2015 FC, 2015 FC 1298

Date: 20151120 Docket: T-415-13 Citation: 2015 FC 1298 [UNREVISED ENGLISH CERTIFIED TRANSLATION] Ottawa, Ontario, November 20, 2015 Present: The Honourable Mr. Justice Gascon BETWEEN: COUNCIL OF THE INNU OF EKUANITSHIT and SOCIÉTÉ DES ENTREPRISES INNUES D'EKUANITSHIT S.E.P.

(2009) Applicants and MINISTER OF FISHERIES AND OCEANS CANADA and MINISTER OF PUBLIC WORKS AND GOVERNMENT SERVICES and HAMEL CONSTRUCTION INC. Respondents JUDGMENT AND REASONS I.

Overview [ 1 ] The Council of the Innu of Ekuanitshit and the Société des entreprises Innues d'Ekuanitshit s.e.p. (2009) (collectively, the Innu of Ekuanitshit) presented an application for judicial review against decisions made by the Minister of Fisheries and Oceans Canada (the MFO) and the Minister of Public Works and Government Services (the MPWGS) (collectively, the federal ministers) regarding the reconstruction of Mingan wharf in the Gulf of St. Lawrence. [ 2 ] On September 2009, a fire completely destroyed the wharf in place at the time in the village of Mingan, requiring its reconstruction.

In order to proceed with the construction, the MFO made the decision to acquire the services to reconstruct the wharf through a public bid solicitation initiated in November 2012 by the MPWGS. In February 2013, the MPWGS awarded the contract to Hamel Construction Inc. (Hamel). The reconstruction of the wharf was completed in January 2014, before the spring 2014 fishing season. [ 3 ] In their original notice of application filed in March 2013, the Innu of Ekuanitshit sought judicial review of the contract awarded for the reconstruction of the wharf by the MPWGS on February 5, 2013 and to have it set aside.

Following the amendment of their notice of application in August 2013, the Innu of Ekuanitshit also challenged the previous decision of the MFO and the MPWGS to acquire services to reconstruct the wharf through a public bid solicitation and, alternatively, requested that the tender notice published by the MPWGS on November 30, 2012, be set aside. [ 4 ] The Innu of Ekuanitshit attacked these decisions of the MFO and PWGSC by raising their unreasonableness and illegality.

They claimed that by determining who would reconstruct the Mingan wharf, the federal ministers erred in submitting the contract to reconstruct a public bid solicitation and, in the same breath, setting aside the application of a Canadian Treasury Board Contracting Policy Notice entitled the Procurement Strategy for Aboriginal Business (the PSAB). Indeed, in this entire bid solicitation and contract award process, the Innu of Ekuanitshit alleged that the federal ministers did not apply the PSAB to the project to reconstruct the Mingan wharf.

That was their main complaint against the decisions of the MFO and the MPWGS. Furthermore, the Innu of Ekuanitshit argued that, in their dealings leading to the award of the contract for the reconstruction of the wharf, the federal ministers had a duty to consult with and accommodate them (in the sense that this duty has been developed by the Supreme Court of Canada in Haida Nation v.

British Columbia (Minister of Forests) , 2004 SCC 73 ( Haida ) and its descendants), and that they did not fulfill this duty. [ 5 ] According to the Innu of Ekuanitshit, this failure of the federal ministers to apply the PSAB to the project to reconstruct the Mingan wharf and to consult with them in the process of awarding contracts is sufficient to invalidate the decisions relating to the notice of bid solicitation and the contract awards. [ 6 ] With respect to remedies, since the Mingan wharf has now already been reconstructed and the contract for its reconstruction is complete, the Innu of Ekuanitshit are no longer requesting the setting aside of the contract awarded to Hamel in February 2013 or the decision to initiate a public bid solicitation for it in November 2012.

As their counsel confirmed at the hearing before this Court, rather they seek to obtain declarations. They are of two types. First, the Innu of Ekuanitshit request from the Court a declaration that the reconstruction of Mingan wharf constituted a contract to provide goods or services submitted to the PSAB; also, by proceeding with a public bid solicitation outside the scope of the PSAB and by awarding the contract to reconstruct Mingan wharf to Hamel, the MFO and the MPWGS awarded the contract illegally and breached the PSAB.

Second, the Innu of Ekuanitshit also requested a declaration that the federal ministers have not adequately fulfilled their duty to consult them on the elements of the project to reconstruct the wharf and seek to accommodate them before initiating the notice of bid solicitation and awarding the contract to Hamel. Finally, the Innu of Ekuanitshit requested that the costs be incurred by the federal ministers regardless of the issue of the case given the importance of the issues and

public interest in the legal resolution of the case. [ 7 ] On behalf of the federal ministers, the Attorney General of Canada (the AGC) argued that the fundamental purpose of this application is in fact the decision of the MFO and the MPWGS to initiate a public bid solicitation for the wharf reconstruction and set aside the PSAB. The AGC submitted that this decision must be reviewed on a standard of reasonableness and that this standard was met in this case.

Furthermore, the AGC claimed that the challenge to this decision is late, that the Innu of Ekuanitshit do not have the required interest to seek a remedy and that the proceedings have become purely moot given the reconstruction of the wharf. Finally, the AGC argued that the federal ministers had no duty to consult or accommodate the Innu of Ekuanitshit in this case within the meaning of Haida .

Therefore, the AGC requested that the Court dismiss the application, with costs. [ 8 ] Initiated in March 2013, this application for judicial review today raises the following two questions: Did the federal ministers err in deciding not to apply the PSAB and to proceed by public bid solicitation in the process leading to the award of the contract to reconstruct the Mingan wharf to Hamel?

Did the federal ministers have a duty (within the meaning of Haida ) to consult and accommodate the Innu of Ekuanitshit in the process leading to the contract award to reconstruct the wharf? [ 9 ] For the reasons that follow, the Court allows in part the application of the Innu of Ekuanitshit. First, the Court is of the view that the different preliminary questions raised by the AGC do not act as a bar to this application.

Second, the Court finds that the decision of the federal ministers to set aside the PSAB and proceed with the contract award through a call for public tenders does not meet the standard of reasonableness, as the MFO and the MPWGS had not analyzed the tests established by the PSAB and did not have the evidence to conclude that the PSAB did not apply to the contract.

However, the Court is of the view that the federal ministers did not, apart from the process provided by the PSAB, have a general duty to consult and accommodate the Innu of Ekuanitshit in this case , and that there was no violation in this regard in the conduct of this case. II. Background [ 10 ] Before dealing with the issues, it is important to establish the background of the application of the Innu of Ekuanitshit, particularly the facts surrounding the reconstruction of the wharf, the exact purpose of the remedy sought and the PSAB put in place by the federal government. A.

The facts [ 11 ] Built by the Americans in 1942 (or in 1943 according to Jean-Charles Piétacho, the chief of the Innu of Ekuanitshit), the Mingan wharf is currently owned and supervised by the MFO. It is located on the north shore of the Gulf of St Lawrence bordering land belonging to the federal government. It is directly adjacent to the Ekuanitshit Aboriginal reserve and the village of Mingan.

Although all the routes that give access to the wharf cross or run along the Ekuanitshit reserve, the wharf itself is not located on the reserve or surrounded by it. [ 12 ] In September 2009, the wharf was destroyed by arson. In a letter written to the MFO at the time on September 21, 2009, Chief Piétacho stated that the fire was [ translation ] “an enormous catastrophe for the region of Mingamie, for which commercial fishing has an important place in the economy” .

He described the wharf as the “lifeblood of the economy” and the most important infrastructure of the Ekuanitshit community and neighbouring communities. A little later in the fall of 2009, the MFO declared the wharf completely destroyed and had the remnants demolished. [ 13 ] In the fall of 2009, steps were taken by the MFO to quickly build a temporary replacement wharf and to begin the process of rebuilding a permanent wharf.

Preliminary discussions then took place between the representatives of the MFO and the Innu of Ekuanitshit. [ 14 ] In the month of October 2009, according to one of the affiants of the federal ministers, Luc Boucher, the MFO reviewed the criteria of the PSAB in anticipation of the reconstruction of the wharf and in preparation of the work that had to be performed in the short term to construct a temporary replacement wharf. The MFO decided to immediately construct floating temporary wharfs so that they would be ready for the fishing season in April 2010.

