gestion complexe cousineau v. canada
A-45-95
Gestion Complexe Cousineau (1989) Inc. (Appellant) (Applicant)
v.
Minister of Public Works and Government Services of Canada and Attorney General of Canada for Her Majesty the Queen in right of Canada (Respondents) (Respondents)
and
Complexe Métro Longueuil Ltée and Minister of Revenue of Canada (Mis en cause) (Mis en cause)
Indexed as: Gestion Complexe Cousineau (1989) Inc. v. Canada (Minister of Public Works and Government Services) (C.A.)
Court of Appeal, Hugessen, Desjardins and Décary JJ.A."Ottawa, May 4, 5 and 12, 1995.
Federal Court jurisdiction " Appeal Division " Appeal from dismissal of application for judicial review of call for tenders, award of contract for leased premises " Federal Real Property Regulations, enacted under Federal Real Property Act, permitting Minister to lease real property " Federal Court Act, s. 18(1)(a) permitting review of exercise of power conferred by Act of Parliament " Purpose, intent of s. 18(1)(a) " Not requiring Act be actual source of power " Once codified with legislative authority, Minister's power to lease real property "power conferred by or under an Act of Parliament".
Construction of statutes " Federal Court Act, s. 18(1)(a) permitting judicial review of exercise of "power conferred by or under an Act of Parliament" " Purpose, intent of s. 18(1)(a) " Liberal interpretation in light of Parliament's tendency to make government increasingly accountable " Minister expressly empowered by regulation made pursuant to Act of Parliament to lease real property exercising power "conferred by or under an Act of Parliament" when calls for tenders.
Administrative law " Judicial review " Appeal from dismissal of application for judicial review of call for tenders, award of contract for leased premises " Minister authorized by regulations, enacted pursuant to Act of Parliament, to lease real property " Federal Court Act, s. 18(1)(a) permitting judicial review of exercise of power conferred by Act of Parliament " Not requiring Act to be actual source of power " Once codified with legislative authority, Minister's power to lease real property power conferred by Act of Parliament.
Crown " Contracts " Appeal from dismissal of application for judicial review of call for tenders, award of contract for leased premises " Bid documents giving Minister significant discretion enabling him to determine what constituted acceptable variances " Purpose of tendering process to protect taxpayers by enabling Minister to select among bids substantially meeting requirements one having greatest advantage to government " Minister having power to pursue dialogue with bidders to clarify ambiguities, so consent given with full knowledge of facts " Intervention not warranted given nature of bid documents; no legislative, regulatory requirements; nature of objections.
This was an appeal from the dismissal of an application for judicial review of the process whereby the Minister of Public Works called for tenders and awarded a contract for leased premises. The respondents argued that the Court lacked jurisdiction to hear the application because the call for tenders involved the exercise of the Minister's inherent power to enter into contracts, not a "power conferred by or under an Act of Parliament". Federal Court Act, paragraph 18(1)(a) gives the Court the power to review the decisions of "any federal board, commission or other tribunal", which subsection 2(1) defines as "any . . . person . . . exercising . . . powers conferred by or under an Act of Parliament". The respondents submitted that the "Act of Parliament" must be the actual source of the power exercised by the Minister. Federal Real Property Regulations, subsection 4(1) permits the Minister to enter into an acquisition of real property. The Regulations were made pursuant to Federal Real Property Act, paragraph 16(2)(b), which permits the Governor in Council to make regulations respecting the purchase, lease or other acquisition of real property. The respondents submitted that paragraph 16(1)(b) was at most an authorizing provision which codified, but did not limit, the Crown's inherent power and that decisions made in the exercise of a general power of administration are not subject to judicial review.
The appellant objected that the successful bid did not meet the essential requirements in the bid documents and that the Minister had allowed the mis en cause to improve its offer when the date for opening the bids had expired.
Held, the appeal should be dismissed.
The phrase "powers conferred by or under an Act of Parliament" is particularly broad and is not subject to the limitation suggested by the Minister. Once the Minister's power to lease real property was codified with the authority of legislation, it was no longer an inherent power, but a "power conferred by or under an Act of Parliament".
