2017 ONSC 1843

COURT FILE NO.: 05-CV-03091

DATE: 2017/03/22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Kaymar Rehabilitation Inc.

Plaintiff

– and –

Champlain Community Care Access Center

Defendant

Scott McLean and Monica Song, for the Plaintiff

Joel Richler, Nancy Brooks and Dustin Kenall, for the Defendant

HEARD: March 30, 2015, April 1-2, 7-8, 10, 13-17, 27-30, 2015, September 1-3, 8-9, 15-17, 25, 2015, January 18-21, 25-29, 2016, & September 7, 2016. (Ottawa)

AMENDMENT:

Paragraph 190 has been amended to add the following sentence: “Having determined the Defendant had no liability in the conduct of the RFP, I make no decision on the issue of damages.”

Amended REASONS FOR Decision

Parfett J.

[1] The Plaintiff, Kaymar Rehabilitation Inc. is seeking damages for loss of profit and loss of opportunity arising out of the 2003 Request for Proposal (RFP) issued by the Defendant, Champlain Community Care Access Center.

[2] For the reasons that follow, the Plaintiff’s claim is dismissed.

Background

[3] In 1997, the provincial government decided that the community care access centers (CCACs), which it funded, should no longer directly employ staff who provided the community health care services. Instead, the provincial government encouraged the CCACs to sub-contract those services. In keeping with that policy, the Ottawa Community Care Access Center (OCCAC)[^1] sent out several requests for proposals to companies who would not only provide the services that the OCCAC had previously provided, but would also agree to hire the OCCAC’s former employees. This process was known as ‘divestment’.

[4] In 1999, the Plaintiff, Kaymar Rehabilitation Inc. (Kaymar) was the successful respondent with respect to the provision of therapy services to adults in the community – physiotherapy, occupational therapy, speech therapy and social work.

[5] In 2000, Kaymar and the OCCAC signed a contract. This contract was called a ‘Sale of Business’ contract. An important feature of this contract was that Kaymar would not only hire the OCCAC’s therapists, but would also maintain the collective bargaining unit.

[6] Of critical importance to later events was the fact that Kaymar inherited the accumulated severance liabilities of the OCCAC’s employees.[^2] However, the Ministry of Health and Long Term Care (MOH) agreed to,

consider as an allowable cost one time funding to cover the payment of specific severance costs incurred by the successor employer who takes over the employment of direct service workers and subsequently must lay-off these workers as a result of failure to maintain a sufficient level of business as a result of a loss of Request for Proposals in the Ottawa-Carleton area. (…) Once the results of the RFP process are known in 2003, the Ministry will assist the CCAC to manage these costs within the available resources should the CCAC identify this expense as a financial pressure in maintaining adequate service levels within the current CCAC funding allocation.”[^3]

[7] What remained unclear to everyone was what would happen to the accumulated severance costs if the ‘successor employer’ – Kaymar – was a successful bidder in 2003 and signed a new contract.

[8] This litigation arises out of the decision made by the OCCAC in the fall of 2003 to request proposals with a view to finalizing contracts in March 2004 and how that process was managed. In the Plaintiff’s view, the decision to request proposals and the process used was unfair.

Positions of the parties

[9] The Plaintiff asserts that it is not alleging a conspiracy or any form of bid rigging. Instead it alleges that the procurement process was unfair. Moreover, the Plaintiff claims that the shift in government policy away from a multitude of small service providers to a small number of large, multi-disciplinary service providers contributed to the unfairness of the process. Finally, the Plaintiff alleges that an underlying motivation in the management of the procurement process was the Defendant’s fear that it would have to assume the large and ever-growing severance costs of its former employees given the government’s refusal to continue its guarantee to pay those costs. In the Plaintiff’s view, the Defendant had a positive obligation to protect the Plaintiff’s interests in these circumstances and it failed to do so.

[10] More specifically, the Plaintiff alleges that the OCCAC favoured one of the winning bidders, Victorian Order of Nurses of Ottawa-Carleton (VONOC).[^4] It suggests that throughout the procurement process, from the drafting of the eligibility criteria to the assessment of the candidates, the OCCAC set out to ensure that VONOC won at least a portion of the contract.

[11] Conversely, the Defendant contends that the Plaintiff has led weak, circumstantial evidence that cannot support the inferences it attempts to draw. Furthermore, the Defendant asserts that although the Plaintiff claims it is not alleging bid rigging that in fact, that is precisely what they are alleging when they claim the Defendant had a duty of fairness in the bid process and it failed to abide by that duty.

[12] Furthermore, the Defendant alleges that the Plaintiff must prove one of two possible scenarios in order to establish its claim. Either it must show that VONOC’s bid was non-compliant, in a conflict of interest or was scored higher than Kaymar’s bid due to an undisclosed criterion, or it must demonstrate that the Plaintiff intentionally implemented a sham procurement process with the intention of ensuring Kaymar would lose.

Legal Principles

[13] Both parties are in agreement with respect to the basic legal principles applicable in this case.

[14] The seminal case on procurement law in Canada is The Queen (Ont.) v. Ron Engineering & Construction (Eastern) Ltd.[^5] This case established that an offer to tender may be an offer to contract.[^6] This contract is referred to as ‘contract A’.[^7] The authority inviting tenders makes an offer to consider bids. The responders who make compliant bids are accepting the terms of the offer. In this fashion, contract A is concluded. Contract A imposes obligations on bidders and on the issuing authority. Whether the tendering process results in the creation of contract A depends on the terms and conditions of the tender call.[^8] Furthermore, it depends as well on whether the parties intended to create a contract.[^9]

[15] The contract that may be ultimately signed between the authority issuing the tender and the successful bidder is referred to as ‘contract B’. Where a bid is accepted by the issuing authority, the terms of the tender documents are incorporated into the terms of contract B.[^10]

[16] Two other cases have interpreted and supplemented this case. They are: M.J.B. Enterprises Ltd. v. Defence Construction (1951) Limited^11 and Martel Building Ltd. v. Canada.^12 These cases state that the issuing authority establishes the terms and conditions of the tender documents. Anyone submitting a bid must conform to those terms and conditions. Failure to do so results in a non-compliant bid.

[17] The bids must comply with the terms and conditions of contract A. However, non-material errors will not necessarily invalidate a bid. As pointed out in Ron Engineering, ‘it would be anomalous … if the march toward a … contract could be halted by a simple omission.’[^13] Errors involving the cost of a bid are always considered material.[^14]

[18] The terms of a tender can be explicit or implicit. The most important of the implicit terms is that all bidders will be treated fairly and consistently.[^15] Put another way, one bidder cannot be given an unfair advantage over the other bidders.[^16] In short, there must be no ‘evidence of any colourable attempt … to achieve a desired result’.[^17]

[19] An example of an unfair advantage occurred in Chinook Aggregates Ltd. v. Abbotsford (District).[^18] In that case, the defendant had a policy of preferring bids from local contractors whose bids were within 10 per cent of the lowest bid. It gave no notice in its advertisement or in its instructions to potential bidders that it followed that policy.[^19] The plaintiff was the lowest bidder, but was not a local contractor. It sued. The court found,

Where the appellant attaches a condition to its offer, as the appellant did in the case at bar, and that condition is unknown to the respondent, the appellant cannot successfully contend that the privilege clause made clear to the respondent bidder that it had entered into a contract on the express terms of the wording of that clause.[^20]

[20] The reasoning behind this duty of fairness is that this obligation,

is consistent with the goal of protecting and promoting the integrity of the bidding process, and benefits all participants involved. Without this implied term, tenderers, whose fate could be predetermined by some undisclosed standards, would either incur significant expenses in preparing futile bids or ultimately avoid participating in the tender process.[^21]

[21] Moreover, an issuing authority cannot accept a non-compliant bid. To do so would be unfair. Acceptance of a non-compliant bid would effectively circumvent the tendering process.[^22] Consequently, another implied term of a tender is that only compliant bids are to be accepted.[^23]

[22] An important aspect of the tendering process is the effect of a privilege clause. A privilege clause may indicate when and whether any particular tender will be accepted.[^24] The purpose of a privilege clause is to permit the issuing authority to ‘take a more nuanced view of the cost than the prices in the tender’.[^25] The purpose has also been explained as permitting the issuing authority to ignore the lowest bidder where it has a reasonable and good faith concern that the bidder may not be able to perform the contract.[^26]

[23] Such clauses do not necessarily have to state all the specific criteria that will be used to evaluate the bids. However, any evaluation must be made on bona fide criteria and all bidders must be treated fairly;[^27]

[24] Other expectations of the tendering process include:

• All bids received will receive equal treatment and to that end, the issuing authority must weigh bids on the basis of what is actually in the bid;[^28]

• There is a duty of procedural fairness owed to a person bidding on a public tender offer. This duty requires the issuing authority to act in good faith towards all bidders;[^29]

• It is the prerogative of the issuing authority to determine the explicit terms of the tender documents;[^30]

• Once bidders have passed the threshold requirement of compliance, Contract A imposes a duty to be fair and consistent in the evaluation of bids;[^31]

• There is no free-standing duty of fairness owed to all bidders;[^32]

• There is no duty of care owed to bidders in the drafting of tender documents;[^33]

• An issuing authority is entitled to rely on the recommendations of consultants with respect to the evaluation of bids; and[^34]

• An evaluator must treat bidders equally and avoid specious reasons for rejecting a tender.[^35]

Analysis

[25] Robert Bateman and Donald Whitney were the principal witnesses testifying on behalf of Kaymar. Robert Bateman is one of the four owners of this company. He is an accountant by training and testified on all the financial issues relevant to this matter. Donald Whitney is another of the four owners and trained as a real estate agent. He is the Chief Operating Officer of Kaymar and is involved in the day to day operations of the company. He testified on any matter relevant to the litigation that was not financial in nature. Guy Arseneau also testified on behalf of the Plaintiff. He was the manager of finance and administration for the OCCAC at the time of these events.

[26] The two main witnesses who testified on behalf of the OCCAC were Patrice Connolly and Penny Sands. Patrice Connolly was Vice-President of Human Resources and Penny Sands was the Senior Director of Care Coordination. Both women were heavily involved in the issues that are at the foundation of this litigation.

[27] For the most part, all of the witnesses who testified in this trial were credible. Their reliability was enhanced by the voluminous documentary material that formed a significant body of evidence in this trial. Mr. Bateman and Mr. Whitney were the only witnesses whose evidence I could not accept in its entirety. They periodically contradicted one another and their evidence was coloured by their conviction they had been treated unfairly by the Defendant regardless of what the documentary evidence might indicate to the contrary. Consequently, where their evidence was either contradicted by the documentary evidence or by the evidence of the Defendant’s witnesses, I preferred the OCCAC’s evidence.

[28] The Plaintiff in its written submissions addressed six issues. According to the Plaintiff, all these issues implicate the duty of fairness that underlies the procurement process. The six issues are:

1. The cost of severance potentially payable by the Defendant, which the Plaintiff alleges caused the Defendant to give preference to service providers other than the Plaintiff in the RFP;

2. The Defendant’s preference for large nursing service providers (basket of services) was an undisclosed criterion of the RFP process;

3. The Defendant gave VONOC an advantage in the RFP process;

4. The Defendant unfairly customized the RFP so as to give an advantage to large service providers;

5. The Defendant breached the terms of Contract A by accepting a non-compliant bid by VONOC; and

6. The evaluation process conducted by the Defendant was unfair in that the evaluators were encouraged to lower the Plaintiff’s scores.

