COURT OF APPEAL FOR BRITISH COLUMBIA  
Citation:  
Nova-BioRubber Green Technologies Inc.  
v. Investment Agriculture Foundation  
British Columbia,  
2022 BCCA 247  
Date: 20220713  
Docket: CA47574  
Between:  
And  
Nova-BioRubber Green Technologies Inc.  
Appellant  
(Petitioner)  
Investment Agriculture Foundation British Columbia and Her Majesty the  
Queen in right of the Province of British Columbia  
Respondents  
(Respondents)  
Before:  
The Honourable Mr. Justice Butler  
The Honourable Mr. Justice Voith  
The Honourable Madam Justice Horsman  
On appeal from: An order of the Supreme Court of British Columbia dated  
June 1, 2021 (Nova-BioRubber Green Technologies Inc. v. Investment Agriculture  
Foundation British Columbia, 2021 BCSC 1621,  
New Westminster Docket S218930).  
Appearing as representative for the  
Appellant company:  
Dr. A. Buranov  
Counsel for the Respondent, Investment  
Agriculture Foundation British Columbia:  
D.K. Wotherspoon  
J.A. Der  
Counsel for the Respondent, Her Majesty  
the Queen in right of the Province of British  
Columbia:  
J.G. Penner  
Place and Date of Hearing:  
Vancouver, British Columbia  
May 27, 2022  
Place and Date of Judgment:  
Vancouver, British Columbia  
July 13, 2022  
Nova-BioRubber Green Technologies Inc. v.  
Investment Agriculture Foundation British Columbia  
Page 2  
Written Reasons by:  
The Honourable Madam Justice Horsman  
Concurred in by:  
The Honourable Mr. Justice Butler  
The Honourable Mr. Justice Voith  
Nova-BioRubber Green Technologies Inc. v.  
Investment Agriculture Foundation British Columbia  
Page 3  
Summary:  
The appellant appeals the dismissal of its petition for judicial review of decisions of  
the Investment Agriculture Foundation British Columbia. The Foundation is a not-for-  
profit society that administers government grant programs. The Foundation rejected  
the appellant’s applications for approval of funding for the development of agriculture  
processing technology. The appellant’s petition for judicial review of these decisions  
was dismissed. Held: Appeal allowed. The impugned decisions are of a sufficiently  
public character to be amenable to judicial review. The Foundation breached  
common law principles of procedural fairness in adjudicating the appellant’s  
applications. The applications are remitted to the Foundation for reconsideration.  
Reasons for Judgment of the Honourable Madam Justice Horsman:  
Introduction  
[1]  
The appellant appeals from an order dismissing its petition for judicial review  
of decisions by the respondent, Investment Agriculture Foundation British Columbia  
(the “Foundation”), rejecting funding for the appellant’s research proposals.  
[2]  
The Foundation is an industry-led, not-for-profit society incorporated pursuant  
to the Societies Act, S.B.C. 2015, c. 18. The Foundation administers a variety of  
provincial and federal grants and contribution programs targeted at the agriculture  
and agri-food industry in British Columbia. One such program is the Canadian-BC  
Agri-Innovation Program (the “Program”), which was established under the federal-  
provincial Canadian Agricultural Partnership. The Program provides public funding  
for activities that advance innovation and competitiveness in British Columbia’s  
agriculture, food, or agri-products sector.  
[3]  
In 2019, the appellant made two applications to the Foundation for funding in  
relation to the appellant’s proposal to develop growing and processing technologies  
that would allow the production of hypoallergenic latex, biorubber, and inulin from an  
annual rubber plant, taraxacum kok-saghyz (“TKS”). The Foundation determined  
that the appellant’s proposals did not meet the Program’s eligibility requirements.  
The Foundation therefore rejected both of the appellant’s applications.  
[4]  
The appellant filed a petition for judicial review of the Foundation’s decisions.  
In reasons indexed as 2021 BCSC 1621, the judge dismissed the petition, citing two  
Nova-BioRubber Green Technologies Inc. v.  
Investment Agriculture Foundation British Columbia  
Page 4  
grounds. First, the judge held that the impugned decisions constituted policy  
decisions that were outside the purview of the Judicial Review Procedure Act,  
R.S.B.C. 1996, c. 241 [JRPA]. Second, the judge held that the Foundation’s  
decisions, in any event, fell within an acceptable range of outcomes as defined in  
Dunsmuir v. New Brunswick, 2008 SCC 9.  
[5]  
On appeal, the appellant argues the judge erred in dismissing its petition  
without considering the legitimate issues the petition raised about a lack of  
transparency, fairness, and intelligibility in the Foundation’s decision-making  
process. The appellant also alleges that the judge showed a reasonable  
apprehension of bias in favouring the respondents.  
[6]  
The respondent Her Majesty the Queen in right of the Province of British  
Columbia (the “Province”) appeared on the appeal for the sole purpose of supporting  
the judge’s dismissal of the petition as against the Province. The Province says that  
whatever the outcome of the appeal as it relates to the judicial review of the  
Foundation’s decisions, the Province is never a proper party to a petition for judicial  
review.  
Background and procedural history  
The Foundation’s administration of the program  
[7]  
The Foundation is not a government body, and its powers are not derived  
from statute. Nevertheless, there is clearly a public aspect to the Foundation’s  
activities as they relate to the administration of programs that are funded by the  
Province and the federal government. The Province’s affiant Julia Diamond, who is  
an employee of the B.C. Ministry of Agriculture, deposes that the federal government  
provides approximately 60 percent of the funding for the Program, and the Province  
provides the remaining 40 percent. Ms. Diamond further deposes that—pursuant to  
a bilateral agreement between them—the federal government and the Province have  
established eligibility criteria for the Program. These eligibility criteria are reflected in  
an agreement between the Province and the Foundation that is entitled “Shared  
Cost Arrangement.”  
