COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

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

2019 BCCA 4

Date: 20190103

Docket: CA45233

Between:

Murray Purcha
& Son Ltd.

Appellant

(Petitioner)

And

District of
Barriere

Respondent

(Respondent)

Before:

The Honourable Madam Justice Stromberg-Stein

The Honourable Mr. Justice Savage

The Honourable Mr. Justice Hunter

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

Counsel for the Appellant:

R.L.D. Hughes

Counsel for the Respondent:

S. Dubinsky

Place and Date of Hearing:

Vancouver, British
  Columbia

October 3, 2018

Place and Date of Judgment:

Vancouver, British Columbia

January 3, 2019

Written Reasons by:

The Honourable Mr. Justice Hunter

Concurred in by:

The Honourable Madam Justice Stromberg-Stein

The Honourable Mr. Justice Savage

Summary:

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

Reasons for Judgment of the Honourable
Mr. Justice Hunter:

[1]

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

[2]

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

[3]

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

[4]

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

[5]

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

Background

[6]

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

[7]

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

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

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

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

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

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

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

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

[8]

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

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

Tri Service 107;

Borrow  104;

Defiance  102;

Purcha  93; and

Surespan  76

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

Defiance  $156,000.00;

Purcha  $179,625.60;

Tri Service  $179,999.98;

Borrow  $194,258.00; and

Surespan  $453,600.00

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

Defiance  $159,120.00;

Tri Service  $181,349.97;

Purcha  $187,259.68;

Borrow  $197,171.87; and

Surespan  $492,156.00

[9]

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

The Judicial Review Application

[10]

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

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

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

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

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

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

[11]

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

[12]

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

Issues

[13]

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

[14]

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

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

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

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

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

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

[15]

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

Standard of Review

[16]

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

[17]

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

[18]

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

[19]

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

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

[20]

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

[21]

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

[22]

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

[23]

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

[24]

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

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

[25]

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

[26]

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

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

[27]

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

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

[28]

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

[29]

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

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

Fairness as a Contractual Duty

[30]

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

[31]

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

[32]

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

[33]

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

[34]

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

E.  General Conditions

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

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

[35]

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

Procedural Duty of Fairness

[36]

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

[37]

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

[38]

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

[39]

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

[40]

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

[41]

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

[42]

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

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

[43]

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

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

[44]

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

[45]

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

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

[46]

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

[47]

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

[48]

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

[49]

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

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

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

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

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

[50]

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

Did the District breach its Duty of Fairness?

[51]

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

[52]

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

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

[Emphasis added.]

[53]

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

[54]

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

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

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

[55]

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

[56]

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

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

[57]

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

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

[58]

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

[59]

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

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

[60]

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

[61]

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

[62]

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

[63]

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

Reasonableness of the Substantive Outcome

[64]

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

[65]

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

Disposition

[66]

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

The
Honourable Mr. Justice Hunter

I AGREE:

The Honourable Madam Justice
Stromberg-Stein

I AGREE:

The Honourable Mr. Justice
Savage


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

British Columbia Civil Liberties Association v. Canada
  (Attorney General),

2019 BCCA 5

Date: 20190107

Docket: CA45092

Between:

British Columbia
Civil Liberties Association
and The John Howard Society of Canada

Respondents

(Plaintiffs)

And

Attorney General
of Canada

Appellant

(Defendant)

And

Canadian Human
Rights Commission,
Canadian Prison Law Association
Canadian Association of Elizabeth Fry Societies,
Criminal Defence Advocacy Society.
Native Womens Association of Canada and
West Coast Legal Education and Action Fund

Intervenors

Corrected Judgment:
The text of the judgment was corrected on the last page where changes were made
on January 8, 2019

Before:

The Honourable Mr. Justice Groberman

The Honourable Mr. Justice Willcock

The Honourable Mr. Justice Fitch

On appeal from: An
order of the Supreme Court of British Columbia, dated
January 17, 2018 (
British Columbia Civil Liberties Association v. Canada
(Attorney General)
, 2018 BCSC 62, Vancouver Docket No. S150415).

