A Hanwell convenience store owner is pleased NB Liquor's decision to award an agency store in the community to a businessman from Moncton has been quashed in a ruling by a Court of Queen's Bench justice.
Justice Paulette Garnett found that NB Liquor's review procedure for those contesting a decision is "inadequate and unfair" and quashed the Crown corporation's awarding of the Hanwell agency store to Power Plus Technology Inc.
Chris Scholten, the owner of Scholten's Hanwell Ltd., who sought the judicial review after his agency store bid was rejected, said he hopes his application will now be reconsidered.
"Ultimately, I think it would be fair for them to review the past submissions and apply the criteria and interpret their procedures, fairly, so that the rightful winner will ultimately be the successful candidate here in Hanwell," he told CBC News on Thursday.
Scholten contends the agency store should be awarded to a local company.
If NB Liquor wants to start the whole process over again, he will reapply, he said.
The president of Power Plus Technology Inc. said he could not comment on the court decision "at this point."
"I need time to thoroughly review and understand the implications from her ruling," Jason Lutes said in an email to CBC News.
In November 2012, NB Liquor issued a request for proposals for the operation of an agency store in Hanwell. Proposals by Scholten's Hanwell Ltd. and Power Plus Technology Inc. were deemed to comply with the terms of the request for proposals for further consideration.
NB Liquor hired Hudson Creative Design to assess and score the proposals received for the Hanwell agency store. The Power Plus proposal was given a score of 92 — one point higher than the Scholten's Hanwell proposal. NB Liquor's agency store task force reviewed the Hudson report and recommended the store be awarded to Power Plus Technology.
NB Liquor president Daniel Allain presented the findings to the Crown corporation's board of directors on Jan. 25, 2013 and the board approved the appointment of Power Plus as the agent for Hanwell. Power Plus president Jason Lutes was informed by telephone of the decision on that day.
Four days later, Chris Scholten was notified by letter that the proposal by his Scholten's Hanwell Ltd. was unsuccessful.
Dissatisfied with the process within NB Liquor to review the decision, Scholten eventually sought a judicial review and was granted one by Garnett.
NB Liquor emphasized it was a business decision based on a contract and was therefore immune to judicial review. NB Liquor also argued that agency stores don't involve public funds as the successful applicant has to pay the bill.
'In light of the importance of this decision to both applicants and the public interest in ensuring that such decisions are made openly and fairly, I find that the review procedure adopted by NB Liquor is inadequate and unfair.' - Justice Paulette Garnett
"While this is true, it overlooks the fact that the process does involve the granting of a lucrative monopoly to a private citizen or company," Garnett stated in her ruling.
"The decision is indeed a business decision which has the potential for bestowing handsome profits on the successful applicant," she said.
Scholten stated in an affidavit he was "expressly told by the consultant that the decision was made and `little could be said to make me feel better about it.'"
Scholten expected an opportunity to make representations in a review that could lead to a reconsideration of the decision, but those expectations were not met.
Instead, the review amounted to a "meeting to recap the corporation's evaluation of the applicant's offer," stated Garnett.
"In light of the importance of this decision to both applicants and the public interest in ensuring that such decisions are made openly and fairly, I find that the review procedure adopted by NB Liquor is inadequate and unfair," ruled Garnett.
"The party seeking a review must be provided with more information and the person or persons conducting the review must be open to the possibility of reviewing its decision."
"A review for the purpose of showing an applicant `where points were lost' is not a review at all," states Garnett. "Scholten's expected a meaningful review of its application with the possibility of altering the decision.
"It did not get a meaningful review and under the procedures adopted by NB Liquor one was not possible."
Ruling by Justice Paulette Garnett