Nova-BioRubber Green Technologies Inc. v.  
Investment Agriculture Foundation British Columbia  
Page 5  
[8]  
Under the terms of the Shared Cost Arrangement, the Foundation agrees to  
deliver the Program according to the approved program framework. The Foundation  
is responsible for adjudicating funding applications, including verifying the eligibility  
of applicants for program funding. “Eligible Activities” are defined to include:  
…cost share funding for industry-led projects to research, develop, pilot,  
demonstrate, adopt, or commercialize innovative (new-to-BC) products,  
practices, processes or technologies that will enhance the competitiveness,  
sustainability, productivity and/or resilience of the sector.  
[9]  
As required by the Shared Cost Arrangement, the Foundation has developed  
a Program Framework and Communications Plan (the “Framework”). Under the  
heading “Program Overview”, the Framework provides:  
Between May 3, 2018 and December 31, 2022, [the Foundation] will solicit,  
review, and adjudicate applications for funding from eligible participants to  
undertake a minimum of 20 projects annually:  
[10] The Framework also establishes the process to be followed by the  
Foundation in adjudicating funding applications. The Framework envisions four  
decision stages:  
(1) Application Screening  
(2) Pre-Board Review  
(3) Technical Validation  
(4) Decision by the Board of Directors  
[11] At the Application Screening stage, project coordinators and/or project  
managers employed by the Foundation conduct an internal review process to  
determine whether the proposed project meets eligibility requirements. The  
Framework describes the process at the Application Screening stage as follows:  
Upon receipt, projects are screened and scored with the Program Delivery  
Team. This review consists of an initial eligibility check, budget review,  
alignment with priorities, industry support, validation of claims (if required),  
and a review of past projects from the client completed with [the Foundation].  
Feedback is compiled and may involve both Project Coordinators and  
Nova-BioRubber Green Technologies Inc. v.  
Investment Agriculture Foundation British Columbia  
Page 6  
Program Managers and is communicated back to clients. This is an internal  
process between [the Foundation] and the clients. Only projects that align  
with the ineligibility list are excluded prior to Pre-board. All others are  
provided feedback and an opportunity to update their application prior to the  
Pre-Board review and advance in the process…  
[12] I interpret “client” in this passage to refer to an applicant for funding from the  
Program, such as the appellant.  
[13] At the Pre-Board Review stage, the following process is anticipated:  
Preboard Review is intended to provide funding partners, Agriculture and  
Agri-food Canada and the Ministry of Agriculture, an opportunity to provide  
review feedback to Program Delivery Team staff on project applications  
received for an adjudication and intended to go to the Board for adjudication  
at the following quarterly Board meeting. The outcomes of the pre-board  
meeting should:  
Identify special funding or eligibility concerns in addition to established  
program eligibility guidelines.  
Identify any need for technical review, or component technical review.  
Provide guidance to the Program Delivery Team for any other special  
consideration in relation to project content.  
[14] The Technical Validation phase of the decision process occurs if the need for  
technical review is identified at the Pre-Board review stage. Finally, projects that  
pass the Pre-Board review will be brought forward for decision at a meeting of the  
Foundation’s Board of Directors.  
The Foundation’s decisions on the appellant’s applications  
[15] On or about April or May 2019, the appellant applied to the Foundation for  
funding of 50% of the cash costs of $498,100, to a maximum of $249,000, for a  
proposal to develop organic growing and processing practices for TKS, and to  
produce organic products such as biorubber, biolatex and inulin. In its application,  
the appellant described the anticipated benefits of the project as including the  
development of a new organic agri-processing industry for bio-rubber and biolatex—  
which are hypoallergenic and therefore avoid latex allergies—and inulin, which is a  
dietary fibre used in the food and health sectors.  
Nova-BioRubber Green Technologies Inc. v.  
Investment Agriculture Foundation British Columbia  
Page 7  
[16] The Foundation advised the appellant on May 23, 2019, via email from  
program manager Clayton Botkin, that the proposal did not meet eligibility  
requirements (“First Decision”). In this email, Mr. Botkin stated:  
Yesterday, we had our pre-board review for the next round of applications.  
Your application, INV104, was included in this eligibility review.  
The funding partners have indicated that following significant investment and  
a number of projects related to TKS production, it is no longer considered  
innovative. They provided the reasons below:  
…
[Emphasis added.]  
[17] The reasons listed were twofold. First, the appellant had already received  
funding for TKS innovation projects on three past occasions, totalling $473,000.  
Second, the organic production of crops was not considered innovative. Mr. Botkin’s  
email does not particularize the identity of the “funding partners.”  
[18] The rejection of the appellant’s funding applications occurred at the Pre-  
Board Review stage. The applications did not advance to the final stage of the  
decision-making process.  
[19] On or about July 29, 2019, the appellant submitted a second proposal for  
funding from the Program. This project related to the preparation and testing of liquid  
latex samples and finished latex products from TKS plant roots grown organically in  
British Columbia.  
[20] The Foundation advised the appellant on August 21, 2019, via email from  
Mr. Botkin, that, for the same reasons stated in the First Decision the second  
proposal also did not meet the Program’s eligibility requirements (the “Second  
Decision”).  
The petition and responses to petition  
[21] On September 13, 2019, the appellant filed a petition challenging the First  
and Second Decisions. The appellant did not have legal counsel. The appellant was  
represented on the petition, and on this appeal, by its president and chief executive  
Nova-BioRubber Green Technologies Inc. v.  
