2015 FC 257, 2015 FC 257

Date: 20150227 Docket: T-1097-13 Citation: 2015 FC 257 [UNREVISED ENGLISH CERTIFIED TRANSLATION] Ottawa, Ontario, February 27, 2015 PRESENT: The Honourable Mr. Justice Roy BETWEEN : AIRBUS HELICOPTERS CANADA LIMITED Applicant and THE ATTORNEY GENERAL OF CANADA and THE MINISTER OF PUBLIC WORKS AND GOVERNMENT SERVICES CANADA and BELL HELICOPTER TEXTRON CANADA LTD. Respondents JUDGMENT AND REASONS I.

Introduction [ 1 ] Airbus Helicopters Canada Limited [Airbus] is challenging the contract award process conducted on behalf of the Government of Canada by the Minister of Public Works and Government Services Canada [PWGSC], which concluded with the purchase of light-lift helicopters to replace the aging fleet used by the Canadian Coast Guard [CCG]. [ 2 ] The contract was eventually awarded to Bell Helicopter Textron Canada Ltd. [Bell] on May 9, 2014 (affidavit of Sandra Howell, September 19, 2014).

In fact, Airbus chose not to bid in response to the request for proposals that was issued by PWGSC on April 3, 2013, following a consultation process with the industry. Airbus participated in the process leading up to the request for proposals. Only one bidder, Bell, responded to Solicitation No.

F7013-120014/C, which closed on June 4, 2013. [ 3 ] The contract is for the purchase of 15 helicopters, and could be worth up to $172 million, according to the press release that announced the awarding of the contract on May 12, 2014. [ 4 ] An abridged chronology might be helpful in explaining the process followed in granting the contract: March 2012: Federal budget August 17, 2012: Letter to potential bidders in the industry inviting them to express an interest in the project August 29, 2012: First reaction from Airbus September 4, 2012: Meeting day with industry September 6, 2012: First day meeting one-on-one with Airbus November 15, 2012: Second day meeting one-on-one with Airbus January 11, 2012: Letter from Airbus clarifying, among other things, the Detailed Mission Requirements it wants to receive February 6, 2013: Third day meeting one-on-one with Airbus; Airbus announces it is withdrawing February 13, 2013: PWGSC reply March 4, 2013: Fourth day meeting one-on-one with Airbus 18 March 2013: Another Airbus letter on Detailed Mission Requirements April 3, 2013: Opening of the tendering period: request for proposals June 4, 2013: Close of the tendering period May 9, 2014: Contract awarded

[ 5 ] This is therefore an application from Airbus for judicial review under

section 18.1 of the Federal Courts Act , RSC 1985, c F- 7, challenging the process that led to the request for proposals and ultimately the contract that was awarded in May 2014. Obviously, since Airbus did not submit a bid, the request for proposals itself is not being challenged, but rather the refusal by PWGSC to reconsider and modify certain technical requirements contained in said request for proposals. According to Airbus, requests for modifications were refused despite its often repeated claims that the requirements were tailored specifically to suit Bell.

We are therefore dealing with events prior to the request for proposals, not after it was issued. II. The parties [ 6 ] Both Airbus (Eurocopter at the time the procurement process was initiated) and Bell are well known in the aerospace industry. They both manufacture helicopters and they are competitors. There are other competitors in this market, but not many. There are only three serious competitors besides the two protagonists in this case. In fact, the top five players, along with a few others, all responded to a letter of interest, but only three pursued this interest, including, of course, Airbus and Bell.

Ultimately, Bell was the only manufacturer to bid. [ 7 ] Airbus and Bell are Canadian subsidiaries of companies headquartered outside Canada. As for the Government of Canada, PWGSC is given responsibility for procurement processes through its enabling legislation ( Department of Public Works and Government Services Act , SC 1996, c 16), which states that “the Minister may, on behalf of the Government of Canada, enter into contracts for the performance of any matter or thing that falls within the ambit of the Minister’s powers, duties or functions” (section 20).

Furthermore, given that the helicopters were intended to renew the CCG’s helicopter fleet, the Department of Fisheries and Oceans was involved in the procurement process (the CCG is an entity within that department and its responsible minister is the Minister of Fisheries and Oceans; Oceans Act , SC 1996, c 31,

section 41). Finally, the Department of Transport was also involved given that it is responsible for operating the CCG helicopter fleet (affidavit of R. Wight). As we will see, other departments also contributed to the process. [ 8 ] A users group was therefore created once the Government of Canada had announced in its March 2012 budget that funds would be set aside for the purchase of helicopters. This group was composed of officials from different units within the CCG and the Department of Transport.

However, PWGSC was ultimately responsible for managing the procurement process with the CCG, which was in charge of defining the technical requirements, since it was familiar with the various operational requirements. The first draft of the technical requirements was prepared by this group. The consultations were conducted based on this document, which was modified over the ensuing months. This document was the basis for the draft request for proposals that was completed after the second round of one-on-one meetings with interested companies.

Said document is understood to have been prepared between late November 2012 and early January 2013. I will be returning to the governance structure of the procurement process. [ 9 ] Since this is not a case in which the law predominates, it is necessary to review the facts with a certain degree of detail. To succeed, the applicant must meet the burden imposed on it. For their part, the respondents argue not only that the burden has not been met, but that their evidence is clear and refutes the applicant’s case. III.

The theory of the case and the applicant’s evidence [ 10 ] The theory of the case put forward by Airbus is ultimately quite simple. The applicant argues that the request for proposals that resulted from the consultations conducted by government representatives was tailored to enable Bell to win. Airbus contends that the technical requirements were designed based on the specifications for the aircraft provided by Bell (the Bell 429).

Airbus goes as far as to maintain in its memorandum of fact and law that [ translation ] . . . despite the appearance of an impartial, fair, open and transparent competitive call for proposals process, the Government of Canada had decided from the start to award the contract to Bell, and that the procurement process was conducted in a manner that ensured that the Bell 429 would be the only aircraft that would meet the project’s technical specifications. [Para 3] (See, to the same effect, the affidavit of Guillaume Leprince, Airbus Vice President of Sales and Marketing, paras 21 to 24. It was Mr.

Leprince who presented the evidence on behalf of Airbus. The company also used the services of an expert.) [ 11 ] This is not a trivial accusation. At the hearing, counsel for Airbus maintained that they were not arguing that there had been a conspiracy within the government. Nevertheless, the theory of the case maintains that from the very beginning of the process, the technical requirements substantially favoured the Bell 429. Requests by Airbus to reduce the technical requirements did not receive the desired response.

Moreover, Airbus complains that on numerous occasions, it requested additional information about the profiles of the missions to be conducted by the CCG so that it could offer alternatives. Rather than satisfy the requirements imposed by the process, Airbus sought to identify the customer’s needs in order to address them outside of the constraints of the technical requirements. Clearly, Airbus wanted to avoid, and even challenge, the onerous technical requirements imposed by PWGSC by arguing that they could not be required based on the type of work to be performed by the new helicopters (Mr.

Leprince’s affidavit, paras. 39-41). [ 12 ] There is no doubt in my mind that Airbus realized before the consultation process had even begun that it could not easily meet the original technical requirements, because it very early on asked not to determine if it could meet the requirements, but rather to receive the CCG mission profiles. By August 29, 2012, Airbus was already complaining. The following complaints can be found in its response to the letter of interest issued by the government on August 17, 2012: 1-4 Insert your key conclusions and recommendations.

Two pages maximum – use the other sections to provide details

Eurocopter welcomes GoC decision to move ahead with replacement of the current CCG fleet. As planned, holding an Industry Engagement Session as well as one on one sessions with potential bidders to finalize the requirements of the RFP is certainly a step in the right direction. Our comments and recommendations by analysing the contents of the LOI and the draft copy of the mission requirements include: - Mission Oriented RFP: GoC should focus on the specific mission requirements of the CCG and be careful on including specifications of a given platform as a reference for the RFP.