Counsel for the Appellant:

M.R. Taylor,
  Q.C.
B. Sokhansanj
S.M. Currie
F. Paradis

Counsel for the Respondent:

J.J. Arvay, Q.C.
A. Latimer

Counsel for the Canadian Human Rights Commission:

F.W. Keith

Counsel for the Canadian Prison Law Association:

A. Nanda

Counsel for the Canadian Association of Elizabeth Fry
  Societies:

M.K. Gervin

Counsel for the Criminal Defence Advocacy Society:

T.M. Arbogast
A. Ballantyne

Counsel for the Native Womens Association of Canada and
  West Coast Womens Legal Education and Action Fund:

E. Finestone
R. Mangat

Place and Date of Hearing:

Vancouver, British
  Columbia

November 13 and 14,
  2018

Written Submissions Received:

Nov. 28 and
  Dec. 5, 2018

Place and Date of Judgment:

Vancouver, British Columbia

January 7, 2019

Written Reasons of the Court

Summary:

A judge of the Supreme Court
issued a declaration that the sections of the Corrections and Conditional
Release Act that authorize the administrative segregation of inmates are
unconstitutional. He suspended the declaration for one year to allow Parliament
to enact replacement legislation. A government bill has been introduced in the
House of Commons but has not yet been passed. At the same time, the Attorney
General has appealed from the granting of the declaration unconstitutionality. The
Attorney General applied for an extension of the suspension to July 31, 2019,
to allow Parliament more time to enact new legislation. Held: suspension
extended to June 17, 2019, or until further order of the Court, on conditions.
The concerns that led to the suspension of the declaration continue to have
considerable force, and public safety concerns strongly favour its extension. The
Court imposes conditions on the extension in order to reduce or eliminate violations
of inmates constitutional rights pending the enactment of new legislation. The
Court also considers it appropriate to monitor progress and to consider
implementing additional conditions as matters proceed.

Reasons for Judgment of the Court:

[1]

This litigation concerns the constitutionality of the provisions of the
Corrections
and Conditional Release Act
, S.C. 1992, c. 20 that authorize
administrative segregation of inmates. On January 17, 2018, the trial judge
held that ss. 31, 32, 33, and 37 of the Act violate ss. 7 and 15 of
the
Canadian Charter of Rights and Freedoms
. He declared the impugned
sections to be unconstitutional, but suspended the declaration for a period of
one year. The Attorney General applies for an extension of the period of
suspension to July 31, 2019. The respondents oppose the extension.

[2]

The circumstances of this application are unusual. The Attorney General
has appealed the judges order, arguing that the existing legislation is
capable of being interpreted and administered in a manner that conforms to
constitutional norms. At the same time, she accepts that administrative
practices engaged in by the Correctional Service of Canada have violated inmates
constitutional rights in the past and need to be modified.

[3]

Although the Attorney General contends that the existing legislation is
constitutional, the government has signalled an intention to replace it and to significantly
reform the administrative segregation regime. On October 16, 2018, the Minister
of Public Safety and Emergency Preparedness introduced a government bill in the
House of Commons (Bill C-83,
An Act to amend the Corrections and
Conditional Release Act and another Act
) that will, if adopted, replace the
provisions that the judge found to be unconstitutional. The bill has passed
first and second reading in the House of Commons, and has been considered by
its Standing Committee on Public Safety and National Security. That committee
has reported back to the House, recommending amendments to the bill. With third
reading in the Commons yet to come, and the legislative process in the Senate
not yet commenced, the shape of the bill remains fluid. While it appears
probable that legislation will be passed by the current Parliament, both the
timing and final form of the legislation remain uncertain.

The Application

[4]

This panel heard the appeal on November 13 and 14, 2018. The decision is
under reserve and it may be some time until the Court pronounces judgment. At
the conclusion of the hearing, we heard the application to extend the suspension
of the declarations of invalidity.