Investment Agriculture Foundation British Columbia  
Page 8  
officer, Dr. Anvar Buranov. Although the petition did not reference the JRPA, it is  
common ground that the petition was, in substance, a claim for relief under the  
JRPA. The original respondents to the petition were the Foundation and the BC  
Ministry of Agriculture. The appellant later amended its petition to replace the BC  
Ministry of Agriculture with the Province.  
[22] The appellant sought orders:  
1) To reverse the rejection decision of [the Foundation] on my two innovation  
proposals.  
2) To provide transparency at [the Foundation] in awarding public money to  
innovative companies.  
3) To change grant-making arrangements at [the Foundation] into repayable  
loans with interest.  
[23] The factual and legal basis sections of the petition are sparsely worded. The  
appellant asserted that the Foundation wrongly concluded that its proposals were  
not innovative. The appellant alleged inconsistencies in the Foundation’s approval  
decisions, in that other companies received funding from the Program for projects  
that are not innovative. The appellant also alleged a conflict of interest on the part of  
one Board member arising from her involvement with a bio-pharmaceutical company  
in 2013.  
[24] On October 4, 2019, the Foundation filed a response to petition and the  
affidavit of Michelle Koski, the Foundation’s Executive Director. Ms. Koski’s affidavit  
includes information that was not previously known to the appellant. There are two  
points of particular note.  
[25] First, Ms. Koski elaborates on the Foundation’s reasons for rejecting the  
appellant’s first proposal. She states:  
21.  
After thorough review by the Foundation, the First Proposal was  
deemed ineligible for funding by the Foundation on or about May 23, 2019,  
for a number of reasons, including:  
(a)  
TKS is no longer eligible as an innovative crop and is therefore  
outside the scope of the [Program]. The innovative components of  
TKS production and processing have previously been supported by  
the Foundation through the [Program], including seed development,  
Nova-BioRubber Green Technologies Inc. v.  
Investment Agriculture Foundation British Columbia  
Page 9  
crop production, and processing for inulin and hypoallergenic rubber  
products in previous projects. Dr. Buranov has previously received the  
following funding for TKS innovation products from the [Program]:  
[List of funding omitted.]  
(b)  
The organic production of crops, which was the basis of the  
First Proposal, is not considered “innovative”, and as such, is  
ineligible for funding.  
(c)  
The First Proposal included a significant number of expenses  
that the Foundation found concerning, including potentially duplicated  
salaries, management and consulting fees which totaled half the cost  
of the project, and a significant number of capital expenses which may  
not be incremental to the cost of the project.  
(d)  
The First Proposal lacked current and relevant letters of  
support, and demonstration of British Columbian producer uptake of  
the commodity. The Foundation determined that there had been  
enough government investment in the commodity and project to date,  
and if its production were to be successful, it would have seen  
significantly more uptake by British Columbian growers and investors.  
The Foundation considers letters of support from British Columbia’s  
agricultural industry as a key component of an applicant’s submission  
for funding.  
[26] I observe that the latter two of the four reasons listed by Ms. Koski—the  
inclusion of improper expenses in the appellant’s proposal and the lack of letters of  
support—are not stated in the First Decision as reasons for the refusal of the  
appellant’s funding request. In the course of the appeal hearing, the Foundation  
conceded that the appellant did not have notice of these two reasons until he  
received the Foundation’s petition response and supporting affidavit.  
[27] Second, Ms. Koski’s affidavit also included emails between Mr. Botkin and  
Ms. Diamond that the appellant had not previously seen. The emails raise some  
question as to the extent of the influence of the Ministry of Agriculture on the  
Foundation’s decisions in relation to the appellant’s funding applications.  
[28] On January 21, 2020, after the appellant had filed its amended petition  
naming the Province as a respondent, the Province filed a response to petition and  
Ms. Diamond’s affidavit in support. In its response, the Province pleaded that it had  
not made any of the decisions under review, and in any event, the Province is not an  
appropriate respondent on an application for judicial review. In her affidavit,  
Nova-BioRubber Green Technologies Inc. v.  
Investment Agriculture Foundation British Columbia  
Page 10  
Ms. Diamond explained the relationship between the Foundation and the Province.  
She stated that the Foundation had the “information, responsibility and authority to  
determine eligibility of any applicant and project”, and that the Province’s role is only  
consultative where there are “questions or concerns about eligibility.”  
[29] The appellant did not initially provide an affidavit in support of its petition.  
However, following receipt of petition response material from the Foundation,  
Dr. Buranov swore three affidavits.  
[30] In the first affidavit, responding to the Foundation’s material, Dr. Buranov  
noted that some of the reasons for the decision listed in Ms. Koski’s affidavit were  
“freshly-made” claims. He responded to them in substance. Dr. Buranov raised other  
complaints about the decision to refuse his funding requests. He asserted that other  
companies had received funding from the Program for projects that are not  
innovative. He proposed that the Program should be altered to provide for repayable  
loans with interest rather than grants, which would increase transparency.  
[31] In the second affidavit, responding to the Province’s material, Dr. Buranov  
addressed his comments to the role of Ministry of Agriculture employees in the  
decision-making process. This affidavit is primarily in the nature of argument rather  
than evidence. Dr. Buranov asserts that all funding decisions for the Program are  
made by Ms. Diamond rather than by the Foundation. He complained of a lack of  
transparency in the decision-making process, and alleged government corruption.  
[32] In the third affidavit, Dr. Buranov appeared to advance a claim for damages  
against the respondents based on intentional interference with economic relations,  
negligence, breach of public confidence, breach of statutory duty, and breach of the  
Charter. This affidavit is also in the nature of argument rather than evidence.  
Dr. Buranov advanced a number of allegations against the individuals involved in the  
adjudication of his funding application, including that the rejection of his proposals  
was motivated by racial and ethnic bias.  