[29] These issues will be addressed in the order set out by the Plaintiff.[^36]

1. Severance costs

[30] The issue of severance costs relates to two decisions the OCCAC made in the late summer and fall of 2003: the decision not to extend Kaymar’s contract and the decision to issue the RFP.

[31] Kaymar’s concern regarding the severance issue as expressed by Bateman, revolved around how this issue was going to be dealt with in the new RFP. Bateman stated he was concerned that if there was no clause in any new contract compensating Kaymar for severance costs that had been accrued prior to March 31, 2004, Kaymar would have to increase its costs to reflect this liability and might price themselves out of the market. In his view, this concern impacted significantly on the fairness of the new RFP process. Whitney testified to the same effect. Bateman stated that the Defendant dismissed their concerns.[^37]

[32] The establishment of the Sale of Business contract is inextricably intertwined with the issue of severance costs. Kaymar’s understanding of the parameters of the issue of severance costs was ultimately quite different from OCCAC’s understanding.

[33] The Sale of Business contract issued in 1998 followed the government policy of divestment. The divestment policy caused problems with the union representing the physiotherapists. Ultimately, an agreement was reached requiring each community health care service to enter into a Sale of Business agreement with the service provider.[^38] The union continued to represent the workers, and any accumulated severance cost was the responsibility of the CCAC for the duration of the Sale of Business contract.

[34] Bateman testified that at the time of submitting a bid for the Sale of Business contract, Kaymar was aware they were expected to honour the Collective Agreement that had been signed previously between the union and the OCCAC. He was provided with information concerning the wage rates and benefits of the employees in order to establish an appropriate cost for providing the therapy services. He indicated that Kaymar was aware of the fact they would be assuming liability for the accumulated severance benefits as part of the agreement. During the process of preparing the bid, Kaymar was asked to provide two sets of prices: one based on MOH not assuming responsibility for the accumulated severance benefits and one based on the MOH agreeing to assume that responsibility.[^39]

[35] After Kaymar was advised it was the successful respondent to the RFP in 1999 and during the negotiations of the contract, Bateman testified that he was asked by Guy Arseneau – the finance and administration manager of the Defendant – to establish his costs without taking into consideration the cost of the accumulated severance costs. The rationale for this approach was that these costs might never materialize.[^40] Ultimately, the OCCAC chose to work with the visit rates that did not fund the severance costs. As a consequence, severance costs were unfunded for the duration of the Sale of Business Agreement.

[36] Arseneau stated that before issuing the 1999 RFP, the Defendant was concerned with the issue of severance costs and its impact on the procurement process. The Defendant believed that the existence of this liability could prove an insurmountable barrier to any prospective bidder. Consequently, the Defendant wanted a commitment that the MOH would fund this liability.[^41] During the negotiations prior to signing the Sale of Business contract, the Defendant continued to seek assurances from the MOH that the severance issue would be paid by the MOH.[^42]

[37] Bateman noted that in order to address the issue of the accumulated severance costs, section 22 was added to the Sale of Business Agreement. The relevant portions of that section state,

(a) The CCAC acknowledges that it will have a continuing liability to the Transferred Employees for Severance Pay, Sick Leave, and Vacation Pay-Outs as per the Collective Agreement, calculated as if the Transferred Employees had been terminated on the Closing Date but with their additional seniority, in each of the following circumstances:

(i) If Kaymar does not obtain a renewal of the agreement to provide Therapy/Social Services work on its expiry on March 31, 2004;

(ii) If the said agreement is terminated on or before March 31, 2003, for any reason; and

(iii) In the event of the bankruptcy or insolvency of Kaymar during the term of the said agreement.

For greater certainty, the Parties acknowledge that the liability of the CCAC is calculated based on the wage rates of the Transferred Employees as at the Transition Time and without regard for any subsequent changes in wages,

The payment of these liabilities, should they occur, is in turn, a responsibility of the Ministry of Health per the correspondence which is attached as Schedule F.

The CCAC agrees to provide payment to Kaymar for costs pertaining to the shutdown of their operations relating to the Services should they not be the successful proponent in the next call for proposal. This competitive process is anticipated to be prior to the commencement of the 2004-05 fiscal period.[^43]

[38] Bateman indicated to the court that he anticipated that the 2003 RFP would mirror the 1999 RFP in that it would also be a ‘sale of business’ RFP and would require any successful bidder to be a part of the Collective Agreement. In cross-examination, Bateman agreed there is no documentation supporting his assertion that it was understood that the Collective Agreement would necessarily be part of any future RFP. However, he indicated that he received confirmation of this position from Judy Threinen, who was the Director of Client Services of the Defendant, as well as from counsel representing the Defendant during negotiations of the Collective Agreement. Ms. Threinen was not called to testify.

[39] In order to address the OCCAC’s concerns regarding severance costs, the OCCAC and the MOH entered into a separate agreement whereby MOH would compensate the OCCAC for any portion of the severance costs it could not absorb into its budget. The contract between Kaymar and the OCCAC was scheduled to end on March 31, 2004. The Sale of Business Agreement was silent on what would happen to severance costs after that date.[^44]

[40] Bateman testified that in the lead up to the issuance of the RFP, Kaymar took the position that if the new RFP did not require all successful bidders be part of the Collective Agreement, then the existing severance liability would have to be paid to Kaymar. In his view, this payout would then level the playing field in any future RFP. On the other hand, Whitney’s testimony on this issue was unclear. At one point, he testified that he had no recollection that this was the position taken by Kaymar. Under cross-examination however, he agreed that Kaymar had taken the position that if a new RFP was issued that did not contain a clause similar to section 22, then Kaymar’s contract was not being renewed and the severance clause would be triggered. He also agreed that the Defendant never accepted Kaymar’s position on this issue.

[41] Patrice Connolly testified that the Defendant was concerned about the impact of the severance issue on their budget and ability to provide services. She understood the guarantee from the MOH to be that they would assist the Defendant in paying the severance costs if the Defendant was unable to pay the full cost out of their budget surplus while still maintaining reasonable service levels. She also understood that the term ‘one time funding’[^45] meant that after April 1, 2004, Kaymar would be solely responsible for any severance costs incurred. This latter interpretation of s. 22 of the Sale of Business contract was not confirmed until September 2003.[^46] Once the Defendant had this assurance, they made the decision to go ahead with the RFP instead of offering a contract extension.

[42] Connolly indicated she was aware that if Kaymar became solely responsible for future severance costs they would have to build that cost into their visit rates. From the Defendant’s perspective, if Kaymar had any portion of a future contract, the Defendant’s costs would also be higher, which might negatively impact their ability to provide services. However, she testified that ultimately, the Defendant decided to go ahead with the RFP and cross the costs bridge when they came to it. She stated that in the Defendant’s view, the RFP process would settle the severance issue once and for all.

[43] The Plaintiff’s theory is that the OCCAC was very concerned about having to pay any severance costs after March 31, 2004.[^47] According to this theory, the OCCAC chose not to extend Kaymar’s contract because of this concern. Secondly, the Plaintiff asserts that the OCCAC did not want Kaymar to win any portion of the new contract because of the risk it would have to pay any severance liabilities accumulating after April 1, 2004. This theory rests on the assumption that the OCCAC either believed or knew they would continue to be liable for Kaymar’s severance costs after April 2004.

[44] According to Bateman, Kaymar was aware that MOH would fund the severance costs. However, Bateman testified that at the time, it was his understanding of the agreement between MOH and the Defendant, that as part of any new procurement process, the Defendant would have to add the severance cost to the cost of a bidder other than Kaymar in order to determine whose bid was in fact less expensive.[^48] On the other hand, Bateman stated that he did not address his mind to, and did not understand, what the MOH statement concerning ‘one-time funding’ meant. In cross-examination, Bateman indicated that in his view, ‘one-time funding’ did not necessarily mean that no funding would be offered after March 31, 2004. He maintained that the clause stated there would be only one payment made if at a future date Kaymar was not awarded a contract.

[45] Not surprisingly, Kaymar and the OCCAC were both preoccupied with the issue of who would be responsible for the severance costs after March 31, 2004. There were a number of meetings, email exchanges and letters between the parties. Kaymar took the position that the severance cost issue had to be resolved prior to any issuance of an RFP. In its view, failure to settle the issue would lead to a situation where it was not on a level playing field with other potential bidders who would not be encumbered with the cost of severance.

[46] The OCCAC sought a legal opinion concerning whether it would be liable for severance costs after March 31, 2004 if a new contract was signed. It also sought a continuation of the MOH guarantee with respect to severance costs past this date. The OCCAC wanted the guarantee to continue for several reasons. First, it would permit them to extend Kaymar’s contract rather than go to RFP under tight timelines. Alternatively, if the OCCAC was liable for severance costs after the end of the Sale of Business Agreement, if the guarantee was continued they would not have to fund the costs from their budget. Ultimately, the MOH indicated that it was not prepared to extend the guarantee past the end of March 2004.[^49]

[47] The OCCAC asked its employees to create scenarios in which the severance costs were calculated depending on whether Kaymar was successful in retaining all, some or none of the business to be awarded pursuant to the RFP. Several of these scenarios were created, but in effect, they all indicated the same thing: if Kaymar was not successful in obtaining any portion of the business, there would be a large severance payout; if they obtained some or all of the business, the payout would be less.[^50]

[48] According to the Plaintiff, it was the fact the OCCAC would continue to be liable for severance costs after March 31, 2004 that led it to conduct the procurement process in such a fashion that Kaymar was disadvantaged. If Kaymar lost any portion of the business, the MOH guarantee applied and the OCCAC would not be liable for the attendant severance costs. The Plaintiff argues that the best case scenario for the OCCAC was Kaymar losing the entire volume of business as then all the severance liability would be covered by the MOH guarantee and the OCCAC would have no future liability.

[49] As noted earlier, the Plaintiff’s position rests on the assumption that the OCCAC was in fact liable for the severance costs of the divested employees after March 31, 2004. The evidence indicates otherwise. The OCCAC sought and received a legal opinion that its liability for severance costs was strictly one-generational.[^51] According to the legal opinion, after the end of the contract, any future severance costs would be the responsibility of Kaymar. There is evidence that Kaymar was aware of the fact they would be responsible for any severance costs after March 2004. In the July 10, 2003 meeting between the two parties, Kaymar took the position that they were entitled to receive a payout of all severance costs at the end of the contract period regardless of the result of any RFP.[^52] Alternatively, it was Kaymar’s expectation that OCCAC would continue to underwrite the cost of severance.[^53]

[50] The issue of severance costs informed the decision by the OCCAC not to extend the Sale of Business Agreement. All parties agree the Defendant did look into the possibility of extending the Sale of Business Agreement. As the Plaintiff itself noted, it would have been easier for the OCCAC to have done so.[^54] The timelines for the RFP were tight and the Defendant had to abandon any possibility of a comprehensive basket of services contract given those tight timelines.

