Judgments

[1995] 3 F.C. 474

T-374-95

LGS Group Inc. (Applicant)

v.

The Attorney General of Canada (Respondent)

and

Lee Daws (Intervenor)

Indexed as: LGS Group Inc. v. Canada (Attorney General) (T.D.)

Trial Division, Gibson J.—Ottawa, June 5 and August 18, 1995.

Administrative law — Judicial review — Certiorari — Decision of Minister of Public Works and Government Services to rescind contract with applicant — Minister seeking proposals for design of demonstration environment for logistic, administrative support of DND weapons systems — Applicant’s proposal accepted by Minister — Allegation of conflict of interest based on intervenor’s participation in development of applicant’s proposal — Contract rescinded by Minister for failure to comply with conflict of interest code — Decision to rescind subject to judicial review — No reviewable error by Minister — Duty of fairness to applicant met.

Crown — Contracts — Contract between applicant and Minister of Public Works rescinded for failure by former public office holder to comply with conflict of interest provisions — Intervenor deriving direct benefit from contract — Term “contract” including solicitation process — Must be given broad interpretation commensurate with purpose, principles of conflict of interest code.

Public Service — Conflict of Interest and Post-Employment Code for the Public Service — Issued by Treasury Board under Financial Administration Act, s. 11(2) — Decisions under conflict of interest provisions amenable to judicial review — Former CAF colonel disclosing “insider information” to applicant in preparing proposal for DND project — Deriving direct benefit from contract — Not paid substantial fees for mere “wordsmithing” — Breach of CFAO 19-37 (Canadian Forces Administrative Orders) — No duty of fairness owed to intervenor.

Armed forces — Retired colonel hired as consultant to corporation seeking DND contract — Formerly headed office recommending project in question — Paid $38,000 for three months’ consulting — Not paid such fee for mere editing or “wordsmithing” — Only colonel and few others knew mindset of those reviewing contract proposals — Contract rescinded by Public Works for breach of CFAO 19-37, Conflict of Interest and Post-Employment Code for the Public Service — Decision made by proper authority, Minister of Public Works, not by Admiral who merely prepared briefing note for Minister of National Defence.

This was an application for judicial review of the decision of the Minister of Public Works and Government Services to rescind a contract between the Minister and the applicant. In November 1994 the Minister issued a request for proposals on behalf of the Department of National Defence (DND) for the design and implementation of a demonstration environment for the logistic and administrative support of DND weapons systems. In preparing its proposal, subsequently accepted by the Minister, the applicant hired a former colonel in the Canadian Armed Forces, the intervenor herein, as an independent contractor. The intervenor, who had taken advantage of an early retirement incentive program, previously headed the very office which recommended the request for proposals with respect to the project in question. Under section 28 of DSS-MAS 9676, which formed part of the general terms and conditions of the contract, no former public office holder of the Government of Canada, who is not in compliance with the provisions of the Conflict of Interest and Post-Employment Code for Public Office Holders, shall derive any direct benefit from this contract. An allegation of a possible conflict of interest and unfair advantage to the applicant arose out of the intervenor’s participation in the development of the applicant’s proposal. The latter denied that the intervenor had in any way released “privileged” or “insider” information, stating that his involvement was public knowledge and known at DND. The Minister rescinded the contract for failure to comply with the Conflict of Interest Code and the CFAO 19-37 (Canadian Forces Administrative Orders). The issues were: 1) whether the decision to rescind the contract was subject to judicial review, and 2) if so, whether there was any reviewable error.

Held, the application should be dismissed.

1) Decisions under the conflict of interest provisions for former public office holders are amenable to judicial review. The Federal Court of Appeal decision in Gestion Complexe Cousineau (1989) Inc. v. Canada (Minister of Public Works and Government Services), [1995] 2 F.C. 695 is determinative of the jurisdictional issue. In that case it was said that the Minister’s power related to the tender “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”. Although the Minister’s power to enter into contracts derives from a separate statutory provision, section 16 of the Department of Supply and Services Act, the Minister is still subject in the exercise of that power to regulations enacted by the Governor in Council. By analogy from Cousineau, decisions related to the tendering process for government contracts pursuant to the legislative scheme herein are amenable to judicial review; this rationale applies to the Minister’s actions as a contracting party in rescinding a contract as well as to his actions in entering into a contract. The very basis of the rescission was that the proposal misrepresented compliance with the terms and conditions of the solicitation process. Based on the liberal and inclusive approach to the scope of judicial review approved of by the Court of Appeal, the rescission decision of the Minister was made by a “federal board, commission or other tribunal” as defined in section 2 of the Federal Court Act and was amenable to judicial review.

2) Three questions had to be answered in resolving the issue of reviewable error. It must first be decided whether the rescission decision was made by the proper authority. The submission of the applicant and intervenor, that Admiral Saker was in fact the decision maker, was not supported by the evidence. The Admiral prepared a briefing note for the Minister of National Defence and it was the latter who decided that the intervenor was not in compliance with CFAO 19-37. But it was the Minister of Public Works who rescinded the contract. The second question is whether there was evidence before the Minister of National Defence on which to base his finding. Treasury Board has issued the Conflict of Interest and Post-Employment Code for Public Office Holders under subsection 11(2) of the Financial Administration Act. The intervenor was found not to be in compliance with paragraph 11 of CFAO 19-37 which prohibits members or former members of the Canadian Forces from disclosing “insider information” concerning the programs or policies of the CF until that information becomes generally available to the public. The role of the Court was not to determine whether in fact there had been a breach of CFAO 19-37 and section 28 of DSS-MAS 9676 but whether the finding by the Minister was in error based on the material before him and his advisors. The opinion formed by Admiral Saker as to a breach of paragraph 11 by the intervenor was reasonably open on the material before him and, through him, the decision maker. The giving by the intervenor of advice regarding expectations and mindset of those who would review the applicant’s proposal and of key words and phrases to be emphasized or avoided is counsel, for commercial purposes, concerning the programs or policies of the Canadian Forces and not, as suggested by the applicant, mere editing or “wordsmithing”. Intervenor would not have been paid $38,000 for three months’ work of that description. Only he and a very few others were privy to the mindset of those who would review contract proposals. It was reasonably open to the decision maker, on the basis of the evidence before him, to find that the intervenor was not in compliance with paragraph 11 of CFAO 19-37. If the term “contract” in section 28 of DSS-MAS 9676 were read so as to exclude the solicitation process, a substantial element of the purpose of the Conflict of Interest and Post-Employment Code for Public Office Holders would be in part defeated and that provision would be of no consequence. Section 28 must not be read so as to exempt from scrutiny actions of former public office holders and contractors who mutually benefit from “insider” or “confidential” knowledge merely because the benefit occurs in the process of obtaining a contract and not in fulfilling it. The term “contract” must be given a broad interpretation commensurate with the purpose and principles of the Conflict of Interest Code. Based on this interpretation the intervenor derived a “direct benefit” from the solicitation process by way of the substantial remuneration received for assisting the applicant in preparing its response to the RFP. The decision to rescind the contract was not made without regard to the issue of whether the intervenor derived “any direct benefit from the contract” or in a manner that so lacked consideration of that question as to constitute a reviewable error on the part of the Minister. The last question is whether procedural fairness was required and accorded. The process as described in the record established that the applicant knew the case to be met and had a full opportunity to present its case in a time frame that was reasonable in all the circumstances. No allegation of bias having been raised, the duty of fairness to the applicant was met. The respondent did not owe a duty of fairness to the intervenor; in any case the opportunity provided indirectly for the intervenor to explain his role and the respondent’s consideration of the latter’s response met any minimal duty owed.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Forces Administrative Orders, 19-37.