The contracts for the construction of temporary replacement wharfs were awarded by public bid solicitation. The temporary structures would stay in place for the fishing seasons 2010, 2011, 2012 and 2013. [ 15 ] The MFO officers also then began to develop a long-term solution for the reconstruction of a permanent wharf, so as to meet the needs of the commercial fishing industry in the region.

The solution contemplated specifically aims to meet the needs of the 13 commercial fishing vessels that, according to the MFO’s data, regularly use the Mingan wharf. [ 16 ] In June 2010, the MFO gave its preliminary approval of the project to reconstruct the Mingan fishing harbour. Then it was planned that the funding for the project would come from the major capital budget of the Small Craft Harbours (SCH), a national MFO program.

In November 2010, the MFO completed its comparative analysis of the various options available for a new permanent wharf and then confirmed its decision to reconstruct the wharf in Mingan. The other options considered by the MFO at the time included the relocation of the vessels to other harbours of the north shore, the construction of a new harbour in a neighbouring region and the installation of floating steel foundations. [ 17 ] In November 2011, the MFO made the decision to proceed with the reconstruction of the permanent wharf by public bid solicitation. According to the testimony of Mr.

Boucher, the MFO then informed the Innu of Ekuanitshit. [ 18 ] In January and February 2012, discussions took place between the MFO and the Innu of Ekuanitshit on the project to reconstruct the wharf. Throughout 2012, the MFO also held several meetings with the Mingan Harbour Authority in which the various

representatives of the Innu of Ekuanitshit participated and in which the MFO described the status of the project to reconstruct the wharf. In his affidavit, Yves Bernier, one of the affiants of the Innu of Ekuanitshit, indicated that the employees of the Société des Entreprises Innues d'Ekuanitshit s.e.p. (2009) (the SEIE), a local Aboriginal economic development corporation, participated on behalf of the community in several of these meetings.

The SEIE has a general contractor's license from the Régie du bâtiment du Québec (the RBQ) and is 99% owned by the Société de gestion Ekuanitshinnuat inc., an incorporated company of Quebec. [ 19 ] During these meetings, the representatives of the MFO or the MPWGS did not raise the issue of the PSAB. The evidence also shows that Mr.

Boucher, the MFO employee responsible for the project to reconstruct the wharf, did not consult the federal government’s directives on consulting and accommodating Aboriginal peoples. [ 20 ] In June 2012, SNC-Lavalin Inc. [SNC] was retained by the MPWGS, on behalf of the MFO, so as to analyze the environmental aspects of the Mingan wharf reconstruction project, in accordance with the requirements of the Canadian Environmental Assessment Act (2002) , SC 2002, c 19 , art 52 (the CEAA).

The final version of the project’s environmental effects evaluation report would be produced by SNC in March 2013. [ 21 ] In mid-October 2012, in the context of its study, SNC contacted the Innu of Ekuanitshit to ask them some questions on their concerns regarding the environmental effects of the reconstruction of Mingan wharf. In the start of November 2012, Mr.

Bernier then sent two letters in this regard to the representative of SNC, setting out all of the grievances of the Innu of Ekuanitshit relating to the project. [ 22 ] During a meeting held on October 22, 2012, the representatives of the Innu of Ekuanitshit asked the MFO regarding the possible participation of the Innu in the reconstruction project and the possibility that the contract to reconstruct the wharf be awarded by mutual agreement to the Innu.

The MFO answered that awarding the “contract” by mutual agreement had not been considered, stated that the MFO intended to launch a public bid solicitation, informed the Innu of Ekuanitshit that this bid solicitation would be open to all and invited them to participate in the process. [ 23 ] On November 13, 2012, the MFO approved the application for the final approval of the project to replace the Mingan wharf (at a cost of $7.4 million). The MPWGS published a notice of bid solicitation on November 30.

In the meantime, between November 13 and the publication of the notice of bid solicitation on November 30, Yves Rochette, MPWGS procurement specialist, wondered whether the PSAB applies to the project. Mr. Rochette verified with the MFO and confirmed that the PSAB did not apply. [ 24 ] On December 4, 2012, Mr. Bernier of the SEIE and the Innu of Ekuanitshit were informed of the bid solicitation. Then they asked again if the option of a contract by mutual agreement could be considered by the federal ministers.

The MFO answered that it launched a public bid solicitation that aimed to award the contract to the lowest bidder and reiterated that the possibility of entering into a contract by mutual agreement was not one of the avenues considered by the Department. [ 25 ] At the close of the bid solicitation on December 18, 2012, five compliant bids were received by the MPWGS. In January 2013, the MPWGS awarded the reconstruction contract to Hamel for $6.8 million and the award notice was published on February 5, 2013.

A year later, in January 2014, Hamel completed the reconstruction of the permanent Mingan wharf. [ 26 ] The Innu of Ekuanitshit submitted their notice of application for judicial review before the Court on March 7, 2013. B.

The application des Innu of Ekuanitshit [ 27 ] Since more than two years have elapsed since the filing of the original notice of application of the Innu of Ekuanitshit and that the reconstruction of the Mingan wharf was completed in the meantime, the nature of the remedies sought by the Innu of Ekuanitshit has changed. [ 28 ] In their notice of amended application of August 2013, the Innu of Ekuanitshit sought the following different remedies: [ translation ] 1.

A declaration that the ministers of Fisheries and Oceans Canada and Public Works and Government Services Canada …: a. did not adequately fulfil their duty to consult the Innu of Ekuanitshit on the components of the project to reconstruct the Mingan wharf that might adversely affect their Aboriginal rights; and b. did not seek, in a spirit of conciliation, the accommodation measures required by the honour of the Crown; 2.

A declaration that for the purposes of the Treasury Board’s Contracting Policy Notices (CPM) 1996-2 and 1997-6 and of the Procurement Strategy for Aboriginal Business (PSAB) that these notices created: a. the reconstruction of Mingan wharf constitutes construction subject to the federal procurement process, the cost of which exceeds $5,000; b. the Mingan wharf is part of a region composed of the Indian reserve of Ekuanitshit (Mingan) and where Aboriginal people form more than 80% of the population; or c. the Innu of Ekuanitshit, alone or with the other members of the Innu Nation, form a group of people receiving goods and services constituted by the reconstruction of Mingan wharf and this group is composed of 100% Aboriginal people; d. the reconstruction of Mingan wharf constitutes goods or services for which “Aboriginal populations are the primary recipients” and that are subject to the PSAB.

3. A declaration that the Société des entreprises Innues d’Ekuanitshit s.e.p. (2009) is an “Aboriginal business” within the meaning of the CPM 1996-2 and 1997-6 for the purposes of the PSAB that these notices were created; Cancellation of the acts 4. The cancellation of the contract award by the Minister of Public Works and Government Services under reference number PW-$QCM- 008-15052 because of its unreasonableness and illegality; 5.

Alternatively a. the cancellation of the notice of the bid solicitation entitled “Reconstruction of Mingan wharf”, published on November 30, 2012 under reference number PW-$QCM-005-15052; b. the extension of time under subs. 18.1(2) of the Federal Courts Act so as to allow applicants to challenge this act, if applicable, and c. an order under

section 302 of the Federal Courts Rules to allow this application to bear on more than one decision, if applicable; Referral as directed 6.

The referral of procurement established by the reconstruction of Mingan wharf back to the Minister of Fisheries and Oceans and the Minister of Public Works and Government Services, so that they may a. consult, in accordance with s. 35 of the Constitution Act, 1982 , the Innu of Ekuanitshit on the components of the project that may adversely affect their rights and seek accommodation measures as required by the honour of the Crown; b. determine whether for this project “ the nature of the work is such that it would not be in the public interest to solicit bids ” within the meaning of the Government Contracts Regulations , SOR/87/402, para. 6(c); c. determine whether Aboriginal suppliers are “capable of responding to the needs” for this project and, as required, they launch a bid solicitation “with qualified Aboriginal suppliers in accordance with the purpose of the PSAB” under the CPM 1996-2, para. 4 to 9, and the CPM 1997-6, para. 2.2.1; d. alternatively, prepare a bid solicitation to “request Aboriginal business sub-contracting plans” as permitted under the CPM 1997-6, para. 3.3.1.; Prohibition 7.

