Decision Date: March 6, 2018
Panel: Michael Tourigny
Keywords: Wildlife Act – s. 53(1)(g); Angling and Scientific Collection Regulation – s. 11(1.2)(c); angling guide; angler day quota; sealed tender
Stan Doll appealed a decision of the Deputy Regional Manager (the “Regional Manager”), Recreational Fisheries and Wildlife Programs, Kootenay-Boundary Region, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”), regarding the allocation of 42 guided angler days on a section of the Zymoetz River (the “Zymoetz 1”).
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. In 2012, Schedule A of the Regulation was amended, resulting in 42 additional guided angler days being available on the Zymoetz I.
In 2012, a former Regional Manager conducted a sealed tender and proposal process to allocate the 42 days on Zymoetz 1 among guides who already held angler day quota on Zymoetz 1; i.e., Mr. Douglas, Mr. Doll, and Dustin Kovacvich. The former Regional Manager awarded all 42 angler days to Mr. Douglas. Mr. Doll and Mr. Kovacvich appealed. In Stan Doll and Dustin Kovacvich v. Regional Manager, Recreational Fisheries and Wildlife Program (Decision Nos. 2012-WIL-021(b) and 022(b), April 17, 2013) [Doll #1], the Board found that the former Regional Manager had applied undisclosed criteria in assessing the sealed tenders and proposals, and the Board ordered him to conduct a new allocation process in accordance with certain directions.
In the April 17, 2017, the Regional Manager notified Mr. Doll, Mr. Douglas, and Mr. Kovacvich that he would be allocating the 42 angler days through a sealed tender and written proposal process, pursuant to section 11(1.2)(c) of the Regulation. He provided each of them with an application package.
After reviewing the applications, the Regional Manager allocated all 42 guided angler days to Mr. Douglas. The Regional Manager issued a decision to Mr. Doll, notifying him that he had been awarded none of the guided angler days, and that three certificates that Mr. Doll had submitted as part of his application had been awarded no points because they were not “directly related to guiding for fish”.
Mr. Doll appealed the Regional Manager’s decision. Mr. Douglas participated in the appeal as a Third Party.
First, the Board considered whether the Regional Manager had a duty to treat all applicants fairly and equally in the allocation process. The Board found that the phrase “sealed tender together with a written proposal” in section 11(1.2)(c) of the Regulation indicated an intention by the legislature that the Regional Manager had an implied duty to treat all bidders fairly and equally in the allocation process. Furthermore, the Ministry’s policies regarding the allocation process supported an implied duty to treat all bidders fairly and equally in the allocation process. Also, taking into account the leading judicial decisions on sealed tender and bid processes, the language in the application package indicated an intention by the Ministry to enter into contractual relations with the applicants, which results in an implied obligation by the Regional Manager to treat all bidders fairly and equally.
Next, the Board considered whether the application package complied with the Board’s directions in Doll #1. The Board found that the examples of certificates and accreditations provided in the application package was more than adequate to comply with the directions in Doll #1 that applicants be provided with “full knowledge of the determinative criteria”, in terms of what sort of certificates and accreditations would be considered “directly relevant to guiding for fish”. The Board noted that the application package was only provided to the three applicants, who had held angler day quota on Zymoetz 1 for some time, and who should have been well aware of what certificates and accreditations would likely be considered as “directly relevant to guiding for fish” on Zymoetz 1.
In addition, the Board held that the number of points available for each valid certificate or accreditation was set out in the application package, as was the requirement that the certificates or accreditations be directly relevant to guiding for fish. As long as the Regional Manager was applying the disclosed criteria, it was open to him to adopt a particular definition of “directly relevant to guiding for fish” as part of his methodology for assessing points. By focusing on certificates and accreditations that were directly relevant to guiding on the Zymoetz 1, the Regional Manager defined “directly relevant to guiding for fish” in a way that was consistent with the waterbody-specific nature of the Regulation and Ministry policies.
Finally, the Board found that the Regional Manager made no material errors by giving no points for Mr. Doll’s Rejected Certificates. The Board found that the Regional Manager’s definition of “directly relevant to guiding for fish” was consistent with the objectives of the Act and the Regulation, and his knowledge of the Zymoetz 1. The Board concluded that the Regional Manager applied the definition fairly and reasonably to all three applicants.
Accordingly, the appeal was dismissed.