[51] However, as noted in the Statement of Defence, the OCCAC,

was concerned that the Ministry’s willingness to fund potential severance and other costs should Kaymar not become a successful bidder for all or part of the new therapy services contract did not extend beyond March 31, 2004. As it was possible that Kaymar would lose at least a portion of its volume as a result of the RFP process, the OCCAC wanted to ensure that the April 1, 2004 effective date for the new therapy services contract was met.

[52] Once the OCCAC had received information from the MOH that it would not continue its guarantee past March 2004, it was not in the OCCAC’s interests to extend the contract. Pursuant to s. 22 of the Sale of Business Agreement, the OCCAC was responsible for severance costs. If the OCCAC extended this contract past the date when the MOH guarantee ended, it would have had to fund any severance costs incurred if Kaymar lost any portion of the next contract. On the other hand, the legal opinion the Defendant received led it to believe it had no liability for severance costs in any new contract so long as that contract was in place by April 1, 2004.

[53] By the summer of 2003, the OCCAC knew the government policy required more than one contract be awarded for any RFP.[^55] Consequently, Kaymar would inevitably lose some portion of the business under the new contract and equally inevitably some severance would have to be paid. From the OCCAC’s perspective, there was a significant financial downside to continuing the Sale of Business contract after March 2004.

[54] The Plaintiff argues that the OCCAC not only could have, but should have, extended the Sale of Business contract.

[55] In late 2002 and into the middle of 2003, there were discussions between the Defendant and Kaymar concerning a possible extension of their contract pending finalization of the new RFP template. Although the Sale of Business contract did not provide for an extension, Bateman indicated he believed that an extension was probable given that other service providers had been given extensions. Ultimately, the Defendant decided to go ahead with the RFP and did not extend Kaymar’s contract.[^56] Bateman indicated that he never understood why the Defendant did not extend the contract. On the other hand, Whitney indicated that he was aware at the July 10, 2003 meeting that the Defendant indicated there were a number of issues that needed to be resolved before it would be possible to extend the contract.

[56] Arseneau indicated that the Defendant wrote a series of letters to the MOH requesting written confirmation of their undertaking to pay the severance costs in the event that they became payable. In particular, the Defendant was looking for confirmation of the conditions that had to be met before the MOH would cover those costs.[^57]

[57] Connolly also testified about the contract extension discussions with Kaymar and MOH. She indicated that the MOH had provided guidelines to be followed in the event that the Defendant was considering contract extensions.[^58] MOH required the existing contract to contain a provision for extension. Connolly stated that one of the problems with extending Kaymar’s contract was the fact there was no provision for extension. Another problem was the agreement of MOH to assist the Defendant in paying any severance costs incurred by Kaymar. Connolly was not sure that the current government would honour the guarantee provided in 1998. She repeatedly wrote to the government seeking an assurance that the government would not only assist with the payment of severance but also that the assurance would continue after April 1, 2004.[^59]

[58] In addition, Connolly indicated she was seeking permission from MOH to extend Kaymar’s contract given the lack of an extension provision in the contract. Ultimately, Connolly received a letter from the government agreeing to reimburse any portion of severance costs incurred but only for costs incurred by March 31, 2004.[^60] Connolly testified that she understood from this letter that any severance costs incurred by Kaymar would only be covered by the government if they were incurred prior to April 1, 2004. After that date, if the contract was extended, the OCCAC would liable pursuant to the Sale of Business contract.

[59] Connolly denied the Defendant had discretion to extend Kaymar’s contract instead of going to RFP. She stated that the language of Kaymar’s contract did not contain the possibility of extension. Also, none of the exceptions set out in the MOH procedures document were met by the circumstances of the Kaymar contract.[^61] Finally, MOH had not agreed to extend the timeframe of their guarantee to pay the severance costs. At that point in time, the Defendant had not received the legal opinion they later received concerning liability for any severance costs after March 31, 2004 and they were therefore unsure whether their obligation to pay severance continued.[^62] Connolly stated that the Defendant would not extend Kaymar’s contract if in doing so, they found themselves potentially liable for severance costs that would not be offset by the MOH.

[60] In cross-examination, Connolly agreed that the Defendant had extended other contracts but maintained that they did so in keeping with the guidelines set out by the MOH for interim contract management. She insisted that the Defendant was never opposed to extending Kaymar’s contract; however, they believed the necessary pre-conditions were never met.[^63]

[61] In any event, Connolly testified that the Defendant had come to the conclusion by the end of September 2003 that it did not want to extend Kaymar’s contract; it wanted to go to RFP. Over the course of the months between February 2003 and January 2004, Connolly testified that the Defendant repeatedly drafted scenarios setting out the financial implications to Kaymar, and by extension to the Defendant, of Kaymar being awarded various percentages of the new therapies’ contract.[^64]

[62] The evidence demonstrates that the Defendant could have extended the Sale of Business Agreement, assuming the OCCAC was prepared to shoulder the risk of potential severance costs and the MOH gave its approval.[^65] However, the Plaintiff has failed entirely to show why the OCCAC had a duty to the Plaintiff to arrange an extension of the Sale of Business contract despite the risk. The Plaintiff did not point to a single legal principle to support its proposition that ‘extending the Sale of Business Agreement would have been the fair and appropriate thing to do’.[^66] Nor did the Plaintiff provide any jurisprudence indicating that the OCCAC had any duty to prefer the financial interests of Kaymar over its own financial interests.

[63] The Plaintiff in its submissions links the decisions not to extend the Sale of Business contract and to go to RFP to the requirement to run a procurement process that is fair.[^67] There is no question that the Defendant had an obligation to run a fair procurement process, but it does not follow that the Defendant had to make decisions that were not part of the RFP process solely because it would have been advantageous to the Plaintiff. The decisions not to extend the Sale of Business contract and to go to RFP are not part of the RFP process even though they are decisions that relate to the issuance of the RFP. The relationship is one of timing, not content. As noted earlier, there is no free-standing duty of fairness.[^68]

[64] Contrary to the Plaintiff’s arguments, the fact the legal opinion received by the OCCAC (and accepted by it) indicated its liability for the severance costs ended when a new contract was signed meant that it had no motive to disfavour Kaymar in the 2003 RFP. The severance issue was neutral from the OCCAC’s perspective. It was covered regardless of the result of the RFP; the MOH would cover the OCCAC for any severance costs incurred prior to March 30, 2004 that it could not fund itself, and any severance costs incurred after March 30, 2004 became Kaymar’s problem. In fact, if there was any preference from the OCCAC’s perspective, it would be that Kaymar be successful in obtaining some portion of the new contract. The greater Kaymar’s portion of the new contract, the less severance the OCCAC would have to pay.

[65] The Plaintiff insisted throughout the trial and in its final submissions that there was something fundamentally wrong with the OCCAC working out the potential cost of severance. It suggested that this activity demonstrated ‘a preoccupation with the interests of the OCCAC over all other interests’. The issue of the quantum of severance costs was an issue for the OCCAC. The MOH guarantee only covered those costs the OCCAC could not cover out of its own budget. Consequently, the OCCAC had a financial interest in knowing what those severance costs might be and the portion for which it could be liable. I cannot see that there was anything inherently wrong in the OCCAC seeking to understand and prepare for what could have been a significant payout. The OCCAC had an obligation to run a procurement process that was fair, but it did not have to make financial decisions that were not in its own interest.

[66] In the circumstances, I find that the issue of liability for severance costs could not, and did not, motivate the OCCAC to fix the RFP to disfavour Kaymar.

2. Basket of services

[67] In August of 2002, Arseneau testified there was both a new CEO at the Defendant and a new Board of Directors. They began discussions concerning a new services delivery model.[^69] At the same time, the government was also changing its approach to procurement and was developing policies and procedures for procurement designed to maximize competition.[^70] These changes were set out in two documents: procurement policy[^71] and procurement procedures.[^72] Penny Sands testified that it was her job to review, and be familiar with, the requirements of both these documents as they governed the 2003-04 procurement process.

[68] On August 27, 2002, Kaymar received a letter from the Defendant indicating that they were considering changing their service delivery model. There were to be community consultations and Kaymar was invited to participate.[^73] Kaymar did participate along with a number of other stakeholders. Various service delivery models were proposed, including a ‘basket of services’ model in which one provider provided a wide range of services. According to both Bateman and Whitney, the participants in the consultation process soundly rejected this model in favour of a services based model in which a number of providers provided different services.[^74] On the other hand, according to Arseneau, the Defendant had a preference for a ‘basket of services’ model because it was cheaper, easier for the CCAC to manage given there were fewer service providers to deal with, and it was better for clients whose services could be coordinated by a single provider.[^75]

[69] Patrice Connolly agreed with Arseneau that the Defendant had a preference for a basket of services model of service delivery and they were working towards that model in 2003-04. She indicated this model coincided better with the provincial government’s expectation that as part of the managed competition process there would be multiple contracts awarded in each RFP process. Connolly noted that the basket of services delivery model meant that one service provider would provide multiple services. Connolly indicated the Defendant’s long-term goal was to deal only with service providers who could provide comprehensive services, either on their own or using joint ventures. It was hoped that ultimately, the adult therapies services would be rolled into the nursing, personal support services (PSS) and dietetics contracts.

[70] This approach was incorporated eventually into the OCCAC’s guiding principles.[^76] However, Connolly stated that while the OCCAC did merge dietetics with nursing and PSS in 2003, it decided to keep the therapy services as a separate entity at least in part as a result of the Sale of Business contract.

[71] As part of the move towards the basket of services model, Connolly indicated that the Defendant wanted to extend the contracts with the various service providers to a common termination date. A shared termination date would have facilitated the procurement process in a basket of services model.[^77]

[72] In its closing submissions, the Plaintiff referred to the objective of establishing a comprehensive basket of services contract as a ‘paradigm’ shift in how the OCCAC would arrange its contracts. It argues that this ‘paradigm’ shift provided a,

new direction not only on how to procure but also on what the desired outcomes of procurement are: achieving the ‘one stop shop’ for clients, whereby the same service provider agency is serving an individual client and therefore, a reduction in the number of service providers; preferring large nursing providers with the scale to provide service to a critical mass of clients; and reducing the number of contracts in favour of awarding larger volumes.[^78]

[73] It argues that in order for OCCAC to achieve this paradigm shift and to minimize its financial risk, it had to ensure Kaymar did not win any portion of the 2003 RFP. The Plaintiff contends that during the procurement process, the OCCAC was ‘focused at all times [on] (1) the directed paradigm; and (2) avoidance of perceived risk to the OCCAC associated with one and only one party’s, Kaymar’s, potential success in the RFP.’[^79] Importantly, the Plaintiff asserts that this ‘basket of services’ paradigm was an undisclosed criterion of the 2003 therapies RFP.

[74] There is ample evidence that the OCCAC was interested in a ‘basket of services’ approach to the provision of services.[^80] The MOH had dictated a policy shift indicating that no contract could be awarded to a single service provider; there had to be a minimum of two service providers for each contract. Understandably, this approach would significantly increase the number of service providers if there were also numerous contracts. The only way around the problem was to combine services into one or more large contracts, which would then reduce the number of service providers.[^81] In essence, this was the basket of services approach.

