Irving Shipbuilding Inc. v. Canada (Attorney General)

This was an application for judicial review under s. 18.1 of the Federal Courts Act challenging the awarding of a contract by the Government of Canada to provide service support for its Victoria Class submarines. The applicants were two sub-contractors of an unsuccessful bidder. Surprisingly, and fatally for the applicants, the unsuccessful bidder was not part of the proceedings. The applicants argued that there was a conflict of interest in that some employees of the successful bidder had been involved in an earlier test program that gave it inside knowledge and an unfair advantage. The application was dismissed on the grounds, first, that the applicants had no standing since they were not “directly affected” by the decision, and second, on the grounds that there was no conflict of interest. On appeal, the Court of Appeal upheld the Judge at first instance but for slightly different reasons. The Court of Appeal held that the applicants were not owed a duty of fairness either at contract, since they were not the unsuccessful bidder, or at common law. Further, since they were not owed a duty of fairness they were not "directly affected" by the decision awarding the service contract and, therefore, had no status under s. 18.1 of the Federal Courts Act. An application for leave to appeal the decision to the Supreme Court of Canada was dismissed (see 2009 CanLII 57521)