When Parliament amended paragraph 18(1)(a) in 1990 to permit judicial review of decisions made in the exercise of a royal prerogative, it intended that very little would be beyond the scope of judicial review. The "legality" of acts done by the government does not depend solely on whether such acts comply with the stated requirements of legislation and regulations. When the Minister calls for tenders, he is establishing a procedural framework which brings into play the principle of reasonable or legitimate expectation that the Minister will observe the commitments therein made as to the procedure to be followed, regardless of whether the Minister acted on his own initiative or in compliance with regulations. This liberal approach to paragraph 18(1)(a) is in accord with the tendency shown by Parliament to make government increasingly accountable for its actions. In the absence of any express provision, a bidder's right to apply to this Court does not vary depending on whether the call for tenders was required by regulations or was left to the Minister's initiative. It would be contrary to the letter and the spirit of paragraph 18(1)(a) to say that a Minister expressly empowered by a regulation made pursuant to paragraph 16(2)(b) of the Federal Real Property Act to lease real property is not exercising a power "conferred by or under an Act of Parliament" when he issues a call for tenders prior to the conclusion of a lease.
The appellant erred in describing the requirements in the bid documents as essential. The language of the documents gave the Minister a significant margin of discretion which enabled him to determine what constituted acceptable variances from the requirements stated in the documents. As to the second objection, the mis en cause was simply invited to clarify the answer it had given in its bid to a question asked by the Minister, to which it had replied. The purpose of the tendering procedure is to protect taxpayers by enabling the Minister to select among bids substantially meeting the requirements the one which, all things considered, has the greatest advantages for the government. The Minister has the power, once the bids are opened to pursue a dialogue with bidders in order to clear up any ambiguities or obtain clarification and so give his consent with full knowledge of the facts.
statutes and regulations judicially considered
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5].
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2(1) (as am. by S.C. 1990, c. 8, s. 1), (2) (as am. idem), 18(1)(a) (as am. idem, s. 4), 18.1(4)(e) (as enacted idem, s. 5).
Federal Real Property Act, S.C. 1991, c. 50, s. 16(2)(b).
Federal Real Property Regulations, SOR/92-502, ss. 2, 4(1).
Parliament of Canada Act, R.S.C., 1985, c. P-1.
cases judicially considered
applied:
Bendahmane v. Canada (Minister of Employment and Immigration), [1989] 3 F.C. 16; (1989), 61 D.L.R. (4th) 313; 8 Imm. L.R. (2d) 20; 95 N.R. 385 (C.A.).
distinguished:
Southam Inc. v. Canada (Attorney General), [1990] 3 F.C. 465; (1990), 73 D.L.R. (4th) 289; 1 C.R.R. (2d) 193; 114 N.R. 255 (C.A.); revg [1989] 3 F.C. 147; (1989), 43 C.R.R. 87; 27 F.T.R. 189 (T.D.).
considered:
R. in right of Ontario et al. v. Ron Engineering & Construction (Eastern) Ltd., [1981] 1 S.C.R. 111; (1981), 119 D.L.R. (3d) 267; 13 B.L.R. 72; 35 N.R. 40.