[75] The evidence is equally clear that the OCCAC hoped to implement this new approach in the upcoming round of RFPs.[^82] As it turned out, the tight timelines for the therapies RFP meant that it could not be combined with other services into a comprehensive basket of services RFP.[^83] Despite the fact the adult therapies services could not be combined with other health services in 2003, a comprehensive basket of services approach to contracts remained a long term goal of the OCCAC.[^84]

[76] The Plaintiff also asserts that the objective of a comprehensive basket of services was a key component of the therapies RFP. It goes on to argue that,

From the moment the direction was mandated from above, Kaymar’s expectation that it would be treated fairly was in jeopardy. The goal was immediate and what was required was full disclosure that this mandate hung over the 2003 Therapies RFP.[^85]

[77] The issue to be decided is not whether the OCCAC had a preference for a comprehensive basket of services style of service delivery. Such was its right. The issue is whether that preference was an undisclosed criterion of the therapies RFP. In my view, there is no evidence that the ability to provide a basket of services was a criterion in this RFP.

[78] The therapies RFP did not use the term ‘basket of services’ anywhere in its documentation. The only witness who was called who could speak to the evaluation of the bidders on the therapies RFP was Ms. Penny Sands. She testified that an ability to provide a comprehensive basket of services was not taken into account in evaluating any of the bids.[^86] As noted earlier, I accept the evidence of this witness. The documentary evidence supports her contention. The evaluation scoring sheets and the evaluators’ notes formed part of the evidence. The scoring sheets do not use any criteria that would indicate a preference for a multi-service provider. The evaluators’ notes do not reveal a bias towards multi-service providers. The most important piece of evidence that contradicts Kaymar’s assertion of bias is the fact that one of the two successful bidders on the therapies RFP was COTA – a company that was not a multi-service provider. It is also notable that COTA finished first in the evaluation.[^87]

[79] It is the issuing authority’s prerogative – in this case, OCCAC – to establish the terms and conditions of the tender. Consequently, there was no reason for the OCCAC not to have made its preference for a multi-service provider explicit if that was what it wanted to do. While the absence of a motive to conceal is a factor in my evaluation of whether there was an undisclosed criterion, it is not determinative. An issuing authority can have an undisclosed criterion even in the absence of any motive to conceal it. Such was the case in Chinook. However, in the present case, there is no evidence of an undisclosed policy such as there was in the Chinook case.

[80] The Plaintiff contends that the existence of a preference for a comprehensive basket of services provider must necessarily have informed the criteria for the evaluation of the therapies RFP. I do not accept that the one necessarily must follow the other. Indeed, as noted earlier, in the present case, there is not only no evidence of an undisclosed criterion for a multi-service provider, there is evidence that such a criterion was not a factor in the evaluation of the bids.

[81] In the final analysis, the basket of services paradigm is a red herring. It was a goal of the Defendant, but the evidence demonstrates that this goal did not cause the OCCAC to seek to exclude Kaymar from the new contract. The Plaintiff’s contention must fail. I find that there was no undisclosed criterion for a multi-service provider in the therapies RFP.

3. Did VONOC have an unfair advantage in the RFP process?

[82] The Plaintiff alleges the Defendant provided insider knowledge to VONOC that gave it an advantage in the preparation of its bid. Specifically, the Plaintiff states that the Defendant advised VONOC of its preference for a basket of services provider. Moreover, VONOC’s use of a consultant, Norma Strachan, who had previously been an employee of the Defendant gave VONOC access to Kaymar’s visit rates and was a clear conflict of interest.

[83] It is a basic principle of procurement law that one bidder may not be given an advantage over other bidders. Avoiding a conflict of interest or a reasonable apprehension of bias is essential to the orderly conduct of the procurement process.[^88] The standard for making a finding of bias was explained by the Supreme Court as follows:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is ‘what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly?’[^89]

[84] Section 4.3.3 of the 2003 therapies RFP stated,

(1) Each Respondent shall disclose any potential or actual conflicts of interest that it, or member if its joint venture in the case of Joint Venture Respondents, has or may have as a Service Provider under the terms and conditions of the Draft Agreement.

(2) Each Respondent shall disclose, in the Proposal Submission Form,

(a) whether prior to submitting its Proposal, it had access to CCAC confidential information with respect to the RFP Process, including any information with respect to the evaluation criteria or any matter related to the evaluation process, other than information officially disclosed by the CCAC as part of the RFP Process; and

(b) the names, positions addresses and telephone numbers of all individuals who have participated in the preparation of the Proposal and the identification of any of those individuals who is a former employee, Executive Director or member of the Board of Directors of the CCAC issuing this RFP.

(3) The CCAC will make a judgment as to whether, on a case by case basis, the conflict of interest or potential conflict of interest, disclosed pursuant to this RFP section 4.3.3 is material and will result in a disqualification of the Proposal.[^90]

[85] Section 7 of the 2003 therapies RFP stated,

7.1 (1) The CCAC shall determine, in its sole discretion:

(c) whether a Proposal or a Respondent,

i) is disqualified; or

ii) will cease to be considered in the evaluation process.

7.2 (1) The CCAC may, in its sole discretion, disqualify a Proposal or cancel its decision to make an award under this RFP, at any time prior to the execution of the Agreement by the CCAC if,

(f) the Proposal, in the opinion of the CCAC, reveals a material conflict of interest as described in RFP Section 4.3.3.[^91]

[86] The discretion possessed by the OCCAC to determine whether there was a material conflict of interest had to be exercised fairly. As noted in Rankin Construction Inc. v. Ontario,

Materiality is to be determined objectively having regard to the impact of the defect on the tendering process and the principles and policy goals underlying the process. The focus is not on the impact of the defect on the outcome of the particular tender process, but on the impact on the process itself, including the reasonable expectation of the parties involved in the process, including rival bidders.[^92]

[87] Connolly confirmed that the RFP required that any actual or potential conflict of interest be brought to the attention of the CCAC.[^93] VONOC had hired Norma Strachan as a consultant for the RFP process. A year previously, she had worked for the OCCAC in a position similar to that of Penny Sands. Bateman testified that Strachan was familiar with the visit rates paid by the OCCAC to Kaymar.[^94] Connolly indicated that visit rates were confidential information.

[88] The evidence indicates that VONOC appropriately alerted the OCCAC to the fact they had hired Norma Strachan as a consultant to assist in the preparation of their proposal. [^95] If the Defendant had determined there was a conflict of interest, VONOC could have been disqualified as a bidder.[^96]

[89] The issue of a potential conflict of interest was reviewed by Managed Competition Advisory Group (MCAG) – a subcommittee tasked with managing the RFP process and it was decided there was no conflict of interest given that the RFP was a very different process than had been used previously.[^97] Connolly agreed in cross-examination that the discussion at MCAG revolved primarily around the length of time that had elapsed between Strachan’s employment and the start of the RFP process. She conceded that Strachan’s knowledge of Kaymar’s rate structure was not discussed.

[90] The issue with respect to the conflict of interest is whether the OCCAC’s discretion was exercised appropriately.

[91] Given my previous finding that the basket of services paradigm played no role in the RFP process, I do not intend to discuss this aspect of Kaymar’s contention further. VONOC’s knowledge of the OCCAC’s long-term goal was irrelevant to the RFP process. In addition, and in keeping with the determination made by OCCAC, I find that Ms. Strachan had no ‘insider’ knowledge regarding the 2003 therapies RFP as the template had been substantially altered after she left the OCCAC’s employ as had both the policies and the procedures.

[92] Of more concern is the allegation that Ms. Strachan had knowledge of Kaymar’s visit rates. Pricing is a material aspect of the tender process.[^98] Ms. Strachan did not testify. On the other hand, Mr. Cerniuk, the CEO of VONOC did. Mr. Cerniuk testified that he did not ask Ms. Strachan for any information regarding Kaymar’s visit rates.[^99] Instead, he established the rates VONOC would use in the bid by looking at publicly available information.[^100] The evidence relied on by the Plaintiff consists of emails and testimony that indicated that Ms. Strachan knew Kaymar’s visits rates as of December 2002 – a year before the RFP process.[^101] There is no evidence she knew the Kaymar visit rates in place in 2003.

[93] Moreover, VONOC formally requested information regarding visit rates in their written questions to OCCAC.[^102] It is unlikely that they would have made this request if they already had that information. In addition, if OCCAC had complied with this request, the information would have been available to all bidders, thereby obviating any advantage VONOC might have had.

[94] In the circumstances, I find that the OCCAC appropriately exercised their discretion in deciding there was no conflict of interest. They were aware of the potential conflict of interest, considered it and made the decision that they did not believe that Ms. Strachan had any confidential information regarding the RFP process that could give VONOC an unfair advantage. I would only interfere with the Defendant’s exercise of discretion if – viewed objectively – I could conclude that they exercised that discretion inappropriately. On the evidence before me, I cannot find that it did so. On the contrary, the evidence demonstrates that no confidential information was given to VONOC and therefore, they did not have any advantage over the other bidders.

4. Customization of the RFP

[95] The Plaintiff asserts that the OCCAC unfairly customized the 2003 therapies RFP by inserting an experience equivalent provision that had the effect of favouring large multi-service providers such as VONOC and to disfavour the smaller service providers.

[96] The process of issuing the new RFP was preceded by the issuance of draft RFP templates that were to be used by the CCACs within the province. Whitney testified that the first draft template for the new RFP was issued in July 2003. This template provided that any respondent had to demonstrate that it had ‘been actively engaged in the services as described in the RFP Data Sheet in an in-home and community setting’.[^103] In a subsequent draft template issued in November 2003, the provision regarding experience had been changed to include the possibility of experience equivalents. In particular, that template indicated,

the Respondent shall provide evidence that the Respondent itself has been actively engaged in the services as described in the RFP Data Sheet in a community setting or, if set out in the Data Sheet the required equivalent experience (…) If the CCAC intends, for the purpose of this RFP Process, to consider services provided in hospitals, long-term care facilities or similar institutional settings as equivalent experience to “services in a community setting”, this will be set out in the RFP Data Sheet.’[^104]

[97] Whitney indicated that in his view, this new provision opened up the competition to service providers who had previously only had experience in an institutional setting but not to service providers who had no experience providing therapies services.

[98] The actual RFP template was issued in December 2003 and contained a provision for experience equivalents. However, this RFP substantially altered the definition of experience equivalents. It indicated that a Respondent could submit a bid if it could show that it had ‘three years delivering professional services in a community setting’. In response to a question asked regarding this definition, the Defendant indicated that ‘professional experience refers to experience providing health care services, in a community setting, through any of the recognized regulated health care professionals in Ontario, other than physiotherapists, occupational therapists and social workers. For example, professional experience includes the provision of nursing or speech language pathology services in a community setting.’[^105] Whitney indicated that this definition left him with more questions than answers since it was apparent that a respondent could bid on the provision of therapy services even though it had no experience at all in that area. He stated that he believed that the experience requirement showed a clear preference for large service providers who had not previously provided the specific services being sought.

[99] Connolly testified that the Defendant was concerned there would be very few respondents to the adult therapies’ RFP. She spoke to two service providers who were providing services to the OCCAC and who had provided therapy services in other parts of the province to ask if they would be interested in bidding on the therapies’ contract in Ottawa. Connolly stated that she received, at best, a lukewarm response. Consequently, the Defendant was anxious to broaden the experience provision as much as possible.[^106] When the government altered the RFP template to allow for experience equivalents, Connolly stated that the Defendant was eager to adopt a broad definition of experience equivalents in order to encourage as many bidders as possible. She agreed in cross-examination that if the Defendant had not used experience equivalents, two of the respondents, including VONOC, could not have bid on the therapies’ contract.