Department of Supply and Services Act, R.S.C., 1985, c. S-25, ss. 5(2), 16, 17, 18.

Federal Court Act, R.S.C., 1985, c. F-7, ss. 2 “federal board, commission or other tribunal” (as am. by S.C. 1990, c. 8, s. 1), 18.1 (as enacted idem, s. 5).

Federal Court Rules, C.R.C., c. 663, RR. 1612 (as enacted by SOR/92-43, s. 19), 1618 (as enacted idem).

Federal Real Property Act, S.C. 1991, c. 50, s. 16(2)(b).

Federal Real Property Regulations, SOR/92-502, s. 4(1).

Financial Administration Act, R.S.C., 1985, c. F-11, ss. 11(2) (as am. by S.C. 1992, c. 54, s. 81), 41(1).

Government Contract Regulations, SOR/87-402, ss. 5, 7 (as am. by SOR/91-651, s. 3).

National Defence Act, R.S.C., 1985, c. N-5, s. 18(2).

CASES JUDICIALLY CONSIDERED

FOLLOWED:

Gestion Complexe Cousineau (1989) Inc. v. Canada (Minister of Public Works and Government Services), [1995] 2 F.C. 695(C.A.).

APPLIED:

Peet v. Canada (Attorney General), [1994] 3 F.C. 128 (1994), 78 F.T.R. 44 (T.D.); Syndicat des employés de production du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879; (1989), 62 D.L.R. (4th) 385; 100 N.R. 241.

AUTHORS CITED

Conflict of Interest and Post-Employment Code for Public Office Holders. Ottawa: Office of the Ethics Counsellor, 1994.

Treasury Board of Canada. Conflict of Interest and Post-Employment Code for the Public Service. Ottawa: Supply and Services Canada, 1985.

APPLICATION for judicial review of a decision of the Minister of Public Works and Government Services to rescind a contract between the Minister and the applicant. Application dismissed.

COUNSEL:

Barbara McIsaac, Q.C., for applicant.

Michael F. Ciavaglia and Ian D. McCowan for respondent.

Anne M. Mullins and Eric Gionet for intervenor.

SOLICITORS:

McCarthy Tétrault, Ottawa, for applicant.

Deputy Attorney General of Canada for respondent.

Rasmussen, Starr & Ruddy, Ottawa, for intervenor.

The following are the reasons for judgment rendered in English by

Gibson J.: These reasons arise out of an application for judicial review of the decision of the Minister of Public Works and Government Services (the Minister) to rescind contract W8464-4-CA03/01-ER, dated January 30, 1995, between the Minister, representing Her Majesty the Queen in right of Canada, and the applicant. The decision to rescind is dated February 17, 1995.

The applicant seeks an order declaring the decision of the Minister to be invalid and unlawful, and an order in the nature of certiorari quashing the decision of the Minister. In effect, this relief, if ordered, would see the reinstatement of the contract. The intervenor supports the relief sought.

I.          FACTS AND BACKGROUND

On November 17, 1994 the Minister issued a request for proposals (RFP) on behalf of the Department of National Defence (DND) seeking proposals for the design and implementation of a demonstration environment for the logistic and administrative support of DND weapons systems. The project was termed the CALS/CAPERRS Demonstration Environment (CCDE). CALS is an acronym for “Continuous Acquisition and Life Cycle Support” and CAPERRS is an acronym for “Computer Assisted Publishing and Electronic Records Retrieval System”. The intent of the CCDE project was described in the RFP as follows:

… [to] demonstrate the use of information technology applied to improved work processes to achieve substantial productivity gains; promote user acceptance of new technologies by demonstrating their advantages; and accumulate lessons learned on a small scale in order to reduce risks involved in larger scale implementations that will follow.[1]

CALS/CAPERRS technology is essentially an approach to information management which uses computer assisted technology to allow virtually instantaneous communication by electronic means as a replacement for paper/written communication. In other words, as described by the intervenor, it is a management strategy for doing business in a paperless environment. For example, CALS was apparently used in the design of the Boeing 777 aircraft by an international team which communicated design and logistic changes virtually instantaneously via integrated computer systems.

On January 30, 1995, the Minister accepted the applicant’s proposal which formed the basis for a contract with the Department of Public Works and Government Services (Public Works) for the design phase of CCDE. In preparing its proposal, the applicant had employed Lee Daws, the intervenor in this matter, as an independent contractor. The intervenor is a former colonel in the Canadian Armed Forces who left the Armed Forces under an early retirement incentive program on September 15, 1994. From July of 1993 until his retirement, the intervenor was Director of Engineering, Maintenance and Planning Standardization and incident to this position, headed the CALS office at DND.