referred to:
Grand Council of the Crees (of Quebec) v. R., [1982] 1 F.C. 599; (1981), 124 D.L.R. (3d) 574; 41 N.R. 257 (C.A.); leave to appeal to S.C.C. refused [1982) 1 S.C.R. VIII; (1982), 41 N.R. 354; Northeast Marine Services Ltd. v. Atlantic Pilotage Authority, [1995] F.C.J. No. 99 (C.A.) (QL); Pulp, Paper and Woodworkers of Canada, Local 8 v. Canada (Minister of Agriculture) (1994), 174 N.R. 37 (F.C.A.); Haig v. Canada, [1992] 3 F.C. 611 (C.A.); affd Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995; (1993), 156 N.R. 81; Native Women's Assn. of Canada v. Canada, [1992] 3 F.C. 192; (1992), 95 D.L.R. (4th) 106; [1992] 4 C.N.L.R. 71; 10 C.R.R. (2d) 268; 146 N.R. 40 (C.A.); revd by Native Women's Assn. of Canada v. Canada, [1994] 3 S.C.R. 627; Cree Regional Authority v. Canada (Federal Administrator), [1991] 3 F.C. 533; (1991), 81 D.L.R. (4th) 659; 1 Admin L.R. (2d) 173 (C.A.); Thomas C. Assaly Corp. v. R. (1990), 44 Admin. L.R. 89; 34 F.T.R. 156 (F.C.T.D.); Friends of the Island Inc. v. Canada (Minister of Public Works), [1993] 2 F.C. 229; (1993), 102 D.L.R. (4th) 696; 10 C.E.L.R. (N.S.) 204; 61 F.T.R. 4 (T.D.); Beauchamp v. Hockin (1989), 30 F.T.R. 318 (F.C.T.D.); Peet v. Canada (Attorney General), [1994] 3 F.C. 128; (1994), 78 F.T.R. 44 (T.D.).
authors cited
Canada. House of Commons Debates, 2nd Sess., 34th Parl., 38 Eliz. II, Vol. IV, November 1, 1989.
Desjardins, Alice. "Review of Administrative Action in the Federal Court of Canada: The New Style in a Pluralist Setting", in Special Lectures of the Law Society of Upper Canada, Toronto: Carswell, 1992.
APPEAL from dismissal of judicial review application (Gestion Complexe Cousineau (1989) Inc. v. Canada (Minister of Public Works and Government Services), [1995] F.C.J. No. 97 (T.D.) (QL)). Appeal dismissed.
counsel:
Sylvain Lussier and Line Lacasse for appellant (applicant).
Jacques Ouellet, Q.C. and André Brault for respondents (respondents).
solicitors:
Desjardins, Ducharme, Stein, Monast, Montréal, for appellant (applicant).
Deputy Attorney General of Canada for respondents (respondents).
The following is the English version of the reasons for judgment rendered by
Décary J.A.: The Minister of Public Works and Government Services of Canada (the Minister), who was desirous of finding leased premises on the Montréal South Shore to accommodate the Department of National Revenue offices as of June 1995, issued a call for tenders in August 1994. Three bidders responded, including the appellant and the mis en cause Complexe Métro Longueuil Ltée. After analysing the bids, the Minister accepted that of the mis en cause.
By an application for judicial review, the appellant promptly applied to this Court for review of the process whereby the contract was awarded to the mis en cause. The conclusions sought were a declaration that the awarding of the contract was void and quashing of the Minister's decision accepting the mis en cause's bid.
The Motions Judge dismissed the application on the ground essentially that the bid documents gave the Minister a very broad discretion and ruled out "rigid standards in the consideration of the bids, which to [his] way of thinking are simply required to respond substantially to the requirements in the . . . invitation to tender".1*ftnote1 [1995] F.C.J. No. 97 (T.D.) (QL), at p. 12. He accordingly did not think it appropriate to rule on the Minister's argument that under the wording of paragraph 18(1)(a) of its enabling Act [Federal Court Act, R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 4)], the Federal Court lacked jurisdiction to hear an application for judicial review of the exercise by the Minister of his inherent power of administration.
I will deal with the question of jurisdiction at the outset.
In its simplest terms the respondents' argument is as follows:
(a) paragraph 18(1)(a) of the Federal Court Act (the Act) gives the Court the power to judicially review the decisions of "any federal board, commission or other tribunal";
(b) subsection 2(1) [as am. idem, s. 1] of the Act defines the term "federal board, commission or other tribunal" as follows: "any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown" (my emphasis);
(c) when the Minister issued a call for tenders in order to select the eventual owner of the premises he wished to lease he acted pursuant to the Crown's inherent power to enter into contracts and as a "servant of the Crown" rather than "as an agent of the legislature for the performance of a specific duty imposed on him by a statute for the benefit of some designated third person";2*ftnote2 The expressions used by counsel for the respondents are taken from the reasons for judgment of this Court in Grand Council of the Crees (of Quebec) v. R., [1982] 1 F.C. 599 (C.A.), at p. 601.