A writ of prohibition against the Minister of Public Works and Government Services and the Minister of Fisheries and Oceans to prevent them from doing any act that would allow the execution by Hamel Construction Inc. of the contract awarded under reference number PW-$QCM-008-15052. [ 29 ] In their memorandum of fact and law submitted in May 2014, however, the order required by the Innu of Ekuanitshit was more limited and required that this Court, in addition to any costs: [ translation ] A.

A declaration that the federal ministers have not adequately fulfilled their duty to consult and accommodate the Innu of Ekuanitshit before making the decision established by the award of the contract to reconstruct the Mingan wharf or, alternatively, the decision established by the notice of bid solicitation relating to the same project; B. A declaration that the reconstruction of Mingan wharf constituted goods or services subject to the PSAB and that the MPWGS awarded the contract illegally owing to its violation of the PSAB; C.

Alternatively, if the contract award and its submission to a bid solicitation constituted more than one decision, an order under

section 302 to enable this application to relate to more than one decision and the extension of time under para 18.1(2) of the FCA so as to challenge the bid solicitation. [ 30 ] Then, during the hearing before this Court, counsel for the Innu of Ekuanitshit specified that the only remedies now sought were indeed declaratory in nature.

The Innu of Ekuanitishit no longer require the cancellation of the contract award or the notice of bid solicitation launched for the reconstruction of Mingan wharf, the referral of the procurement to the MFO and the MPWGS, or the issue of a writ of prohibition against the federal ministers. [ 31 ] That said, the dispute still relates to the two decisions relating to the reconstruction of Mingan wharf: first, the decision made in February 2013 by the MPWGS awarding to Hamel the contract requested by the MFO and, second, the decision made in November 2012 to make a bid solicitation to award this contract.

The Innu of Ekuanitshit consider these two decisions as inseparable. In both cases, according to the Innu of Ekuanitshit, they contain no allusions to the PSAB (which was not applied to them) or to the duty to consult and accommodate and it is these violations by the federal ministers that are the basis of their application for judicial review and the declaratory relief that they seek. C.

The PSAB [ 32 ] The PSAB was launched in 1996 by the federal government to help Aboriginal businesses bid on federal contracts (i.e. contracts with the federal government) and thus win more contracts with federal departments and agencies. It is an initiative of the Government of Canada that is administered by the Minister of Aboriginal Affairs and Northern Development Canada (the AANDC), but

all federal departments and agencies are encouraged to participate in it. [ 33 ] The PSAB is part of the Treasury Board Contracting Policies, which govern the awarding of contracts by the federal government and promote Aboriginal businesses in Canada. The Treasury Board Contracting Policy is established under subsection 7(1) of the Financial Administration Act , RSC 1985, c F-11 (the FAA).

Therefore PSAB falls under the policies that govern the procurement of goods, services and construction by the contracting authorities responsible for contracting for the Government of Canada. [ 34 ] Four policies were issued by the Treasury Board to create and govern the PSAB and to limit its application: the Aboriginal Business Procurement Policy and Incentives - Contracting Policy Notice 1996-2 (the CPM 1996-2), adopted in March 1996; the Aboriginal Business Procurement Policy Performance Objectives - (Contracting Policy Notice 1996-6) (the CPM 1996-6), adopted in September 1996; the Aboriginal Business Procurement Policy - Contracting Policy Notice 1996-10 ; and the Procurement Policy for Aboriginal Business: Guidelines for Buyers/Government Officials (Contracting Policy Notice 1997-6) (the CPM 1997-6), adopted in August 1977.

The PSAB applies to contracts awarded by the federal government as of April 1, 1996. [ 35 ] The CPM 1996-2 of March 1996 lays the foundations of the PSAB. It sets out in

article 1 that with the PSAB, the government approved a “program designed to increase Aboriginal business participation in supplying government procurement requirements” . It added to

article 2 that the government has accepted that “all departments and agencies shall initiate or participate in supplier development activities aimed specifically at Aboriginal businesses” .

Article 5 provides the following so that the PSAB qualifies as “mandatory setasides” : 5. The new policy is broad in scope. The first phase, which becomes effective on April 1, 1996, requires all Contracting Authorities, where a procurement is valued in excess of $5,000, and for which Aboriginal populations are the primary recipients, to restrict this procurement to qualified Aboriginal suppliers where operational requirements, best value, prudence and probity, and sound contracting management can be assured.

Contracts valued at less than $5,000 may also be set aside for qualified Aboriginal suppliers if it is practical to do so. 5. La nouvelle politique a une vaste portée.

À partir du 1er avril 1996, date à laquelle entrera en vigueur la première phase du programme, lorsque la valeur d'une commande dépasse 5 000 dollars et que les biens ou services sont destinés principalement à des populations autochtones, toutes les autorités contractantes devront inviter à soumissionner uniquement des fournisseurs autochtones qualifiés, dans la mesure où sont satisfaits les exigences opérationnelles, et les critères relatifs à la meilleure valeur, à la prudence, à la probité et à la saine gestion des marchés.

Les marchés d'une valeur inférieure à 5 000 dollars peuvent également être réservés aux fournisseurs autochtones pour des raisons pratiques. … […]

Definitions Définitions … […] “Aboriginal Business” “Entreprise autochtone” An Aboriginal business is an enterprise that is: Une entreprise autochtone est : a. a sole proprietorship, limited company, cooperative, partnership, or notforprofit organization

a) une entreprise à propriétaire unique, une société à responsabilité limitée, une coopérative, une société en nom collectif ou une entité sans but lucratif : in which Aboriginal persons have majority ownership and control meaning at least 51 percent, and dans laquelle des autochtones détiennent le contrôle et une participation majoritaire, c'est à dire au moins 51 p. 100 des actions, et in which, in the case of a business enterprise with six or more fulltime employees, at least 33 percent of the fulltime employees are Aboriginal persons, dans laquelle, s'il s'agit d'une entreprise commerciale de six employés à temps plein ou plus, au moins 33 p. 100 des employés à temps plein sont des autochtones; Or Ou a. a joint venture or consortium in which an Aboriginal business or Aboriginal businesses as defined in (

a) have at least 51 percent ownership and control, and

a) une coentreprise ou un consortium dans lequel une ou plusieurs entreprises autochtones définies au paragraphe

a) ci- dessus détiennent le contrôle et au moins 51 p. 100 des actions, et b. which certifies in bid documentation that it meets the above eligibility criteria, agrees to comply with required Aboriginal content in the performance of the contract, and agrees to furnish required proof and comply with eligibility auditing provisions.

b) qui, dans les documents de soumission, atteste répondre aux critères d'admissibilité ci-dessus, consent à respecter les critères relatifs à la teneur autochtone dans l'exécution du marché et qui accepte de fournir les preuves requises et de se conformer aux dispositions sur la vérification d'admissibilité.

… […] “Aboriginal Population” “Population autochtone” Aboriginal Population means: Population autochtone désigne: a. an area, or community in which Aboriginal people make up at least 80 percent of the population;

a) une région ou une collectivité où les autochtones constituent au moins 80 p. 100 de la population; b. a group of people for whom the procurement is aimed in which Aboriginal people make up at least 80 percent of the group.

b) un groupe de personnes destinataire d'un approvisionnement qui est formé d'autochtones dans une proportion d'au moins 80 p. 100. [ 36 ] Therefore, under the terms of the CPM 1996-2, the PSAB is imperative when the conditions for a contract mandatorily set aside for Aboriginal people are fulfilled: it prescribes that the contracting authorities must invite only qualified Aboriginal suppliers to bid when the value of an procurement exceeds $5,000, where the goods or services for which “Aboriginal populations are the primary recipients” , and that the operational requirements, best value, prudence and probity, and sound contracting management can be assured.

Article 9 of the CPM 1996-2 also provides that, for other procurement projects, Aboriginal businesses should be encouraged to act as subcontractors. [ 37 ] Therefore, the PSAB appears as a mandatory program for all departments and the CPM 1996-2 also establishes that the government expects that its departments preach by example in entering into contracts with qualified Aboriginal businesses.

Under the terms of the CPM 1996-2, a contracting authority subject to the PSAB must thereby determine whether a procurement project that it is considering must be set aside for Aboriginal businesses as part of the PSAB. [ 38 ] The CPM 1996-6 specifies other requirements to be entitled to the PSAB. This second directive requires, in fact, that the Aboriginal bidder must be an Aboriginal business that meets the control requirements by Aboriginal people. This notice also provides subcontracting and certification requirements.