Nova-BioRubber Green Technologies Inc. v.  
Investment Agriculture Foundation British Columbia  
Page 11  
The judicial review decision  
[33] The petition came on for hearing on June 1, 2021. The judge gave oral  
reasons for judgment dismissing the petition on the same day.  
[34] The judge’s reasons for dismissing the petition are reflected in the following  
passages of his judgment:  
[5]  
…The petitioner has in this case had funds advanced by the  
Foundation earlier to advance innovative science. The petitioner seems now  
to suggest that somehow this funding had not been enough. The problem is  
no one promised him enough funding. That was never the jurisdiction nor the  
mandate of the Foundation. There is no suggestion in any of the material, in  
particular in the bylaws or constitution of the Foundation, that somehow it was  
acting outside of its mandate, and clearly what it does in making policy  
decisions about funding projects is outside the purview of the Judicial Review  
Procedure Act.  
…
[10]  
It was noted by Mr. Wotherspoon that in the very well-known  
case, Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, that where decisions  
fall within the acceptable range of outcomes, the court has no role to play,  
particularly under the Judicial Review Procedure Act. In this case there were  
applications which would have been innovative which were not chosen  
because of the funding available, and there were projects which were not  
chosen because they were ineligible. In this case the projects were decided  
to be ineligible. That was clearly within the mandate and range of acceptable  
outcomes as defined by the Dunsmuir case.  
[Emphasis added.]  
[35] The judge also accepted the Province’s argument that there was “no arguable  
claim or triable claim” against the Province.  
[36] The judge was critical of the appellant for advancing unsupported allegations  
of misconduct against individual government and Foundation employees. He found  
that the appellant’s conduct came close to meeting the test for an award of special  
costs. However, he ultimately concluded that an award of costs at scale B in favour  
of both respondents was sufficient.  
Nova-BioRubber Green Technologies Inc. v.  
Investment Agriculture Foundation British Columbia  
Page 12  
Issues  
[37] The appellant’s factum contains a lengthy list of errors in judgment that are  
alleged to have been committed by the judge. At the hearing of the appeal,  
Dr. Buranov’s submissions on behalf of the appellant more specifically focused on  
the following arguments:  
(1)  
The judge erred in ignoring evidence that supported the appellant’s  
claims of procedural unfairness arising from the fact that:  
(a) the First Decision was based on considerations that were  
never communicated to the appellant, and that he never had a  
chance to respond to;  
(b) the First and Second Decisions were, in reality, made by  
Ministry of Agriculture employees rather than the Foundation;  
(2)  
(3)  
The judge erred in ignoring evidence that supported the appellant’s  
claims that the decisions to deny him funding were arbitrary and  
lacking in transparency; and  
The judge demonstrated a reasonable apprehension of bias.  
[38] On appeal, the appellant asks us to set aside the judge’s order dismissing the  
petition, and to remit the First and Second Decisions to the Foundation for  
reconsideration.  
Analysis  
Standard of review  
[39] On an appeal from a decision on judicial review, this Court’s role is to  
determine whether the judge identified the correct standard of review and applied it  
correctly. These are questions of law on which no deference is owed. In addressing  
these questions, this Court steps into the shoes of the reviewing judge: Agraira v.  
Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36 at  
Nova-BioRubber Green Technologies Inc. v.  
Investment Agriculture Foundation British Columbia  
Page 13  
paras. 45–46; Maroofi v. Health Professions Review Board, 2021 BCCA 111 at  
para. 34.  
[40] In the present case, the judge dismissed the petition, in part, because he  
found the petition raised issues that were outside the scope of judicial review. This  
conclusion also raises a question of law that is reviewable on a standard of  
correctness: Housen v. Nikolaisen, 2002 SCC 33 at para. 8.  
The allegation of reasonable apprehension of bias  
[41] The appellant’s allegation that the judge was biased against him in the  
petition hearing may be disposed of briefly. The appellant does not point to any  
evidence of actual bias on the part of the judge. Instead, the appellant’s complaint is  
essentially one of a reasonable apprehension of bias on the part of the judge, which  
is said to be evidenced by the judge’s relatively more favourable treatment of the  
respondents. I see no merit to this allegation.  
[42] The test for a reasonable apprehension bias asks:  
…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 [the decision maker], whether  
consciously or unconsciously, would not decide fairly.  
See: Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney  
General), 2015 SCC 25 at para. 20, citing Committee for Justice and Liberty v.  
National Energy Board, [1978] 1 S.C.R. 369, at p. 394, per de Grandpré J.  
(dissenting).  
[43] The essence of impartiality lies in the requirement of the decision maker to  
approach the case with an open mind: Yukon at paras. 22–23. There is a strong  
presumption of impartiality that is not easily displaced. The test for reasonable  
apprehension of bias requires “a real likelihood or probability of bias”, and there is a  
high burden of proving the claim on the party alleging bias: Yukon at paras. 25–26.  
Nova-BioRubber Green Technologies Inc. v.  
Investment Agriculture Foundation British Columbia  
Page 14  
[44] There is no question that the judge saw limited merit in the appellant’s case.  
However, the fact that the judge decided against the appellant is not, on its own,  
evidence of bias. This is true even if this Court finds the judge made legal errors.  
The judge was also critical of the appellant’s conduct in advancing broad allegations  
of wrongdoing against individuals who were not before the court. The judge’s  
response was understandable. It is fair to note at this point that the appellant’s  
submissions before the judge, and before this Court, were not constrained by an  
appreciation of the proper role of the court on judicial review. The legitimate issues  
that the appellant was raising for judicial review tended to be obscured by the  
appellant’s wide-ranging allegations of serious misconduct by individuals employed  
by the Foundation and the Province. Not only were such allegations unsupported on  
the evidence, they were far beyond the scope of any issue that could properly arise  
for determination on an application for judicial review.  