This approach may limit the numbers of options that may be available to fulfill the mission requirements and also curtail the competition amongst the bidders. We are sure GoC wants the best for CCG missions and would be open to discussing in detail the operational details on the intended use of different class of helicopters.

This way Bidders [ sic ] will not only be able to answer the requirements but also propose their respective solutions to the missions including value added product features that may not have been thought about for the CCG mission needs. [At page 6 of 16] Further on, we read the following in the conclusion: 9-1 Indicate any other areas of concern that Canada may be interested/concerned with that would aid in providing a recommendation for improvement. Requirements should be more mission oriented than technically driven.

We invite GoC to work with the industry to provide a solution fitting the operational requirements. GoC should be open to alternative solutions regardless of the type of aircraft (light, medium, polar) to ensure suitable solutions for the Canadian Coast Guard of Canada.

Public works should carefully define requirements to allow several platforms to be compliant in order to have a fair competition for the benefit of Canada. [At page 16 of 16] Airbus had already consulted the Preliminary Draft CCG Helicopter Requirements Document—Light and Medium Helicopters, Industry Day, September 2012, which listed a series of technical requirements and was provided to interested parties for purposes of the initial discussions between the government and industry, which took place on September 4, 2012. [ 13 ] Moreover, as early as the industry day held on September 4, 2012, access was provided to seven CCG mission profiles describing CCG activities.

A document entitled CCG Helicopter Mission Profile Document was made available. The applicant argues that the description there is very short. The preliminary technical requirements developed for consultation purposes in the Preliminary Draft CCG Helicopter Requirements Document—Light and Medium Helicopters, Industry Day, September 2012, are considered by the applicant to be too onerous and specific. It wanted to offer alternatives based on mission profiles.

Airbus continued in this vein up until the request for proposals was issued on April 3, 2013, and the same arguments are presented in the application for judicial review. [ 14 ] In addition to quickly forming the opinion that the technical requirements could not easily be satisfied, the applicant decided that they favoured Bell, to the detriment of Airbus. This characterization is very general in nature, and Airbus only precisely identified a few technical requirements. The evidence presented through the affidavit of G. Leprince referred to the individual consultation session held on September 6, 2012.

We read the following at paragraph 59: [ translation ] 59. We then explained how the Preliminary Requirements for the light-lift helicopters were discriminatory to other potential suppliers, including Eurocopter Canada, AgustaWestland, MD Helicopters and Sikorsky. With regard to light-lift helicopters, we highlighted the following: (

a) requirement 6.4 states that the aircraft must be certified to operate and fly at an exterior ambient air temperature between -40°C and +50°C, while the only aircraft certified to fly at -40°C is the Bell 429; (

b) requirement 7.3.5.1.2 states that the aircraft must be equipped with a bleed air heater system or equivalent, with an appropriate de-icing capacity to operate in winter conditions at a temperature of -40°C, while the only aircraft that meets this requirement is the Bell 429; and (

c) the combination of requirements 7.3.5.12.1 and 7.3.4.2.1 requires that the aircraft be equipped with skid landing gear and a four- axis digital automatic flight control system and flight director, while the only aircraft that meets these requirements is the Bell 429. We do not find any greater precision coming directly from Airbus during the procurement process with regard to the allegation that the technical requirements were modeled after the technical specifications of the Bell 429.

What is found through an examination of the evidence is that the alternatives proposed by Airbus over time in fact reduced the technical requirements. There is therefore a connection between the technical requirements considered by Airbus to be too stringent and the mission profiles: if the profiles were shown not to reflect reality, it might be possible to demand changes to the associated requirements. [ 15 ] Thus, well after the request-for-proposals process had already begun, Airbus was still corresponding with PWGSC.

This correspondence continued along the same lines, i.e., with Airbus claiming that the requirements were too stringent to allow it to participate in the request-for-proposals process. Some of these requirements had even been strengthened. [ 16 ] On April 17, May 2, and May 17, 2013, Airbus wrote to PWGSC to continue to complain about the mission profiles, arguing that the technical requirements were too stringent for the mission profiles identified in these letters. [ 17 ] The third individual consultation session, held on February 6, 2013, focused on the comments of a senior Airbus official, who

announced that the applicant could no longer continue its participation in the process. What had become a mantra was repeated yet again: This confirms what Eurocopter [since become Airbus Helicopters Canada Limited] has been telling you for the last 6 months. The lack of real mission understanding, working only on technical parameters prevents us to understand the rationale behind the changes of requirements. It is in the Government of Canada [ sic ] best interest to present mission oriented requirements to the industry in order to obtain a best value proposal for the Coast Guards [ sic ].

We already addressed this issue several times in verbal and in written communications. This is the process followed by the Fixed Wing SAR project for which the industry consultation is constructively ongoing. [Exhibit P-30, affidavit of Mr. Leprince] [ 18 ] PWGSC responded precisely to the specific elements raised in the February 6 letter in its letter of February 13, 2013.

I note in particular its response to the Airbus comment to the effect that it had been serving the CCG with its helicopters for 25 years: “It is understood that Eurocopter has been serving the CCG for over 25 years and we believe that Eurocopter would have a great understanding of how the helicopter fleet is currently operating to achieve their mandate” .

The applicant continued to complain about having insufficient information with regard to mission profiles, or that the profiles did not justify the technical requirements that were being imposed. [ 19 ] In fact, Airbus went further than to complain about the mission profiles provided. In letters sent by Airbus to PWGSC on January 11 and March 18, 2013, Airbus clarified the information it was seeking (Exhibits P-26 and P-33 in the affidavit of G. Leprince).

I am reproducing the excerpt, which is identical in the two letters: The following are a few examples of Detail Mission Requirements as opposed to technical requirements that could be provided: • Number of bases to be equipped for each type • Number of vessels equipped for each type • Description of Night Mission ◦ Number of passengers ◦ Length ◦ Load • Distance Flown from Shore to Ship for each mission • Number of cargo / pax for each mission • Percentage of usage for each mission of the helicopter type, per year • Availability targets per type, per year • Description of the loads • How far do you need to go and with how many pax’s [Letter of January 11, 2013] Regarding the mission requirements requested, our previous communications were asking for detailed Mission Requirements as opposed to technical requirements including but not limited to the following: • Number of bases to be equipped for each type • Number of vessels equipped for each type • Description of Night Mission ◦ Number of passengers ◦ Length ◦ Load • Distance Flown from Shore to Ship for each mission • Number of cargo / pax for each mission • Percentage of usage for each mission of the helicopter type, per year • Availability targets per type, per year • Description of the loads

• How far do you need to go and with how many pax’s [Letter of March 18, 2013] I am far from being persuaded that this is truly an issue of “mission requirements”. It is no longer “mission requirements” at issue here but the use of the helicopter fleet: where, when and how the aircraft will be used, rather than responding to the question of what was involved in the missions. These requests can be seen to originate in the response provided by Airbus at the very first one-on-one meeting on September 6, 2012.

The same list, in the same order, can be found there. [ 20 ] What is not lacking is repeated requests from Airbus to be given mission profiles in order to offer alternatives. The evidence does not show what these alternatives could have been other than to claim that the requirements were too stringent based on the missions to be carried out.

As has already been pointed out, for some important elements, the alternatives would ultimately be to decrease the desired performance. [ 21 ] In fact, the technical requirements identified by Airbus before this Court always appear to suggest that its aircraft is less efficient, and not that the requirements are unprecedented. When it comes to a general allegation, the Court is referred to the working documents, in the form of tables, prepared by Airbus, which are intended to demonstrate that the technical requirements only favour Bell (in particular Exhibit P-46 in Mr. Leprince’s affidavit).