(d) neither paragraph 16(2)(b) of the Federal Real Property Act,3*ftnote3 S.C. 1991, c. 50. which provides that the Governor in Council may make regulations "respecting the purchase, lease or other acquisition of real property on behalf of Her Majesty", nor subsection 4(1) of the Federal Real Property Regulations (the Regulations),4*ftnote4 SOR/92-502. made pursuant to paragraph 16(2)(b), which provides that "[a] Minister may enter into an acquisition, a disposition or an option for an acquisition or for a disposition"5*ftnote5 Under s. 2 of the Regulations, "acquisition" means "an acquisition by Her Majesty of real property, including by lease". constitutes an "Act of Parliament" contemplated in the definition of "federal board, commission, or other tribunal", because the "Act of Parliament" referred to by that definition must be the actual source of the power exercised by the Minister6*ftnote6 See Southam Inc. v. Canada (Attorney General), [1990] 3 F.C. 465 (C.A.), at p. 479; revg [1989] 3 F.C. 147 (T.D.). and in the circumstances paragraph 16(2)(b) is at most an authorizing provision which codifies but does not limit the Crown's inherent power;
(e) decisions made in the exercise of a general power of administration are not subject to judicial review;
(f) with the decision of the Supreme Court of Canada in R. in right of Ontario et al. v. Ron Engineering & Construction (Eastern) Ltd.7*ftnote7 [1981] 1 S.C.R. 111.
the decisions of the government regarding a call for tenders have been taken out of the field of administrative law as such and placed in that of the law of contract, and what is more by a curious reversion the courts have subsequently imposed on the contracting party issuing the calls for tenders, and hence on the government, implicit duties of fairness which in the respondents' submission correspond to those defined in connection with applications for judicial review;8*ftnote8 See Northeast Marine Services v. Atlantic Pilotage Authority (January 25, 1995), A-1520-92, not yet reported, per Stone J., at pp. 13-14 [[1995] F.C.J. No. 99 (QL)].
(g) in short, the remedy available to a disappointed bidder is contractual in nature and he cannot dispute the legality of the decision made by the Minister as such.
Attractive as this proposition may be, it comes up against arguments from the legislation and from principle which seem to me to be unanswerable.
The phrase "powers conferred by or under an Act of Parliament" found in the definition of a "federal board, commission or other tribunal" is particularly broad and is not subject to the limitation suggested by the Minister. In the case at bar I do not have to consider whether the Minister is a servant of Her Majesty or whether the act done by him is binding on Her Majesty. I also do not have to examine whether the Minister is part of the federal government in the ordinary sense of that phrase or whether the act done falls within the jurisdiction of the Parliament of Canada as opposed to the provincial legislatures. These points are not in dispute. Further, I do not need to engage in a constitutional analysis of the concept of "the Crown's inherent administrative power", since the Minister's power to enter into the acquisition of real property by lease may no longer be described as an inherent power once the Governor in Council, with the authority of legislation, has seen fit to codify it in language containing no ambiguity: "a Minister may enter into an acquisition". It may well be, as the respondents argued, that this conferring of power by the combined effect of a statute and regulation was not necessary, but strictly speaking I am only required to consider whether there is a "[power] conferred by or under an Act of Parliament" within the meaning of the definition of "federal board, commission or other tribunal", and I can only conclude that there is.
It should be borne in mind that what is at issue here is determining whether a litigant has access to this Court's power of review in connection with a legislative provision"paragraph 18(1)(a ) of the Federal Court Act"by which Parliament sought to make the federal government subject to the Court's superintending and reforming power. As I see it, there is no reason to try and distort the usual meaning of the words or strive to divest them of all practical meaning by resort to fine distinctions suited to constitutional analysis, which would have a sterilizing effect contrary to the intent of Parliament.