[45] In my view, there is nothing in the conduct of the judge on the hearing of this  
petition that would lead an informed person to conclude that the judge could not  
approach the case with an open mind. The judge’s understandable concern over the  
appellant’s approach to its case does not constitute a reasonable apprehension of  
bias.  
Did the judge err in his analysis?  
[46] The reasons of the judge are relatively sparse. I have quoted the key  
passages above, which suggest three bases for the dismissal of the petition:  
(1)  
the Foundation is a private entity and its decisions are not  
authorized by statute, therefore the decisions are not amenable to  
judicial review;  
(2)  
decisions of the Foundation are generally amenable to judicial  
review, but these particular decisions are non-justiciable because  
they are policy decisions; or  
Nova-BioRubber Green Technologies Inc. v.  
Investment Agriculture Foundation British Columbia  
Page 15  
(3)  
these particular decisions are amenable to judicial review, but the  
court has no role to play because the decisions fell within an  
acceptable range of outcomes.  
[47] I will address each in turn.  
(1)  
Are the decisions of the Foundation of a public character and  
thereby subject to judicial review?  
[48] In its response to petition, the Foundation advanced the position that the  
Foundation’s mandate and powers come from its bylaws not from statute and, as  
such, its decisions are “beyond the ambit of review.” It appears that para. 5 of the  
judge’s reasons, quoted in part above, may have been responsive to this  
submission. In my view, the Foundation’s position is wrong in law. The judge erred  
to the extent that he adopted the Foundation’s submission on this point.  
[49] The fact that the Foundation does not exercise statutory powers of decision  
making acts as a limit, but not a bar, on the availability of remedies under the JRPA.  
Section 2(2) of the JRPA, lists two categories of remedies:  
2…  
(2) On an application for judicial review, the court may grant any relief  
that the applicant would be entitled to in any one or more of the  
proceedings for:  
(a) relief in the nature of mandamus, prohibition or certiorari;  
(b) a declaration or injunction, or both, in relation to the exercise,  
refusal to exercise, or proposed or purported exercise, of a  
statutory power.  
[50] The remedies listed in s. 2(2)(a) comprise the core of the superior courts’  
inherent supervisory jurisdiction over inferior tribunals. The remedies in s. 2(2)(b)  
have their origin in private law, but are now also public law remedies: Western  
Stevedoring Co. Ltd. v. W.C.B., 2005 BCSC 1650 at paras. 21–22.  
[51] The remedies in s. 2(2)(b) of the JRPA are only available where the public  
authority operates pursuant to statutory powers. However, the same is not true of  
the remedies in s. 2(2)(a). Public authorities can exercise their functions based on  
Nova-BioRubber Green Technologies Inc. v.  
Investment Agriculture Foundation British Columbia  
Page 16  
powers that do not arise from a statute; provided that the impugned decisions of the  
authority are of a sufficiently public character, an aggrieved party may seek the  
remedies listed in s. 2(2)(a) of the JRPA even if the impugned decisions do not  
constitute an exercise of statutory powers: Strauss v. North Fraser Pretrial Centre  
(Deputy Warden of Operations), 2019 BCCA 207 at paras. 21–24.  
[52] The remedy of certiorari is historically broad in scope. Certiorari is available  
as a general remedy for the supervision of public bodies with powers to “decide any  
matter affecting the rights, interests, property, privileges, or liberty of any person”:  
Martineau v. Matsqui Disciplinary Bd., [1980] 1 S.C.R. 602 at 628. It is open to the  
court on a petition seeking relief in the nature of certiorari to quash the decision, and  
remit the matter to the decision maker with an order in the nature of mandamus  
directing reconsideration: Canadian Airlines International Ltd v. Canadian Air Line  
Pilots Assn. (1997), 39 B.C.L.R. (3d) 131 (C.A.) at para. 73.  
[53] The question of whether the impugned decisions are of a sufficiently public  
character to be amenable to judicial review is to be determined in accordance with  
the principles set out by the Supreme Court of Canada in Highwood Congregation of  
Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26. In that case, a  
member of the Highwood Congregation of Jehovah’s Witnesses, a voluntary  
religious association, filed an application for judicial review seeking relief in the  
nature of certiorari to quash a decision by the Congregation to disfellowship him.  
The member alleged that the decision was procedurally unfair. The Supreme Court  
of Canada held that the impugned decision was not within the court’s supervisory  
jurisdiction on judicial review.  
[54] As explained in Highwood, the process of judicial review primarily concerns  
the relationship between the administrative state and the courts. Private parties  
cannot seek judicial review to solve disputes that may arise between them. Judicial  
review is only available where there is an exercise of state authority that is of  
sufficiently public character: Highwood at paras. 13–14. The concept of “public” in  
this context means in a public law sense. The decisions of a private body do not  
Nova-BioRubber Green Technologies Inc. v.  
Investment Agriculture Foundation British Columbia  
Page 17  
become subject to judicial review simply because they may impact a broad section  
of the public; rather, a decision has a public character where it “involves questions  
about the rule of law and the limits of an administrative decision maker’s exercise of  
power”: Highwood at para. 20.  
[55] In my view, the Foundation’s authority in relation to the administration of the  
Program is of sufficiently public character to render their adjudicative decisions  
subject to judicial review. The Program is directed at achieving government  
objectives in promoting innovative and competitive practices in the B.C. agriculture  
sector, and it is entirely funded with public money. The Foundation’s duties are set  
out in an agreement with the Province. Pursuant to the Shared Cost Arrangement,  
the Foundation is required to submit quarterly reports to the Province, and to comply  
with instructions from the Province in carrying out the services it is contractually  
committed to provide. The Framework anticipates that the federal government and  
the Province will have a consultative role in respect of individual applications for  
funding.  