Therefore, if a department determines that the PSAB applies, it is thus mandatory to determine whether Aboriginal suppliers are able to meet the procurement needs in question. The CPM 1996-6 reiterates that the PSAB is designed to increase Aboriginal business participation in government procurement through mandatory and selective set asides and supplier development activities. [ 39 ] The CPM 1997-6 provides some guidelines and recalls that the federal government is determined to increase its contracts with Aboriginal businesses.

Echoing the CPM 1996-2, it describes the mandatory setasides as those for which goods or services are “destined primarily for Aboriginal populations as defined in [the CPM 1996-2]” (para 2.6.1).

The CPM 1997-6 also added, under incentives for Aboriginal suppliers, that subcontracting is “of further benefit to Aboriginal business” and that all departments and agencies awarding contracts are “encouraged to request Aboriginal business sub-contracting plans” (para 3.3.1). [ 40 ] The CPM 1997-6 also indicates at para 4.6.1, that “[a]ll of the sole sourcing techniques may be employed for requirements identified as set-aside” , in which case a single supplier may be solicited.

Finally, it adds, at para 8.1.1, It is the responsibility of the contracting authority to “decide if a procurement opportunity is to be set aside under (the PSAB), including initial determination of a mandatory requirement” . [ 41 ] Regarding the four Treasury Board Policies, the MPWGS also published a “Supply Manual” which includes the supply policy of the MPWGS and the references to the applicable legislation, regulations, and government and departmental policies. This manual includes

section 9.40 relating to the PSAB, which also reproduced the different attributes of the PSAB. The Manual specifies at paragraph 9.40.1, with respect to mandatory setasides, that it is “mandatory to set aside a procurement under PSAB if an Aboriginal population is the primary recipient or end user of the goods or services being procured” , in addition to other conditions described in the Manual. [ 42 ] Therefore, the Court observed that there is consistency in the different policy statements and directives issued by the Treasury Board and the MPWGS regarding the PSAB.

The following key elements arise: The purpose of the PSAB is to increase Aboriginal business participation in supplying federal government procurement requirements; The contracting authority must establish whether, for a given procurement, a mandatory setaside exists within the meaning of the PSAB; A mandatory setaside is one where a procurement is valued in excess of $5,000, where goods or services for which “ Aboriginal populations are the primary recipients ” , and where operational requirements, best value, prudence and probity, and sound contracting management can be assured; An Aboriginal population is either “an area, or community in which Aboriginal people make up at least 80 percent of the population” or “a group of people for whom the procurement is aimed in which Aboriginal people make up at least 80 percent of the group” ; If the conditions for a mandatory setaside exist, the contracting authority must only solicit Aboriginal suppliers qualified to bid; The contracting authority is also prompted to consider and encourage Aboriginal business sub-contracting ; The sole sourcing techniques may be employed for requirements identified as set aside for Aboriginal businesses. [ 43 ] Under the application of the PSAB, businesses considered for a federal contract are qualified Aboriginal bidders.

However, the Government Contracts Regulations , SOR/87-402 (the Regulations ) nevertheless continues to apply, which means, for example, that contracting normally initiates a bid solicitation, that all qualified bidders have equal access to contracts offered and that the usual bid solicitation methods of the federal government still govern mandatory setasides under the PSAB. However, the Regulations provides, among other things that some procurements must be of such a nature that a bid solicitation would not serve the public interest in the circumstances (para 6(c)).

III. Preliminary matters [ 44 ] The AGC and the Innu of Ekuanitshit raise various preliminary matters that are important to deal with before addressing the issues. They relate to the delay in submitting the application for judicial review, the interest of the Innu of Ekuanitshit, the mootness of the remedies sought and the strike-out of a portion of the affidavit of Mr. Boucher. A.

Is the application late? [ 45 ] The AGC argued that, since the original notice of application of the Innu of Ekuanitshit concerned only the MPWGS’s contract award to reconstruct the wharf but in reality, the remedy relates to the earlier MFO decision to initiate a bid solicitation, the dispute of this first decision is late and must be rejected. Indeed, the original notice of application contained no allegation of misconduct or illegality in the tendering process.

According to the AGC, the Innu of Ekuanitshit filed their amended notice of application several months after the submission of their initial notice and after all the parties had filed their affidavits and despite the fact that they were aware of the MFO’s decision to proceed by bid solicitation since at least November 2012. Furthermore, according to the AGC, the Court should not grant the Innu of Ekuanitshit an extension of time under

section 18.1 of the Federal Courts Act , RSC 1985, c F-7 (the FCA) since the respondents have not met the requirements prescribed by case law to obtain such an extension of time ( Canada (Attorney General) v Larkman , 2012 FCA 204 ( Larkman ) at para 61 ; Canada (Attorney General) v Lacey , 2008 FCA 242 ( Lacey ) at para 2 ). [ 46 ] The Court does not share the AGC’s position in this regard. [ 47 ] The purpose of this dispute and the application for judicial review filed by the Innu of Ekuanitshit is the alleged failure of the federal ministers to apply the PSAB and comply with their duty to consult and accommodate in the process that led to the decisions to initiate a bid solicitation for the project to reconstruct the wharf and award the contract to Hamel.

The Innu of Ekuanitshit argued that, in this context, the contract award and its submission to a tendering process are an inseparable pair of decisions made by the federal ministers. The Court agrees with the Innu of Ekuanitshit on this point. [ 48 ] The decisions not to apply the PSAB and to initiate a public bid solicitation that ended in awarding the contract to reconstruct the wharf to Hamel can and must be considered as being part of the same decision for the purposes of this application for judicial review.

Indeed, they are different sides of the same coin: when the MFO determined that it was not appropriate to apply the PSAB, it thus inevitably decided to proceed by public bid solicitation; conversely, by deciding to publish a bid solicitation and award the contract to Hamel, it is clear that the MFO and the MPWGS have, by necessary implication, excluded the PSAB application.

Moreover, although the Court had to consider that the decision under review is truly the bid solicitation requested by the MFO and initiated by the MPWGS, the fact remains that the decision on the bid solicitation becomes final only once the contract is reached and awarded to a bidder. Furthermore, the Regulations provide at

article 5 that the reaching of a contract by the federal government is directly linked to the initiation of a bid solicitation.

Therefore, it was right for the Innu of Ekuanitshit to wait for the outcome of the process and the contract award before filing their notice of application; otherwise, the decision of the MFO and the MPWGS to initiate the bid solicitation would not have been a final decision ( MiningWatch Canada v Canada (Minister of Fisheries and Oceans) , 2007 FC 955 at para 148 ). [ 49 ] Furthermore, although it was considered that more than one decision is at issue in this file, the Court is of the view that this succession of decisions by the MFO and the MPWGS is part of a single conduct that may, in the circumstances, be the subject of a single order within the meaning of

section 302 of the Federal Courts Rules , SOR/98-106.

Indeed, the MFO’s decision and that of the MPWGS are a single series of acts and they are “so closely linked as to be properly considered together” . ( Shotclose v Stoney First Nation , 2011 FC 750 ( Shotclose ) at para 64 ; Canadian Assn. of the Deaf v Canada , 2006 FC 971 at para 66 ). [ 50 ] In addition, the Court noted Huu-Ay-Aht First Nation v British Columbia (Minister of Forests) , 2005 BCSC 697 at para 104 , cited by the Innu of Ekuanitshit, which states that the concept of “decisions” must not be strictly applied when there is a statutory authorization for a governmental initiative that directly affects the constitutional rights of the First Nations.

This matter concerned the application of the duty to consult and accommodate the Crown (within the meaning of Haida ), and the principle of broad and liberal

interpretation that it sets out for the decisions that affect Aboriginal rights has since been largely followed by the courts. It supports an approach that the decisions at issue in this matter are seen as an inseparable whole for the purposes of the application for judicial review lodged by the Innu of Ekuanitshit. [ 51 ] Finally, in any case, subsection 18.1(2) of the FCA confers on the Court discretion to award an extension of time imparted to submit an application for judicial review.

Therefore, it is sufficient that the conditions established by Larkman and Lacey are met, that the applicant demonstrated a constant intention to pursue his application, that the application contemplated reflects some merit and raises defendable grounds for review, that the granting of an extension of time will not cause harm to the respondent and that a reasonable explanation exists to justify the delay.