The only real precision is actually found in Mr. Leprince’s affidavit, at paragraph 59, the content of which is reproduced at paragraph 13 of these reasons. The evidence will show, moreover, that requirements 6.4 and 7.3.5.1.2 were actually amended during the consultations. [ 22 ] Following the fourth day of one-on-one meetings held on March 4, 2013, Airbus provided details of the technical requirements that would limit its ability to bid (letter of March 21, 2013, and affidavit of G. Leprince, at paras 96 to 104).

The clear implication is that the aircraft that Airbus had available did not meet the requirements for payload and range. These are not simple details. The alternative proposed by Airbus was to reduce the range or payload. Airbus also complained about the required blade folding width for the helicopter. This time no alternative was offered other than to work with the CCG. In terms of the altitude limit for in- ground effect hover, the alternative was to reduce the payload or the required altitude (from 7,000 to 6,000 feet).

There was also an issue with regard to the flight director. [ 23 ] The response received from PWGSC on April 4 was that the requested reductions to the payload or range represented decreases of 9% and 7% in the requirements, which would have a significant impact on operations. The same comment was made with regard to the altitude limit for in-ground effect hover.

The response concerning the required blade folding for helicopter parking was particularly unequivocal: Your March 21, 2013 letter repeats Eurocopter’s request in the Round 4 meeting of March 12, 2013 that CCG’s maximum blade folding width requirement be 3.8 m to allow Eurocopter to bid the EC 135. Each and every one of Canada’s requirement ( sic ) is based on the missions as described in the Mission Profile document provided to all bidders, and not on specific makes or models.

As was specifically described in the March 12, 2013 meeting with Eurocopter, given CCG’s shipboard hangar door width of 4.08 m, providing a maximum blade folding width of 3.8 m provides approximately 0.14 m of space between the helicopter and each side of the hangar door. A 0.14 m gap between the door and the helicopter is insufficient for at-sea operations. [ 24 ] The applicant offered two additional elements in support of its position.

Airbus presented a witness, Corey Taylor, who had examined the available documentation and concluded that the original request for proposals, on which comments from the industry were requested, unduly favoured Bell.

The other element was in regard to a weight exemption obtained for the Bell 429 helicopter in 2011; Airbus contends that this is proof of the government’s preference for Bell’s product. [ 25 ] As for the weight exemption, the evidence shows that in an e-mail dated June 17, 2010, a Transport Canada official reported to his supervisor that six months earlier, in December 2009, the CCG chief pilot, also an employee of Transport Canada, had asked the author of the e-mail about the possibility of granting a weight exemption at take-off for the class of helicopters to which the Bell 429 belonged.

According to the e-mail, the chief pilot had indicated that this helicopter would be “a great aircraft for them.” The e-mail indicated “I told him the bad news about the GW limit for

Part 27 helicopters but we started throwing the idea around up here in Flight Test and thought why not?” (GW refers to gross weight). The e-mail concludes by describing the regulatory difficulties: From a technical standpoint the 429 is already or very nearly designed to 7500 lb. The big problem appears to be how to handle it from the regulatory standpoint. What we were thinking was a flight manual supplement for 7500 lb for Canadian-registered aircraft only (EMS operators would love another 500 lb of payload). How we deal with the 7000 lb max gross weight in 527.1 is another matter.

Exemption, special condition, restricted type certificate…? Anyway, from our perspective in Flight Test, we support Bell’s proposal. There have been some rumblings about Agusta requesting a similar increase in Max GW for the new A109 Grand New from EASA but I can’t vouch for their authenticity. Just some food for thought. [Exhibit 1 to the affidavit of Michael Laughlin, Chief Pilot of the CCG, dated November 1, 2013] When cross-examined by Airbus, Mr.

Laughlin had a very unclear recollection of a conversation that would have taken place four years earlier. [ 26 ] The submissions include e-mails between Transport Canada officials, from which the applicant attempted to extract evidence of cronyism involving junior officials to prove that the Government of Canada had demonstrated favouritism toward Bell. [ 27 ] The applicant also argued that both the American regulator (the Federal Aviation Administration [FAA]) and the European regulator (the European Aviation Safety Agency [EASA]) had refused the same exemption.

However, 15 regulators in addition to Canada did accord it. Finally, the evidence shows that Airbus complained to a member of the party in power, who referred the matter to the Minister of Transport. The Minister did not ignore his colleague’s letter; the weight exemption was granted after senior officials in the Department of Transport had been made aware of the allegations. In addition, the file before the Court reveals that the Department of

Transport had been alerted and that it was not just junior officials who were involved. [ 28 ] The file also shows that Department of Transport officials were aware of the Airbus viewpoint and had been in contact with the FAA and EASA. In an e-mail from the FAA to Transport Canada dated July 7, 2011, the FAA noted its reservations, although Bell had not as yet made a request to US authorities. On August 8, 2011, an e-mail from the EASA to Transport Canada noted that the legal systems were different and that a decision to grant a weight exemption could only be reached after an elaborate process.

The e-mail indicated a preference for harmonization among the three agencies (affidavit of G. Leprince, Exhibit P-13). [ 29 ] The file also shows that not only was Bell given weight exemptions by 15 other regulators, but that Airbus, which was clearly aware of the application for exemption since the evidence establishes that it was in communication with Transport Canada, did not request an exemption for itself. Nor did it challenge in court the exemption given to Bell by Canadian authorities, despite having informed Transport Canada of its opposition (affidavit of G.

Leprince, Exhibit P-13) and its opposition having been received by Transport Canada. The weight exemption was granted on December 28, 2011. [ 30 ] This may explain why, at the hearing, Airbus focused more on the appearance of cronyism that it contended was suggested by some internal e-mails. We are not talking therefore of collusion, let alone fraud; Airbus does not go further than to suggest bias. But then, this bias would have occurred at the lower levels of the department.

It therefore could not explain the departmental decision that was reached despite formal opposition from Airbus and the fact that the Minister himself had been made aware of the complaints. These complaints had even led to a letter from an assistant deputy minister of Transport Canada, on July 25, 2011, seeking to reassure Airbus executives that the application for a weight exemption would be handled in accordance with criteria established under the Aeronautics Act , RSC 1985, c A-2.

This same letter stated that “[i]t should be noted that any other manufacturer of a comparable rotorcraft is eligible to apply for a similar exemption” (affidavit of G. Leprince, Exhibit P-13). As indicated above, Airbus did not take advantage of this invitation. [ 31 ] The other evidence submitted by Airbus in support of its contentions is the affidavit of Corey Taylor, a helicopter pilot who undoubtedly has considerable experience in that field.

He claimed to be familiar with the limits of most helicopters certified in Canada and to be knowledgeable about requests for proposals as he works for a company that provides helicopter transport services. As was mentioned during the hearing, Mr. Taylor does not have technical qualifications (his CV, which is Exhibit N in his affidavit, indicates that he completed high school and therefore has no particular aeronautics training), and his expertise, including that relative to requests for proposals, is limited to the transportation of goods and people, and not the procurement of helicopters.

According to his CV, he has spent his career as a pilot and manager (base manager, project manager, operations manager, exploration manager, and at the time of the affidavit, general manager of Great Slave Helicopters Ltd.) [ 32 ] Mr. Taylor sought to testify with regard to the technical requirements in the request for proposals that could be tailored to fit one aircraft in particular. That is in fact the conclusion that he reached. To do this, he consulted flight manuals for different helicopter models, among other documents. [ 33 ] At paragraph 24 of his affidavit, he states as follows: 24.

The requirements, that leave only the Bell 429 in compliance, include: (a) 6.4 – Minimum operating air temperature (EC135 and AW109 disqualified); (b) 6.7 – Ditching standards (only the Bell 429 makes any claim to meeting ditching standards from what I have been able to determine); (c) 7.3.5.2.1 – 4 Axis Autopilot (EC135 eliminated); (d) 7.3.5.5.1 – Cargo compartment size (EC135 and AW 109 disqualified); and (e) 7.3.5.22.3 – Rear facing cargo doors (AW109 disqualified). [ 34 ] The affiant adds the following at paragraph 131 of his affidavit: 131.