[100] As noted earlier in these reasons, the MOH drafted a template RFP to be used throughout the province. This template was accompanied by two large documents outlining the policies and procedures to be used during the RFP process.[^107] These documents stipulated that the RFP process was to ‘open, fair, and transparent’.[^108] The procedures manual also indicated that,

2.0 Applying Open Procurement Procedures

CCACs will apply open procurement procedures and eliminate any purchasing practices that discriminate between Service Providers, or are biased in favour of, or against, a Service Provider or its service or product, including:

(a) removing general qualification criteria…

(b) removing specifications, terms and conditions in competitive procurement processes that are biased in favour of, or against, a Service Provider, or its product/service;

(f) preventing the use of evaluation qualification criteria that are not disclosed in the competitive procurement process documents.[^109]

[101] The Plaintiff alleges that the OCCAC could only customize the RFP to permit respondents who were ‘experienced service providers … to carry out the services described in the Draft Agreement and named in the RFP data sheet.’[^110] In the present case, the services were physiotherapy, occupational therapy and social work services. The Plaintiff concedes, however, that in the final template RFP the experience requirements were expanded.[^111]

[102] The OCCAC explained the need for this criterion as a method of widening the pool of organizations who could bid.[^112] This criterion was not undisclosed. All the bidders knew that organizations who did not provide therapies’ services at the time of the RFP, but who were interested in so doing, and who could meet the other criteria could bid on the contract.

[103] The issue is whether the policies and procurement procedures of the MOH and the template RFP itself permitted the use of ‘experience equivalents’ as defined by the OCCAC. Alternatively, the issue is whether the use of experience equivalents had the effect of unfairly favouring or disfavouring certain service providers.

[104] The Plaintiff argues that the instructions in the template permitting the use of experience equivalents did not permit the OCCAC to substitute the requirement for experience in the provision of the services being sought; it only permitted the OCCAC to substitute the requirement for experience providing the services in a community setting.[^113] The Defendant argues that the draft template provided for a wider definition of experience equivalents. It points to the following section:

1.3(1) On the applicable form set out in this Schedule, the Respondent shall provide evidence that the Respondent itself has been actively engaged in the services as described in the Data Sheet [in] a community setting or, if set out in the Data Sheet the required equivalent experience, for not less than the amount of time and during the period set out in the RFP Data Sheet.[^114]

[105] The Defendant also points out that section 1.3(2) sets out what is considered experience in a community setting. Section 1.3(3) then provides an example of an experience equivalent, which is a service provider who provides similar services in an institutional setting. The Defendant argues that what the RFP template does not do is limit the experience equivalent only to the provision of the specified services in an institutional setting. Again, it points to the template. Section 1.3(4) provides,

Experience equivalents

[Insert whether experience equivalent to “services in a community setting” will be considered and what kind and what length of time is equivalent][^115]

[106] According to the Defendant, the use of experience equivalents was consistent with the MOH policies to remove a barrier to competition.

[107] It is important to note that the experience equivalent provision in the 2003 therapies RFP did not limit the type of service in a community setting to nursing services. The provision is only limited to ‘professional services’.[^116] During Ms. Sands’ testimony there was a discussion regarding what precisely was meant by professional services. Her testimony was that it included any type of health care service that was a regulated health care service, including services such as midwifery or massage therapy.[^117] In addition, Ms. Sands received training in the customization of the RFP run by the Ontario Association of CCACs and during the session, she asked whether experience equivalents could include the provision of professional services in a community setting. She testified that she was advised that it did.[^118]

[108] In my view, there is nothing in the MOH policies and procedures manuals that would prevent the use of experience equivalents. Indeed, the final template prepared by MOH specifically provided for it. The language of the sections that make reference to experience equivalents does not limit the experience equivalent to experience providing the service in a community setting. Finally, I accept Ms. Sands’ evidence that she asked about using professional services in a community setting as an experience equivalent and was assured it was acceptable. There is no evidence from any other witness stating this was not a permitted use of experience equivalents. Consequently, I find that it was appropriate for the OCCAC to use the particular type of experience equivalent that it did.

[109] Furthermore, the provision for experience equivalents was an express term of the 2003 therapies’ RFP. Kaymar – and other bidders – could have chosen not to bid if they were not prepared to accept the terms of the RFP. By bidding, Kaymar effectively accepted that experience equivalents were a term of the RFP.

[110] A secondary issue is whether the use of the specific experience equivalent gave VONOC an advantage in the procurement process. As has already been stated, one bidder cannot be given an unfair advantage over the other bidders and there must be no ‘evidence of any colourable attempt … to achieve a desired result’.[^119] In my view, this issue is easily decided. The experience equivalents were not limited to the provision of nursing services in the community; it included any professional health care service. Consequently, the provision could not provide an advantage to VONOC.

5. Was VONOC’s bid non-compliant

[111] The Plaintiff contends that VONOC’s bid was non-compliant in that it had no experience in providing therapy services and therefore, it breached the provisions of the RFP by providing information from third parties or by providing irrelevant experience information.

[112] A non-compliant bid cannot be accepted by the issuing authority. The Plaintiff states that the Defendant’s bid was non-compliant. It contends the RFP required respondents to rely only on their own experience in bidding on this RFP. However, VONOC relied on the experience of third parties. In the Plaintiff’s view this approach conflicted with Schedule C, s. 1.2, and was consequently a material non-compliance with the RFP. In addition, Schedule D, s. 1.2 required that the bid be drafted in reference to a respondent’s experience in providing therapy services. VONOC referred to its own experience, but as it had no therapy experience it made reference to its experience providing nursing services.

[113] The Defendant argues that the Plaintiff’s allegation is based upon an incorrect reading of the RFP document and conflates the general experience requirement in the Data Sheet with the Service Quality section.

[114] The general experience requirement of Schedule C states at s. 1.2 that “the CCAC will evaluate Respondents based on the qualifications of the Respondent”. In the next section, this requirement is dealt with more specifically and states,

1.3(1) On the applicant form set out in this Schedule, the Respondent shall provide evidence that the Respondent itself has been actively engaged in the services as described in the RFP Data Sheet [in] a community setting or, if set out in the Data Sheet the required equivalent experience for not less than the amount of time and during the period set out in the RFP Data Sheet.[^120]

[115] The Service Quality section of Schedule D to the RFP requires that a respondent “ensure that the response is consistent with and refers as appropriate to the Services set out in the Services Schedule and the Performance Standards set out in the Performance Standards Schedule.”[^121] The services schedule is attached to the contract that would be signed by the successful bidders and OCCAC. It relates to the actual services to be provided.[^122]

[116] I agree with the Defendant’s assertion that the appropriate way to deal with this issue is to look at the RFP document as a whole. I have found that the use of experience equivalents was appropriate. It follows from that conclusion that organizations with no specific experience providing occupational therapy, physiotherapy or social work services could apply. Schedule D is therefore inconsistent with Schedule C. The RFP document indicates how to deal with any internal inconsistencies. It states,

2.2 Priority of Documents

(1) Except as provided in RFP section 2.2(2), if there are any inconsistencies between the terms, conditions and provisions of the RFP documents, the RFP shall prevail over the Schedules during the RFP process;

(2) If there is a conflict between the RFP and the RFP Data Sheet, the information in the RFP Data Sheet shall prevail over the RFP.[^123]

[117] The RFP Data Sheet, which takes preference over all the remaining portions of the RFP, provides for experience equivalents. Consequently, Schedule D must be read in light of this situation. It follows that bidders who did not have actual experience in providing occupational therapy, physiotherapy or social work services would have to make reference to their equivalent experience in completing Schedule D.

[118] Even if these references are an inappropriate use of other organizations’ experience, there is an issue of materiality. In the case Newfoundland and Labrador v. Marine Contractors Ltd.,[^124] the court emphasized the need for substance to trump form.[^125] The court indicated that there were two overriding considerations in determining whether an error in a bidder’s response was material. They are: did the response substantially comply with all of the information requested in the RFP and did the specific error give an unfair advantage to the offending bidder in relation to the other bidders?[^126]

[119] I find that insofar as there was any non-compliance in VONOC’s bid as a result of their references to the experience of other organizations, that non-compliance was immaterial.

[120] It is important to look at the references to other VON organizations in context. [^127] For instance, in a lengthy section on the subject of performance monitoring, VONOC makes the following comment:

VON London provides therapy services to the CCAC in London. They have shared with us a formula for determination of staffing needs to meet volume expectations.[^128]

[121] There are references in the document to VON Canada. These references outline in essence the support services that VONOC could access in providing services to the OCCAC. Finally, there are five references to other VON organizations in a 116 page document (not including attachments).[^129]

[122] VONOC’s response to the RFP was substantially compliant with the information requested. The references to other VON organizations were minimal and had no significant impact on the information in the document as a whole.

[123] Furthermore, there is no evidence that these references to other VON organizations played any role in the evaluation process. The notes of the evaluators, which were placed in evidence, make no mention of this additional experience.[^130] Consequently, there is no evidence that any of the other bidders, including Kaymar, was prejudiced by the inclusion of this information in VONOC’s response.

6. Was the evaluation process unfair?

[124] The Plaintiff argues that the evaluation process was unfair in that the OCCAC failed to follow the proper procedures. Specifically, it contends the OCCAC

(a) Improperly followed the individual steps of the evaluation process;

(b) Worked under such tight timelines that irregularities occurred;

(c) Improperly interfered with the function of the evaluation committee; and

(d) Giving a perfect score to VONOC on the interview portion of the evaluation.

[125] Connolly testified that there were four companies who bid on the therapies’ contract. Kaymar was one of those companies. There was a two-part evaluation of the bids: the first part involved an evaluation of the written potion of the quality evaluation. After an interview with each bidder where the quality evaluation might be adjusted, there would then be an evaluation of the price submitted by each bidder.[^131] Connolly stated that in theory, if a bidder did not pass the first part of the evaluation, it would not be interviewed. Of the four bidders, one did not pass the first step. However, Connolly indicated that the Chair of the Board of Directors decided that given how new the process was, they would interview the fourth candidate even though they had not received a passing score on the quality evaluation. She agreed in cross-examination that the decision to interview the fourth respondent despite its failure to pass the written evaluation portion of the RFP process was not in compliance with the procedures for the RFP as set out by MOH.[^132]

[126] Under cross-examination, Connolly agreed that she kept the Executive Director abreast of the procurement process and specifically, how Kaymar was doing.[^133] She indicated that given the financial implications to the Defendant, the Executive Director wanted to know how Kaymar was doing.

[127] At the end of the evaluation process, Connolly testified that Kaymar placed third in the overall evaluation.[^134] Their prices were considerably higher than those of the top two bidders. Connolly indicated that she and her staff prepared a final document setting out the financial implications of awarding the contract to two service providers versus awarding the contract to three service providers.[^135] Ultimately, the Board of Directors decided to award the therapies’ contract to only the top two bidders and consequently, Kaymar did not receive any portion of the new contract.[^136]

[128] Section 6 of the RFP document set out how the proposals were to be evaluated. There were eight steps involved, of which only seven applied to this RFP.[^137] It is the Plaintiff’s contention that most of the steps were actually carried out by Ms. Sands acting alone or with another employee of OCCAC.

