• Andrew Rushton v. Regional Manager, Recreational Fisheries and Wildlife Program

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    Decision Date: May 8, 2015

    Panel: Greg Tucker

    Keywords: Wildlife Act – ss. 52(1); Angling and Scientific Collection Regulation – s. 11(1.2)(c); angling guide; angler day quota; sealed tender; procedural fairness

    Andrew Rushton appealed a decision of the Regional Manager, Recreational Fisheries and Wildlife Program, Skeena Region, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”). Mr. Rushton was one of several unsuccessful applicants for a share of 586 new guided angler days that were available on a section of Skeena River (the “Skeena IV”). The Skeena IV is a classified water under the Angling and Scientific Collection Regulation, B.C. Reg. 125/90 (the “Regulation”). Schedule A of the Regulation limits the number of licensed angling guides that may operate, and the number of guided angler days available to licensed guides, on classified waters during a specified period.

    The new guided angler days on the Skeena IV became available in 2012. In Spring 2012, the Ministry invited applications for the new guided angler days, and several licensed angling guides or prospective guides applied. However, in August 2012, the Regional Manager advised the applicants that the allocation process was being put ‘on hold’, partly due to concerns expressed by local First Nations, and partly due to appeals involving the allocation process for new guided angler days on other streams in the Skeena watershed. In April 2013, the Board issued decisions on those appeals. During one of the appeal hearings, the highest and lowest bids in the 2012 Skeena IV allocation process were disclosed. Information about the Regional Manager’s scoring of the bids on another stream was also disclosed.

    In December 2013, the Ministry again invited applications for the 586 new guided angler days on the Skeena IV, which were offered in 12 lots. The Ministry provided an application package which contained instructions for a sealed tender and written proposal process, including a description of how the applications would be evaluated and scored. After reviewing the applications, the Regional Manager decided to award 10 of the 12 lots. Two lots were not awarded because, after the allocation process was underway, those lots were included in treaty negotiations with First Nations. Of the 13 applicants, seven were unsuccessful including Mr. Rushton. One of the successful applicants was involved in the appeals that the Board decided in 2013.

    Mr. Rushton appealed the Regional Manager’s decision on the basis that the Skeena IV allocation process was unfair. Specifically, he submitted that: a successful applicant who was involved in the previous appeals received information, including the range of the bids (lowest and highest bids) in the 2012 Skeena IV allocation process, that gave him an unfair advantage in the 2013 Skeena IV process; the Regional Manager applied undisclosed scoring criteria and information; the applicants were misled to believe that 12 lots were available when only 10 lots were awarded; the Regional Manager provided Mr. Rushton with misleading information about how his application would be considered; and, the Regional Manager initially refused to disclose certain information to Mr. Rushton that was important to the appeal process.

    The Board found that the Regional Manager had a general duty to treat all bidders fairly. However, the Board found that the duty was not breached in this case.

    Specifically, the Board found that the applicants who were part of the previous appeals where the lowest and highest bids in the 2012 Skeena IV process were disclosed did not have a material advantage over Mr. Rushton in the 2013 allocation process. Without more information, knowing the highest and lowest bids provided no material assistance in preparing applications for the 2013 process. Moreover, the 2012 bid information was disclosed incidentally during an appeal proceeding, with no intention of providing an advantage to anyone in the 2013 Skeena IV process. Also, the information was disclosed during a public hearing, and the information was included in the Board’s decision which was posted on the Board’s website in April 2013. Consequently, the information was available to the public, including Mr. Rushton, before the 2013 allocation process began. In addition, the 2012 scoring process weighed the applicants’ information differently than in the 2013 Skeena IV process, and therefore, knowledge of the previous scoring provided no material assistance to applicants in the 2013 Skeena IV process.

    In addition, the Board found that the Regional Manager did not rely on undisclosed criteria in scoring the 2013 Skeena IV bids. The Regional Manager set a maximum number of points that could be awarded for certain criteria, but this did not amount to applying undisclosed criteria, and did not render the allocation process unfair.

    The Board held that the Regional Manager’s decision to allocate 10 of the 12 available lots was based on factors that he was entitled to consider, and did not make the process unfair.

    The Board found that there was an error in the Regional Manager’s scoring of one of the 2013 applications, but the error did not affect the overall rankings of the applicants. Given that the error was immaterial to the outcome of the allocation process, it did not render the process unfair.

    Further, the Board found that the Regional Manager did not mislead Mr. Rushton, and did not promise to treat Mr. Rushton’s application differently from other applications.

    Finally, the Board held that, although the Regional Manager initially refused to disclose certain documents to Mr. Rushton that were relevant to his appeal, nothing turned on this, because the Regional Manager subsequently disclosed the information to Mr. Rushton, who had the relevant information when he prepared his appeal submissions.

    Accordingly, the appeal was dismissed.