As a result of the way that they have been drafted, the Technical Requirements have had the effect of excluding all aircraft other than the Bell 429 from the competition, as follows: (

a) The AW109 is eliminated because of non-compliance with items 6.4, 7.2.1 and 7.2.3, although it gains 20 bonus points for 7.2.2; (

b) The EC135 is eliminated because of non-compliance with items 7.1.2, 7.2.1 and 7.2.3, but gains 50 bonus points for item 6.4 and 60 bonus points for item 7.2.2; (

c) The MD902 is eliminated because of non-compliance with the Canadian IFR certification and item 7.1.4. We understand the affiant to be referring to manufacturers’ helicopter models. [ 35 ] The applicant seeks to draw two arguments from this evidence. [ 36 ] First, the Minister of PWGSC acted unlawfully in that his action was arbitrary and unreasonable. It became clear during the hearing that when the applicant spoke in terms of “excess of jurisdiction”, the reference was to the exercise of discretion inherent in the granting of contracts.

Judicial review must be based on the standard of reasonableness in this case. This contrasts with the standard of correctness, which applies to true questions of jurisdiction, as set out in Dunsmuir v New Brunswick , 2008 SCC 9 , [2008] 1 SCR 190 [ Dunsmuir ], at paragraph 59 of the decision: [59] Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires . We mention true

questions of vires to distance ourselves from the extended

definitions adopted before CUPE . It is important here to take a robust view of jurisdiction. We neither wish nor intend to return to the jurisdiction/preliminary question doctrine that plagued the jurisprudence in this area for many years. “Jurisdiction” is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter.

The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction: D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at pp. 14-3 to 14-6. An example may be found in United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City) , [2004] 1 S.C.R. 485, 2004 SCC 19 . In that case, the issue was whether the City of Calgary was authorized under the relevant municipal acts to enact bylaws limiting the number of taxi plate licences (para 5, per Bastarache J.).

That case involved the decision-making powers of a municipality and exemplifies a true question of jurisdiction or vires . These questions will be narrow. We reiterate the caution of Dickson J. in CUPE that reviewing judges must not brand as jurisdictional issues that are doubtfully so. [ 37 ] It is clear to me that this is not at all what the applicant is contending. Its argument is rather that the favouritism demonstrated toward Bell is contrary to the law and government policies. A customized request for proposals cannot be reasonable. It cannot satisfy the law (

section 40.1 of the Financial Administration Act, RSC 1985, c F-11) or the regulations ( Government Contracts Regulations, SOR/87-402).

Section 40.1 reads as follows: Commitment Engagement 40.1 The Government of Canada is committed to taking appropriate measures to promote fairness, openness and transparency in the bidding process for contracts with Her Majesty for the performance of work, the supply of goods or the rendering of services. 40.1 Le gouvernement fédéral s’engage à prendre les mesures indiquées pour favoriser l’équité, l’ouverture et la transparence du processus d’appel d’offres en vue de la passation avec Sa Majesté de marchés de fournitures, de marchés de services ou de marchés de travaux.

A customized request for proposals would also violate policies aimed at promoting healthy competition (Contracting Policy) and meeting operational needs in a way that provides the best value (Procurement Review Policy). The refusal to reconsider the technical requirements would render the exercise of discretion unreasonable. [ 38 ] The other argument proceeds from an alleged breach of procedural fairness. In this regard, the standard is less demanding for an applicant because it is not that of reasonableness, but of correctness.

Here, the applicant challenges the decision to not change the technical requirements on the grounds that it was not impartial. According to the applicant, the criterion that should be applied is the appearance of bias: would this give rise to a reasonable apprehension of bias on the part of a well-informed person?

Fairness, transparency and openness are required in the awarding of public contracts. [ 39 ] Here, the applicant basically repeats the elements of its first argument in contending that the Minister failed in his duty to be impartial by favouring Bell and turning a deaf ear to the requests of Airbus, and in not responding to repeated requests to provide additional information on CCG mission profiles.

The applicant pointed to the weight exemption that was granted for the Bell helicopter as demonstrating favouritism, as well as the technical requirements that Bell satisfied. [ 40 ] Moreover, the applicant argued that the Minister violated the commitments that were made, and repeated, to act in the fairest and most impartial manner. As proof of this, it points to the engagement agreement that participants were required to enter into before the process began. Indeed, the letter of interest (affidavit of G.

Leprince, Exhibit P-2) states as follows: [ translation ] “One of the fundamental principles of the industry consultation is that it is conducted with the highest degree of fairness and equity among all parties. No person or organization shall receive, or be perceived to receive, any unusual or unfair advantage over the others.” [ 41 ] A second component of the breach of procedural fairness would be related to the legitimate expectations of Airbus. Again, there is a certain relationship with the first argument as to the reasonableness of the discretion exercised in awarding the contract.

On this front, the applicant submits that it was entitled to expect that the request for proposals would be [ translation ] “biddable”, implying that the Minister should have taken into account the comments and proposals Airbus had provided between August 2012 and April 2013, and that the Minister would act with the utmost impartiality and as fairly as possible.

Airbus argues that it was disappointed in these legitimate expectations. [ 42 ] The applicant therefore asks that the contract that was awarded be cancelled due to a defective process, and that the Minister establish a new process leading to a new request for proposals. IV. The defence [ 43 ] The respondents vigorously attacked the allegations made in the application.

The Attorney General, on behalf of the Minister of PWGSC, as well as the other organizations that participated in the procurement process for CCG helicopters, defended the process and sought to demonstrate that the technical requirements criticized by Airbus were based on operational requirements and were fair and reasonable. Bell, which won the contract, fully supported the Crown and contended that the affidavit of Mr. Taylor was not that of an expert, or at the very least, carried little weight.

Bell argued that if for some reason the Court agreed with Airbus, the appropriate remedy would not be to cancel a contract on which the applicant did not bid. A. The Crown [ 44 ] One of the respondents, the Crown, sought to demonstrate that the structure established for the procurement of helicopters ensured that the alleged bias was quite simply not possible; checks and balances were incorporated into the process to guard against the type of allegations being brought by Airbus in this case. The Crown met all of its commitments, and the process that was implemented

was of the highest integrity. [ 45 ] In addition, the Crown submitted evidence to show that the technical requirements were necessary for the wide variety of missions conducted by the CCG.

Thus, the decisions being criticized by the applicant to not reconsider and modify certain technical requirements in the request for proposals were in fact reasonable and therefore unassailable. [ 46 ] As to the allegations that the process that was followed violated procedural fairness, particularly because it interfered with the applicant’s legitimate expectations, the Crown strongly defends what it considers to be a model process. The process that was selected and used was fair: it sought to involve industry well before the request for proposals was issued on April 3, 2013.

But it could not cause the Minister to refuse to exercise the discretion required of him by law. Draft technical requirements were provided to everyone, and meetings were organized with those who had chosen to participate in the process following a 19-page letter sent out in August 2012 to identify interested parties. Numerous changes were made to the technical requirements to promote competition and not accidentally eliminate potential bidders. These changes demonstrate the value and validity of the rigorous process that was put in place and followed.

The government was looking for the best helicopter and did not wish to eliminate competition, which promotes the best quality at the best price. On the contrary. But the product had to meet the operational requirements. [ 47 ] The Attorney General argues that in no way did the Minister of PWGSC have a closed mind regarding changes to the technical requirements. The applicant would not be any more successful if the test to be applied were the reasonable apprehension of bias since the evidence does not show any such bias, in appearance or reality. The government promised a process and followed it.