On February 2, 1995, Public Works called a meeting with the applicant to discuss an allegation by an unnamed complainant of a possible conflict of interest and unfair advantage to the applicant arising out of the intervenor’s participation in the development of the applicant’s proposal. Immediately following this meeting, the applicant received the following faxed request from Public Works:

… as stated during our meeting we are requesting a statement of Mr. Daws’ involvement in the solicitation phase of the formulation of the LGS bid, and your explanation as to how this involvement relates to the post employment provisions of the Conflict of Interest and Post-Employment Code for the Public Service. More specifically, if your view is that there is no problem, as you stated during our meeting, a detailed explanation of why there is no problem will enable both the Minister to respond to the complainant as well as to determine what the fate of the contract with LGS will be.[2]

On this date the applicant also received a stop work order, effective immediately, issued pursuant to section 22 (the “Suspension of Work” provision) of the general conditions forming part of the contract between the applicant and the Minister. This order requested the applicant “to show cause why we should not take further action to dissolve or terminate this contract for failure to comply with the terms and conditions applicable to both the solicitation prior to the contract and the contract itself”.[3]

In response, the applicant wrote to Public Works on February 3, 1995 denying the intervenor had in any way released “privileged” or “insider” information to the applicant and stating the intervenor’s participation was public knowledge and known at DND.[4] The applicant again responded, through its solicitors on February 7, 1995, with a detailed account of the intervenor’s involvement in light of the provisions the applicant assumed were at issue: section 28 of DSS-MAS 9676 which formed part of the general terms and conditions of the contract; and the CFAO 19-37 [Canadian Forces Administrative Orders] the conflict of interest and post-employment compliance provisions governing the intervenor.[5] Section 28 of DSS-MAS 9676 reads as follows:

The Contractor agrees that it is a term of the Contract that no former public office holder of the Government of Canada, who is not in compliance with the provisions of the Conflict of Interest and Post-Employment Code for Public Office Holders, shall derive any direct benefit from this Contract.[6]

The intervenor also explained his role in the development of the applicant’s proposal in light of the conflict of interest allegations. By letter to the applicant dated February 3, 1995 he stated:

On no occasion either while in Service, or since that time, have I released information to LGS, or any other contractor, which was not widely known, readily available, or had not been already been [sic] presented in an open forum.[7]

On February 17, 1995, the Department of Justice communicated the Minister’s formal rescission of the contract as follows:

The contents of your letter have been reviewed by both contracting personnel and members of the Department of National Defence, all of whom have come to the conclusion that your letter does not demonstrate that Mr. Daws was in compliance with the post employment code for public office holders, nor CFAO 19-37. The result of this is that the LGS bid reflects a misrepresentation of the compliance of LGS with the terms and conditions of the solicitation process. While the misrepresentation may not have been intentional, the Crown nonetheless relied on the contents of the LGS bid to enter into contract with it under circumstances that would have been sufficient to preclude the entering into contract, absent the misrepresentation.

As a consequence, a recession [sic] of the contract is attached, and not a termination pursuant to the clauses of the contract.[8]

II.         POSITIONS OF THE PARTIES

The applicant and the intervenor took essentially the same position before me. Both submit that the Minister, in rescinding the contract, acted pursuant to a statutory authority under the Department of Supply and Services Act[9] and on this basis the decision to rescind is subject to judicial review under section 18.1 of the Federal Court Act.[10] In so acting, the Minister acted without proper authority as the decision pursuant to section 28 of DSS-MAS 9676 requires first, a lawful and procedurally fair finding by the proper authority that CFAO 19-37 had been breached, and second, a determination that the intervenor would derive or had derived a direct benefit from the contract.

The applicant and the intervenor submit that neither requirement was met. First, they submit, the decision that the intervenor was not in compliance with CFAO 19-37 was made without regard to relevant facts, was not made by the proper authority and was made without according either the applicant or the intervenor procedural fairness by failing to disclose the nature of the alleged breach and failing to allow adequate opportunity to respond. Second, they submit, the Minister did not direct his mind to whether the intervenor had derived any direct benefit from the contract. The applicant further submits that there was in any event no evidence on which the Minister could have determined the intervenor derived a direct benefit from the actual contract.

The respondent submits that there is no jurisdiction to review the rescission of the contract under section 18.1 of the Federal Court Act as the Minister was acting pursuant to the Crown’s inherent power to contract. If the decision is subject to judicial review, the respondent submits that based on a standard of review on a question of fact that the determination be perverse or capricious, or made without regard to the material, the findings under CFAO 19-37 and section 28 of DSS-MAS 9676 were open to the decision maker and were made by the proper authority. The respondent further submits that the Minister accorded the applicant several opportunities to respond to the alleged breach and that this met the duty of fairness owed. The respondent denies it owed any duty of fairness to the intervenor.

III.        ISSUES

1. Is the decision by the Minister to rescind the contract subject to judicial review?

2. If so, was there any reviewable error? In particular: did the proper authority make the decision under section 28 of DSS-MAS 9676; was there evidence before the Minister and to which he directed his mind, on which he could find the intervenor breached CFAO 19-37 and “derive[d] any direct benefit from [the] contract”; and did the process accord the applicant and, if necessary, the intervenor, procedural fairness?

IV.       ANALYSIS

1.         Jurisdiction to Review the Decision

Exclusive originating jurisdiction to entertain an application for judicial review of a decision of a federal board, commission or other tribunal is vested in the Federal Court of Canada. Section 18.1 of the Federal Court Act provides for this process as follows:

18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.

(2) An application for judicial review in respect of a decision or order of a federal board, commission or other tribunal shall be made ….

The phrase “federal board, commission or other tribunal” is a defined term in section 2 [as am. idem, s. 1] of the Federal Court Act:

“federal board, commission or other tribunal” means 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, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867.

The applicant identified three sets of statutory provisions underlying the Minister’s actions: the government procurement provisions, the government contractual provisions and the conflict of interest provisions. The respondent did not contest that decisions under the conflict of interest provisions are amenable to judicial review and it is clear from the analysis of Madam Justice Reed in Peet v. Canada (Attorney General)[11] that decisions under the conflict of interest provisions for former public office holders are reviewable.

The general contracting powers of government are confirmed by subsection 41(1) of the Financial Administration Act[12] which provides that the Governor in Council may make regulations with respect to the conditions under which contracts may be entered into. Pursuant to this authority, the Government Contract Regulations[13] require as follows:

5. Before any contract is entered into, the contracting authority shall solicit bids therefor in the manner prescribed by section 7.