[129] The Defendant refutes all of these claims. It states that although there may have been some procedural irregularities, perfection is not the test. Rather, the issue is whether these irregularities impacted on the assessment of the bids in a manner that prejudiced Kaymar. As noted in Envoy Relocation Services Inc. v. Canada (Attorney-General), “the courts refuse to substitute their judgment for that of the evaluation committee, unless it is demonstrated that the committee acted in bad faith or did not treat the bidders on an equal footing.”[^138]

[130] It is clear that deference must be owed to the evaluators’ decisions absent an indication that the evaluation is unreasonable because the evaluators have,

not applied themselves in evaluating a bidder’s proposal, have ignored vital information provided in a bid, have wrongly interpreted the scope of a requirement, have based their evaluation on undisclosed criteria or have otherwise not conducted the evaluation in a procedurally fair manner.[^139]

[131] In short, if the evaluators have applied themselves adequately to their task and have applied the evaluation requirements set out in the RFP, the court should not substitute its opinion for that of the evaluators.[^140]

[132] The Plaintiff has made it clear that it is not alleging that the OCCAC acted in bad faith. Therefore, the issue to be decided is whether the evaluation committee’s process was procedurally unfair and failed to treat all bidders on an equal footing.

a) Were the steps set out in s. 6 of the RFP properly followed?

[133] Step one was the opening of the proposals in order to ascertain that all the appropriate documentation was present.[^141] This step was carried out by Ms. Sands and Mr. Doyle. It is conceded that Ms. Sands was a member of the evaluation committee. It is unclear why it was necessary for the entire evaluation team to be present in order to ascertain whether the necessary documents were present. In any event, Ms. Sands and Mr. Doyle determined that all four bidders had met the document requirements and therefore, no bidder was prejudiced by this process.

[134] Step three (step two being unnecessary) required the review of the financial and experience requirements. Once again it is conceded that Ms. Sands and Mr. Doyle performed this step. However, once again all four bidders complied with this step. Consequently, none were prejudiced by the fact that only one member of the evaluation committee performed this step.

[135] Step four required the establishment of a score for the Service Quality (or written) section. This section represented the core of the work done by the first evaluation committee. The Plaintiff alleges that,

While individuals comprising the Service Quality committee did review and score individual answers [to this section] …. it is impossible to conclude that the voting members of the …. Committee established the … score.

[136] This global assertion is supplemented by several sub-assertions:

(i) Ms. Sands failed to provide the committee with all the materials it required;

(ii) The committee was inadequately trained;

(iii) The consensus scoring was not done properly;

(iv) There were gaps in the scoring summary;

(v) There were errors in the scores noted by Ms. Sands; and

(vi) Not all members of the committee were present at all times during the review process.

i. Provision of materials

[137] The Plaintiff states that based on Ms. Sands evidence it is unclear what specific materials the committee received as part of their orientation. I agree. However, there is no evidence that the materials or lack thereof, had any impact on the assessment of the bids.

ii. Training of evaluation committee

[138] The Plaintiff states that there is a contradiction in Ms. Sands’ evidence in relation to whether the issue of experience equivalents was discussed with the evaluation committee as part of their orientation. At trial, she indicated the subject was discussed; in her discovery transcript she did not mention discussing it. The Plaintiff indicates that this contradiction is important because the evaluation of the proposals required an understanding of the RFP as a whole and in particular, the basis upon which a respondent met the qualification criteria.

[139] There is a contradiction in the evidence regarding whether the evaluation committee knew about the experience equivalents provision in the RFP. On the other hand, the fact that this was an inherent part of the qualification process must have been obvious to the committee. VONOC’s response to the Service Quality section of the RFP was replete with information concerning the provision of nursing services. Therefore, whether there was a specific discussion of this issue as part of the training is irrelevant.

[140] Moreover, while the Plaintiff states that an understanding of the RFP as a whole was necessary, it does not say why or how the lack of understanding resulted in unfairness.

iii. Consensus scoring was not done properly

[141] It is hard to understand this assertion. The evidence provided by Ms. Sands – and only Ms. Sands – was to the effect that each bidder’s response to each subsection of the Service Quality Section was reviewed by the evaluators, who established their own personal score along with comments on weaknesses and strengths. There followed a discussion among the evaluators in order to come to a consensus score. Sometimes individual evaluators would change their original score. Not all the evaluators were present for the entire discussion. If that occurred, the absent evaluator was asked whether they were comfortable with the consensus score.[^142] Ms. Sands then entered the consensus score into a chart. When all the responses of all the bidders to all the questions were assessed and a score arrived at, Ms. Sands then totaled the scores to obtain a final score for each bidder.

[142] The fact that Ms. Sands did the final tabulation of the scores does not demonstrate that the evaluators did not establish the final score. To the contrary, the evidence indicates that the evaluators were involved in the establishment of each individual score and therefore the final scores. Tabulation is purely a mathematical function. There is no evidence that in performing this function, Ms. Sands ignored the evaluators’ scores or changed those scores (except when the evaluator herself requested a change), and therefore there is no evidence that Ms. Sands falsified or otherwise improperly affected the final scores.

iv. Gaps in the scoring summary

[143] It is accepted by the Defendant that there are gaps in the scores recorded by Ms. Sands. In her testimony, Ms. Sands agreed that there were gaps, but stated she could not recall why this was.

[144] Ms. Sands’ note-taking was not comprehensive. Ms. Sands indicated that she recorded the final score for each question for each respondent, but not necessarily the scores provided by the individual evaluators. In addition, she agreed that where she did record the individual evaluator’s score, the score was sometimes different than the one found in the evaluator’s own notes. Ms. Sands explained that at times, after discussion, an evaluator would change their score. She only recorded the last score the evaluator provided.[^143] Finally, Ms. Sands testified that an important purpose of her notes was to provide information to any unsuccessful bidder in the debriefing that followed the RFP process.[^144]

[145] Ultimately, this evidence is not sufficient to establish a bias in the process.

v. Errors in the scoring

[146] This allegation is a variation of the previous allegation. There is evidence that at least one evaluator’s score was incorrectly entered into the scoring sheet. Ms. Sands explained this might have been an example of an evaluator changing her score or alternatively, it was a problem with reading the handwriting.[^145] This explanation is reasonable and I accept it. In any event, this particular discrepancy resulted in the Plaintiff receiving a higher score than it might otherwise have done. As a result, no prejudice to the Plaintiff ensued.

vi. Absence of some committee members

[147] The evidence indicates that one committee member was not present during the discussion and scoring of two questions. Ms. Sands’ evidence was that she relayed the consensus scores that had been arrived at by the other members of the committee and asked the absent member to express her views. The absent member was in agreement with the scores of the other committee members.

[148] The Plaintiff did not indicate how this procedure created prejudice to any of the respondents. The procedure may not have been ideal, but ultimately, all the committee members had input into the final scores for each of the questions and each of the respondents.

[149] Step five required that a short list be established by the committee. The respondents on the short list would proceed to the interview stage of the evaluation. One of the respondents failed to get a passing score on the Service Quality evaluation. However, it was nonetheless interviewed.

[150] The Plaintiff alleges that the decision to interview the lowest scored respondent was made before the conclusion of the evaluation of service quality. It appears from the evidence that the evaluation of the service quality section of the RFP may not have been completed until a couple of days after the requests for interviews went out. The evidence in relation to the decision to interview the final respondent is that Graham Bird, the CEO of the OCCAC at the time, recommended it be given an interview despite its failing grade given that the RFP process was new and he believed that all bidders should be given an opportunity to be interviewed.[^146]

[151] There were only four respondents. Regardless of whether the service quality portion of the evaluation was only finished after the interview invitations went out, once the decision was made to interview all respondents, it did not matter how the short list was established. In effect, there was no short list.

[152] The Plaintiff has not indicated how the inclusion of the fourth respondent prejudiced its position in the evaluation process. That respondent had failed the service quality section and therefore, had no possibility of being awarded a contract. Moreover, it went on to fail the interview as well.

[153] Step six involved opening the pricing proposals of the respondents. This step was taken on January 26-27, 2004. Only the pricing proposals of respondents who passed the Service Quality section were opened. Ms. Sands and Mr. Doyle opened the pricing proposals.[^147]

[154] The Plaintiff contends that the entire evaluation committee ought to have opened the pricing proposals. Unfortunately, it does not state why this might be important or how it was prejudiced by the fact it was not done. The Plaintiff does not take issue with the fact the pricing proposals of the individual respondents were all properly scored by the OCCAC.

[155] I find that there was no impropriety in how this step was handled by the Defendant.

[156] Step seven and step eight involved establishing final scores and ranking the proposals. Once again these steps were performed by Ms. Sands. Once again, the Plaintiff fails to indicate how it was prejudiced by the fact Ms. Sands performed this purely mathematical function.

b) Did the tight timelines result in irregularities?

[157] The Plaintiff asserts that the OCCAC originally planned for the evaluation process to take place over approximately seven weeks, but in fact it took place in only three weeks. The Plaintiff states that the Defendant could have sought an extension of the Plaintiff’s contract in order to work within the original timeframes, but it chose not to do so given its desire to maximize a Ministry payout and thereby be rid of any financial liability for severance and other cost.[^148]

[158] The Defendant points out that the timing of the evaluation was entirely within the OCCAC’s discretion, there were significant difficulties surrounding any extension of Kaymar’s contract, and there is no evidence that there was any relationship between the irregularities discussed above and the timelines. The Defendant argues also that if the irregularities noted above were related to the tight timelines, those irregularities affected all the bidders equally. Furthermore, there is a complete absence of evidence that the evaluators were rushed in any way. I agree.

[159] Therefore, I find nothing improper occurred during the scoring of the Service Quality section of the RFP.

c) Was there any improper influence from the executive of the OCCAC?

[160] The Plaintiff contends that the OCCAC was in effect pulling strings behind the scenes so as to influence the outcome of the evaluation process. This influence took the following forms:

(i) Replacement of the two external evaluators who worked on the service quality evaluation with two OCCAC employees for the evaluation of the interviews;

(ii) Decision to interview the fourth respondent despite the fact it failed the service quality evaluation;

(iii) Decision not to require individual scoring for the interviews; and

(iv) Decision not to provide certain information to the evaluation committees.

vii. Reconstitution of the evaluation committee

[161] After the conclusion of the service quality evaluation, the two external members of the evaluation committee left and were replaced by two employees of OCCAC. This reconstituted committee conducted the interview evaluations. Ms. Sands was the chair of the committee and a non-voting member. She consulted with Ms. Connolly during the original constitution and then reconstitution of the evaluation committee.

[162] Section 6.2 of the RFP required the establishment of an evaluation team for the purpose of evaluating the proposals.[^149] In a training document provided to the OCCAC in October 2003, there is a commentary associated with this section that states,

While each CCAC may have flexibility with respect to Evaluation Team composition and procedure, it is imperative that the same Evaluation Team and procedures apply to all Proposals submitted in an individual RFP process. A CCAC may vary its processes and procedures between RFP processes, however, it is important to maintain a high level of consistency of evaluators and procedures within an individual RFP process.[^150]

[163] The training manual also indicated that the evaluation team would determine the questions to be asked and establish the interview criteria. Each member of the evaluation team was to score the interviews independently and the chair would then tabulate the scores.