[5]

The Attorney General took the position that the Court should grant an
extension to July 31, 2019. She contended that there would be a legislative
vacuum if the existing legislation ceases to have effect before Parliament
puts a new statute in place. She emphasized that the Correctional Service of
Canada needs to employ either administrative segregation or a replacement regime
to ensure that penitentiaries are administered safely, both for inmates and for
officers.

[6]

The respondents, on the other hand, suggest that the government has been
dilatory in responding to concerns about administrative segregation, both
before and after the judgment was pronounced by the trial judge. They note that
serious concerns have been raised over the administrative segregation regime
for many years, including in official government reports. Further, legislation
was before Parliament (Bill C-56) before the trial commenced, but did not
progress beyond first reading. The respondents argue strongly that it is
inappropriate for legislation that has been found to be unconstitutional to
remain in force any longer than is absolutely necessary. They say that the
Federal government has had more than enough time to rectify the situation.
Further, they argue (rather implausibly, in our view) that no safety concerns
would result from an immediate striking down of the impugned legislative provisions.

[7]

At the hearing of the application, we indicated that if the suspension is
to be extended, the Court would like to have some assurance that concrete
progress is being made toward ameliorating the situation of inmates subject to
administrative segregation. We invited written submissions from the Attorney
General proposing interim measures that would provide such an assurance. We
also asked the respondents to provide written submissions in response.

[8]

We have received the requested submissions. The Attorney General has,
for the most part, outlined the current plans of the Correctional Service of
Canada, without proposing concrete interim measures that the Court might order.
The respondents submissions have also, for the most part, avoided discussion of
specific interim measures that the Court might impose; instead, they have
reiterated their opposition to any extension.

[9]

Parallel litigation is proceeding in Ontario. In
Corporation of the
Canadian Civil Liberties Association v. Her Majesty the Queen
, 2017 ONSC
7491, a judge of Ontarios Superior Court of Justice struck down the
legislation, though on more limited grounds than the trial judge did in this
case. The Ontario judge suspended his declaration of invalidity for twelve
months, to December 18, 2018. On December 17, in a judgment indexed as
Canadian
Civil Liberties Association v. Canada (Attorney General)
, 2018 ONCA 1038,
the Ontario Court of Appeal extended the suspension unconditionally, but only to
April 30, 2019. In doing so, it said:

[12]      While Canadas failure
to address the concerns identified by the court is disappointing, we are
satisfied that an extension of the declaration is necessary to enable the
legislative process to be completed. Giving immediate effect to the declaration
of invalidity, without any measures in place to protect those currently held in
administrative segregation and Correctional Service of Canada personnel, would
pose an unacceptable danger to such individuals and, ultimately, to the public.

[10]

We share the concerns of the Ontario Court of Appeal, both with respect
to the slow progress made by the government of Canada in putting in place new
legislation and with respect to the harm that might be occasioned if the
suspension were not extended.

The Granting of
Suspensions of Invalidity

[11]

As the parties have pointed out, suspensions of declarations of constitutional
invalidity are a court-created mechanism for ensuring that the striking down of
legislation does not create a regulatory vacuum and result in chaos. The
Supreme Court of Canada first granted a suspension of a declaration of
invalidity in
Re Manitoba Language Rights
, [1985] 1 S.C.R. 721. In that
case, the Court had determined that virtually all of Manitobas legislation was
unconstitutional because it was enacted only in English. To preserve statutory
law in Manitoba while the government undertook diligent efforts to translate
statutes and to enact official French versions of legislation, the Court
suspended the declaration of invalidity. The Court considered that unless the suspension
was granted, Manitoba would face chaos and anarchy.

[12]

In
Schachter v. Canada
, [1992] 2 S.C.R. 679 the Court provided further
guidance on the issue of when a suspension of a declaration of invalidity is
appropriate. At 719, it discussed situations that will justify a temporary
suspension of a declaration of invalidity:

Temporarily suspending the declaration of invalidity to give
Parliament or the provincial legislature in question an opportunity to bring
the impugned legislation or legislative provision into line with its
constitutional obligations will be warranted  if:

A.    striking
down the legislation without enacting something in its place would pose a
danger to the public;

B.    striking
down the legislation without enacting something in its place would threaten the
rule of law; or,

C.    the legislation was deemed
unconstitutional because of underinclusiveness rather than overbreadth, and
therefore striking down the legislation would result in the deprivation of
benefits from deserving persons without thereby benefitting the individual
whose rights have been violated.