This is what was done. [ 48 ] The applicant’s contentions are not supported by any evidence, much less solid evidence. In fact, given the high number of participants on the government side, the governance structure and the presence of external parties to ensure a fair process, it would have taken serious fraud on the part of all involved for there to be favouritism toward Bell. No such evidence was tendered.

The applicant was careful not to cross that line. [ 49 ] The governance structure put in place shortly after the March 2012 budget remained in place at least until the request for proposals was issued on April 3, 2013. The closing date for tenders was June 4, 2013. [ 50 ] At the heart of the governance was PWGSC, which is legally responsible for managing the procurement process. While two other organizations in particular had an interest in the matter, the Minister of PWGSC was the minister responsible.

Thus, the CCG had to determine its operational requirements, which led to the technical requirements of the aircraft to be procured. The Department of Transport provides the pilots and is responsible for maintaining the helicopters.

These organizations therefore participated in the various committees established to ensure healthy governance, but it was PWGSC that was primarily responsible for ensuring that the process complied with the standards and the law. [ 51 ] Organization of the process leading to a request for proposals in April 2013 began with the creation of a core team of experts from the three departments. These project managers, members of the CCG and a helicopter pilot (affidavit of R. Wight, para 33), directly supported PWGSC.

The core team was assisted by a users group that was established in June 2012 and had more than 20 participants (affidavit of R. Wight, para 32 and Exhibit 1). The result of multiple meetings held by these groups was the Preliminary Draft CCG Helicopter Requirements Document—Light and Medium Helicopters, Industry Day, September 2012, which was intended for use at the initial meeting with helicopter manufacturers that followed a letter of interest issued by PWGSC.

As seen above, the letter was dated August 17, 2012. [ 52 ] This broad-based group was headed by a project steering committee mandated to review and approve the technical requirements. In the event that there was disagreement over the requirements, the issue would be resolved by a committee composed of director generals, based on the recommendations of the Project Steering Committee.

Finally, the most difficult and contentious issues were referred to a committee of assistant deputy ministers (ADMs), the ADM Integrated Committee, whose membership was expanded beyond the three key departments to include the Department of Industry, the Treasury Board Secretariat and the Privy Council Office, the last two being central agencies (affidavits of M. McNeil and R. Wight).

There is evidence that the ADM Integrated Committee insisted on the anonymity of the sources of requests for changes to certain technical requirements. [ 53 ] Finally, PWGSC hired a consultant to serve as a “fairness monitor”, while the CCG mandated an employee from the Ontario Ministry of Natural Resources, pursuant to a memorandum of understanding (MOU), to provide “an independent review of CCG’s technical requirements for its Helicopter Project, and provide feedback to CCG regarding the requirements” .

The certification to be produced under the MOU was that the requirements were the following: • Reasonable for the stated CCG missions and for commercial utility helicopters • Achievable by manufacturers of commercial utility helicopters • Unbiased toward any particular manufacturer(s) [Affidavit of R. Crowell, Exhibit 2] The agreement between the two ministries was in place between October 1, 2012, and March 31, 2013. The services of Mr. Crowell, the independent expert, were provided free of charge by the Ontario Ministry of Natural Resources, except for expenses incurred in the exercise of his mandate.

In other words, Mr. Crowell did not receive any remuneration from the CCG. [ 54 ] The Attorney General added that there was no obligation to consult prior to issuing a request for proposals. However, the choice to consult, with the support of a fairness monitor and an external consultant who not only is himself a pilot, but also has specific knowledge about the use to be made of such helicopters, along with a very elaborate governance structure from working level to ADMs, could only serve to guarantee the fairness and impartiality of the consultation. A very tight net was woven to avoid accusations of collusion.

[ 55 ] None of the Transport Canada officials involved in the exercise leading to the weight exemption for the Bell helicopter (there do not appear to have been other departments or organizations involved) participated in the procurement process in question. Only the chief pilot, who according to the June 17, 2010, e-mail, contacted an official of the Department of Transport in December 2009, would have been a resource person involved with the core group. He was, at most, one of the experts involved in the core group and the users group.

No one has suggested that he had any decision-making power or control. [ 56 ] The governance system that was established was both structured and rigorous. A remarkable quantity of minutes documenting the work was submitted as evidence. [ 57 ] This governance structure was put in place for a reason. It oversaw the consultations that the Minister had chosen to hold with industry. Moreover, it was because of these consultations that the respondent had an opportunity to be heard. It must be understood, however, that the Minister did not abandon his discretion.

The August 17, 2012, letter of interest stated so bluntly in the “Terms and Conditions” section, as follows: “If Canada does release a RFP, the terms and conditions of the RFP shall be at the sole discretion of Canada” (affidavit of M. McNeil, Exhibit 6). [ 58 ] The consultation process was intended “to give industry information about the procurement for the Helicopter Project and to obtain from industry the latest information on helicopters, including their capabilities, limitations and available systems and equipment” (affidavit of M. McNeil, para 28).

Nowhere do we find that the government was abandoning its management authority. It was going to procure helicopters for purposes that it intended to determine. It had also decided to procure helicopters that already existed, as opposed to having helicopters built based on specifications to be determined. [ 59 ] Following the issuance of the letter of interest, an Industry Day was held on September 4, 2012. The purpose was to provide the information required for individual consultations.

The first round of individual consultations took place between September 4 and 6 and involved meetings with 10 interested parties. The meeting with Airbus was held on September 6, and was intended, as were the other consulting sessions, to open a dialogue. [ 60 ] A second round of individual consultations was held between November 15 and 19.

A meeting with Airbus took place on November 15 and was attended by officials from the CCG, Transport Canada, PWGSC and Industry Canada. [ 61 ] The period from November 19 to December 12, 2012, was spent reviewing the questions and comments raised during the consultations in order to prepare a draft request for proposals, on which additional individual consultations would be held. [ 62 ] Evidence was submitted demonstrating that significant changes, requested by Airbus, were made and were reflected in the draft request for proposals. The affidavit of M.

McNeil, project manager at PWGSC, indicates the following: • while initially the aircraft offered for sale had to already be certified, it was agreed that certification of a new aircraft could be acceptable up to six months after the bid closing date. As can be seen in the letter that Airbus sent to PWGSC on December 20, 2012, Airbus was insisting that consideration be given to a helicopter that was not yet certified. On reading the letter, it seems clear to me that Airbus was seeking an additional 12-month period after the contract had been awarded.

I note that the documentary evidence shows that Airbus also complained that the contract-granting process was proceeding too quickly (letter from Airbus to PWGSC, January 11, 2013); • the autopilot that was originally requested was amended to satisfy a request from Airbus; • the capacity to fold the helicopter blades so the helicopters could be parked on CCG vessels was adjusted at the request of Airbus.

It appears that in the end, the adjustments were not satisfactory to Airbus because for reasons of security, which were never challenged, there must be a minimum amount of space on either side of the parked helicopter. The Airbus suggestion to allow the blades to be removed from the helicopter so it could be parked was rejected for technical and operational reasons. So, one of the problem requirements for Airbus seems to have been that the helicopter blades it could provide to satisfy the CCG could not fold enough to allow the helicopters to be parked in hangars onboard CCG vessels.

The waters on which the CCG operates are not always calm, and it was determined that it was necessary to have a place to park the helicopters onboard vessels. While the hangar doors on the vessels are 4.08 metres wide, the blades on the Airbus choppers only close to 3.8 metres, leaving clearance of no more than 14 centimetres on either side to move a piece of equipment weighing several tons into this restricted space.

In its letter of March 21, 2013, Airbus offered to work with Transport Canada and the CCG “on solutions that would give them additional comfort with this proposed width.” The response from PWGSC on April 4, 2013, which also dealt with other Airbus complaints, quickly disposed of the question, as demonstrated in the passage reproduced at paragraph 22 of these reasons (affidavit of M. McNeil, paras 58 to 62). [ 63 ] The numerous changes that were made in response to recommendations, comments and requests were compiled and presented as evidence before this Court (affidavit of R.