The Court is of the view that these conditions are met in the circumstances and that, if required, it will be appropriate to exercise its discretion in granting the extension of time to allow the Innu of Ekuanitshit to dispute the notice of bid solicitation published on November 30, 2012 by the MPWGS. [ 52 ] Indeed, the sources of this dispute, on one side, are the decision of the MFO and the MPWGS to set aside the PSAB and initiate a bid solicitation for the reconstruction of Mingan wharf, which led to a contract awarded to Hamel and, on another side, the failure of federal ministers to honour their duty to consult and accommodate throughout the process.

The Court is satisfied, with respect to the evidence on file, that the Innu of Ekuanitshit have always had an ongoing intention to pursue their application for judicial review of these decisions, and that their application reflects some merit and a strong foundation. In addition, since the application no longer seeks to cancel Hamel’s reconstruction contract or the prohibition of the work to reconstruct Mingan wharf, the Court considers that granting an extension of time does not cause harm to the federal ministers.

Finally, the Innu of Ekuanitshit offered a reasonable explanation for the delay in submitting their application given the notice of bid solicitation, considering the common thread connecting the series of acts by the federal ministers resulting in awarding the contract to reconstruct the wharf. In addition, the Court considered that granting an extension of time is in the interest of justice ( Larkman at para 62 ). The Court is of the view that the criteria of Larkman and Lacey to obtain an extension of time the deadline under subsection 18.1 of the FCA are met.

[53] For all these reasons, the Court found that the application of the Innu of Ekuanitshit is not late. B. Do the applicants have the required interest? [54] The AGC also argue that the Innu of Ekuanitshit do not have the required interest to challenge the decision of the federalministers initiate a bid solicitation and award the contract to Hamel, since they are not “directly affected by the matter in respect of whichrelief is sought” as required in

section 18.1 of the FCA (Irving Shipbuilding Inc. v Canada (Attorney General), 2009 FCA 116).According to the AGC, the Innu of Ekuanitshit never sought the application of the PSAB and requested only awarding them a contractby mutual agreement. Moreover, after the initiation of the bid solicitation, the Innu of Ekuanitshit did not file their bid to attempt toobtain the contract to reconstruct the wharf, although other businesses succeeded in doing so with a very short notice period.

Finally, theAGC submitted that the Innu of Ekuanitshit did not show that they had the ability to present an offer in accordance with the project andeven less to reconstruct the Mingan wharf for a cost and within a reasonable time.

On the contrary, according to the AGC, the availableevidence shows that the SEIE did not have the required qualities to complete the reconstruction of the wharf, specializing only in thefield of industrial construction related to hydro-electric projects, having no employees in Quebec and admitting in cross-examination thatit wanted to undertake this project essentially as an educational experience ([translation] “like teaching someone to walk”, Mr. Bernierstated).

The AGC added that the Innu of Ekuanitshit had also not shown that the SEIE is a qualified Aboriginal business within themeaning of the PSAB. [55] The Court does not agree with the AGC’s arguments and is satisfied that, for the following reasons, the Innu of Ekuanitshitare directly affected by the subject of the application and have a required sufficient interest to continue this judicial review. [56] The Court recalls that the essence of the dispute at the source of this application for judicial review is the alleged failure ofthe federal ministers to apply the PSAB and comply with their duty to consult and accommodate the Aboriginal people in the process ofawarding the contract to reconstruct the wharf to Hamel.

In the view of the Innu of Ekuanitshit, that is what vitiates the decision of thefederal ministers to proceed by bid solicitation to award the contract. It seems clear that both the potential application of the PSAB andthe question of the duty to consult and accommodate in this provision directly affect the Innu of Ekuanitshit, since they would benefitdirectly on two fronts.

Furthermore, although it is not necessarily certain that the SEIE would have obtained the contract to reconstructthe wharf even following a bid solicitation set aside for Aboriginal businesses, the Court is nevertheless of the view that it can reasonablybe inferred that the SEIE allegedly had better chances in the context of the PSAB and that she was directly affected by the federalministers’ decision on the subject.

Finally, although it is true that the Innu of Ekuanitshit had not provided the evidence that the SEIE isan “Aboriginal business” within the meaning of the PSAB, the Court noted that in his affidavit, Mr. Bernier noted that he took steps toenter the SEIE in the Aboriginal Business Directory of the Government of Canada and that to his knowledge, it meets all the criteria tobe entered. Moreover, this indicates that the company could have been qualified as an “Aboriginal business” under the PSAB since theeligibility criteria for the Directory correspond closely to those of the PSAB.

The Court also observed that the SEIE has a licence fromthe RBQ and noted that, again, according to Mr.

Bernier’s testimony in his affidavit, the SEIE could have completed the project toreconstruct the wharf alone or by bringing together all the necessary sub-contractors. [57] Furthermore, the Court also agrees with the argument of the Innu of Ekuanitshit that, in any event, they have a “publicinterest” in presenting an application for judicial review of the federal ministers’ decision to award the contract to reconstruct the wharfand hold the bid solicitation on the ground that the MFO and the MPWGS allegedly had not respected their duty to consult andaccommodate and had neglected to apply the PSAB.

When a party raises a public interest, it is up to it to prove that it has such interest.To establish it, the application must convince the Court, on a balance of the evidence, that it meets the conditions of the public interestcriterion, as they were developed by the Supreme Court of Canada in Canada (Attorney General) v Downtown Eastside Sex WorkersUnited Against Violence Society, 2012 SCC 45 (Downtown Eastside) at para 37. [58] These criteria require that the application shows (1) that a serious justiciable issue is raised; (2) that there is a real stake or agenuine interest in it and (3) whether, in all the circumstances, the proposed suit is a reasonable and effective way to bring the issuebefore the courts.

By considering this third condition, the court must ask itself whether the action contemplated is an efficient use ofjudicial resources, if issues are suitable for judicial determination in an adversarial setting and whether permitting the proposed action togo forward will serve the purpose of upholding the principle of legality (Downtown Eastside at para 50). The Supreme Court alsosuggested several questions to be considered in this analysis.

They include, among other things, knowing whether the applicant has thecapacity to sue, if the case transcends the interests of the parties that are the most directly affected by the legislative provisions or by theimpugned measures, whether there are realistic alternative means which would favour a more efficient and effective use of judicialresources and would present a context more suitable for adversarial determination and, finally, whether the potential impact of theproceedings on the rights of others who are equally or more directly affected should be taken into account (Downtown Eastside at para51).

The factors listed must not be considered to be “items on a checklist or as technical requirements”, but rather applied in a flexibleand purposive manner to be weighed cumulatively, not individually, and in light of their purposes (Downtown Eastside at para 36). [59] Considering the criteria and issues raised by the Innu of Ekuanitshit with respect to the application of the PSAB and the dutyto consult on the project to reconstruct the Mingan wharf, the Court is satisfied that the Innu of Ekuanitshit also have the public interestrequired to initiate this application for judicial review. [60] For all these reasons, the Court rejects the AGC’s claims that the Innu of Ekuanitshit would not have had sufficient interest inthis file.

C. Is the application moot? [61] Finally, the AGC argued that the Court should decline to hear this application for judicial review because of its mootness.Indeed, Mingan wharf is now rebuilt and, since the Innu of Ekuanitshit did not request its demolition, the AGC argued that the issues arenow purely moot and without remedy (Elkayam v Canada (Attorney General), 2004 FC 908 at paras 11-12; Borowski v Canada(Attorney General), (SCC), [1989] 1 SCR 342 (Borowski) at p 353).

[62] The Court does not agree and is satisfied that the application of the Innu of Ekuanitshit and the declaratory relief soughtcannot be considered to be purely moot. The original application was clearly not since it sought to cancel the contract awarded to Hamel,in addition to the declarations for the PSAB application and the duty to consult and accommodate. Of course, the Innu of Ekuanitshit arenow no longer seeking the cancellation of the contract awarded to Hamel or the solicitation notice as the reconstruction of Mingan wharfhas been completed since the notice of application was filed.