When it amended paragraph 18(1)(a) of the Federal Court Act in 19909*ftnote9 An Act to amend the Federal Court Act, the Crown Liability Act, the Supreme Court Act and other Acts in consequence thereof, S.C. 1990, c. 8, assented to on March 29, 1990 and in effect on February 1, 1992. to henceforward permit judicial review of decisions made in the exercise of a royal prerogative,10*ftnote10 Parliament was careful to make it clear in s. 2(2) [as am. idem, s. 1] of the Federal Court Act that the Senate, House of Commons and any committee or member of either chamber were excluded from the definition of a "federal board, commission or other tribunal". The latter amendment may have been intended as a response to the decision by Strayer J., as he then was, on June 8, 1989 in Southam (supra, note 6), a decision which was subsequently reversed on appeal on August 23, 1990 (supra, note 6), at a time when the amendment in question was not yet in effect. As to the scope of the amendment of the definition of a "federal board, commission or other tribunal", see the comments by Alice Desjardins J.A. of this Court in "Review of Administrative Action in the Federal Court of Canada: The New Style in a Pluralist Setting", Special Lectures of the Law Society of Upper Canada, Toronto, Carswell, 1992, at pp. 405-437. Parliament unquestionably made a considerable concession to the judicial power and inflicted a significant setback on the Crown as the executive power, if one may characterize making the government still further subject to the judiciary as a setback.11*ftnote11 In proposing second reading of Bill C-38 in Parliament on November 1, 1989 the Minister of Justice of Canada, Hon. Doug Lewis, said the following inter alia (House of Commons Debates, 2nd Sess., 34th Parl., 38 Eliz. II, Vol. IV, Nov. 1, 1989, at pp. 5413-5414):
The over-all purpose of this legislation is to give the ordinary citizens who wish to sue the federal government easier access to the Canadian courts and to reduce or eliminate the legal barriers and the inequities that a citizen now faces in such litigation.
. . .
The bill will remove or modify those specific [Crown] privileges and, in doing so, continue the trend of placing the Crown on a footing of greater equality with the ordinary citizen. What appears from this important amendment is that Parliament did not simply make the "federal government" in the traditional sense subject to the judiciary, but intended that henceforth very little would be beyond the scope of judicial review. That being so, I must say I have some difficulty giving to s. 18(1)(a) an interpretation which places Ministers beyond the scope of such review when they exercise the most everyday administrative powers of the Crown, though these are also codified by legislation and regulation.
With respect, that would be to take an outmoded view of supervision of the operations of government. The "legality" of acts done by the government, which is the very subject of judicial review, does not depend solely on whether such acts comply with the stated requirements of legislation and regulations. For example, when the Minister makes a call for tenders he is establishing a procedural framework which brings into play the principle of reasonable or legitimate expectation recognized by this Court in Bendahmane v. Canada (Minister of Employment and Immigration).12*ftnote12 [1989] 3 F.C. 16 (C.A.). See also Pulp, Paper and Woodworkers of Canada, Local 8 v. Canada (Minister of Agriculture) (1994), 174 N.R. 37 (F.C.A.).
The unsuccessful bidder thus has the right to ask the Court, by an application for judicial review, to compel the Minister to observe commitments made by him as to the procedure he intended to follow, regardless of whether the Minister acted on his own initiative or in compliance with regulations.
Further, in the affidavit of Dominique Lévesque13*ftnote13 A.C., Vol. 3, at p. 657. the Minister himself acknowledged that an "attempt to improve [an] offer from the financial point of view" could not be considered "because it would be contrary to the rules applicable to public tenders". Although counsel for the Minister refused to specify which rules were applicable, apart from that proscribing alterations to the price, the fact remains that the Minister himself admitted that certain implicit rules existed.