…

7. A contracting authority shall solicit bids by

(a) giving public notice, in a manner consistent with generally accepted trade practices, of a call for bids respecting a proposed contract; or

(b) inviting bids on a proposed contract from suppliers on the suppliers’ list.

The relevant procurement powers of the Minister are set out in subsection 5(2) of the Department of Supply and Services Act:

5. …

(2) The Minister shall

…

(b) purchase materiel and services in accordance with any regulations relating to government contracts that are applicable thereto.

The contracting powers of the Minister are set out in sections 16 to 18 of the same Act:

16. Subject to such regulations as may be made by the Governor in Council or the Treasury Board, the Minister may, on behalf of the Government of Canada, enter into contracts for the performance of any matter or thing that falls within the powers, duties or functions of the Minister.

17. The Minister may, by order, prescribe general terms and conditions for contracts that he may enter into under this Act, and the general terms and conditions may be incorporated by reference into particular classes of contracts.

18. Subject to the express terms and conditions contained therein, a contract entered into by the Minister that provides that general terms and conditions, identified by number or other designation in an order made under section 17, are applicable thereto or form part thereof shall be read and construed as if the general terms and conditions to which such reference is made were expressly set out in the contract. [Underlining added by me for emphasis.]

It is pursuant to these sections that the Minister[14] prescribed by order DSS-MAS 9676, General Conditions-Services, which was incorporated by reference into both the RFP and the contract at issue here.

At the hearing of this matter, counsel for the applicant referred me to a recent decision of the Federal Court of Appeal in Gestion Complexe Cousineau (1989) Inc. v. Canada (Minister of Public Works and Government Services) (hereinafter Cousineau)[15] Bwhich I find determinative of the jurisdictional issue. Therein, the respondent made similar submissions to those of the respondent before me: (i) when the Minister issued a call for tenders to select the premises he wished to lease he acted pursuant to the Crown’s inherent power to enter into contracts; (ii) decisions made pursuant to the exercise of a general power of administration were not subject to judicial review but rather to contractual remedies; and (iii) the general statutory framework for contracting was merely a codification of an inherent power and there was no specific statutory provision under which the Minister acted in refusing or accepting a tender.

In respect of these arguments, Décary J.A., speaking for the Court, stated [at page 701]:

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 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.

The statutory provisions at issue in Cousineau were paragraph 16(2)(b) of the Federal Real Property Act[16] and subsection 4(1) of the Federal Real Property Regulations.[17]

Paragraph 16(2)(b) of the Federal Real Property Act provides that “The Governor in Council may … make regulations … respecting the purchase, lease or other acquisition of real property on behalf of Her Majesty”. (Underlining added by me for emphasis.) Subsection 4(1) of the Federal Real Property Regulations provides that “A Minister may enter into an acquisition, a disposition or an option for an acquisition or for a disposition” (underlining added by me for emphasis). Thus the Minister’s power to solicit tenders for the lease therein arose out of regulations enacted by the Governor in Council. To repeat the words of Décary J.A. in Cousineau, the Minister’s power related to the tender “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’.”

The statutory scheme before me is slightly different. Subsection 41(1) of the Financial Administration Act authorizes the Governor in Council to make regulations “with respect to the conditions under which contracts may be entered into”, similar wording to that of paragraph 16(2)(b) of the Federal Real Property Act. But the Minister’s power to enter into contracts does not derive from regulations enacted by the Governor in Council but from a separate statutory provision, section 16 of the Department of Supply and Services Act. The Minister is still, however, subject in the exercise of that power to regulations enacted by the Governor in Council.

I regard it as clear by analogy from Cousineau that decisions related to the tendering or bidding process for government contracts pursuant to the legislative scheme before me are amenable to judicial review. I conclude that the Minister’s power to contract in the circumstances before me may no longer be described as an inherent power once Parliament has seen fit to codify it in language containing no ambiguity.

But does the same reasoning extend to decisions related to contractual obligations when the Minister is acting not to enter into a contract but as a contracting party? The respondent attempted to distinguish Cousineau on the basis that while the authority to rescind a contract derives from common law, authority to respond to a tender derives from a regulatory framework against which a reviewing court may evaluate the decision-making process. I initially found the respondent’s argument compelling. However, on further reflection, I conclude that the rationale in Cousineau regarding amenability to judicial review applies to the Minister’s actions as a contracting party in rescinding a contract as well as to his actions in entering into a contract.

The respondent argued that neither the applicant nor the intervenor could point to a specific statutory or regulatory provision under which the Minister rescinded the contract. This argument was made by the respondent in Cousineau and rejected. While there was no specific provision under which the Minister therein refused the applicant’s tender and accepted the tender of the mis en cause, the general provisions relating to tendering quoted above were found to be sufficient to invoke judicial review jurisdiction in relation to the decision subsequently made. Mr. Justice Décary concluded [at page 705]:

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.

The only difference between the decision at issue before me and that before the Court of Appeal in Cousineau is that, in the matter before me, the proposal which formed the basis of the contract was accepted and the contract subsequently rescinded rather than having been refused in the first instance. In fact, the very basis of the rescission was that the proposal misrepresented compliance with the terms and conditions of the solicitation process. The Minister’s formal notice to the applicant of the rescission of the contract makes it clear that had the Minister been aware of the intervenor’s involvement at the time the proposal was selected, this “would have been sufficient to preclude the entering into contract”.[18] If the Minister had been aware of the intervenor’s involvement before the tender was accepted, the Minister would have relied on the same section, section 28 of DSS-MAS 9676, in rejecting or disqualifying the applicant’s proposal and the same statutory framework in both cases grounds the decision.

If I accept the distinction urged on me by the respondent, jurisdiction to review decisions made concerning compliance with terms of the solicitation would be determined by nothing more than the timing of when information becomes available to the Minister. This would, I conclude, be inconsistent with the clear approach to the spirit and purpose of judicial review procedures described by Décary J.A. in Cousineau [at page 702] as intending “that henceforth very little would be beyond the scope of judicial review” and indicative [at page 703] “of the tendency shown by Parliament itself to make government increasingly accountable for its actions.” Moreover, it is evident that the Court of Appeal [at page 705] advocates a liberal and inclusive approach to the scope of judicial review:

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.