Wight, paras 77 to 82 and Exhibits 4 to 7). [ 64 ] Three manufacturers continued with the individual meetings in 2013. At the meeting on February 6, 2013, Airbus made the usual speech (see para 16 of these reasons). The applicant declined the offer to discuss the technical requirements. A final individual meeting was held on March 4, 2013. [ 65 ] According to the respondent, at no time during the individual sessions did Airbus present one of its helicopters; rather, it simply claimed to have several helicopters that could be considered in response to the requirements.

The Crown contends that the applicant’s focus was on attempting to redefine the mission profiles that had led to the operational requirements. At paragraph 78 of his affidavit, M. McNeil says the following: 78. On many occasions, Eurocopter requested more detailed information on the mission profiles which were used by the CCG to create the technical requirements in the RFP. Based on communications with Eurocopter representatives during the consultative process, it appeared that Eurocopter wanted more details on the mission profiles so that they might redefine how the CCG conducted its operations.

The intent of providing mission profiles to suppliers was not to give them an opportunity to dictate to the CCG how to conduct its operations, but to provide them with some context for understanding the basis for the technical requirements.

[ 66 ] The request for proposals was completed and made public on April 3, 2013. Mr. Crowell, the official from the Ontario Ministry of Natural Resources, confirmed on March 12, 2013, that he had been able to certify “that all the requirements referenced in the Final Light Helicopter Baseline Requirements document dated February 28, 2013, are deemed Reasonable, for the stated missions and for commercial utility helicopters; Achievable by manufacturers of commercial utility helicopters and Unbiased toward and (sic) particular helicopter manufacturer(s)” (Exhibit 12 in the affidavit of R.

Crowell). [ 67 ] The Attorney General concludes by recognizing that Airbus did not bid before the deadline. He comments that the impossibility of parking the helicopters in the hangars onboard CCG vessels was basically a sine qua non : [ translation ] “the helicopters are too wide” (memorandum of fact and law, para 25). [ 68 ] The arguments of the Attorney General therefore rest on the applicant’s failure to demonstrate that the technical requirements are unreasonable due to arbitrariness.

These requirements are based on operational requirements identified by a range of experts in the field, and monitored by a consultant who is not even paid by the CCG, further guaranteeing his independence. [ 69 ] Several of the technical requirements identified by the applicant were in fact amended (requirements 6.1(a), 7.3.5.2.1 and 7.2.13). In the final analysis, the purchaser of goods is entitled to determine requirements. The Attorney General supports his argument with Almon Equipment Limited v Canada (Attorney General) , 2012 FCA 318 , in which we read the words of Mr.

Justice Evans: [11] We would only add that we agree with the CITT that the fact that one bidder is better able than another to meet the specifications of an RFP does not in itself necessarily mean that the requirements of the RFP are biased in favour of that bidder.

We also agree that the purchaser of goods or services has the right to determine the requirements needed for bidders to meet its legitimate operational requirements, subject to the limits imposed by the applicable trade agreements to ensure fair competition in public procurement. [ 70 ] The Attorney General adds that the evidence of affiants Wight and Laughlin, on the contrary, demonstrate legitimacy. The comments and observations of industry were carefully accepted, collected, and considered before being decided on. They are in the file. [ 71 ] Procedural fairness was respected.

The respondent does not deny that procedural fairness must prevail even for requests for proposals; however, the requirements are not as rigorous as for other processes. [ 72 ] The Minister of PWGSC was under no obligation to consult, and had complete discretion to determine the technical requirements for the product being acquired. The Minister did have to respect the process he had created and announced. The doctrine of legitimate expectation does not guarantee a given result; it is procedural in nature. [ 73 ] In this case, the duty of impartiality was fulfilled.

According to the Attorney General, the Court should apply the closed mind test. Given the considerable ministerial discretion, it is this more stringent test that should apply. Furthermore, if the test for a reasonable apprehension of bias is applied, the Minister still would have satisfied it.

Here again, the Attorney General cites a series of factors, ranging from the governance structure, through the monitoring of the process and the changes made to the technical requirements following the consultations the government chose to hold, right up to the evidence that the technical requirements were based on the operational requirements of the CCG. [ 74 ] As for the mission profiles that Airbus wanted, the Attorney General notes that several were provided for purposes of contextualizing the procurement exercise.

What Airbus was trying to do was interfere in the conduct of missions and the use the CCG would make of these helicopters. B. Bell [ 75 ] Bell, the other respondent, adopts the viewpoint that Airbus is a disappointed competitor: no particular decision is being challenged. Airbus is complaining rather that some of the modifications to the technical requirements were not accepted, which was in fact the prerogative of the buyer, acting based on the operational requirements that it knew well. [ 76 ] Bell argues that one of the two affiants presented by the applicant, Mr.

Taylor, should not be characterized as an expert; in any case, little weight should be accorded his testimony. Bell submits that this witness is not independent because it was established on cross-examination that not only is he paid, he is paid by the hour; he has a stake in the outcome of this matter, which damages the quality of his evidence.

He is a helicopter pilot in the private sector who has never been involved in a helicopter procurement process (he has participated in service procurement processes, but these are very different and much less complex). [ 77 ] In addition, doubt is cast on numerous statements that were contradicted by the respondents’ witnesses. With regard in particular to a technical table pertaining to HOGE (hovers-out of ground effect), the applicant did indeed concede its error. Bell adds that Mr.

Taylor was wrong to assert that the Bell 429 can only use a certain type of fuel at low temperatures and cannot take off from certain helipads. If Mr. Taylor’s testimony is not set aside completely, at the very least it should not be given much weight. [ 78 ] Respondent Bell also notes that Exhibit P-46 from affiant G. Leprince of Airbus is far from convincing. Not only were nine technical requirements misinterpreted by incorrectly ascribing to them colours they didn’t deserve, but several boxes were not ascribed any colour at all.

Bell recommends that no weight be given to such evidence, which is ultimately nothing more than patchwork. [ 79 ] Bell argues that Airbus is not owed any duty of fairness in a procurement process and that

section 40.1 of the Financial Administration Act , cited by Airbus, does not create such a statutory duty ( Irving Shipbuilding Inc v Canada (Attorney General) , 2009 FCA 116 , 314 DLR (4th) 340). [ 80 ] In any event, the process was impartial, whether the test used is the one of closed mind or the reasonable apprehension of bias. Suspicion is never enough. The proof was lacking; the allegations were high-sounding, but the evidence was non-existent. [ 81 ] Although Bell recognizes the existence of the doctrine of legitimate expectations, the latter merely requires that the

administration respect the promises made in terms of procedure; it never applies to the substantive outcome. Airbus is arguing that it should have been entitled to changes in the technical requirements. The process that was followed corresponded in all respects to the promises made before it was begun. [ 82 ] Finally, both Bell and the Attorney General are asking the Court to refuse to grant the requested remedy, i.e., cancellation of the contract, in the event that Airbus should be successful. V. Analysis [ 83 ] In my opinion, the weight of the evidence in this matter amply favours the respondents.

The applicant, Airbus, has not satisfied the Court that procedural fairness was violated or that the refusal to reconsider and modify certain technical requirements in the request for proposals constituted an unreasonable exercise of the authority conferred on the Minister of PWGSC. A. The legal framework [ 84 ] It is worth remembering from the outset that the law confers discretion on the Minister in performing his duties.

Section 7 of the Department of Public Works and Government Services Act, SC 1996, c 16, establishes the functions for which the Minister is responsible.

Section 20 deals specifically with contracts on behalf of the Government of Canada. The scope of the discretion is found in

section 21, which reads as follows: Terms and conditions Modalités 21.