However, the application raises more important questions that the Court hasthe discretion to consider, such as the manner in which the PSAB application must be considered by the MFO and the MPWGS and theexistence and scope of the Crown’s duty to consult and accommodate the Innu of Ekuanitshit in the circumstances. [63] The Innu of Ekuanitshit rely on the Supreme Court decision in Manitoba Metis Federation Inc v Canada (Attorney General),2013 SCC 14 (Manitoba Metis).

This decision established that the courts may make declarations “whether or not any consequential reliefis available” and that “[i]n some cases, declaratory relief may be the only way to give effect to the honour of the Crown” (ManitobaMetis at para 143). As the Supreme Court stated in this matter, a declaration is a limited remedy. [64] Similarly, Borowski teaches that, even in the absence of live controversy, the Court may still decide to exercise its discretionto consider a moot question if the circumstances justify it.

This is the case if there is an adversarial context where the parties still have aninterest in the outcome of the dispute. In this case, the Innu of Ekuanitshit argued that the basis of their application relates to theapplication of the PSAB and the scope of the federal government’ duty to consult Aboriginal peoples.

These are important issues thatwould otherwise tend “to evade review” (Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62 (Doucet-Boudreau) atpara 20). [65] As the hearing before this Court demonstrated, these questions are not abstract and may be subject to an adversarial context.In the circumstances, the Court is of the view that it should review these questions and make a declaration if the evidence justifies it,which would “will assist the parties to this action and others in similar circumstances, in their ongoing relationships” (Doucet-Boudreauat paras 19 and 22).

It is recognized that the Court has the power to issue declarations even if they are not for the purpose of correcting aspecific decision of a federal tribunal. In Solosky v The Queen, (SCC), [1980] 1 SCR 821 (Solosky) at page 830, theSupreme Court indeed recognized that the declaration is “remedy neither constrained by form nor bounded by substantive content, whichavails persons sharing a legal relationship, in respect of which a 'real issue' concerning the relative interests of each has been raised andfalls to be determined”.

The Court has a broad discretionary power in relation to granting declaratory relief or not (Western CanadaWilderness Committee v Canada (Minister of Fisheries and Oceans), 2014 FC 148 at para 65). [66] In this case, the Court is satisfied that issues raised by the Innu of Ekuanitshit are real and not merely moot, that they have anidentifiable interest in the declaratory relief and that the federal ministers have a real interest in opposing and that remedy will have autility (Mohawks of the Bay of Quinte v Canada (Minister of Indian Affairs and Northern Development), 2013 FC 669 at paras 62-64).

Inthis case, a declaratory order would have had some concrete effect in clarifying the scope of the PSAB and the duty to consult and theirrespective applications. It is in the interest of the two parties to clarify these issues.

Finally, the Court observes that, in Borowski at p 353,the Supreme Court stated that, despite the principle that a court may decline to decide a case which raises merely a hypothetical orabstract question, court may decide to exercise its discretion not to apply it. [67] In the circumstances, the Court finds and concludes, in exercising its discretion, that the application of the Innu of Ekuanitshitcannot be characterized as purely moot and deserves consideration. D. Should the Court strike part of Mr.

Boucher’s affidavit? [68] The Innu of Ekuanitshit argued that part of the affidavit of the MFO’s representative, Mr.

Boucher, (i.e. paragraph 65 andExhibit LB-41) should be struck because it contains elements that were not before the MFO when the decision to set aside the PSAB andto proceed by bid solicitation was made by the federal ministers (Mayne Pharma (Canada) Inc. v Aventis Pharma Inc., 2005 FCA 50).Indeed, it is well established that only the evidence submitted before a federal board, commission or other tribunal before it makes itsdecision may generally be considered by the Court conducting a judicial review of this decision.

Therefore, an affidavit may be declaredinadmissible when it contains facts that have not been submitted into evidence before the original decision-maker. [69] Paragraph 65 and Exhibit LB-41 of Mr. Boucher’s affidavit refers to the statistics of the use of Mingan wharf from 2008 to2011, in terms of the number of Aboriginal and non-Aboriginal vessels, landings, quantity and catch values. The Exhibit consists of fivepages, including a first page that summarizes the information and four others that provide raw data on the use of the wharf for each yearfrom 2008 to 2011.

The AGC admitted that the first page was prepared for the purposes of the dispute and was certainly not before theMFO at the time of considering the PSAB and deciding to award the contract to reconstruct the wharf by bid solicitation. However, theAGC argued that this page is simply a mathematical computation of the pages that follow, which adds no evidence and aims only tomake the data easier to digest and understand.

The other pages are statistical reports produced annually by the MFO and that alreadyexisted, at least at the MFO, when the decision was made to initiate a public bid solicitation for the reconstruction of Mingan wharf inNovember 2012. [70] The Court does not share the opinion of the Innu of Ekuanitshit on this point and considers that paragraph 65 and Exhibit LB-41 of Mr.

Boucher’s affidavit may be admitted into evidence and do not have to be struck. [71] It is indeed correct that the general rule is that no new evidence may be given during an application for judicial review.However, some exceptions exist and enable the Court to consider evidence that was allegedly not presented before the decision-maker.That is particularly the case when newly-submitted exhibits or information are general information likely to assist the Court, or evenwhen documents or information are those that “could arguably have been before, or at least within the knowledge of” the decision-maker(Ochapowace First Nation v Canada (Attorney General), 2007 FC 920 at paras 9 and 14).

In Connolly v Canada (Attorney General),2014 FCA 294 at para 7, the Federal Court of Appeal, quoting Justice Stratas in Assn. of Universities and Colleges of Canada vCanadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 (AUCC), described these exceptions as likely to “facilitate …the role of the judicial review court without offending the role of the administrative decision-maker” (AUCC at para 20). The exceptionsinclude in particular an affidavit that provides evidence that puts in context the impugned decision or to explain the process followed.

[ 72 ] In this case, the Court is satisfied that the statistical reports from 2008 to 2011 that compose Exhibit LB-41 already existed, at least at the MFO, when the decision to initiate a public bid solicitation for the reconstruction of Mingan wharf was made in November 2012 and that they were produced prior to the decision of the MFO in this respect. Therefore, they are documents and information that were or could have well been in the possession of the MFO at the time of his decision and that the MFO and that the MPWGS could have understood or have had knowledge of.

Furthermore, no one disputes its relevance in the determination of the application of the PSAB to the project to reconstruct the wharf.

Moreover, even assuming that the content of paragraph 65 and Exhibit LB-41 were not part of the MFO file, the Court is of the view that they can be considered for the purposes of this application for judicial review under the exception relating to the information explaining the decision-making process. [ 73 ] Moreover, the Court added that a decision like that giving rise to this judicial review, i.e. the decision of the federal ministers to set aside the PSAB, initiate a public bid solicitation and award the contract for the services of reconstructing the wharf, is not a judicial or quasi-judicial decision made by a body required to have a similar case to that of an administrative tribunal or a court of record.

Therefore, what constitutes the documents that were before such a decision-maker or could have been considered by it when it made the impugned decision is harder to determine. [ 74 ] The Court also noted that paragraph 65 and Exhibit LB-41 were the subject of numerous questions in the cross-examination of Mr. Boucher and that the Innu of Ekuanitshit had even submitted a supplementary affidavit of Guy Vigneault to reply in a detailed manner.

The content of this paragraph and Exhibit LB-41 are incidentally a central element of this dispute relating to the application of the PSAB to the award of the contract to reconstruct the wharf. Therefore, the Innu of Ekuanitshit are quite badly placed to request that it be struck, as they replied extensively in their submissions. [ 75 ] For all these reasons, the Court finds that it is not appropriate to exercise its discretion and strike paragraph 65 and Exhibit LB-41 of Mr. Boucher’s affidavit.

Having said that, it does not mean that the Court confers on them any probative value with respect to the substantive issue that is the subject of the application for judicial review (and that will be discussed below). The Court will give this evidence the appropriate weight in the analysis of the decision to set aside the PSAB, but it is not appropriate to grant the motion to strike of the Innu of Ekuanitshit. IV. Analysis A.

Did the federal ministers err in deciding not to apply the PSAB and to proceed by public bid solicitation in the process leading to awarding the contract to reconstruct the Mingan wharf to Hamel? [ 76 ] First, the Innu of Ekuanitshit seek a statement to the effect that the MFO and the MPWGS erred in deciding not to apply the PSAB and by initiating a public bid solicitation to award the contract to reconstruct the wharf to Hamel. It is on this element that their counsel focused during the hearing before this Court.