[T]he above propositions are
intended as guidelines to assist courts in determining what action under
s. 52 is most appropriate in a given case, not as hard and fast rules to
be applied regardless of factual context.

[13]

In
Canada (Attorney General) v. Bedford
, 2013 SCC 72, the Court
granted a suspension of a declaration of invalidity, even though the guidelines
set out in
Schachter
were, arguably, not met. At para. 167, the
Court recognized that simply striking down legislation directed at prostitution
would be undesirable, as it would leave an area that required some form of
social control unregulated. It noted that such a situation would be a matter
of great concern to many Canadians. The Court considered that Parliament
should be granted a period of time to enact legislation to replace that which
was found to be unconstitutional.

[14]

Re Manitoba Language Rights
,
Schachter
, and
Bedford
were all cases that had been finally determined by the Supreme Court of Canada.
In cases where legislation has been finally declared to be unconstitutional,
either through a judgment of the Supreme Court of Canada or by virtue of the
termination of litigation at a lower level, courts are reluctant to suspend
their declarations and are careful not to allow suspensions to subsist longer
than necessary.

[15]

Courts will not routinely suspend declarations of constitutional invalidity
simply because the appeal process has not run its course. The fact that an
appeal is pending or likely, however, will be a relevant consideration in
deciding whether to suspend a declaration. Prudence dictates that courts
exercise caution in choosing to immediately strike down legislation where its constitutionality
remains legally contentious.
Carter v. Canada (Attorney General)
, 2012
BCCA 336 is an example of a case in which this Court extended a suspension of a
declaration of invalidity pending determination of the appeal.

Extending a Suspension

[16]

Where a court suspends a declaration of invalidity to allow a government
to amend legislation, it does so in the expectation that the government will
act with dispatch in correcting the situation. Suspensions of declarations of
invalidity represent temporary reprieves. Out of respect for the rule of law, governments
must ensure that unconstitutional legislation is not maintained for any longer
than is necessary and give significant legislative priority to amending or
replacing laws that have been declared unconstitutional.

[17]

Nonetheless, factors such as the complexity of regulation, political
crises, and inevitable delays in democratic institutions mean that it is not
always feasible to enact legislation within the period of an initial suspension.
We have been directed to a number of cases in which extensions have been
granted to suspensions of declarations of invalidity, including
R. v. Feeney
,
[1997] 3 S.C.R. 1008;
McIvor v. Canada (Registrar of Indian and Northern
Affairs)
, 2010 BCCA 168 and 2010 BCCA 338;
Carter v. Canada (Attorney
General),
2016 SCC 4; and
Procureure générale du Canada c. Descheneaux
,
2017 QCCA 1238.

[18]

In
Carter
, the Supreme Court of Canada indicated that suspensions
of declarations of invalidity ought not to be extended without a strong
rationale. It also suggested that extensions should be as short as is feasible:

[2]        . To suspend a
declaration of the constitutional invalidity of a law is an extraordinary step,
since its effect is to maintain an unconstitutional law in breach of the
constitutional rights of members of Canadian society. To extend such a
suspension is even more problematic. The appellants point to the severe harm
caused to individuals by the extension. Extraordinary circumstances must be
shown. The burden on the Attorney General who seeks an extension of a
suspension of a declaration of constitutional invalidity is heavy. In this
case, the length of the interruption of work on a legislative response to the
Courts decision due to a federal election constitutes such a circumstance.
Parliament was dissolved on August 2, 2015 and officially resumed on December 3
of that year. This four-month delay justifies granting an extension of the
suspension of the declaration of invalidity, but only for four months.

