Court tosses Nunavut air carrier’s GN medevac lawsuit

Rene Laserich, the president of Adlair Aviation Ltd., stands in front of one of the company’s two hangars at the Cambridge Bay airport. (PHOTO BY JANE GEORGE)

A Nunavut judge has thrown out a $31.5-million civil suit by Adlair Aviation Ltd. against the Government of Nunavut over the Kitikmeot medevac contract, slamming Adlair for wasting valuable court time, in an Oct. 13 summary judgment that ends nearly five years of litigation.

The longstanding civil case stemmed from allegations by the Cambridge Bay based-Adlair that the GN unjustly awarded its 2012 Kitikmeot medevac contract, which was granted to competitor Aqsaqniq Airlines Ltd. after a public request for proposals.

But lawyers representing the GN requested in April that the court do a summary judgment on the case, avoiding a trial, arguing that Adlair had failed to substantiate any of its allegations.

That’s in part because all of Adlair’s original affidavits were struck from the record in 2016 after large sections of them were deemed “hearsay,” forcing the airline to resubmit and causing the court further delays.

In his summary judgment, Nunavut Justice Paul Bychok concluded that Adlair’s civil suit was “not grounded in any evidence of any unjust actions by the [GN].”

Instead, Bychok said the allegations were rooted in the “personal indignation” of Adlair owner, Rene Laserich, and his lawyer, Ed Brogden of Toronto.

Bychok said Brodgen failed to familiarize himself with the relevant case law, saying throughout his judgment that the lawyer’s arguments were “confusing,” “careless,” “rambling,” and “without focus.”

“[Adlair] has not presented evidence establishing any cause of action or legal issue requiring a trial,” Bychok said.

The complex allegations made by Adlair, which had held the previous Kitikmeot medevac contract before it expired in 2012, were based on three main allegations:

• the GN mismanaged the bidding process by requesting additional information from Aqsaqniq Airlines Ltd. about its proposal, but did not notify Adlair that it had failed to complete all of its bid paperwork;

• the GN breached its regulations by awarding the Kitikmeot medevac contract to a “paper company” that held no airline assets and thus had to subcontract southern companies to fulfill its obligations; and,

• the territory and Aqsaqniq allegedly engaged in a “quid pro quo” deal, where companies behind the Aqsaqniq bid dropped a civil suit over a medevac contract for the Kivalliq—called the“Keewatin action”—that they failed to win, in exchange for the medevac contract in the Kitikmeot.

Bychok disagreed with Adlair’s allegations that the GN unfairly requested more information from Aqsaqniq and not Adlair during the RFP process.

“The RFP states in plain language that the [territory] reserved the right to speak to any proponent about a proposal if [they] chose to do so,” he said.

Bychok also said Aqsaqniq was contacted to clarify aspects of its proposal, while Adlair omitted full sections of its bid application involving Inuit employment, which subsequently affected its overall bid after the GN applied Nunavummi Nangminiqaqtunik Ikajuuti, or NNI, bid adjustments for Inuit employment.

“There is a critical distinction between seeking to clarify a point of information… and seeking to invite the submission of information which was absent in the proposal,” Bychok said.

Bychok cited a Supreme Court of Canada case that found there is no legal duty for a contracting agency to investigate the content of bids or proposal.

This defeats an argument from Adlair that the GN was aware that Aqsaqniq had no physical assets.

Bychok added there is “no evidence” substantiating Adlair’s claim of collusion between the territory and Aqsaqniq regarding either the Kitikmeot medevac contract, or the “Keewatin action.”

Brogden “failed to meet the high standard” of his profession, Bychok said, by “misconstruing” the contact between Nunavut’s senior manager of procurement and logistics, Mark McCulloch, and Aqsaqniq over the requested clarifications in its proposal.

“Whatever may be said on policy grounds about awarding a vital medevac contract to a ‘paper company’, [Adlair] has failed to… present any evidence suggesting a conspiracy,” Bychok concluded.

Bychok awarded the legal costs incurred by the Government of Nunavut over the five-year court battle to Adlair.

That’s on top of the $10,000 in legal fees already charged to Adlair and Brogden last year for delaying the court when they submitting flawed affidavits.

The GN was given 10 business days to file its latest bill of costs.

For now, both Adlair and Aqsaqniq are out of the government medevac business in the Kitikmeot region.

That’s because in May of 2017, in a decision unrelated to the lawsuit, the GN awarded a new five-year Kitikmeot medevac contract to Keewatin Air, owned by Exchange Income Corp., which operates the service under the name Nunavut Lifeline.

This means Nunavut Lifeline now does medevac work across all three Nunavut regions.

Adlair Aviation (1983) Ltd. v. Commissioner of Nunavut, Government of Nunavut and Mark McCulloch by NunatsiaqNews on Scribd