According to the Innu of Ekuanitshit, the reconstruction of Mingan wharf constituted goods or services subject to the PSAB and the MPWGS awarded the contract illegally because of its breach of the PSAB. Indeed, according to the Innu of Ekuanitshit, it was the failure to apply the PSAB to the contract award process for the reconstruction of Mingan wharf that vitiates and renders unreasonable or illegal the decision of the MFO and the MPWGS to proceed by public bid solicitation and award the contract to Hamel.

Neither the MFO nor the MPWGS noted the possibility of the application of the PSAB to the project. [ 77 ] The Court observed that, in its notice of application, the Innu of Ekuanitshit requested relatively specific conclusions regarding the PSAB.

In particular, they sought a declaration to the effect that (1) the reconstruction of Mingan wharf constitutes construction subject to the federal procurement process, the cost of which exceeds $5,000; (2) the Mingan wharf is part of an area composed of the Indian reserve of Ekuanitshit (Mingan) where Aboriginal peoples form more than 80% of the population, where the Innu of Ekuanitshit form a group of persons who are recipients of goods and services established by the reconstruction of Mingan wharf and 100% composed of Aboriginal peoples; and (3) therefore, the reconstruction of Mingan wharf is goods or services for which “Aboriginal populations are the primary recipients” and are subject to the PSAB.

In addition, they requested a declaration that the SEIE is an “Aboriginal business” within the meaning of the CPM 1996-2 and 1997-6 and for the purposes of the PSAB that these notices created. [ 78 ] In their memorandum of fact and law, while the remedy sought with respect to the PSAB was much more modest, limited to a declaration that the reconstruction of Mingan wharf constituted goods or services subject to the PSAB and that the MPWGS awarded the contract illegally because of its breach of the PSAB.

Then, during the hearing before this Court and in light of the limits of the evidence available, counsel for the Innu of Ekuanitshit recognized that, as part of this application for judicial review, the Court would find it difficult to substitute itself for the federal ministers and issue specific declaratory orders on the application of the PSAB to the contract to reconstruct the wharf even if it found that the federal ministers’ decision to set aside the PSAB was erroneous in this case.

(1) What is the applicable standard of review? [ 79 ] The first question to determine is the standard of review applicable to this first part of the application for judicial review. [ 80 ] The Innu of Ekuanitshit argued that the applicable standard of review is that of correctness, relying in particular on Assh v Canada (Attorney General) , 2006 FCA 358 at para 40 .

In their view, this standard applies to “questions of law that are of central importance to the legal system as a whole and that are outside the adjudicator's expertise” of the decision-maker ( Canada (Canadian Human Rights Commission) v Canada (Attorney General) , 2011 SCC 53 at para 18 ). Moreover, according to the Innu, that is the case for the

interpretation and application of the PSAB. The Innu of Ekuanitshit argued that the

interpretation of the scope of the Treasury Board directives such as the CPM 1996-2 and 1997-6 and the PSAB is a question of law and

interpretation of the laws regarding which neither the MFO nor the MPWGS have a greater expertise than the Court. Therefore, their decision on the application of the PSAB should not be

owed deference and be reviewed on a standard of correctness (David Suzuki Foundation v Canada (Minister of Fisheries and Oceans),2012 FCA 40 at paras 101-105; Sheldon Inwentash and Lynn Factor Charitable Foundation v Canada, 2012 FCA 136 at paras 18-23). [81] The Court does not agree and is rather of the view that the standard of reasonableness must apply in this case. [82] The Innu of Ekuanitshit argued that the federal ministers erred in their decision to proceed by bid solicitation and to award thecontract to reconstruct the wharf to Hamel because of their failure to apply the PSAB to the facts at issue.

In this context, theinterpretation and application of the PSAB by the federal ministers constitute a question of mixed fact and law that requires a factualanalysis and the consideration of numerous factors. Indeed, the PSAB itself alludes to the complexity of this decision, noting that a bidsolicitation limited to Aboriginal peoples may take place only where the goods for which “Aboriginal populations are the primaryrecipients” and only “where operational requirements, best value, prudence and probity, and sound contracting management can beassured” (the CPM 1996-2, art. 5).

Therefore, the application of the PSAB in this case depends on a largely factual appreciation includingthe review of the objectives of the reconstruction project and the intended users of the wharf. This type of decision requires relying onthe standard of reasonableness. [83] Furthermore, although this is not a home statute of the MFO or the MPWGS, the PSAB is part of the current applicationdirectives with which the federal ministers must regularly deal in contract awards by the federal government; in this regard, it isappropriate to give them some deference in their

interpretation.

Moreover, the evidence indicates that the MFO has extensive experiencein the application of the PSAB, in particular committing to allocate 5% of its procurement budget for contracts involving Aboriginalpeoples and entering into contracts with Aboriginal businesses of nearly $28 million in 2009 and $11 million in 2010. [84] In Simon v Canada (Attorney General), 2013 FC 1117 (Simon), the Court found that a Treasury Board Policy was an“exercise of [its] legal authority” with respect to the financial management of funds and imposed a “constraint on the Minister’s authorityto spend such funds” (Simon at paras 35 and 38).

In this matter, as there is no legislation expressly governing income assistance for FirstNations, the Court had determined that the Treasury Board directive and policy in this respect expresses “Parliament’s purpose or goal inproviding funds for income assistance on reserves” and therefore constitutes “a kind of legislative decision-making that binds theMinister's discretion over the expenditure of funds authorized for that purpose” (Simon at para 38).

The Court had therefore decided thatthe appropriate standard with respect to such a decision is that of reasonableness since, as indicated in Dunsmuir v New Brunswick, 2008SCC 9 (Dunsmuir) at para 54, “where the tribunal is interpreting its own statute or statutes closely related to its function with which itwill have particular familiarity then the standard is normally that of reasonableness” (Simon at para 37).

The Federal Court of Appealconfirmed everything in Canada (Attorney General) v Simon, 2015 FCA 18 at para 59, citing in particular the Supreme Court in Agrairav Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras 45-47. [85] Similar to the situation in Simon, the Court is of the view that the standard of reasonableness must apply to the first issue,because the Court must consider how the MFO and the MPWGS have interpreted and applied the criteria applicable for the PSAB, adirective regarding which they have an undeniable expertise. [86] The AGC also argued that in any case, the PSAB is only an administrative directive that cannot be the subject of judicialpunishment within an application for judicial review before this Court.

According to the AGC, the Government of Canada encourages itsdepartments to adopt the PSAB but it does not require them to do so. Furthermore, even if it were “mandatory,” the PSAB is an internalpolicy that is not legally binding.

Although a federal board, commission or other tribunal may be required to consider the administrativedirectives issued by a department or the government, such internal policies are not legally binding and constitute at best interpretive tools(Spencer v Canada (Attorney General), 2010 FC 33 (Spencer) at para 27; Leahy v Canada (Minister of Citizenship and Immigration),2012 FCA 227 (Leahy) at para 92). [87] However, several decisions have established that a directive may have force of law and be subject to measures as part of ajudicial review proceeding.

Moreover, in Endicott v Canada (Treasury Board), 2005 FC 253 (Endicott) at para 11, the Court found thatthe issue of whether the Treasury Board directives create rights recognized by the law that may be subject to judicial review if anauthority has not complied to them depends on the intention and context in which the directive was published. And in Simon, the Courtfound that the Treasury Board Policy exercises its legal authority with respect to the financial management of funds (in application of theFAA) and imposed a limit on the Minister’s authority to spend such funds.

Moreover, the Federal Court of Appeal determined that theMinister did not have the discretion to apply the Treasury Board policies and directives in this file and that the documents expressed theobjective or intention of Parliament in this case. [88] Therefore, when a plan prescribed by a directive is very precise, leaves no discretion and confers a benefit, it may beconsidered to be legally binding (Endicott at para 11; Kagimbi v Canada (Attorney General), 2014 FC 400 (Kagimbi) at paras 38-39).

Inthis case, the Treasury Board directives and the PSAB establish a series of conditions and standards that departments must consider inawarding their procurement contracts and lay down a rule stipulating that contracts become “mandatory setasides” for Aboriginalbusinesses when the conditions of the PSAB are fulfilled. [89] The Federal Court of Appeal also indicated that the failure to apply a directive may have the effect of making the decision of adecision-maker unreasonable (Tobin v Canada (Attorney General), 2009 FCA 254 at para 52).