[164] Ms. Sands determined the questions to be asked in the interviews with input from two of the evaluators and Ms. Connolly.[^151] There was no independent scoring of the interviews; it was a joint effort of the committee.[^152] Ms. Connolly was not a member of the evaluation committee, and originally she was to attend all the interviews as an observer.[^153] Ultimately, however, she did not attend any of the interviews.[^154] Ms. Connolly was also kept abreast of the evaluation process as it proceeded. She in turn kept the Board of Directors aware of how the evaluation was proceeding.

[165] The issue is whether the change in committee members between the service quality evaluation and the interview evaluation and/or any other irregularities in the evaluation process as outlined in this section resulted in a process that gave an advantage to VONOC or disadvantaged Kaymar.

[166] The Plaintiff argues that the OCCAC had no authority to change the members of the evaluation committee in the middle of the process. It argues in general that the requirements of s. 6 of the RFP with respect to evaluation were not followed. It also argues that Ms. Connolly, who was not a member of the evaluation committee, ought not to have been as involved in the process as she was. The Plaintiff asserts that these irregularities provide evidence that the Defendant was attempting to direct the outcome of the RFP process.

[167] The Defendant responds that while the two external evaluators were replaced between the service quality component of the evaluation process and the interview component, nothing nefarious can be drawn from this evidence. Additionally, the Defendant states that Ms. Connolly’s involvement in the process is entirely innocuous and, in any event, not prohibited by the RFP or the Ministry policy and procurement guidelines.

[168] With respect to Ms. Connolly’s involvement in the evaluation process, I agree with the Defendant that Ms. Connolly was entitled to be kept informed and to inform the Board in turn, and that there is no evidence that Ms. Connolly’s involvement amounted to ‘directing’ the outcome of the evaluation process.

[169] In support of its contention regarding the change in evaluators, the Defendant points to the fact that both the external evaluators made it clear early on and, more importantly, before the end of the service quality component of the evaluation that they would not be available for the interview process.[^155] It follows from the fact Ms. Sands knew prior to the end of the service quality component that neither external evaluator would be present for the next stage that firstly, these evaluators were not ‘removed’ as alleged by Kaymar, and secondly, the change of evaluators was not for the purpose of directing the end result. I agree.

[170] It is important to note that Ms. Sands was never asked in cross-examination whether she removed the two external evaluators in order to direct the result of the evaluation process in VONOC’s favour. Furthermore, neither of the two external evaluators were called by the Plaintiff. Consequently, there is no evidence in support of the Plaintiff’s theory that the external evaluators were ‘removed’. Instead, there is affirmative evidence that the change in evaluators was nothing more than a consequence of their unavailability for the interview component of the process.

[171] In my view, it would have been preferable for the OCCAC to have established an evaluation committee that both contained external evaluators and evaluators who could be present for the entire process. I agree with the Plaintiff that s. 6.2 of the RFP and the training documents contemplated that situation. However, it does not follow from the fact this requirement was not followed that necessarily the RFP process was tainted.

[172] In order to make a finding – as required by the caselaw – that the evaluation process was unfair to Kaymar, the evidence must show that the replacement of evaluators half way through the process created a situation that favoured one bidder over another. The evidence in this case does not go that far.

[173] The only point in time where an evaluator could be replaced and not negatively impact fairness, was between the end of the service quality component and the interview component of the process. This is so because the same evaluators evaluated all the proposals in the first section and then the same evaluators (if different from the first set) evaluated all the interviews in the second section. Put another way, if there was any prejudice caused by the change in evaluators between service quality component and the interview component of the process, it impacted all the bidders equally. The change in evaluators did not impact Kaymar any differently than the other bidders.

[174] Consequently, I find that while the change in evaluators was not ideal, it did not result in any unfairness to Kaymar.

i. Decision to interview the fourth respondent

[175] I have discussed the OCCAC’s reasoning in deciding to interview the fourth respondent despite the fact it received a failing grade on the service quality component earlier in these reasons. I will not repeat it here. As I have already pointed out, it is not the mere fact that an irregularity occurred that necessarily requires the conclusion there must have been unfairness. A finding of unfairness requires proof that the irregularity in question led to one bidder being favoured over the other bidders. There is no such evidence in the present case.

ii. Decision not to require individual scoring in the interviews

[176] The Plaintiff has pointed to the training manual as evidence that individual scoring of the interview questions was a required part of the process. In my view, while the training manual provided guidance on how to score the interviews, it was not binding on the Defendant. Ms. Sands testified that the evaluators arrived at an individual score but then discussed the score and ultimately marked their sheets with the consensus score.[^156] This evidence is uncontradicted. In these circumstances, I find that there is no evidence of any irregularity occurring during the scoring of the interview questions.

[177] In any event, this allegation by the Plaintiff suffers from the same problem as the two previous allegations. There is no evidence that this ‘irregularity’, if indeed it is an irregularity, resulted in any unfairness to Kaymar.

iii. Information provided to the evaluators

[178] The Plaintiff contends that the evaluators were not provided with the information they required to properly evaluate the proposals. Specifically, the Plaintiff points to the fact the evaluators did not have a copy of the RFP and the fact the service quality evaluators were not provided with the rankings of the proposals as the process was unfolding. In addition, the Plaintiff notes that the interview evaluators were not provided with the results of the service quality component of the evaluation process.

[179] Once again, the Plaintiff fails to outline how the failure to provide any of this information resulted in a process that disadvantaged Kaymar or provided an advantage to VONOC.

d) VONOC’s perfect score on the interview

[180] VONOC received a perfect score on the interview component of the evaluation process. The effect of this score was to give it a greater overall score than Kaymar.

[181] Ms. Sands, in conjunction with other members of the evaluation committee and Ms. Connolly, established the case study scenario and questions to be asked each bidder. In addition, there were questions asked of the individual respondents that asked for clarification of some of their written responses. The answers to those questions were not scored. Of the seven questions asked, the fifth question was ultimately removed. Question #5 was scored for only three of the four respondents. They all received a score of 4/6. COTA’s response was not scored. This question dealt with service delivery models. Kaymar was asked a different question #6 than the other respondents.

[182] Ms. Sands testified that the reason for not including the scores for question #5 in the final scores was that none of the respondents provided the answer that the evaluators were looking for.[^157] The explanation for asking a different question #6 to Kaymar was that the original question was not relevant to Kaymar, who was the incumbent service provider. The question #6 asked of all respondents except Kaymar was:

As part of the agreement you will be asked to sign if you are successful in winning a portion of this contract, your company commits to providing service at the volume levels awarded. What is your plan should you be unable to hire any of the staff that is currently with the incumbent company? It is an expectation of this CCAC that clients will receive services as ordered.[^158]

[183] The question #6 asked of Kaymar was:

As part of the agreement you will be asked to sign if you are successful in winning a portion of this contract, your company commits to providing service at the volume levels awarded. What is your plan should a labour situation prevent your staff from working? What alternatives would you put into place to ensure the provision of ongoing service?[^159]

[184] Both questions focussed on the issue of a response to staff shortages given the requirement to provide services as ordered. Kaymar was advised they were being asked a different question #6 and was told the question the other respondents were being asked. Kaymar made no objection at the time.

[185] The issue with respect to what happened with both questions is whether Kaymar was prejudiced in some fashion by what occurred.

[186] The Plaintiff alleges that the effect of removing the scores for question #5 was to the advantage of VONOC as they had the least experience with the delivery of therapy services. However, the evidence indicates that of the three respondents who were scored, they all received an identical score. It is unclear therefore, how the removal of this question resulted in an advantage to VONOC.

[187] The Plaintiff does not specifically indicate how the fact it was asked a different question #6 prejudiced it. The general subject matter was the same for all respondents. The question asked of the other respondents would not have been relevant to Kaymar. Apart from the fourth respondent, all remaining respondents received a perfect score for their response to this question.[^160] As a result, there is no evidence that Kaymar was prejudiced in any fashion. Furthermore, the explanation for the change is rational and the changes made were appropriate in the context of the overall subject matter of the question.

[188] Consequently, the Plaintiff has failed to demonstrate that there was any unfairness in the conduct of the evaluation of the process.

Conclusion

[189] In the final analysis, Kaymar has the obligation to demonstrate on a balance of probabilities that the procurement process was unfair and that they were disadvantaged. They have failed to do so. Either their assertions are not supported by the evidence or the evidence supports a contrary conclusion. Although there were some irregularities in the procurement process, I am satisfied there was nothing unfair about the process. Fairness, not perfection is what is required of any procurement process. Kaymar failed to win any portion of the contract. That was unfortunate. It is not, however, unfair.

[190] The claim is dismissed in its entirety. Having determined the Defendant had no liability in the conduct of the RFP, I make no decision on the issue of damages.

Costs

[191] The parties should attempt to resolve the issue of costs themselves. However, if the parties cannot resolve the issue of costs, they can either make written submissions or arrange a date and time convenient to all parties for oral argument. If written submissions are to be provided, the submissions should be no more than three pages in length, with attachments including Offers to Settle and a detailed Bill of Costs and should be provided within 30 days, with a right of reply within a further 10 days.

“Parfett J.”

Justice Julianne Parfett

Released: March 22, 2017

2017 ONSC 1843

COURT FILE NO.: 05-CV-03091

DATE: 2017/03/22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Kaymar Rehabilitation Inc.

Plaintiff

– and –

Champlain Community Access Care Center

Defendant

REASONS FOR Decision

Parfett J.

Released: March 22, 2017

[^1]: As the Defendant was then called. Although the Defendant now goes by Champlain Community Care Access Centre, I have referred to it in these reasons for decision by the name it carried during the course of these events (OCCAC).

[^2]: For ease of reference, the issue will only be described as severance costs, although sick leave costs also formed part of this issue.

[^3]: Exhibit #1, tab 45.

[^4]: This organization is now known as Carefor Health and Community Services, but I have referred to it throughout this decision by the name it was known as during the course of these events.

[^5]: 1981 CanLII 17 (SCC), [1981] 1 SCR 111 (Ron Engineering).

[^6]: Ron Engineering at p. 122.

[^7]: 2000 SCC 60, [2000] 2 SCR 860 at para. 79 (Martel).

[^8]: 1999 CanLII 677 (SCC), [1999]1 SCR 619 at para. 19 (MJB).

[^9]: MJB at para. 19.

[^10]: Double N Earthmovers Ltd. v. Edmonton (City), 2007 SCC 3, [2007] 1 S.C.R. 116 at paras. 2-3. (Double N)

[^13]: Ron Engineering at para. 28.

[^14]: Double N at para. 41.

[^15]: Martel at para. 88.

[^16]: Best Cleaners and Contractors Ltd. v. Canada, 1985 CanLII 5518 (FCA), [1985] 2 F.C. 293 (C.A.) at 350 (Best Cleaners)

[^17]: Martel at para. 95.

[^18]: (1989), 1989 CanLII 241 (BC CA), 40 B.C.L.R. (2d) 345 (Chinook).

[^19]: Chinook from the headnote.

[^20]: Chinook at p. 349.

[^21]: Martel, at para. 88.

[^22]: Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, [2010] 1 S.C.R. 69.