[56] If the Program was directly administered by the Province, there is no question  
that decisions on funding applications would be amenable to judicial review. From a  
rule of law perspective, it cannot be the case that a government can immunize the  
administration of a public program from the scope of the court’s supervisory review  
by assigning adjudicative duties to a contractor. On appeal, the Foundation did not  
argue otherwise. The Foundation concedes that the decisions of the Foundation on  
funding applications to the Program are of sufficiently public character that they may  
be subject to judicial review.  
(2)  
Are the issues raised in the petition non-justiciable policy  
questions?  
[57] A second possibility arising from the judge’s reasons is that he considered the  
specific decisions in issue on the petition to be beyond the purview of the JRPA,  
even if decisions of the Foundation might generally be subject to judicial review. I am  
unsure as to what is meant by the reference at para. 5 to “policy decisions about  
Nova-BioRubber Green Technologies Inc. v.  
Investment Agriculture Foundation British Columbia  
Page 18  
funding projects.” Policy decisions may be, and frequently are, subject to judicial  
review. There is no general bar on an application for judicial review of policy  
decisions.  
[58] There is a narrow category of decisions which are not amenable to judicial  
review because they raise issues that are non-justiciable. The issue of justiciability is  
contextual. The court must consider whether it has the institutional capacity and  
legitimacy to adjudicate the matter: Highwood at para. 34. By way of example, in  
Highwood, the Supreme Court of Canada held that matters such as the merits of a  
religious tenet are not justiciable. This is because the courts have neither legitimacy  
nor institutional capacity to determine the merits of theological or religious doctrine:  
Highwood at paras. 36–37.  
[59] In my view, the decisions in issue in the present case clearly do not fall within  
the category of matters that are non-justiciable. The petition concerns decisions  
made by the Foundation in adjudicating the appellant’s funding applications. The  
appellant applied for judicial review on the grounds that the decisions were  
procedurally unfair and substantively unreasonable. The appellant sought relief in  
the nature of certiorari quashing the decisions, and an order remitting the matter to  
the Foundation for reconsideration. The superior courts routinely entertain  
applications for judicial review on such grounds and in such circumstances. There is  
no question that the court has the legitimacy and institutional capacity to determine  
the issues raised. While some of the relief sought by the appellant in the petition  
may exceed the remedies available on judicial review—such as an order changing  
the Program so that it administers interest-free loans rather than grants—that is not  
a basis for dismissing the entire petition.  
[60] In my view, the judge erred in concluding that the decisions of the Foundation  
were outside the purview of the JRPA.  
Nova-BioRubber Green Technologies Inc. v.  
Investment Agriculture Foundation British Columbia  
Page 19  
(3)  
Does the court have no role to play because the Foundation’s  
decisions were within an acceptable range of outcomes?  
[61] At para. 10 of his reasons, the judge cites Dunsmuir in support of the  
proposition that the Foundation’s funding decisions were within an acceptable range  
of outcomes, and therefore the court has no role to play. In my view, this analysis  
reflects two legal errors.  
[62] First, the judge’s reasoning does not account for the “recalibration” of  
standard of review analysis that came with the Supreme Court of Canada’s decision  
in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. Of  
particular note, for present purposes, is the confirmation in Vavilov that  
reasonableness review is concerned with both the outcome and the decision  
maker’s reasoning process. Furthermore, courts must adopt a “reasons first”  
approach to review. Where an administrative decision maker has provided written  
reasons, a reviewing court must begin its inquiry into the reasonableness of the  
decision by examining the reasons provided: Vavilov at para. 84. To the extent that  
Dunsmuir could have been interpreted as limiting reasonableness review to a  
determination of whether a decision falls within an acceptable range of outcomes,  
that interpretation does not survive Vavilov. In accordance with the direction in  
Vavilov, a court undertaking judicial review must consider both the outcome of the  
decision and the reasoning process that led to the outcome: Vavilov at para. 87.  
[63] In his reasons, the judge did not cite Vavilov, and he did not undertake any  
review of the Foundation’s reasons for decision, or the underlying record. Whether  
or not the judge was correct to conclude that the decisions fell within an acceptable  
range of outcomes, his analysis was incomplete.  
[64] Second, the judge’s analysis does not account for the appellant’s complaints  
about the fairness of the process followed by the Foundation in adjudicating the  
appellant’s applications for funding. Procedural unfairness is an independent ground  
of challenge to the Foundation’s decisions.  
Nova-BioRubber Green Technologies Inc. v.  
Investment Agriculture Foundation British Columbia  
Page 20  
[65] In my view, the judge erred in dismissing the petition on its merits without  
having either reviewed the reasons of the Foundation, or considered the appellant’s  
complaints of procedural unfairness in the decision-making process.  
Can the Order of the judge be upheld on alternative grounds?  
[66] Having concluded that the judge erred in his analysis in dismissing the  
petition, the question then becomes whether there is a basis in the record for this  
Court to uphold the order of the judge on any alternative ground. The Foundation  
argues that the First and Second Decisions are reasonable in terms of both the  
outcome and the reasoning process. The Foundation says it is open to this Court to  
apply Vavilov, and to conclude that the judge reached the right result even if his  
analysis contained legal errors. On the Foundation’s theory, as I understand it, it is  
unnecessary for this Court to address the appellant’s procedural fairness complaints  
if the decisions are, in substance, reasonable ones.  