Based on the foregoing analysis, I conclude that the rescission decision of the Minister was made by a federal board, commission or other tribunal and is amenable to judicial review.

2.         Reviewable Error

The Cousineau decision makes a companion point to the liberal approach to the scope of judicial review: the standard of review will often be high. As the respondent argued before me, the appropriateness of the remedy of certiorari will vary depending on the nature of the regulatory framework in place. As Décary J.A. states in Cousineau [at pages 706-707]:

… 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 bids received, decides whether a bid is consistent with the documents or accepts one bid rather than another.

The same may be said with respect to the decision under review in this application. There is no statutory framework within which determinations pursuant to section 28 of DSS-MAS 9676 are made. What is required are two distinct findings by the Minister. The first is that a former public office holder was not in compliance with the relevant conflict of interest provisions and the second that the same person derived a direct benefit from the contract.

a.         Was the Decision Made by the Proper Authority?

There is no procedure for, or delegated authority related to, non-compliance findings under CFAO 19-37. However the following procedures are set out in Annex D to CFAO 19-37:

15. The designated authority may convene advisory panels to advise on the application of the compliance measures set out in this Annex in particular cases and to help members or former members understand how the compliance measures set out in this Annex apply to their particular cases. Advisory panels shall respond without delay to any requests for advice

…

17. A member of the CF [Canadian Forces] who is or was a public office holder may apply to the designated authority for reconsideration of any determination respecting the member’s compliance with this Annex or any decision respecting the reduction of the limitation period. On receipt of an application for reconsideration, the designated authority may convene an advisory panel to make recommendations respecting the reconsideration.[19]

Section 1 of Annex A defines “designated authority” to mean “the Assoc. MND” (Associate Minister of National Defence). The evidence of Admiral Saker, the respondent’s witness on cross-examination for discovery, was that, at the time of the events in question, there was no Associate Minister of National Defence. Admiral Saker further testified that at the time in question there was a Standing Advisory Committee which did discuss the situation of the intervenor, but only when it met on March 16, 1995, after the event.[20]

The applicant and the intervenor submit that Admiral Saker, who was not authorized to make a determination under CFAO 19-37, was in fact the decision maker. They further submit that the Minister merely deferred to Admiral Saker’s decision or, alternatively, adopted his advice as sufficient evidence of a violation of section 28 of DSS-MAS 9676. I conclude from the record that Admiral Saker, while involved in the decision regarding CFAO 19-37, was not the ultimate decision maker. He clearly believed that he was the decision maker[21] and agreed to the applicant’s characterization of his role in his testimony on cross-examination for discovery:

Q.  Prior to or in the course of … well first of all you made the decision. Is that correct? That Mr. Daws was in violation of the Conflict of Interest guidelines?

A.   Yes I did.[22]

Regardless of Admiral Saker’s belief, the briefing note prepared by Admiral Saker for the Minister of National Defence (Minister of ND) reveals that the non-compliance finding was treated as follows:

After a review of the contract and the post employment restrictions applicable to the recently retired Col Daws, it has been decided to recommend termination of the contract for failure to comply with the contractual terms and conditions referencing the code.[23] [Underlining added by me for emphasis.]

The aide memoire prepared by Admiral Saker for the DND Advisory Panel, which met subsequent to the decision under review, also belies the argument of the applicant and intervenor on this point:

4. Upon receipt of the 01 Feb letter of protest to PWGSC [Public Works], DND was immediately engaged and recommendations were made supporting the issue of a 02 Feb 95 stop work order until such time as the validity of these allegations could be ascertained …. After lengthy examination and discussion of the facts, DND advised PWGSC by letter that it had concluded a conflict of interest violation had occurred.

…

6. On the basis of the above assessment, PWGSC, with the concurrence of DND, issued a letter to LGS, dated 17 Feb 95, rescinding the contract because of a violation of the terms and conditions related to Conflict of Interest.[24] [Underlining added by me for emphasis.]

On the basis of the above, I conclude that it was the Minister of ND, on the advice of Admiral Saker, who made the decision that the intervenor was not in compliance with CFAO 19-37 and on whose behalf this conclusion was relayed to the Minister who ultimately has responsibility under section 28 of DSS-MAS 9676. The Minister of ND, absent any specific delegation of authority in CFAO 19-37, was without a doubt a proper authority to make the decision under CFAO 19-37. But the decision that CFAO 19-37 had been violated was only an element in the decision here under review. Based on the record before me, the decision to rescind the contract was not made by either Admiral Saker or the Minister of ND. Both had input and perhaps in the case of the Minister of ND, and certainly in the case of Admiral Saker, gave advice to the Minister which was reasonably open to each to give. There is no doubt that officials at DND had considerable input into the decision to rescind the contract, including drafting the letter accompanying the formal rescission of the contract by the Minister.[25] Nonetheless, the decision to issue the formal rescission of the contract and the rescission itself came from Public Works on behalf of the Minister:

The reason for the issuance of the Stop Work Order and your Counsel’s response of February 7, 1995 have been thoroughly considered and evaluated with the result that there has been a failure to demonstrate that Mr. Daws was in compliance with the Conflict of Interest and Post-Employment Code for Public Office Holders and thus LGS Group Inc. was not in compliance with Section 28 of the General Conditions forming part of both the solicitation and the contract.

This amounts to your proposal reflecting a misrepresentation of the compliance with the terms and conditions of the solicitation process, with the result that the Minister of Supply and Services hereby rescinds the Contract in respect of all supplies/services described therein.[26]

b.         Was There Evidence before the Minister on Which to Base His Finding?

