwithstanding

section 18 or the provisions of any other Act, the Court of Appeal has jurisdiction to hear and determine an applicationto review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on ajudicial or quasi-judicial basis, made by or in the course of proceedings before a federal board, commission or other tribunal, on theground that the board, commission or tribunal (

a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction; (

b) erred in law in making its decision or order, whether or not the error appears on the face of the record; or (

c) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for thematerial before it. [58] The jurisdiction of this Court in a judicial review application under Rule 592 also uses the word “decision”.

It states: "tribunal" means a board, commission, tribunal or other body or person whose decision, act or omission is subject to judicial review,whether comprised of one person or of two or more persons acting together and whether or not styled by a collective title. [59] The Board concedes the Board is a tribunal within the definition of tribunal in Rule 591 of the Rules and accepts that it has a duty toact fairly as held in Qikiqtaaluk. In that case, Browne J. held that the Board had to provide the applicant with certain information that ithad received from the successful bidder as part of the bidding process.

[ 60 ] However, relying on Jada, the Board argues that its recommendations do not qualify as a “decision, act or omission” because the Minister did not adopt them. As a result, this Court does not have the jurisdiction to entertain the judicial review applications. [ 61 ] Exhibit “D” of Mark McCullough’s affidavit set out the reasons of the Minister for not making a decision on the recommendations. It states: Nunavut Innovative Health Solutions has applied to the Nunavut Court of Justice for judicial review of the recommendations, and has requested that the Court quash the Board’s decisions.

As the Minister responsible for the contracting authority, I have decided to postpone any decision concerning the Board’s recommendations until the judicial review proceedings are concluded [ 62 ] NIHS argues that, while the Minister did not adopt the recommendations, the Board made a number of decisions set out in its reasons that explain and support the recommendations and that fit within the words “decision, act or omission” in the definition of tribunal. [ 63 ] I adopt Robertson J.’s approach in Moumdjian to the

interpretation of these jurisdictional

definitions. He stated at para 23: In conclusion, I am of the view that this Court possesses the requisite jurisdiction to hear the applicant's application for judicial review of the SIRC decision. The jurisprudence reveals that the term "decision or order" has no fixed or precise meaning but, rather, depends upon the statutory context in which the advisory decision is made, having regard to the effect which such decision has on the rights and liberties of those seeking judicial review. [ 64 ] Hinging judicial review on whether a decision or a recommendation is being reviewed is not helpful to the analysis.

What is helpful is the important point made by Robertson J. on the statutory context and the impact on the rights and liberties of the parties seeking review. It is interesting to note that, as set out in para 13 of Adventure Tours,

section 18.1(1) of the FCA now permits judicial review to anyone directly affected by “the matter in respect of which relief is sought”. This effectively removes the problem of whether a decision or a recommendation is being reviewed. [ 65 ] As Browne noted at para 1 of Qikiqtaaluk, the NNI policy is the GN’s response to

Article 24 of the Nunavut Land Claims Agreement.

Section 24.3.4 provides that the GN shall maintain preferential procurement policies and approaches consistent with

Article 24 for all GN contracts. The NNI policy is the GN’s response to that obligation. It is an important policy that has a significant impact on the business community and private enterprise in Nunavut because the GN plays a large role in the economy. Browne J. also held that the rules of natural justice and procedural fairness apply to some aspects of the work of the Board. As held in Irving, this finding is an important factor in concluding that a court should judicially review the Board’s decision. [ 66 ] The NNI policy has some similarity to the legislative scheme in Symtron.

In that case, CITT could only make recommendations to the governmental contracting authority Defence Construction Canada (“DCC”) to take certain actions after Symtron complained about the way an RFP had been handled. DCC indicated that it was proceeding to implement the recommendations but Symtron made a second complaint about how the first recommendation was implemented. [ 67 ] The Federal Court of Appeal accepted that it should judicially review both decisions of CITT because

section 30.18(1) of CITTA required that DCC to “implement the recommendations to the greatest extent possible”. [ 68 ]

Section 18.26 of the NNI policy states: “If the contracting authority does not accept the recommendations of the Board for remedial action, in whole or in part, it shall issue reasons for its decision.” [ 69 ]

Section 30.18(2) of the NNI policy states:

Within the prescribed period, the government institution shall advise the Tribunal in writing of the extent to which it intends to implement the recommendations and, if it does not intend to implement then fully, the reasons for not doing so. [ 70 ] The Board’s reasons and recommendations have had a significant impact on the successful contractor NIHS because they have raised a cloud about the legal validity of the tendering process. The Board also recommended shortening the contract and retendering.

The same is true about the VRK and Kiguti applications. [ 71 ] The Board’s reasons have also had a significant impact on the Kiguti and VRK judicial review applications because its findings and recommendations open up the important issue of bid repair in tendering law. These issues must be addressed as soon as possible. The delays in these applications have already made one of the recommendations redundant because more than one year has passed since the contract was awarded. If the issue is not litigated in this application it will be in the Kiguti and VRK applications.

It is quite possible that the reasons of this Court on a judicial review of the Board’s recommendations will resolve the issues in the Kiguti and VRK applications and prevent unnecessary litigation. [ 72 ] Finally if the applications for judicial review are dismissed there are possible issues of collateral attack that could arise in the Kiguti and VRK judicial review applications. If this Court does not address the issues in these applications, the Minister will be making the final decision on important issues of tendering law rather this Court. III.

CONCLUSION [ 73 ] I am satisfied that the NIHS judicial review applications should proceed and that this Court has jurisdiction to entertain them despite the Minister’s refusal to make a decision on the recommendations. [ 74 ] The applications for

summary judgment are dismissed and costs may be spoken to at a later date. Dated at the City of Iqaluit this 21st day of October, 2014 ___________________ Justice E. Johnson Nunavut Court of Justice