Not-for-profit foundation's decisions breached common law principles of procedural fairness
The government cannot immunize its administration of a public program from the court’s scope of supervisory review by assigning adjudicative duties to a contractor, the British Columbia Court of Appeal has ruled in a case involving rejected public funding applications.
In Nova-BioRubber Green Technologies Inc. v. Investment Agriculture Foundation British Columbia, 2022 BCCA 247, the appellant filed two funding applications with the Investment Agriculture Foundation British Columbia for its innovation proposals relating to taraxacum kok-saghyz, a rubber plant.
The foundation was a not-for-profit society administering the Canadian-BC Agri-Innovation Program, which provided public funding for activities promoting innovation and competitiveness within the province’s agriculture, food, or agri-products sectors.
The foundation, rejecting both applications, found that the proposals failed to meet the eligibility requirements. The appellant brought a petition for judicial review of the foundation’s two decisions. The petition sought the following:
- to reverse the foundation’s rejection of both proposals
- to ensure that the foundation would be transparent in awarding public funds to companies
- to change the foundation’s grant-making arrangements into repayable loans with interest.
The BC Supreme Court dismissed the petition, finding that the foundation’s funding rulings were policy decisions beyond the scope of BC’s Judicial Review Procedure Act. He also said that the court had no role to play because the foundation’s decisions fell within an acceptable range of outcomes as defined by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9.
Funding applications within purview of judicial review
The Court of Appeal allowed the appeal, set aside the judge’s order, and remitted both of the appellant’s funding applications to the foundation for reconsideration.
The foundation should take note of the importance of exercising its independent adjudicative judgment, the court said. Further, the style of cause should be amended to remove the province as a respondent since it was not a proper respondent to a judicial review application.
First, the appellate court ruled that the judge’s concern over the appellant’s approach to the case was understandable and was not indicative of reasonable apprehension of bias.
Second, the court held that the foundation’s decisions were subject to judicial review because its authority in administering the program was sufficiently public. The program aimed to achieve the government’s objectives and received public funding. As for the foundation, it fulfilled duties provided in an agreement with BC, submitted quarterly reports to the province, and complied with its instructions.
Third, the court determined that the foundation’s decisions were within the category of justiciable matters and within the act’s scope. Thus, the court had the legitimacy and institutional capacity to decide the issues the appellant raised.
The judge had no basis to dismiss the entire petition, although a remedy the appellant sought exceeded those available on judicial review – namely its request for an order changing the program so that it would instead offer interest-free loans, the appellate court said.
Fourth, the court found the judge’s analysis incomplete because he did not cite Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; did not review the foundation’s reasons or the record of the case; and did not address the appellant’s allegations of procedural unfairness.
Fifth, the appellate court decided that it was procedurally unfair for the foundation to reject the applications based on concerns never communicated to the appellant. The foundation conceded that the appellant had no notice of or opportunity to respond to some of the reasons for the rejection.
However, the court opted not to decide upon the issue of whether the foundation’s decisions were procedurally unfair because it bound itself to the agricultural ministry’s views, given that it found procedural unfairness on another ground.