(1) The Minister may fix terms and conditions of contracts, and instructions and terms and conditions with respect to other documents relating to contracts and their formation. 21.

(1) Le ministre peut fixer les modalités des marchés et les directives et modalités des documents qui se rapportent aux marchés ou à leur passation. Designation Désignation par numéro

(2) The terms and conditions and instructions may be identified by number or other designation and may be incorporated in a contract or other document by reference to their number or other designation.

(2) Les modalités et directives peuvent être désignées par un numéro ou d’une autre façon et être incorporées dans les marchés et documents en y étant signalées par ce numéro ou selon l’autre façon. Publication Règlements

(3) The Minister may, by regulation, prescribe the electronic or other means by which a term, condition or instruction, including its identification number or other designation, shall be published.

(3) Le ministre peut, par règlement, prévoir la manière de publier, notamment par voie électronique, les modalités et directives relatives aux marchés ou à leur passation, y compris leur désignation par un numéro ou d’une autre façon. [ 85 ] This is why the Minister is a key part of the process to procure helicopters on behalf of the CCG, and why he holds the balance of power. He is accountable to his administration: Exercise of powers, etc. Fonctions 7.

(1) In exercising the powers or performing the duties or functions assigned to the Minister under this or any other Act of Parliament, the Minister shall 7.

(1) Dans le cadre des pouvoirs et fonctions que lui confère la présente loi ou toute autre loi, le ministre : […] […] (

b) acquire materiel and services in accordance with any applicable regulations relating to government contracts;

b) acquiert du matériel et des services, en conformité avec les règlements pertinents sur les marchés de l’État; (

c) plan and organize the provision of materiel and related services to departments including the preparation of specifications and standards, the cataloguing of materiel, the determination of aggregate requirements for materiel, the assuring of quality of materiel, and the maintenance, distribution, storage and disposal of materiel and other activities associated with the management of materiel; and

c) planifie et organise la fourniture aux ministères de matériel et de services connexes tels l’établissement de normes générales et particulières, le catalogage, la détermination des caractéristiques globales du matériel et le contrôle de sa qualité, ainsi que la gestion de celui-ci et les activités qui en découlent, notamment son entretien, sa distribution, son entreposage et sa destination; … […] It flows from that, it seems to me, that if there were collusion or bias in favour of one or other of the companies invited to participate in the bidding process, it would have occurred among the most senior people responsible.

This alleged bias would have to benefit the CCG or the Department of Transport, but in a way that is unknown to us. Yet it was PWGSC which managed the process, which had to be fair. It was that department’s responsibility.

Section 40.1 of the Financial Administration Act , although declaratory, is nevertheless a strong affirmation on the part of Parliament that the federal government must take “appropriate measures to promote fairness, openness and transparency in the bidding process for contracts” . As we have just seen, this task falls first and foremost to the Minister of PWGSC. The evidence shows that it was PWGSC that managed the process and was the main contact for the applicant.

[86] But the exercise of discretion can never be arbitrary. As we have just seen, the Minister must respect the GovernmentContracts Regulations, which require the following: 5. Before any contract is entered into, thecontracting authority shall solicit bidstherefore in the manner prescribed by section7. 5. Avant la conclusion d’un marché,l’autorité contractante doit lancer un appeld’offres de la façon prévue à l’article 7. Nowhere is there mention of an obligation to consult beforehand. That is an obligation that PWGSC chose to place on itself.

It then hadto follow the rules it had established for itself and announced to the participants. B. Access to remedy on judicial review [87] In this case, Airbus did not respond to the request for proposals. It chose not to continue in the process that began with theAugust 17, 2012, letter of interest and concluded with the April 3, 2013, request for proposals, which it considered to be fatally flawed. Ittherefore could not seek a remedy in contract law (Irving Shipbuilding Inc v Canada (Attorney General), 2009 FCA 116, [2010] 2 FCR488 [Irving Shipbuilding Inc.]).

The question is therefore whether judicial review is available to the applicant. [88] The Attorney General concedes that the action undertaken by the applicant is viable. The other respondent, Bell, merely statesthat it is an issue for the Court to resolve. Obviously, jurisdiction cannot be given by consent. However, I am of the opinion that judicialreview is a possibility under the circumstances because the Minister chose to hold a consultation process before launching the request forproposals.

This choice prevents him from acting arbitrarily, which in turn, requires that judicial review of the exercise of discretion beavailable. [89] Although pronounced in a completely different context, the words of Mr. Justice Montigny in Canadian World Wide FilmFestival v Telefilm Canada, 2005 FC 1730, support my opinion: [27] The respondent submitted that the applicant was not directly affected by the decisions of September 7 and December 17, 2004 asit refrained from participating in the bidding process.

Therefore, it could not file an application for judicial review since it did not meetthe requirements of subsection 18.1(1) of the Federal Courts Act. [28] The applicant replied that it had the required standing inasmuch as it risked having to face competition making use of the grantwhich the WFF would then no longer have. The reason why it did not participate in the bidding process was that it felt that the dice wereloaded and that the sole purpose of the process started by Telefilm was to exclude it from the organization and presentation of a filmfestival in Montréal. [29] In view of the increasingly broad

interpretation given to the notion of standing by the courts in the past few years, and theongoing involvement by the WFF in the international film world in Montréal since 1977, as well as of the impact which the disputedTelefilm decisions could not fail to have on the activities, participation and even existence of the WFF, I have no difficulty in ruling thatthe applicant has sufficient legal standing to apply for judicial review of the bidding process and of the selection of a competingorganization by Telefilm at the conclusion of that process.

Although Prothonotary Morneau did not give reasons for his decision to denythe motion to strike made by the respondent, this Court has no reason to think that he erred in his

interpretation of the facts or in applyingthe principles developed by the courts in this area. The ball had already been set in motion in Gestion complexe Cousineau v Canada (Minister of Public Works), (FCA),[1995] 2 FC 694 [Gestion complexe Cousineau], where Mr. Justice Décary, writing for the Federal Court of Appeal, stated as follows: [10] With respect, that would be to take an outmoded view of supervision of the operations of government.

The “legality” of acts doneby the government, which is the very subject of judicial review, does not depend solely on whether such acts comply with the statedrequirements of legislation and regulations. For example, when the Minister makes a call for tenders he is establishing a proceduralframework which brings into play the principle of reasonable or legitimate expectation recognized by this Court in Bendahmane v.Canada (Minister of Employment and Immigration) (FCA), [1989] 3 F.C. 16 (C.A.). See also Pulp, Paper andWoodworkers of Canada, Local 8 v. Canada (Minister of Agriculture) (1994), 174 N.R. 37 (F.C.A.).

The unsuccessful bidder thus hasthe right to ask the Court, by an application for judicial review, to compel the Minister to observe commitments made by him as to theprocedure he intended to follow, regardless of whether the Minister acted on his own initiative or in compliance with regulations.

Paragraphs 17 and 18 of that decision are also important: [17] I cannot conceal the hesitation I would have had in categorically stating that in no circumstances could the Federal Court by wayof judicial review determine the legality of a tender proceeding, as essentially that is what is meant when it is argued that the Court doesnot have jurisdiction. It is one thing to say that a remedy is more or less appropriate depending on the circumstances; it is another to saythat a remedy is systematically prohibited in all circumstances. It seems to me that the respondents have confused these two ideas.

It maybe that in reality they will more often than not be right in that the courts will seek in vain for the illegality which alone could justifyintervention.

The fact remains that under the language conferring jurisdiction on the Court, Parliament authorized challenges to suchdecisions and the fact that in practice they will seldom be successfully challenged does not mean that the Court lacks jurisdiction overthem. [18] In the case at bar we need only assume that the appellant was able to prove the allegations of collusion between the Crown andthe mis en cause which were originally its principal ground of challenge (and which it withdrew during the course of its action).