Pursuant to its authority under subsection 11(2) [as am. by S.C. 1992, c. 54, s. 81] of the Financial Administration Act, Treasury Board has issued the Conflict of Interest and Post-Employment Code for Public Office Holders (the Code).[27] Under subsection 4(2) of the Code, members of the Canadian Armed Forces are subject to the “Principles set out in Part I” of the Code as well as other compliance measures determined by the head of the Canadian Armed Forces. One such measure is CFAO 19-37 enacted pursuant to subsection 18(2) of the National Defence Act.[28] Annex D, paragraphs 10 and 11 of CFAO 19-37 set out the prohibitions applicable to former members of the Canadian Armed Forces who were at a rank of colonel or above. It is paragraph 11 with which the intervenor was found not to be in compliance:

11. Members or former members of the CF [Canadian Forces] shall not, within a period of one year after becoming former public office holders:

…

c. give counsel, for the commercial purposes of the recipient of the counsel, concerning the programs or policies of the CF or the department with which they were employed, or with [which] they had a direct and substantial relationship during the period of one year immediately prior to becoming former public office holders.[29]

In a letter to the intervenor approximately one month before his retirement, this provision was specifically brought to his attention by DND:

While the wording of this paragraph [11 c.] suggests that this restriction is subject to a one-year limitation period, this is no longer the case. An amendment to its interpretation has resulted in its application having no limitation in time. Accordingly, you may not give counsel on government programs or policies, other than counsel based on information generally available to the public. In other words, you may not disclose any “insider information” to a third party, until that information becomes generally available to the public.[30]

As the applicant argued before me, it is the interpretation with which the intervenor was provided which should govern the assessment of compliance or non-compliance.

The record shows that DND was aware that the intervenor was working for the applicant by way of a letter written by the intervenor in October 1994.[31] It is not clear from the record that DND was aware the intervenor was working on the RFP, although the intervenor believed that DND knew.[32] It is clear from the record that Admiral Saker was the officer at DND who investigated the allegations of non-compliance by the intervenor with CFAO 19-37. Admiral Saker was responsible for the briefing note to the Minister of National Defence[33] and the aide memoire to the DND Advisory Panel on the subject of the conflict of interest allegations.[34]

I note at this point that there was significant evidence before me which was not before Admiral Saker and, by inference, the Minister as part of the determination of non-compliance. For example, the billing sheets of the intervenor to the applicant were before me but were not before Admiral Saker, as was a detailed response to the respondent’s interrogatories regarding the intervenor’s specific role in relation to each section of the applicant’s proposal in response to the RFP.[35] Admiral Saker testified as to the evidence before him as follows:

Q.  Colonel Saker (sic), I take it from what you have told us this morning that the only information you have had as to Mr. Daws’ [the intervenor’s] involvement in the response to the Request for Proposals was what was conveyed to you in the response after the complaint was made by the applicant and by Mr. Daws in his letter?

A.   That’s correct.[36]

Admiral Saker also testified that the RFP and the applicant’s proposal in response was considered.[37] I will assume that the information on the record as to the purpose and function of the CALS office headed by the intervenor in the last years he was with the Canadian Armed Forces was also in some sense considered. I will not consider any other evidence as it is well established that on judicial review the Court should only review the decision on the basis of the record before the decision maker and here, that record would not be broader than the record before Admiral Saker. The role of the Court is not to determine whether in fact there was a breach of CFAO 19-37 and section 28 of DSS-MAS 9676 but whether the finding by the Minister that there was such a breach was in error based on the material that was before the Minister and those who advised him.

The actual nature of the intervenor’s role in the preparation of the RFP was debated by counsel for the parties before me. Counsel for the applicant and intervenor maintained that the record showed the intervenor was employed by the applicant for his management skills consolidated by 32 years as a professional engineer and manager. At the same time, they argued that the record showed he served as an editor or “wordsmith”. In effect, counsel submitted that the intervenor’s role was one of “wordsmithing” to ensure the applicant’s proposal was consistent and accurate in its use of specialized terminology of CALS and CAPERRS and comprehensible to DND. The intervenor explained the concept of “wordsmithing” as follows:

It’s trying to attune the words that are used to be words that were acceptable within the CALS community from my viewpoint.[38]

The intervenor also testified that his involvement centred on sections 6 through 9 of the RFP which were respectively titled “Project Organization”, “Bidder Constraints”, “Project Personnel” and “Understanding the Requirement” and that he was only one of approximately 16 to 20 participants in preparing the RFP.[39] Both the applicant and the intervenor argued that paragraph 11 c. of CFAO 19-37 required that the intervenor in some way impart confidential or insider information about CALS or about the CCDE, which was unlikely if not impossible as the intervenor’s role in heading the CALS office was to promote and publicize DND’s CALS strategy; it did not therefore require or benefit from a knowledge of confidential or insider information.

The respondent maintained that in paying the intervenor approximately $38,000 over three months of the development of the applicant’s response to the RFP, the applicant was clearly expecting more than an editor or “wordsmith”. The respondent suggested that from the view of the decision maker there was a clear conflict, not on the basis of possible insider information on CALS itself, but on “insider” information regarding expectations and mindset of those who would review the applicant’s proposal because the intervenor headed the very office which recommended the issue of the RFP and designed the “Statement of Work” which formed the basis of the RFP. While the intervenor testified that he did not remember working on the “Statement of Work”, which was drafted by two members of his staff, or recommending that an RFP be issued, he did state that as head of the CALS office, “it would bubble up to me”.[40]

Information regarding expectations and mindset, which only the intervenor and a very select few others would possess, was viewed by Admiral Saker as coming within paragraph 11 c. of CFAO 19-37. Thus it was argued that it was not that the intervenor was able to add specific information on CALS to the applicant’s proposal, but rather that he was able to tailor the proposal to target particular interests and concerns at DND of which he would be aware based on his former position as head of the CALS office. Admiral Saker explained this several times:

Q.  And I take it then from this document and from what you have told us this morning that you in fact did not identify anything that was considered insider information that had been used in the process of responding to the Request for Proposals?

A.   That is correct. As I think I said I would not have expected to have seen it. I mean to my mind, the impact of him participating is that it comes out as being a good, compliant proposal.[41] [Underlining added by me for emphasis.]

