Decision Date: January 26, 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

Dustin Kovacvich appealed a decision of the Regional Manager, Recreational Fisheries and Wildlife Program, Skeena Region, Ministry of Forests, Lands and Natural Resource Operations. The Regional Manager decided to cancel a process whereby three angling guides submitted bids on a quota of 42 guided angler days on the Zymoetz River upstream of Limonite Creek (“Zymoetz I”) for the 2014/15 season. Mr. Kovacvich, the Third Party Keith Douglas, and Stan Doll had submitted bids for the 42 guided angler days.

The Zymoetz I 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 guides permitted, and the number of guided angler days available, on classified waters during a specified period. Historically, Mr. Kovacvich, Mr. Douglas, and Mr. Doll operated on the Zymoetz I. In 2012, Schedule A of the Regulation was amended, resulting in 42 additional guided angler days being available on the Zymoetz I.

To allocate the 42 guided angler days, the Regional Manager requested that the existing guides on the Zymoetz I submit bids in the form of sealed tenders and written proposals pursuant to section 11(1.2)(c) of the Regulation. After reviewing the bids, the Regional Manager awarded the entire 42 days to Mr. Douglas for a 20-year period of time. Mr. Kovacvich and Mr. Doll appealed the Regional Manager’s decision to award each of them zero guided angler days. Mr. Douglas participated in those appeals as a Third Party.

On April 17, 2013, following a hearing of the appeals, the Board issued a decision in which the majority of the hearing panel directed the Regional Manager to ‘re-do’ the allocation process for the 42 guided angler days, and request new sealed tenders and written proposals from the three guides (Decision Nos. 2012-WIL-021(b) and 2012-WIL-022(b)). In the interim, the decision to allocate 42 days to Mr. Douglas would stand. During the hearing, the parties had agreed that confidential pricing information in each guide’s bid documents would not be disclosed. However, due to an apparent error by the Ministry, Mr. Douglas’ pricing information was disclosed during the hearing. The majority of the panel considered the pricing information, and concluded that the Regional Manager must have considered undisclosed criteria in scoring the background check portion of the bid documents, which included information about prior contraventions of the Wildlife Act and related matters. The majority of the panel found that the Regional Manager had erred in his consideration of the background check information, and in doing so, he breached the duty of fairness owed to the bidders.

In December 2013, pursuant to the Board’s directions, the Regional Manager sent application packages to the guides, requested that they submit sealed tenders and written proposals for the 42 days. The terms of the application package included requirements to either confirm that they had prepared their respective bids independently, or had entered into communications or arrangements with another bidder regarding the call for bids.

In January 2014, the guides submitted tenders and proposals, and each guide indicated that they had prepared their bids independently. However, Mr. Douglas expressed concern about the fairness of the process, given that his 2012 winning bid was inadvertently disclosed during the appeal hearing. He also advised the Regional Manager that, before the tenders and proposals were submitted, Mr. Doll had contacted him with a proposal that the guides cooperate by bidding on an equal share of the 42 days (i.e., 14 days per guide). Mr. Douglas considered the proposal to be inappropriate communication that may be contrary to the independent bid requirement in the application package.

In letters dated May 12, 2014, the Regional Manager advised the guides that he had decided to cancel the allocation process, based on his concerns that the process had been unfair and there were issues related to inappropriate contact among the guides during the process.

Mr. Kovacvich appealed the Regional Manager’s decision. He argued that there was no inappropriate contact among the guides during the process, and the Regional Manager should have dealt with concerns about the disclosure of Mr. Douglas’ 2012 pricing information before initiating the process. He requested that the Board allocate the 42 days based on the tenders and proposals provided in January 2014, or divide the 42 days equally among the three guides and require the guides to pay the maximum pricing set out in an independent appraisal.

Mr. Doll also filed an appeal, but his appeal was rejected because it was filed after the expiry of the 30-day appeal period.

Mr. Douglas argued that the process was unfair for the reasons given by the Regional Manager, and because he had less time than the other guides to prepare his tender and proposal due to the Ministry sending his application package to the wrong address. He submitted that the Regional Manager’s decision to cancel the process complied with the Board’s previous direction to implement a fair allocation process. He also submitted that there was no mechanism to ‘take away’ the 42 days allocated to him in 2012, and he requested that his allocation of 42 days remain in force until a fair process is completed.

The Board found that, although there was no evidence of intentional misconduct, Mr. Doll’s communication with Mr. Douglas, suggesting that the guides cooperate in preparing their tenders and proposals, was contrary to the independent bid determination provisions in the application package, and Mr. Doll’s tender and proposal was materially incorrect insofar as it stated that he had prepared his bid independently. For those reasons, the Board found that the Regional Manager would have been justified in rejecting Mr. Doll’s tender and proposal. In addition, the Board found that the Regional Manager was justified in cancelling the allocation process altogether, given that the allocation process was only open to three bidders, and the allocation would last for 20 years. As a result, another allocation process would have to be initiated.

Although those findings concluded the appeal, the Board addressed the other issues raised by the appeal, to provide guidance for the future allocation process.

The Board found that, due to the directions issued in its 2013 decision on the previous appeals, the Regional Manager could not have cancelled the new allocation process solely based on concerns about the disclosure of Mr. Douglas’ 2012 pricing information. The Board’s previous directions also prevented the Regional Manager from proceeding with a different type of allocation process (i.e., other than seeking sealed tenders and proposals), but they do not prevent the Regional Manager from taking those concerns into account when designing a revised allocation process.

In addition, the Board rejected Mr. Douglas’ submission that there is no mechanism to ‘take away’ the 42 days allocated to him in 2012. The Board found that, if it decides to reverse an allocation decision as a result of an appeal, the allocation decision ceases to be in effect.

Finally, the Board found that the delay in Mr. Douglas receiving the application package did not breach the duty of fairness owed to him in the allocation process, given that: the delay was inadvertent; the delay resulted in no specific prejudice to his ability to submit a tender and proposal; when the Regional Manager became aware of the delay, he extended the time for all guides to submit their tenders and proposals; and, the application package was relatively straightforward and similar to the previous application package in 2012.

For those reasons, the Board confirmed the Regional Manager’s decision to cancel the allocation process. The Board noted that a new allocation process will be necessary and must comply with the directions issued by the Board in its 2013 decision on the previous appeals.

Accordingly, the appeal was dismissed.