judicial review application shown by graphic of someone holding clicpboard with paper on it stating application

Aggressive Auto Towing Ltd v City of Abbotsford, 2018 BCSC 1433

For a number of years, both Jack’s Towing (2010) Ltd (“Jack’s”) and Aggressive Auto Towing Ltd (“Aggressive Auto”) had held contracts for supplying towing and vehicle storage to the City of Abbotsford (the “City”).

On February 12, 2016, as the contract with Jack’s Towing was coming to an end, the City issued a Request for Proposals for the period of May 1, 2016 to April 30, 2021. Proposals were only received from Aggressive Auto and Jack’s Towing, with Jack’s Towing receiving the highest score.

Following that decision, the Purchasing Manager became concerned that some of the wording in the RFP lacked clarity about what land was permitted to be used for the towing facility, and that various City departments had shifted their priorities with regard to the contract. Thus the process was cancelled, and a second RFP was issued on November 15, 2016.

Once again, only Aggressive Auto and Jack’s submitted bids, and once again the City’s evaluation process determined that Jack’s bid was superior and had, in fact, ranked ahead of Aggressive Auto’s in every category. A contract between Jack’s Towing and the City was entered into on January 14, 2017.

On June 23, 2017, Aggressive Auto filed an application for judicial review seeking, among other things, full disclosure of both RFP evaluation processes, an order quashing the award of contract to Jack’s Towing, and an order awarding the second RFP to Aggressive Auto.

Aggressive Auto raised a number of arguments in support of its application:

  1. The difference in the two proposals’ revenue projections was ‘nominal’;
  2. Aggressive Auto ‘clearly’ had better facilities and equipment;
  3. The Purchasing Manager’s husband’s cousin was alleged to be the president and sole director of another towing competitor, Columbia Towing Ltd (“Columbia”);
  4. Columbia sold a truck to Jack’s Towing in order to boost its list of equipment for the second proposal; and
  5. The evaluation process lacked transparency and was conducted without due process.

There was a tremendous amount of material filed by Jack’s Towing and by the City in response to the application by Aggressive Auto – one affidavit alone amounted to 352 pages including exhibits. Aggressive Auto also filed a Freedom of Information request to the City for release of documentation relating to the RFP. Some, but not all, documents were released pursuant to the decision of the Privacy Commissioner.

In the particular application considered in this decision, Aggressive Auto sought to have its application heard by trial – to have the judicial review application converted to a trial – or alternatively for an order for full disclosure. Aggressive Auto also wanted pretrial examinations of some witnesses.

The Supreme Court Civil Rules give the court power to convert a judicial review application to an action and move it to be heard for trial (Rule 22-1(7)). When the court decides whether to do this, they consider whether there is a genuine triable issue that cannot be resolved on the documentary evidence and record alone. Another way to frame this issue is to consider whether it is contrary to the interests of justice to allow the petition for judicial review to proceed in a summary matter rather than going to trial.

Here the judge considered that there are volumes of documentary material, disputed questions of fact, and potential credibility issues. However, facts in dispute do not by themselves justify the expense of a trial if lesser measures would be sufficient, including cross-examination, which Aggressive Auto had not sought to do with this application. Further, the court noted that Aggressive Auto did not seek a review of the decision of the Privacy Commissioner, which could potentially have resulted in more disclosure.

Should this matter go to trial? You Be the Judge!

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The judge held that in this case, a fair hearing could be given on the record without needing the expense of a full trial, discoveries, and document disclosure. Aggressive Auto had not sought to cross-examine witnesses nor to obtain a review of the decision of the Privacy Commissioner and had failed to point to any specific facts in dispute other than the main issue of whether the contract should have been awarded to Jack’s. As a result, the judge ruled that Aggressive Auto had not made out a case at all, and ordering further documentation would amount to a “fishing expedition.” Aggressive Auto’s application to have their application converted to a trial and to obtain full disclosure was denied, and its judicial review application failed.

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