[19]

In
Descheneaux
, the trial judge refused to extend a suspension of
a declaration of invalidity. The refusal was appealed to the Quebec Court of
Appeal, which granted an extension. The Court identified factors to be
considered:

[39]       [T]he four factors identified below can be drawn
from the few judicial precedents on this question. These are not the only
factors that may be considered. These factors are neither exhaustive nor
cumulative; it is rather the weighing of these factors, taking into account the
particular circumstances of each case, that will determine whether an extension
is justified. Consequently, even if the application for an extension does not
satisfy one of these factors, a court may still grant or dismiss the
application after weighing all the factors.

[40]      The first factor is whether or not a change in
circumstances justifies the extension. In
Carter
, for example, the fact
that Parliament had been dissolved for general elections was found by the
Supreme Court of Canada to be a sufficient change in circumstances justifying
the extension of the suspension of the declaration of the constitutional
invalidity of paragraph 241(b) and section 14 of the
Criminal Code
.

[41]      A second factor relates to the circumstances which
led to the initial suspension of the declaration of invalidity to verify
whether these still weigh in favour of the suspension. These circumstances may
include the need to avoid threatening the rule of law, to avoid a potential
danger for the public, or to otherwise mitigate the effects of the declaration
on the public, notably where the law is deemed unconstitutional because it is
under-inclusive and its invalidity would deprive deserving individuals of
benefits without providing benefits to those whose rights have been violated.
Indeed, as Chief Justice Lamer noted in
Schachter
, deciding whether it
is appropriate to suspend a declaration of invalidity is largely dependent on
the effect this declaration will have on the public. The same reasoning applies
a fortiori
to deciding whether the suspension should be extended.

[42]      A third factor concerns the likelihood that
remedial legislation will be adopted. Suspending a declaration of
constitutional invalidity rests upon the fundamental premise that legislative
bodies will necessarily adopt remedial legislation during the suspension
period. Where they fail to act within the timeframe, it is necessary to verify
whether or not that premise is still valid. Thus, it is necessary to ascertain
whether it is reasonable to believe that legislative bodies will indeed adopt
remedial legislation during the extension of the suspension.

[43]      A fourth factor
concerns the administration of justice. As the suspension of a declaration of
constitutional invalidity allows unconstitutional legislation to have continued
effect in violation of the Canadian Constitution, despite the contrary
principle set out in subsection 52(1) of the
Constitution Act, 1982
, an
undue extension of the suspension could shake the publics confidence in the
administration of justice and in the ability of the courts to act as guardians
of the Constitution. This is why such suspensions are generally short in
duration and are only issued where they are justified by compelling
circumstances.

[20]

We agree with this analysis, and would add only that the stage of the
litigation is also a consideration in assessing the fourth factor. As we have
indicated, reviewability is also a principle to be considered. Public
confidence in the administration of justice will not necessarily be furthered
where courts demand speedy government action when appellate processes have not
yet been concluded.

Should the Extension be Granted
in this Case?

[21]

This is not a case in which the first factor in
Descheneaux
 a
change in circumstances  provides a basis for extending the suspension. There
have been no unexpected or unusual developments, either in the litigation or in
the circumstances in Parliament that explain the failure of the government to
introduce and pass new legislation. On the other hand, there have also been no
developments that make striking down the legislation more exigent than it was
when the suspension was granted.

[22]

The second factor  the continued existence of considerations favouring
a suspension of the declaration  is important in this case. The trial judge,
at para. 610, found that an immediate striking down of the legislation
would
pose a
potential danger to the public or threaten the rule of law.
The Ontario
Court of Appeal, at para. 12 of its recent decision, found that immediately
striking down the legislation in issue would pose an unacceptable danger to
[those currently held in administrative segregation] and, ultimately, to the
public.

[23]

The risk inherent in striking down the legislation before replacement
provisions are in place remains as serious as it was when the judge originally
suspended his declaration. We agree that the security of penitentiaries would
be at risk if the legislation were immediately struck down. Administrative
segregation or a more appropriate alternative regime must be in place to
protect inmates who would be exposed to risk in the general population and to
provide safety for persons who work in penitentiaries. In that respect, a
suspension of the declaration is no less important today than it was when the
judge made his original order.