[67] I do not agree with the Foundation’s proposed approach to reviewing the  
fairness of the decision-making process. A breach of procedural fairness will  
ordinarily render a decision invalid, and the usual remedy is a new hearing. It is  
generally not open to the reviewing court to speculate that the breach of procedural  
fairness would not have had changed the outcome. As stated by Le Dain J., for the  
Court, in Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643 at 661:  
… The right to a fair hearing must be regarded as an independent,  
unqualified right which finds its essential justification in the sense of  
procedural justice which any person affected by an administrative decision is  
entitled to have. It is not for a court to deny that right and sense of justice on  
the basis of speculation as to what the result might have been had there been  
a hearing.  
[68] There are exceptions to the general rule where the outcome is legally  
inevitable, or where the breach of procedural fairness has been cured in a  
subsequent appeal proceeding: Canada (Attorney General) v. McBain, 2017 FCA  
204 at para. 10. The former category of exception was established by Mobil Oil  
Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R.  
202, and it is a narrow one. In Mobil Oil, only one decision was legally permissible as  
Nova-BioRubber Green Technologies Inc. v.  
Investment Agriculture Foundation British Columbia  
Page 21  
a result of the manner in which the Court had resolved issues on a cross-appeal.  
Given the inevitability of the outcome, there was no point in remitting the matter to  
the tribunal despite the Court’s finding of a breach of procedural fairness.  
[69] Judicial review remedies are, of course, always discretionary. However, it is  
clear from the governing authorities that it is only in exceptional cases that the court  
should exercise discretion to refuse a remedy for a breach of procedural fairness. It  
is, furthermore, necessary to determine whether there has been a breach of  
procedural fairness before any consideration can be given to remedy.  
Was the Foundation’s process procedurally unfair?  
[70] While all public authorities owe a duty of fairness in making their decisions,  
the scope and content of the duty to be fair depends on the circumstances. Relevant  
contextual factors include: the nature of the decision being made and the process  
followed in making it, the statutory context, the rights affected, the legitimate  
expectation of the person challenging the decision, and the tribunal’s choice of  
procedure: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2  
S.C.R. 817 at 837–840. In Baker, L’Heureux-Dubé J., writing for the majority,  
observed at para. 22:  
…I emphasize that underlying all these factors is the notion that the purpose  
of the participatory rights contained within the duty of procedural fairness is to  
ensure that administrative decisions are made using a fair and open  
procedure, appropriate to the decision being made and its statutory,  
institutional, and social context, with an opportunity for those affected by the  
decision to put forward their views and evidence fully and have them  
considered by the decision-maker.  
[71] Where a judicial review raises an issue of procedural fairness, the standard of  
review is whether, in all the circumstances, the decision maker acted fairly. The  
Court does not owe deference to the decision maker in determining whether the  
process adopted conformed with the requirements of procedural fairness: Seaspan  
Ferries Corporation v. British Columbia Ferry Services Inc., 2013 BCCA 55 at  
para. 52.  
Nova-BioRubber Green Technologies Inc. v.  
Investment Agriculture Foundation British Columbia  
Page 22  
[72] The appellant’s submissions on appeal focus on two aspects of the  
Foundation’s process which are alleged to have been unfair:  
(1) the appellant’s applications for funding were rejected for reasons that were  
never disclosed to the appellant, and which it did not have an opportunity to  
address; and  
(2) although the Foundation was the entity assigned the relevant decision  
powers, the Foundation did not exercise independent judgment but rather  
deferred to the direction of Ministry of Agriculture employees.  
[73] I will address each in turn.  
(1) The Foundation’s failure to disclose the reasons for decision  
[74] The appellant’s first point invokes the audi alteram partem rule. It is a  
fundamental principle of administrative law that a person must know the case they  
have to meet, and be provided with an opportunity to answer it: David Phillip Jones,  
Q.C. and Anne S. de Villars, Q.C., Principles of Administrative Law, 7th ed. (Toronto:  
Carswell Thomson Reuters, 2020) at 282–284. As with all principles of procedural  
fairness, the content of the audi alteram partem rule depends on the context.  
[75] In the present case, the Foundation emphasizes that the appellant had no  
right to funding through the Program. This is true. However, the First and Second  
Decisions impacted the appellant’s interests, and the Foundation owed a duty of  
fairness in adjudicating its applications. I do not suggest that the appellant was  
entitled to an oral hearing, or to the procedural rights associated with a formal  
judicial process. However, the appellant was entitled to have its applications  
considered by the Foundation in a manner that was fair and open, having regard to  
the Foundation’s mandate and the context within which it functioned.  
[76] In my view, it was procedurally unfair for the Foundation to reject the  
appellant’s applications on the basis of concerns that were never communicated to  
the appellant. The Foundation does not suggest that its failure to fully engage with  
Nova-BioRubber Green Technologies Inc. v.  
Investment Agriculture Foundation British Columbia  
Page 23  
the appellant regarding its concerns about the appellant’s applications was due to  
any imperatives associated with the operation of the Program. On the contrary, the  
Framework anticipates a process of feedback between the Foundation and Program  
applicants in order to allow applicants an opportunity to update and strengthen their  
application. There is no explanation in the record for why this did not occur here. As  
noted, the Foundation concedes that the appellant did not have notice of, or an  
opportunity to respond to, two of the four reasons cited by the Foundation for the  
rejection of the appellant’s applications. These two reasons were unknown to the  
appellant before it received the Foundation’s response to petition.  
[77] In his first affidavit, Dr. Buranov attempts to respond to the two additional  
reasons. I will not review the substance of his response in any detail. It is not for this  
Court to determine whether Dr. Buranov’s response answers the two previously  
undisclosed concerns of the Foundation. The relevant point is that the appellant  
ought to have had an opportunity to have his views and evidence on these issues  
fully considered by the Foundation before the decisions were made.  