Wouldthe Court not then have had jurisdiction in hearing an application for judicial review to quash the disputed actions on the ground of fraudmentioned in paragraph 18.1(4)(e) [as enacted by S.C. 1990, c. 8, s. 5] of the Federal Court Act? Additionally, what is the position of athird party who in view of the collusion refrained from making a bid and which because it did not do so was not a “contracting party”within the meaning of Ron Engineering? Could it be compelled to take its chance in a delictual action against the Crown? And what

should be said of the fraudulent act which would be beyond the scope of any judicial review, including in this Court an application for adeclaratory judgment, and could never be quashed? [90] It is clear, however, that when a party chooses to request a judicial review of a request for proposals, it must live with theconstraints of the chosen remedy.

But the remedy does exist, as we read in Irving Shipbuilding Inc, cited above, at paragraph 21: [21] The fact that the power of the Minister, a public official, to award the contract is statutory, and that this large contract for themaintenance and servicing of the Canadian Navy’s submarines is a matter of public interest, indicate that it can be the subject of anapplication for judicial review under

section 18.1, a public law proceeding to challenge the exercise of public power. However, the factthat the Minister’s broad statutory power is a delegation of the contractual capacity of the Crown as a corporation sole, and that itsexercise by the Minister involves considerable discretion and is governed in large part by the private law of contract, may limit thecircumstances in which the Court should grant relief on an application for judicial review challenging the legality of the award of acontract. Clearly, there is more case law dealing with situations where bids were actually submitted.

The decision in Cougar Aviation Ltd vCanada (Minister of Public Works and Government Services), , 264 NR 49 [Cougar], dealt with the evaluation ofsubmissions. Nevertheless, it appears to me that the consideration set out at paragraph 37 is just as relevant in our case, where theMinister chose to consult within a very precise framework: [37] Second, the application of the more stringent test advances the objectives of the Agreement, in view of the importance of thetransparency and fairness of the process, and the avoidance of “pork-barrelling” in the award of procurement contracts.

If potentialbidders lack confidence in the integrity of the way in which government contracts are awarded, they may be discouraged from submittinga bid, to the detriment of the public interest in obtaining the best value for money, and in ensuring that the competition is truly open toall. In my opinion, what is important is that a process leading to a request for proposals was established. In this case, there was this publicelement in the awarding of the contract, even in the preliminary stage. The Minister cannot act arbitrarily. But this will be a very high barfor an applicant to try to jump.

The Minister must ensure procedural fairness, however limited it may be, and must use his discretionreasonably. These are the parameters to which the applicant must submit. [91] In this case, it is not easy to identify the decision that would be subject to judicial review. The applicant refers to a refusal toreconsider and modify the technical requirements. The respondents appear to be satisfied with that characterization. Fine. No one doubtsthat fairness, transparency, equal opportunity and competition should be part of the contract awarding process.

The same goes for thepreliminary process leading to the eventual request for proposals itself. But there is no less a burden on the applicant, and that is todemonstrate that the refusal to consider the changes was unreasonable. In that same vein, it must also demonstrate that the refusal tomake the changes was unreasonable. [92] In these matters, Supreme Court of Canada case law has determined what is involved in the standard of reasonableness.Deference is required.

The now famous paragraph 47 of Dunsmuir, cited above, deserves to be reproduced in full: [47] Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standardsof reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particularresult. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within therange of acceptable and rational solutions.

A court conducting a review for reasonableness inquires into the qualities that make adecision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness isconcerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is alsoconcerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts andlaw.

Thus, the standard of reasonableness is rooted in the concept of deference, which “therefore implies that courts will give dueconsideration to the determinations of decision makers” (Dunsmuir, at para 49). If the decision is justified and transparent and resultsfrom an intelligible decision-making process, it will be reasonable; if the decisions are among the possible and acceptable outcomes, thedecision will be reasonable. The reviewing Court does not replace the decision maker.

The onus is on the applicant to satisfy the Court.The Supreme Court stated as follows at paragraph 49: In short, deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, forthe processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts andadministrative bodies within the Canadian constitutional system. C. Is the decision reasonable? [93] Here, the evidence presented in support of the application does not meet the burden.

With respect, I could not find in theevidence how the process followed could have been faked or arbitrary. In my opinion, the alleged favouritism was never demonstrated. [94] The Crown presented very strong evidence of a transparent and intelligible process run by the Minister of PWGSC, who hadno interest in the matter other than to conduct a request-for-proposals process that satisfied the commitment set out in

section 40.1 of theFinancial Administration Act. The governance structure, the participation of a number of people and experts, the involvement of severaldepartments and the use of an independent expert (who was not even paid by the CCG) all argue in favour of a framework that providedfor reasonable decisions in terms of administrative law. Indeed, the evidence shows that nearly 25 recommendations, some favourable toAirbus, were accepted and resulted in amendments to the technical requirements. We are far from the applicant’s allegation that theMinister refused to reconsider the technical requirements.

This is quite simply not the case. The Minister refused to make some of thechanges that were requested. That is not the same thing.

[ 95 ] The evidence before this Court is clear. A rigorous process was put in place, with close monitoring of the recommendations and requests made and the reasons for their acceptance or rejection. Everything seems to have been documented. One might think that the giver of work was seeking to guard against possible attacks. A process was therefore created that had abundant checks and balances. A process designed to counter potential attacks cannot be all things: it is not impossible that despite the process, there were flaws. But again, they must be demonstrated.

Insinuations are not sufficient. [ 96 ] Robert Wight, who is a mechanical engineer and an MBA, is the director general at the CCG responsible for several procurement projects exceeding $4 billion.

He testified about the process established in this case, with overlapping committees to oversee the exercise (Project Steering Committee, Director General Governance Committee, ADM Integrated Steering Committee). [ 97 ] His testimony, which was given by affidavit and on which he was cross-examined, is particularly relevant with regard to the development of the technical requirements criticized by the applicant. [ 98 ] The least that can be said is that this element of the procurement process is particularly well documented.

Of particular interest are the tables, each more than 45 pages in length, which became Exhibits 6 and 7 in Mr. Wight’s affidavit. [ 99 ] These tables list all the mandatory requirements. Exhibit 6 shows the evolution of each requirement, starting with the initial requirements, through the draft request for proposals and on to the final request for proposals. All of the changes are explained. Exhibit 7 provides the reader with the justification for the technical requirement as it related to the operational requirement. [ 100 ] It would seem to me impossible to conclude arbitrariness on reading these tables.

At the very least, the applicant’s evidence did not demonstrate this, let alone convincingly. Moreover, there is transparency. The changes are recorded, and they are many, and they are justified based on operational requirements. The evidence is abundant and it was not disputed. One can even find in Exhibit 5 to Mr. Wight’s affidavit a copy of the requests for proposed changes, running to more than 200 pages. [ 101 ] As if the tables were not sufficient, Mr. Wight explains in his affidavit the rationale for denying some of the changes requested by Airbus. In my opinion, this evidence is overwhelming.

In fact, it was not disputed, and the cross-examination of Mr. Wight did nothing to weaken or undermine the tables. [ 102 ] That the applicant was disappointed that some of its recommendations were not adopted is all very well. But that certainly does not make the decisions unreasonable. In fact, I was not convinced that the technical requirements were not based on CCG operational requirements. Quite the opposite. The applicant’s evidence was sorely lacking on this front.

This evidence comes down to allegations of bias that never reached the point of demonstrating that the operational requirements were exaggerated. From the outset, Airbus saw that the technical requirements were high and chose instead to address the mission profiles. If these did not match the operational requirements, then the claim could be made that the technical requirements exceeded actual requirements. Unfortunately for the applicant, this was not proved, and it is not possible to draw inferences of this nature from unsupported allegations. [ 103 ] There was little in the way of evidenc

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