[24]

The third factor  the expectation that new legislation will be enacted
in a timely manner  also favours extending the suspension. While Parliament
has not proceeded as quickly as it might have, the government has now
introduced a bill in the House of Commons. There is no reason to doubt the
governments resolve or ability to have the legislation passed before
Parliament rises for the summer break.

[25]

The fourth factor  confidence in the administration of justice and
respect for the constitution  is, in this case, a neutral one. The governments
failure to respect the judges order by acting quickly may be seen as a
challenge to the effectiveness of the courts as guardians of the constitution.
On the other hand, the fact that the appeal is ongoing means that the
constitutionality of the legislation remains a matter of debate. Reviewability
of the lower court order is important and public confidence in the
administration of justice may also be served by the courts refraining from
acting precipitously in striking down legislation that may yet prove to be
constitutionally sound.

[26]

In our view, the fact that the government appears to be acting in good
faith to change the legislation, and the risk of serious harm if the
legislation is immediately struck down, lead to the conclusion that the suspension
of the declaration of invalidity ought to be extended.

[27]

We are not, however, convinced that the extension should be as long as
the one sought by the Attorney General, nor are we convinced that it should be
unconditional.

[28]

In terms of timing, we recognize that parliamentary procedures are
critical to the functioning of a democracy and that they take time. We must
allow sufficient time for the remaining steps in the passage of legislation to
run their course. While the public is entitled to expect that correcting
unconstitutional legislation will be treated as a priority by the government, Parliament
should be afforded the discretion, within limits, to control its own agenda.

[29]

That said, Parliament must also take responsibility for correcting
unconstitutional legislation. For that reason, we are of the view that the suspension
period should end while Parliament is still sitting rather than during the
Parliamentary recess.

[30]

We also note that, from a practical point of view, the parties ought to
be able to reappear before this Court, if necessary, in the days before the
suspension expires. While this Court sits in July, it may be difficult for the
parties to appear before the panel during that month, due to the Courts
reduced rota.

[31]

For these reasons, the suspension will not be extended beyond June 17,
2019, without further order of the Court. We recognize that the Ontario
declaration of invalidity has been suspended only until April 30, 2019, and
that an extension of the British Columbia declaration beyond that date may be
of little more than academic interest.

Conditions of the Extension

[32]

While we are prepared to extend the suspension of the declaration of constitutional
invalidity, that cannot be a justification for the federal government to
maintain unchanged the conditions of inmates kept in administrative
segregation. Without violating the existing legislation, the government must
take steps to deal with constitutional concerns.

[33]

It is our view that the circumstances of this case are such that
conditions ought to be placed on the extension of the suspension of the
declaration. The Court recognizes that the formulation and implementation of
detailed policies is ordinarily a matter to be left to the executive branch of
government. However, the inordinate delays in this case justify the Courts
intervention. This is especially so, given that the Attorney General does not
seriously dispute that current practices do not conform to constitutional
requirements.

[34]

Based on the evidence before us, including the Attorney Generals written
submissions regarding Canadas plans, we are of the view that the following
requirements are feasible and should be imposed:

a)

The
daily visits of health care professionals with inmates in administrative
segregation must include a visual observation of the inmate, unless, due to
exceptional circumstances, such observation would jeopardize the safety of
Correctional Service of Canada personnel. Section 70 of Commissioners
Directive 709 will be interpreted as including the requirement for visual
observation;

b)

Where
a health care professional who has visited an inmate in administrative
segregation is of the opinion that the inmate should be removed from
administrative segregation or be subject to altered conditions of confinement,
the health care professional must advise the institutional head, in writing, of
that opinion and the basis upon which it has been reached. The health care
professional must provide such advice as soon as reasonably practical and, in
any event, not less than 24 hours after forming the opinion;

c)

Where
an institutional head receives such an opinion from a health care professional,
the institutional head must, without delay, implement the recommendation of the
health care professional or provide a written explanation as to why the
recommendation is not being implemented. Copies of the written explanation, along
with the health care professionals written advice, must be provided to the health
care professional, the inmate, and, at the inmates direction, to counsel;

d)