A memorandum apparently prepared by Admiral Saker reflects this conclusion:

4. Given Mr. Daws’ intimate knowledge of DND’s approach to CALS methodology, it is considered that it would be impossible for him to divorce himself from his knowledge of DND’s philosophy underlying its participation in the program and its methodologies. As the prime mover in the DND program prior to his release from the CF, he not only had knowledge of DND’s concerns and interests in this program, but in effect directed them. It is difficult, if not impossible to believe that any advice given would be unaffected by Mr. Daws’ background knowledge and significant contributions in determining DND’s philosophies and priorities in this program. It is for reasons such as this that 11 (c) stipulates a one year prohibition.[42]

I am satisfied that the opinion formed by Admiral Saker, and that formed the basis of his advice as to a breach of paragraph 11 c. by the intervenor, was reasonably open on the material that was before Admiral Saker and, through him, the decision maker. Paragraph 11 c. speaks of giving counsel, for the commercial purposes of the recipient of the counsel, concerning the programs or policies of the Canadian Forces. I am satisfied that advice regarding expectations and mindset of those who would review the applicant’s proposal, of key words and phrases to be emphasized or avoided, is counsel, for commercial purposes, concerning (a very broad word), the programs or policies of the Canadian Forces. It may also be “wordsmithing” but if it is, it is of a distinctly policy-oriented character that is quite distinct from what is normally thought of as editing.

I am prepared to accept that a strong inference can be drawn from the significant remuneration of the intervenor for his work and from the intervenor’s primary role in the CALS office before his departure from DND that the applicant would not have employed him to provide it with information or counsel which could be found in a government issued pamphlet, or at the public library or through the services of a professionally trained editor. Moreover, the responses by the applicant and the intervenor to the Minister’s request for clarification of the intervenor’s role were little more than denials that the intervenor had imparted confidential information about CALS without addressing the aspect of imparting information regarding expectations and mindset of key persons at DND. For example, in a letter from the intervenor to the applicant to address the conflict of interest concerns (a copy of which was forwarded to DND), the intervenor wrote:

As a secondary duty, I had two permanent staff assigned to me to implement CALS across DND. In that activity I was the figurehead, representing the CALS effort to internal management and across the international CALS community. My specific ‘expertise’ in CALS is far exceeded by private sector industries, many of whom have partnered or associated themselves with LGS to undertake the CCDE project. As a senior manager in DND, I was responsible for strategy of CALS implementation, and not the technology. Even so, when required to write a CALS strategy for NATO, my staff directed a contract to Computer Sciences Canada, due to the extensive experience of their corporation in the international CALS domain.[43] [Underlining added by me for emphasis.]

The responses by the applicant were similarly emphatic that the intervenor had no “confidential” knowledge of CALS to reveal:

Furthermore, Mr. Daws had not participated in the preparation of the CCDE SOW [Statement of Work] or RFP while employed by DND and could not therefore transfer information concerning the RFP to LGS during the bidding process.

The applicant described the role of the intervenor in the development of the response to the RFP as follows:

Mr. Daws assisted LGS in preparing a response to the RFP solely by providing expert knowledge with respect to the CALS methodology, and also has continued to assist LGS in the development of a business strategy for broader participation in the CALS arena.[44]

None of these explanations addresses the possibility of the intervenor assisting the applicant with the specialized knowledge acquired from the involvement the intervenor describes as “the strategy of CALS implementation”. Neither the applicant nor the intervenor provided information or any details of mechanisms put in place to ensure the intervenor would not be put in a position of violating CFAO 19-37 during his contract with the applicant.

On the basis of the evidence before the decision maker, I conclude that it was reasonably open to find the intervenor was not in compliance with paragraph 11 c. of CFAO 19-37.

As I stated earlier, the prohibition in section 28 of DSS-MAS 9676 requires both a finding of non-compliance by the intervenor and a finding that the intervenor derived “direct benefit from [the] contract”. The applicant and the intervenor argued before me that the use of the term “contract”, as distinct from “solicitation” renders irrelevant any consideration of the benefit derived from the intervenor’s work on the applicant’s proposal in response to the RFP. There was no evidence on the record that the intervenor worked for the applicant in the brief period after the contract was awarded and until the stop work order was issued. The respondent argued before me that the use of the term “contract” in DSS-MAS 9676 must be read broadly to include “solicitation of the contract”.

I am not persuaded that the literal interpretation of section 28 of DSS-MAS 9676 suggested by the applicant and the intervenor is appropriate. For ease of reference, I repeat the wording of section 28 of DSS-MAS 9676:

The Contractor agrees that it is a term of the Contract that no former public office holder of the Government of Canada, who is not in compliance with the provisions of the Conflict of Interest and Post-Employment Code for Public Office Holders, shall derive any direct benefit from this Contract.[45] [Underlining added by me for emphasis.]

If the term “contract” were read so as to exclude the solicitation process, a substantial element of the purpose of the Conflict of Interest and Post- Employment Code for Public Office Holders would be in part defeated. Section 2 of the Code identifies its purpose in part as follows:

2. The object of this Code is to enhance public confidence in the integrity of public office holders and the decision-making process in government

…

(c) by establishing clear rules of conduct respecting conflict of interest for, and post-employment practices applicable to, all public office holders; and

(d) by minimizing the possibility of conflicts arising between the private interests and public duties of public office holders and providing for the resolution of such conflicts in the public interest should they arise.

The Code continues by identifying the principles to which public office holders should conform:

3. Every public office holder shall conform to the following principles:

…

(10) Public office holders shall not act, after they leave public office, in such a manner as to take improper advantage of their previous office.[46]

It is entirely inconsistent with the object of enhancing public confidence in the integrity of public office holders and the principle of ensuring that former public office holders do not take improper advantage of their previous office, to read section 28 so as to exempt from scrutiny actions of former public office holders and contractors who mutually benefit from “insider” or “confidential” knowledge merely because the benefit occurs in the process of obtaining a contract and not in fulfilling the contract. More- over, it is evident from the record that the RFP, the tendering or bidding process, and the contract elements are a continuum. Both the RFP and the eventual contract with the applicant referentially incorporate section 28 of DSS-MAS 9676. It is of significance to note the wording in the RFP and the resulting contract. The RFP reads in part as follows:

3.0 TERMS AND CONDITIONS OF SOLICITATION AND RESULTING CONTRACT:

Pursuant to the Department of Supply and Services Act, R.S.C. 1985, c. S-25, the general terms , conditions and clauses identified herein by title, number and date, are hereby incorporated by reference into and form part of this solicitation, bid and any resulting contract, as though expressly set out herein, subject to any express terms and conditions herein contained.