(2) The Foundation’s failure to exercise independent judgment  
[78] The appellant’s second procedural fairness argument is that the First and  
Second Decisions were effectively made by Ministry of Agriculture employees rather  
than the Foundation. It is evident that, as deposed to by the Province’s affiant  
Ms. Diamond, the adjudicative authority in relation to individual funding applications  
rests with the Foundation. It is also evident that Ministry of Agriculture employees  
provided significant input on the appellant’s applications. The difficult question is  
whether the Ministry influenced the Foundation’s decision-making process to the  
point that the Foundation effectively considered itself bound by the Ministry’s views.  
[79] The appellant’s complaint about the lack of independent judgment by the  
Foundation might alternatively be conceptualized as invoking the rule against  
fettering, the rule against unlawful sub-delegation, or the principle that the person  
who hears must decide. These doctrines overlap to some extent. At their root is the  
concern that discretionary power must be independently exercised by the  
Nova-BioRubber Green Technologies Inc. v.  
Investment Agriculture Foundation British Columbia  
Page 24  
administrative decision maker on which it is conferred. If, in fact, the Foundation  
considered itself bound by direction from the Ministry of Agriculture in deciding the  
appellant’s applications, rather than engaging in independent decision-making, this  
may contravene one or more of these principles.  
[80] It is difficult to reach firm conclusions on this issue given the state of the  
record, and the lack of developed submissions from the parties. The First Decision  
appears to have been made at a pre-Board meeting. There is little detail in the  
record as to what occurred at this meeting, or who attended it. The email that  
Mr. Botkin sent to Dr. Buranov to advise of the rejection of his application indicated  
that the decision had been made by “funding partners”, although the email does not  
identify the funding partners. In relation to the Second Decision, there are emails in  
evidence between Mr. Botkin and Ms. Diamond that raise concern that Mr. Botkin  
may have simply deferred to Ms. Diamond’s views as to what decision should be  
made on the appellant’s application. However, we have limited information on the  
decision-making process that preceded the second application.  
[81] In light of the state of the record, I decline to conclusively decide whether the  
Foundation’s decisions were procedurally unfair or void because the Foundation  
bound itself to the views of the Ministry of Agriculture. It is not necessary to decide  
this point. I have already concluded that the Foundation breached principles of  
procedural fairness in failing to disclose its reasons for decision to the appellant. For  
the reasons set out below, I consider that the appropriate remedy for the breach of  
procedural fairness is an order remitting the appellant’s applications to the  
Foundation for reconsideration. In reconsidering the appellant’s applications, the  
Foundation should be mindful of the importance of exercising the independent  
adjudicative judgment it has been assigned.  
What is the appropriate remedy on appeal?  
[82] The usual remedy following a finding of a breach of procedural fairness is an  
order remitting the matter to the administrative decision maker. I see no exceptional  
circumstances in this case that would warrant a different remedy. This is not a case  
Nova-BioRubber Green Technologies Inc. v.  
Investment Agriculture Foundation British Columbia  
Page 25  
in which only one outcome is legally permissible. Now that the appellant has notice  
of the concerns that motivated the Foundation to reject its applications, the appellant  
should have an opportunity to attempt to answer those concerns.  
[83] To be clear, I do not intend the remittal order to indicate that the Foundation  
must grant the appellant’s funding applications. That is a matter for the Foundation  
to decide, in the exercise of its independent judgment. Nor should the remittal be  
taken to indicate that employees of the Foundation or the Ministry of Agriculture  
have acted improperly, or that they are guilty of any of the serious acts of  
misconduct alleged by the appellant. As I have already stated, the appellant’s  
allegations are not based in evidence, and are beyond the proper scope of a petition  
for judicial review in any event. The purpose of the remittal is simply to allow the  
appellant’s applications to be adjudicated in a manner that is procedurally fair.  
The Province as a respondent to the petition  
[84] The propriety of naming of the Province as a respondent to the petition raises  
a separate question. The issue raised by the Province on appeal has to do with the  
correctness of the style of cause.  
[85] There is no question that the Province is not a proper respondent to an  
application for judicial review: Lang v. British Columbia (Superintendent of Motor  
Vehicles), 2005 BCCA 244 at paras. 22–25. Pursuant to s. 16 of the JRPA, the  
Attorney General of British Columbia (“AGBC”) must be given notice of an  
application for judicial review, and has a right to be heard. The Province did not  
advance the argument that the AGBC was not properly served despite the misnomer  
in the style of cause. The appellant served the petition for judicial review on the  
Deputy Attorney General, as required. The AGBC did not exercise its right to be  
heard on this petition.  
[86] As noted, the Province appeared on this appeal for the limited purpose of  
confirming that the Province is not a proper party to the judicial review. This is plainly  
correct, and therefore I would order that the style of cause be amended to remove  
the Province as a respondent.  
Nova-BioRubber Green Technologies Inc. v.  
Investment Agriculture Foundation British Columbia  
Page 26  
Conclusion  
[87]  
For the foregoing reasons, I would allow the appeal, set aside the order of  
the judge, and remit the appellant’s applications to the Foundation for  
reconsideration.  
[88] I would further order that the style of cause be amended to remove the  
Province as a respondent to the petition.  
[89] If the parties cannot agree on an appropriate order for costs, I would grant  
them leave to provide written submissions, not to exceed five pages in length, with  
the appellant’s submissions to be delivered within 30 days and the respondents’  
replies within 7 days of the appellant’s submissions.  
“The Honourable Madam Justice Horsman”  
I AGREE:  
“The Honourable Mr. Justice Butler”  
I AGREE:  
“The Honourable Mr. Justice Voith”  


© 2022 IncJournal is not affiliated with or endorsed by the U.S. Securities and Exchange Commission