Inmates
in administrative segregation must be offered an additional 30 minutes of yard
time each day. For clarity, s. 39(c) of Commissioners Directive 709 will
be applied by the Correctional Service of Canada to ensure that all inmates in
administrative segregation are provided with the opportunity to be out of their
cells for a minimum of 2½ hours per day. Within that period, inmates must be
given the opportunity to exercise outdoors for at least 1½ hours every day,
unless the weather does not permit exercise to be taken outdoors, in which case
the exercise opportunity will be provided indoors. These requirements will be
met each day, including on weekends and holidays;

e)

The Correctional Service of Canada must

i.

Issue a Policy Bulletin, that will be distributed to all staff,
directing staff to allow counsel to attend institutional segregation review
board hearings to make submissions on behalf of the inmate whose case is
reviewed;

ii.

Issue a Policy Bulletin confirming that inmates in administrative
segregation are allowed to make calls to counsel in a private area outside of
their cells; and

iii.

Distribute
a memorandum to affected staff and Inmate Committees confirming the policy set
out in s. 33 of Commissioners Directive 709 that upon admission to administrative
segregation, an inmate will, without delay, be informed of their right to
counsel and given a reasonable opportunity to retain and instruct counsel in
private;

f)

The Correctional Service of Canada must take steps to have Indigenous
Elders routinely visit segregation units and offer one-on-one counselling to
Indigenous inmates.

g)

The
Correctional Service of Canada must issue to all institutions a Case Management
bulletin advising that Indigenous Elders will be asked to attend segregation
units on their first day of work to get acquainted with inmates and, thereafter,
to be available for a minimum of two hours per working day to provide services
to inmates in administrative segregation;

h)

The
Correctional Service of Canada must complete a review of current institutional
standing orders and infrastructure and must provide written recommendations to
the Commissioner about how Indigenous inmates being held in administrative
segregation may be provided consistent access to smudging and, as circumstances
permit, ceremonial and spiritual practices.

i)

The Correctional Service of Canada must begin opening units outside of
administrative segregation for inmates who do not wish to integrate into the
mainstream inmate population and for inmates who are assessed as being unable
to integrate into the mainstream inmate population safely but who do not meet
the legislated criteria for placement in administrative segregation;

j)

The Correctional Service of Canada must establish a system of review
whereby no inmate will remain in administrative segregation for more than
fifteen days without such continued detention being authorized by a senior
official who is neither the institutional head of the institution where the
inmate is incarcerated nor a person who is subordinate to that institutional
head.

[35]

The requirements set out in subparagraphs a) to f) must be fulfilled as
soon as possible, and, in any event, before January 18, 2019, the date when the
suspension given by the trial judge expires.

[36]

The requirements in subparagraphs g) and h) must be met by May 1, 2019.

[37]

Canada must report its progress with respect to the requirements in
subparagraphs g) through j) prior to February 28, 2019, by letter addressed to
the Registrar to be brought to the attention of the panel. Counsel for the
Attorney General should also provide a copy to counsel for the respondents. Upon
receipt of the report, the Court reserves the power to impose additional
conditions on the continuation of the suspension of the declaration.

[38]

These orders will continue in place for the duration of the suspension,
or until further order of the Court.

Disposition

[39]

The suspension of the declaration of invalidity is extended until June
17, 2019, or until further order of this Court, subject to the conditions set
out in these reasons.

The Honourable Mr. Justice Groberman

The Honourable Mr. Justice Willcock

The
Honourable Mr. Justice Fitch


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Chin v. Hegarty,

2019 BCCA 7

Date: 20190107

Dockets:
CA44935; CA44987

Docket: CA44935

Between:

Chuan Yeen Chin

Appellant

(Claimant)

And

Peter John Hegarty

Respondent

(Respondent)

- and -

Docket: CA44987

Between:

Chuan Yeen Chin

Appellant

(Claimant)

And

Peter John Hegarty

Respondent

(Respondent)

Before:

The Honourable Madam Justice Saunders

The Honourable Madam Justice Dickson

The Honourable Madam Justice Griffin

Supplementary Reasons
to
Chin v. Hegarty
, 2018 BCCA 451.