[^23]: MJB at para. 30.

[^24]: Martel, supra. Note 51.

[^25]: MJB at para. 46.

[^26]: Carosi Construction Ltd. v. Niagara (Regional Municipality), [2005] O.J. No. 3496 (CA) at para. 7.

[^27]: Yorkton Flying Services Ltd. v. Saskatchewan (Minister of Natural Resources), [1995] S.J. No. 435 at paras. 13, 23, 26 & 27 (Yorkton); Vachon Construction Ltd. v. Cariboo Regional District, 1996 CanLII 1851 (BCCA) at para. 29.

[^28]: Double N at para. 52.

[^29]: Newfoundland Co-ordinating Council on Deafness v. Newfoundland, 2000 CanLII 28355 (NL SCTD) at para. 21

[^30]: Ron Engineering, supra. Note 49; MJB, supra. Note 52.

[^31]: Martel, supra. Note 51.

[^32]: Midwest Management (1987) Ltd. v. British Columbia Gas Utility Ltd. [2000] B.C.J. No. 2204 (C.A.) at para. 13.

[^33]: Martel, supra. Note 51 at para. 76.

[^34]: Yorkton, supra. Note 67 at para. 23.

[^35]: West Central Air Ltd. v. Saskatchewan, 2004 SKCA 79 at para. 35.

[^36]: The Defendant’s written submissions did not follow the format used by the Plaintiff. Instead, the Defendant chose to address a separate set of issues, totalling eight that overlapped, but were not always the same as, the Plaintiff’s issues. Consequently, understanding the Defendant’s response to the Plaintiff’s issues was difficult. For instance, the Defendant spent a considerable amount of time on the effect of the procurement process on the union; this issue was not advanced in the Plaintiff’s closing submissions. Given the Plaintiff has the burden of proof, I have not addressed any issues not advanced by the Plaintiff.

[^37]: Exhibit #1, tabs 335, 337, 339 & 340.

[^38]: Exhibit #1, tab 27.

[^39]: Exhibit #1, tabs 38 & 39.

[^40]: Exhibit #1, tab 42.

[^41]: Exhibit #1, tabs 29-31.

[^42]: Exhibit #1, tabs 24, 43, 48-49 & 52.

[^43]: Exhibit #1, tab 52, p. 805.

[^44]: Exhibit #1, tab 52.

[^45]: Exhibit #1, tab 45.5

[^46]: Exhibit #1, tabs 245 & 265.

[^47]: Note that it is the OCCAC’s responsibility for severance costs that is critical. Much time was spent on MOH’s guarantee to pay those costs if they became a reality. The fact that MOH did not consider itself responsible beyond the end of March 2004 is amply demonstrated in the evidence. However, that was not the issue for the OCCAC. From their perspective, the issue was whether they had any responsibility for severance after March 2004.

[^48]: See handwritten notes on Exhibit #1, tab 45.

[^49]: Exhibit #1, tab 245, – September 17, 2003 letter from Jackson to Connolly.

[^50]: Exhibit #1, tabs 252 & 252.

[^51]: Exhibit #1, tabs 264, 265, 268,.

[^52]: Exhibit #1, t0ab 58,

[^53]: Connolly’s evidence. See also Tab 231, Exhibit #1. Bateman’s evidence.

[^54]: Plaintiff’s submissions at para. 180.

[^55]: Exhibit #1, tab 231 at p. 3620.

[^56]: Exhibit #1, tabs 151 & 176.

[^57]: Exhibit #1, tabs 211, 241 & 245.

[^58]: Exhibit #1, tab 121.

[^59]: Exhibit #1, tabs 187, 203, 211 and 241.

[^60]: Exhibit #1, tab 245.

[^61]: Exhibit #1, tab 181, s. 6.

[^62]: Exhibit #1, tab 277

[^63]: See for example Exhibit #1, tabs 177 and 187.

[^64]: See for example, Exhibit #1, tabs 13, 251, 252 & 471.

[^65]: Ministry approval was required in cases, as with the Sale of Business Agreement, where there was no extension clause in the agreement. See tab 260, Exhibit #1.

[^66]: Plaintiff’s submissions at para. 183.

[^67]: Plaintiff’s submissions at para. 178.

[^68]: Midwest Management (1987) Ltd. v. British Columbia Gas Utility Ltd. [2000] B.C.J. No. 2204 (C.A.) at para. 13.

[^69]: Exhibit #1, tab 71

[^70]: Exhibit #1, tab 121

[^71]: Exhibit #1, tab 180

[^72]: Exhibit #1, tab 181

[^73]: Exhibit #1, tab 80.

[^74]: Exhibit #1, tab 85.

[^75]: Exhibit #1, tabs 91 & 481.

[^76]: Exhibit #1, tab 307.

[^77]: Exhibit 1, tab 160.

[^78]: Paragraph 36 of Plaintiff’s written submissions.

[^79]: Paragraph 38 of Plaintiff’s written submissions.

[^80]: Some examples of this evidence are found at Tabs 63, 156, 307 & 404, Exhibit #1; email from Sands to Connolly, Exhibit #25; McLarty Cross, January 29, 2016 at pages 46, 51-55; Connolly Cross, September 15, 2015 at page15.

[^81]: Sands’ evidence, January 20, 2016 at pages 107-108.

[^82]: Tab 112, Exhibit #1.

[^83]: McLarty’s evidence, January 29, 2016 at pp. 78 & 82.

[^84]: Connolly’s evidence, September 15, 2015 at p. 13. The contract length of the therapies’ RFP was 4.5 years to coincide with the end of the Nursing/PSS RFP so that a comprehensive basket of services RFP could take place.

[^85]: Paragraph 117 of Plaintiff’s written submissions.

[^86]: Sands’ evidence, January 18, 2016 at pp. 90-91; January 19, 2016 at pp. 47, 77.

[^87]: Tab 468, Exhibit #1.

[^88]: Re Consortium Genivar – M3E- Université d’Ottawa, [2003] C.I.T.T. No. 74.

[^89]: Committee for Justice & Liberty v. Canada, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at 394.

[^90]: Tab 338, Exhibit #1.

[^91]: Tab 338, Exhibit #1.

[^92]: 2013 ONCA 139 at para. 65 [emphasis in original].

[^93]: Exhibit #1, tab 338, s. 4.3.3(2)(b) and 4.3.3(3).

[^94]: Exhibit #14

[^95]: Exhibit #1, tabs 399 and 403.

[^96]: Exhibit #1, tab 338, s. 4.3.3(2)(b) and 4.3.3(3).

[^97]: Exhibit #1, tab 407

[^98]: Double N at para. 41.

[^99]: Cerniuk’s evidence, January 27, 2016 at pp. 51, 57-58.

[^100]: Cerniuk’s evidence, January 27, 2016 at pp. 73-75.

[^101]: Tabs 134 & 150, Exhibit #1.

[^102]: Tab 10, Exhibit #1.

[^103]: Exhibit #1, tab 197 at p. 2889.

[^104]: Exhibit #1, tab 318 at p. 4462.

[^105]: Exhibit #1, tab 10 at p. 76.

[^106]: Exhibit #1, tab 239.

[^107]: Tabs 180 & 181, Exhibit #1.

[^108]: Section 3.1, tab 180, Exhibit #1.

[^109]: Tab 181, Exhibit #1, at p. 2674.

[^110]: Plaintiff’s submissions at para. 454.

[^111]: Plaintiff’s submissions at para. 467.

[^112]: Sands’ evidence, January 18, 2016 at pp. 53-54, 76-77, 80-83; Sands’ evidence January 19, 2016 at pp. 142-143.

[^113]: Plaintiff’s submissions at para. 484.

[^114]: Defendant’s submissions at para. 324 [emphasis added].

[^115]: Tab 318, Exhibit #1 [italics in original; bold added].

[^116]: Tab 10, Exhibit #1 at p. 76.

[^117]: Sands’ evidence, January 18, 2016 at pp. 53-55; Sands’ evidence, January 20, 2016 at p. 47.

[^118]: Sands’ evidence, January 20, 2016 at pp. 46-47.

[^119]: Best Cleaners and Contractors Ltd. v. Canada, 1985 CanLII 5518 (FCA), [1985] 2 F.C. 293 (C.A.) at 350 (Best Cleaners); Martel at para. 95.

[^120]: Tab 338, Exhibit #1 at p. 4948.

[^121]: Tab 338, Exhibit #1, Schedule D s. 1.2 at p. 4955.

[^122]: Tab 338, Exhibit #1 starting at p. 5063.

[^123]: Tab 338, Exhibit #1 at p. 4910.

[^124]: 2014 NLTD(G) 21 (Marine).

[^125]: Marine at para. 54.

[^126]: Marine at paras. 16-17.

[^127]: These are outlined in the Defendant’s submissions at para. 514.

[^128]: Tab 399, Exhibit #1 at p. 5985

[^129]: This number is taken from the Defendant’s closing submissions. The Plaintiff did not point to any specific examples of the use of experience derived from other organizations in their submissions.

[^130]: Tab 571, Exhibit #1.

[^131]: Exhibit #1, tab 436.

[^132]: Exhibit #1, tab 338, s. 6.3.5.

[^133]: Exhibit #1, tabs 411 and 457.

[^134]: Exhibit #1, tab 468.

[^135]: Exhibit #1, tab 483.

[^136]: Exhibit #1, tab 482.

[^137]: There was no streaming used in this RFP so step two did not apply.

[^138]: 2013 ONSC 2034 at para. 1404 quoting Monit International Inc. v. Canada, 2004 FC 75 at para. 271.

[^139]: Professional Computer Consultants Group v. Department of the Environment, 2012 CanLII 86020 (CITT) at para. 53.

[^140]: Ibid., at para. 54.

[^141]: Tab 338, Exhibit #1, s. 6.3.1

[^142]: Sands’ evidence, January 19, 2016 at p. 58 and January 25, 2016 at p. 69.

[^143]: Sands’ evidence, January 25, 2016 at p. 60.

[^144]: Sands’ evidence, January 19, 2016 at p. 59.

[^145]: Sands’ evidence, January 25, 2016 at pp. 89-91.

[^146]: Connolly’s evidence, September 8, 2015 at p. 27.

[^147]: Sands’ evidence, January 19, 2016 at p. 96.

[^148]: Plaintiff’s submissions at para. 674.

[^149]: Tab 338, Exhibit #1 at p. 4922.

[^150]: Tab 287, Exhibit #1 at p. 4012; Sands’ evidence, January 26, 2016, pp. 47-50.

[^151]: Sands’ evidence, January 19, 2016 at pp. 69-70, 79; January 25, 2016 at p.119.

[^152]: Sands’ evidence, January 26, 2016, pp. 13-16.

[^153]: Sands’ evidence, January 25, 2016, p.124.

[^154]: Sands’ evidence, January 19, 2016 at p. 72-73.

[^155]: Sands’ evidence, January 19, 2016 at pp. 36-37, 48-49; January 25, 2016 at pp. 117-118.

[^156]: Sands’ evidence, January 19, 2016 at pp. 76-77.

[^157]: Sands’ evidence, January 19, 2016 at pp. 82-83.

[^158]: Defendant’s submissions at para. 619.

[^159]: Defendant’s submissions at para. 620.

[^160]: Exhibit #1, tab 444.