This liberal approach to the wording of paragraph 18(1)(a) is not new to this Court.14*ftnote14 See Haig v. Canada, [1992] 3 F.C. 611 (C.A.); affd by [1993] 2 S.C.R. 995; Native Women's Assn. of Canada v. Canada, [1992] 3 F.C. 192 (C.A.); rev. on another point by [1994] 3 S.C.R. 627; Cree Regional Authority v. Canada (Federal Administrator), [1991] 3 F.C. 533 (C.A.); Thomas C. Assaly Corp. v. R. (1990), 44 Admin. L.R. 89 (F.C.T.D.), per Strayer J., as he then was; Friends of the Island Inc. v. Canada (Minister of Public Works), [1993] 2 F.C. 229 (T.D.), per Reed J.; Beauchamp v. Hockin (1989), 30 F.T.R. 318 (F.C.T.D.), per Denault J.; Peet v. Canada (Attorney General), [1994] 3 F.C. 128 (T.D.), per Reed J. It is readily understandable, if one only considers the litigant's viewpoint and takes account of the tendency shown by Parliament itself to make government increasingly accountable for its actions. In the absence of any express provision, one would hardly expect a bidder's right to apply to this Court to vary depending on whether the call for tenders was required by regulations (as in Assaly)15*ftnote15 Supra, note 14. or, as in the case at bar, was left to the Minister's initiative. The Minister, the type of call for tenders, the procedural framework, the implicit rules, the type of decision and the type of injury sustained are all the same. It goes without saying that once the litigant is before the Court there may be greater scope for challenging the legality when legislative or regulatory provisions exist, and I will return to this point; but for the very right to apply to the Court to depend on whether the Minister issuing a call for tenders acted pursuant to an inherent power of the Crown, acted under that inherent power when it had been simply codified or acted under legislation imposing specific duties on him defies all logic.
Relying on Southam Inc. v. Canada (Attorney General),16*ftnote16 Supra, note 6. the respondents argued that when as in the case at bar a statute defines or merely states the Crown's inherent power of administration, the source of the power is not the statute itself but the inherent power in question, and that accordingly it cannot be said that the power exercised by the Minister is "conferred by or under an Act of Parliament".
It is not possible to generalize the meaning of Southam to this degree. The Senate's powers clearly derived from section 18 of the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]] and the nature of these powers both in terms of constitutional and administrative law were in no way comparable to those of a minister of the Crown. Iacobucci C.J., then a member of this Court, was in any case careful, immediately after saying that in his opinion the source of the Senate's powers was the Constitution Act, 1867 rather than the Parliament of Canada Act, added that in any case he did not see "how the Senate or one of its committees [could] be treated as a [cad096]federal board, commission or tribunal[cad039] by the plain meaning of those words in section 18 of the Federal Court Act" (at page 480), and he said he was unable to "accept that, when Parliament passed the Federal Court Act in 1970, it intended to assign to the Federal Court a supervisory judicial review jurisdiction over the Senate, the House of Commons or their committees as [cad096]federal boards, commissions or tribunals[cad039] " (at page 481). He further noted that the federal statute in question had been adopted pursuant to section 18 of the Constitution Act, 1867, not pursuant to section 91 of that Act; as he indicated at page 482, section 101 of the Constitution Act, 1867 (which is the constitutional basis for the Federal Court) is concerned only with the better administration of section 91 laws.
In recent years Parliament has made a considerable effort to adapt the jurisdiction of this Court to present-day conditions and to eliminate jurisdictional problems which had significantly tarnished the Court's image. As between an interpretation tending to make judicial review more readily available and providing a firm and uniform basis for the Court's jurisdiction and an interpretation which limits access to judicial review, carves up the Court's jurisdiction by uncertain and unworkable criteria and inevitably would lead to an avalanche of preliminary litigation, the choice is clear. I cannot assume that Parliament intended to make life difficult for litigants.
I thus come to the conclusion that it would be contrary to the letter and the spirit of paragraph 18(1)(a) to say that a minister expressly empowered by a regulation made pursuant to paragraph 16(2)(b) of the Federal Real Property Act to lease real property is not exercising a power "conferred by or under an Act of Parliament" when he issues a call for tenders prior to the conclusion of a lease.