In Leahy (at para 92), the Court had alsostated that although the Treasury Board Policies are sometimes not binding, they may be used to help in interpreting a decision. Finally,in Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817, the Supreme Court had statedthat the “guidelines are a useful indicator of what constitutes a reasonable

interpretation of the power conferred” on a decision-maker andthat “the fact that this decision was contrary to their directives is of great help in assessing whether the decision was an unreasonableexercise of the H & C power” (at para 72). [90] In this case, the Innu of Ekuanitshit were not seeking a declaration that the PSAB is invalid or illegal but rather claim that thefailure of the MFO and the MPWGS to apply it to the project to reconstruct the Mingan wharf and their

interpretation of its componentsare erroneous. Therefore, the Court is of the view that the standard of reasonableness applies in this case and may be used to determinewhether the

interpretation and the application of the PSAB by the federal ministers in the circumstances may be maintained.

[91] When the standard of reasonableness applies, the Court must show deference to the decision-maker if its determination fallswithin the “the range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir at para 47). Asstated by the Supreme Court in Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 (Khosa) at para 59, “[t]here might be morethan one reasonable outcome.

However, as long as the process and the outcome fit comfortably with the principles of justification,transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome.” The application ofthe criterion of the reasonableness also encompasses a quality requirement that applies to those reasons and to the outcome of thedecision-making process (Montréal (City) v Montreal Port Authority, 2012 SCC 14 (Montréal) at para 37-38). [92] Reasonableness is concerned with the existence of justification, transparency and intelligibility within the decision-makingprocess.

The reasons for a decision are considered reasonable “if the reasons allow the reviewing court to understand why the tribunalmade its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes” (Dunsmuir at para 47;Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (Newfoundland Nurses) atpara 16). In this context, the Court must show deference to the tribunal’s decision and cannot substitute its own reasons.

However, itmay, if it find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome (Newfoundland Nurses atpara 15).

(2) Was the decision to set aside the PSAB reasonable? [93] The Innu of Ekuanitshit admitted that they did not invoke of their own motion the issue of the PSAB application during theirdiscussions with the MFO and the MPWGS.

However, they claimed that it was up to the federal ministers to do it since under the CPM1996-2 and 1997-6 of the Treasury Board, the contracting authorities are required to establish and determine whether the PSAB appliesto a procurement. [94] For the reasons that follow, the Court is of the view that in light of the evidence on the record, the decision of the contractingauthorities to set aside the PSAB in this case and therefore proceeded with the contract award by public bid solicitation was notreasonable for two reasons.

First, it appears that the federal ministers had not adequately considered the PSAB and its components intheir decision to proceed by bid solicitation to award the contract to reconstruct the wharf. Second, even assuming that the federalministers would have effectively considered the PSAB, data and information that they had on hand could not allow them to reasonablyconclude that the PSAB did not apply in this case. (

a) The requirements of the PSAB [95] It is important to recall what the PSAB sets out regarding contracts that are mandatory to set aside for Aboriginal businesses.First, it is up to the contracting authority to determine whether the PSAB applies to this procurement. It is mandatory to do so. The PSABthen declared that, so that contracts can be mandatorily set aside for Aboriginal businesses, “Aboriginal populations [must be] theprimary recipients” of goods or services. An Aboriginal population is itself defined by the PSAB as meaning (

a) an area, or communityin which Aboriginal people make up at least 80 percent of the population, or (

b) a group of people for whom the procurement is aimed inwhich Aboriginal people make up at least 80 percent of the group. Therefore, it is in view of these elements, clearly set out in the CPM1996-2 and 1997-6 of the Treasury Board, that the federal ministers should determine whether the PSAB applied to the contract toreconstruct Mingan wharf. These elements are at the very heart of what defines the scope and application of the PSAB. Incidentally, theCourt noted that they are systematically repeated in the various policy statements and directives of the Treasury Board and the MPWGS. [96] There are no precedents that deal with the

interpretation and application of the PSAB and specifically the meaning and scopeof the terms of “Aboriginal populations are the primary recipients” (and the resulting criterion of 80%) contained in the PSAB. [97] The Innu of Ekuanitshit argued that under the terms of the Treasury Board Policies, the application of the PSAB in factrequires the contracting authority to consider two separate requirements. First, it must determine for which population are “the primaryrecipients” of the goods or services at issue in the procurement. The word “primary” is not defined in the PSAB or the Treasury Boarddocuments.

However, according to the Innu, its plain and ordinary meaning would mean 50% or more. Second, the contracting authoritymust further determine whether the primary recipients are an “Aboriginal population” within the meaning of the PSAB, i.e. an area or acommunity composed of at least 80% Aboriginal peoples or a population that is the recipient of the procurement should be formed of atleast 80% Aboriginal peoples. This second criterion provides two alternatives that both refer to a notion of people and individuals, ratherthan goods or supplies.

First, there is a geographic criterion related to the area or community or, second, a criterion related more directlyto people (i.e. a group of people receiving the procurement). It is sufficient to meet either one with respect to the concept of “Aboriginalpopulation”. [98] The AGC submitted that the expression “Aboriginal populations are the primary recipients” must rather be read as a wholeand at the outset appeals the reaching of the threshold of 80%.

Therefore, according to the AGC, a good or service must be aimed at apopulation composed of 80% Aboriginal peoples so that it may fall within the cut of mandatory setasides under the PSAB. [99] The Court considered that the approach used by the AGC is not a reasonable

interpretation of the PSAB for two reasons. First,it discarded the word “primary”. This

interpretation would mean for all intents and purposes that the word “primary” used in thedocuments and directives of the Treasury Board and the MPWGS would be useless and should be ignored. If the intention had indeedbeen to limit the mandatory setasides of the procurements “that serve a primarily Aboriginal population (i.e., at least 80 per cent)”, theTreasury Board directives allegedly did not use “primary” in their wording and expressly stated it.

Indeed, the approach suggested by theAGC means that “primary” should, to all intents and purposes, be considered to be equivalent to the concept of at least 80% of thecontent in the definition of “Aboriginal population”. The Court does not agree. That is not what the CPM 1996-2 and 1997-6 say. [100] Second, the Court recalls that the objective of the PSAB is to favour and develop the participation of Aboriginal businesses inthe federal government’s procurement process and increase the award of contracts to Aboriginal businesses.

A liberal and generousapproach to the scope and application of the PSAB must prevail, in harmony with this intent. In this regard, the Court noted the referencemade by the Innu of Ekuanitshit in the leading case of the Supreme Court in Mitchell v Peguis Indian Band, (SCC),

[1990] 2 SCR 85, at p 99, where the Court established that the laws and treaties to which Indians are subjected must receive a broad and liberal

interpretation and that any ambiguity must be in favour of the Aboriginal peoples to remedy their historical disadvantages in Canada. Moreover, an

interpretation of the PSAB that would ignore the requirement “the primary recipients” and would rely on a single criterion establishing the threshold of 80% Aboriginal peoples would limit the scope of the PSAB, to the detriment of Aboriginal businesses. Such an

interpretation is not consistent with the generous approach that must guide the application of the PSAB. [ 101 ] Therefore, the Court is of the view that the PSAB requires that contracting authorities determine whether the two components of the definition contained in the PSAB are met to decide whether they are in the presence of a mandatory setaside for Aboriginal businesses. They must first identify who the procurement “serve[s] primarily” and then determine whether these recipients form an “Aboriginal population” as defined in the CPM 1996-2. According to the Court, that is the only reasonable

interpretation of the terms used in the PSAB synchronized with both the Treasury Board documents and the underlying intention of the government.

All the words used in the Treasury Board Policies must have a meaning and the federal ministers thus, in their appreciation of the application of the PSAB to the reconstruction of Mingan wharf, had to consider for whom the goods or services at issue were “the primary recipients” and whether these recipients were an “Aboriginal population” within the meaning of the PSAB. [ 102 ] The Court observed that the AANDC, which is responsible for the administration of the PSAB, still seems not to make a clear distinction between the concepts of “the primary recipients” and “Aboriginal population” in the popularization of the PSAB.

Indeed, in its document entitled “PSAB: Procurement Strategy for Aboriginal

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