…

General Conditions

DSS-MAS 9676 (06/94) General Conditions-Services[47]

The contract between the Minister, representing Her Majesty the Queen, and the applicant contains the following, virtually identical, provision:

3.0 TERMS AND CONDITIONS OF CONTRACT

Pursuant to the Department of Supply and Services Act, R.S.C. 1985, c. S-25, the general terms, conditions and clauses identified herein by title, number and date, are hereby incorporated by reference into and form part of this contract, as though expressly set out herein, subject to any express terms and conditions herein contained.

…

General Conditions

DSS-MAS 9676 (06/94) General Conditions-Services[48]

The only difference between the two provisions reflects elements of the continuum to which they relate. If the word “contract” in section 28 of DSS-MAS 9676 is not read broadly to incorporate the solicitation process, then as it applies to the RFP, section 28 of DSS-MAS 9676 is of no consequence. How can it be a term and condition of a proposal or bid that “the contractor” agree that no former public office holder in breach of the Code “derive any direct benefit from this contract”?

I conclude that the term “contract” in section 28 of DSS-MAS 9676 must be given a broad interpretation commensurate with the purpose and principles of the Conflict of Interest and Post-Employment Code for Public Office Holders. On the basis of such an interpretation, there can be no doubt that, on the facts before the decision maker in this matter, the intervenor derived a direct benefit from the contract.

The question remains, did the Minister direct his or her mind to whether or not the two requirements under section 28 of DSS-MAS 9676 had been fulfilled? The applicant and intervenor submit that there was no evidence on the record that the possible benefit derived by the intervenor was considered separately by the Minister and that the record indicates that the finding of non-compliance with CFAO 19-37 was the only ground considered for rescinding the contract.

As indicated above, I conclude that it is inescapable that the intervenor derived a “direct benefit” from the solicitation process by way of the substantial remuneration received for assisting the applicant in preparing its response to the RFP. While there is nothing on the record to indicate this conclusion was reached in a recorded or formal process, there is nothing in the statutory framework which requires such a process. I return to the words of Décary J.A. in Cousineau [at pages 706-707] on the high threshold which the applicant and intervenor must meet to challenge a decision of this nature:

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 ….[49]

It can be said I think, without significant fear of contradiction, that the determination under section 28 of DSS-MAS 9676 is “not subject to any legislative or regulatory requirements as to form or substance”. That being so, it is difficult for the applicant and the intervenor to demonstrate any reviewable error by the Minister. The Minister need not give reasons for his decision under section 28 of DSS-MAS 9676 and he or she need not act within a formal decision-making framework. Although I take cognizance of the argument of the applicant and intervenor that DND had significant involvement in the decision-making process, this role was not an exclusive one and was reasonable given DND’s critical role in addressing the intervenor’s non-compliance with CFAO 19-37. I do not find on the record before me that, on a balance of probabilities, the decision to rescind the contract was made without regard to the issue of whether the intervenor derived “any direct benefit from [the] contract” or in a manner that so lacked consideration of that question as to constitute a reviewable error on the part of the Minister.

c.         Was Procedural Fairness Required and Was It Accorded?

In Syndicat des employés de production du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission)[50] Sopinka J., writing for the majority, commented on the duty of fairness, at pages 899-900 as follows:

In accordance with the principles in Nicholson, supra, [Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311] however, I would supplement the statutory provisions by requiring the Commission to comply with the rules of procedural fairness. In this regard, I adopt the statement of Lord Denning, M.R., in Selvarajan v. Race Relations Board, [1976] 1 All E.R. 12 (C.A.) quoted hereunder. The Race Relations Board was charged with duties similar to those of the Canadian Human Rights Commission. In determining that it was an investigatory body with the duty to act fairly, Lord Denning said, at p. 19:

In recent years we have had to consider the procedure of many bodies who are required to make an investigation and form an opinion …. In all these cases it has been held that the investigating body is under a duty to act fairly; but that which fairness requires depends on the nature of the investigation and the consequences which it may have on persons affected by it. The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it. [Underlining added by me for emphasis.]

In exercising an administrative power to rescind a contract, the respondent was required to give the applicant notice of the case to be met and a fair opportunity to answer that case.

The record shows the following process occurred. The applicant was first called to a meeting with Public Works officials to discuss a complaint to the Minister about the participation of the intervenor in preparation of the applicant’s response to the RFP. Following the meeting, the respondent provided a copy of the letter of complaint to the applicant with only the identity of the complainant deleted, and further requested the applicant to supply a detailed explanation of the nature of intervenor’s participation in order for the Minister to consider the complaint and what action, if any, would be appropriate in response to the complaint. The text of the complaint letter alleged the intervenor’s violation of conflict of interest guidelines on the basis of the intervenor’s ability to supply “insider knowledge of the client’s [DND’s] expectations.”[51] There was a further oral communication from Public Works which specifically identified section 28 of DSS-MAS 9676 as the contractual provision of concern.[52] The applicant responded twice to the request by Public Works. The process as described establishes that the applicant knew the case to be met and had a full opportunity to present its case in a time frame that was reasonable in all the circumstances. No allegation of bias has been raised. I conclude that the duty of fairness to the applicant was met.

I find that the respondent did not owe a duty of fairness to the intervenor. The decision here under review relates to the conduct of the applicant and only incidentally to that of the intervenor. While it may be that the intervenor could have, or has, suffered damage to his reputation, he has alternate and more appropriate means of challenging the finding of his non-compliance with CFAO 19-37. Among appropriate remedies, the applicant may request a written decision and a reconsideration of that decision pursuant to paragraph 17 of Annex D to CFAO 19-37 and further seek judicial review of any reconsideration of the decision as did the applicant in Peet v. Canada (Attorney General).[53] While Madam Justice Reed was dealing with the Conflict of Interest and Post Employment Code for the Public Service, I see no basis to distinguish her decision on the facts before me. If I am wrong on the issue of a duty of fairness to the intervenor, I find that the opportunity provided indirectly for the intervenor to explain his role and the respondent’s consideration of the intervenor’s response meets any minimal duty owed.[54]

V.        CONCLUSION

For all of the above reasons, I conclude that this application for judicial review should be dismissed.

Although the applicant had requested costs in its application, it abandoned this requested relief at the hearing of this matter before me in light of Rule 1618 [as enacted idem] of the Federal Court Rules[55] which provides that no costs are payable in respect of an application for judicial review unless the Court, for special reasons, so orders.

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