Counsel for the Appellant:

H.M. Dale

The Respondent, appearing in person:

P.J. Hegarty

Place and Date of Hearing:

Vancouver, British
  Columbia

November 14, 2018

Place and Date of Judgment:

Vancouver, British
  Columbia

November 14, 2018

Written Submissions received:

November 22, 2018

Date of Supplementary Judgment:

January 7, 2019

Supplementary Reasons of the Court

Summary:

The appellant was successful
in the appeals, resulting in an order setting aside three orders in the Supreme
Court of British Columbia. Apart from costs of the appellants application to
extend time to appeal which were ordered in favour of the respondent when the
extension was granted, the appellant, having been successful, is entitled to
costs of the appeals and of the applications giving rise to the orders
appealed.

Supplementary Reasons for
Judgment of the Court:

[1]

These supplementary reasons address the costs issues arising from our
order of November 14, 2018, whereby we set aside three orders made by Mr. Justice
Dley:

·

an
order pronounced October 14, 2016, which varied a consent order relating to the
sale of a condominium and dismissed an application brought by Ms. Chin
under s. 221 of the
Family Law Act
, S.B.C. 2011, c. 25, seeking
to prohibit Mr. Hegarty from pursuing his attempts at variation;

·

an
order pronounced November 18, 2016, which awarded fixed costs to Mr. Hegarty
for the proceedings related to the October 14
th
order; and

·

an order pronounced November 1, 2017, following Mr. Hegartys
election to acquire the condominium, stipulating that Ms. Chin would be responsible
for a portion of the applicable capital gains, budget repair levy and marketing
costs.

[2]

Ms. Chin seeks both costs of the appeal and costs of the applications
before Justice Dley that gave rise to the orders appealed.

[3]

Mr. Hegarty seeks costs related to Ms. Chins application for
an extension of time to appeal, an application granted by Chief Justice Bauman.
Mr. Hegarty otherwise seeks an order that the parties bear their own costs
of the appeal and of the applications before Justice Dley. He contends that the
parties could have avoided significant expenditures had Ms. Chin appealed
the October 14
th
order in a timely fashion.

[4]

As to the application for an extension of time to appeal, costs were
awarded to Mr. Hegarty by the Chief Justice, and that order stands. On the
other costs of the appeal, we see no reason to stray from the general rule that
costs of an appeal are payable to the successful appellant:
Catalyst Paper
Corporation v. Companhia de Navegação Norsul
, 2009 BCCA 16. Ms. Chin
is accordingly entitled to costs of the appeal, with the exception of the costs
already ordered in Mr. Hegartys favour determined by Chief Justice Bauman.

[5]

As to the proceedings in the Supreme Court of British Columbia, Ms. Chin
is entitled to costs of the applications relating to the three orders mentioned
above, on the premise that trial costs most usually follow the results of an
appeal:
Rick v. Brandsema
, 2008 BCCA 96;
Murphy v.
Murphy
, 2007 BCCA 591. Ms. Chin was successful on
appeal in setting aside all of the orders in issue, with the result that the
central application brought before Mr. Justice Dley has now been decided in
her favour.

[6]

Mr. Hegarty contends that we should depart from the usual approach
because Ms. Chins late filing of the appeal occasioned wasted expenditures
concerning the sale of the property. The root cause of the expenditures,
however, lies with the orders that were successfully appealed by Ms. Chin.
It seems to us that Mr. Hegarty cannot complain of money spent under an
order or orders made on his application that should not have been made in the
first place.

[7]

In conclusion, Ms. Chin shall have her costs of the applications in
the Supreme Court before Justice Dley and, with the exception of costs ordered
by Chief Justice Bauman for the extension of time application, costs of the
appeal.

The Honourable Madam Justice
  Saunders

The Honourable Madam Justice
  Dickson

The Honourable Madam Justice Griffin