I cannot conceal the hesitation I would have had in categorically stating that in no circumstances could the Federal Court by way of judicial review determine the legality of a tender proceeding, as essentially that is what is meant when it is argued that the Court does not have jurisdiction. It is one thing to say that a remedy is more or less appropriate depending on the circumstances; it is another to say that a remedy is systematically prohibited in all circumstances. It seems to me that the respondents have confused these two ideas. It may be that in reality they will more often than not be right in that the courts will seek in vain for the illegality which alone could justify intervention. The fact remains that under the language conferring jurisdiction on the Court, Parliament authorized challenges to such decisions and the fact that in practice they will seldom be successfully challenged does not mean that the Court lacks jurisdiction over them.
In the case at bar we need only assume that the appellant was able to prove the allegations of collusion between the Crown and the mis en cause which were originally its principal ground of challenge (and which it withdrew during the course of its action). Would the Court not then have had jurisdiction in hearing an application for judicial review to quash the disputed actions on the ground of fraud mentioned in paragraph 18.1(4)(e) [as enacted by S.C. 1990, c. 8, s. 5] of the Federal Court Act? Additionally, what is the position of a third party who in view of the collusion refrained from making a bid and which because it did not do so was not a "contracting party" within the meaning of Ron Engineering?17*ftnote17 Supra, note 7.
Could it be compelled to take its chance in a delictual action against the Crown? And what should be said of the fraudulent act which would be beyond the scope of any judicial review, including in this Court an application for a declaratory judgment, and could never be quashed?
Having said that, the Minister's proposition, which I do not accept, does have the merit of drawing attention to the degree of difficulty a bidder faces if he opts for an application for judicial review, and the fact that this will vary depending on the grounds and purpose of his challenge.
As by definition the focus of judicial review is on the legality of the federal government's actions, and the tendering procedure was not subject to any legislative or regulatory requirements as to form or substance, it will not be easy, in a situation where the bid documents do not impose strict limitations on the exercise by the Minister of his freedom of choice, to show the nature of the illegality committed by the Minister when in the normal course of events he compares the bids received, decides whether a bid is consistent with the documents or accepts one bid rather than another.
This leads me to the grounds of the appellant's challenge.
It objected that the Minister had accepted a bid which did not meet the requirements in the bid documents, requirements which it said were essential, regarding the adjoining location of the leased premises and their accessibility by handicapped persons. The appellant erred in describing these requirements as essential and arguing that the Minister was absolutely bound by the specific language he had used in the bid documents. On the one hand, the language of the documents did not have either the meaning or absolute nature ascribed to them by the appellant; on the other hand, they gave the Minister a significant margin of discretion which enabled him to determine what in his opinion constituted acceptable variances from the requirements stated in the documents.
The appellant also objected that the Minister allowed the mis en cause to improve its offer when the date for opening the bids had expired. Here again this allegation is groundless. The mis en cause was simply invited to clarify the answer it had given in its bid to a question asked by the Minister, to which it had replied. The purpose of the tendering procedure is essentially to protect taxpayers by enabling the Minister to select among bids substantially meeting the requirements the one which, all things considered, has the greatest advantages for the government. The Minister thus undoubtedly has the power, once the bids are opened, to pursue a dialogue with bidders in order to clear up any ambiguities or obtain clarification and so give his consent with full knowledge of the facts.
At bottom, the appellant is asking the Court to apply a degree of strictness for which there is no justification. On the contrary, the freedom of manoeuvre which the Minister is given in the bid documents, the fact that there is no legislative or regulatory requirement whatever and the nature of the objections regarding the Minister all indicate that the Court should not intervene in the case at bar. In reality, the challenge concerns a type of activity by the Minister which is the least liable to judicial review and the arguments alleged by the appellant in this Court are of a kind which almost certainly doom any judicial review remedy to failure in circumstances such as those under consideration.
The appeal should be dismissed. As the argument in this Court turned largely on the question of the Court's jurisdiction, raised in vain by the respondents, I would only award the latter half the costs of the appeal.
Hugessen J.A.: I concur.
Desjardins J.A.: I concur.