Date: 20061110
Docket: T-1605-04
Citation: 2006 FC 1371
Toronto, Ontario, November 10, 2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
AGUSTAWESTLAND
INTERNATIONAL LIMITED
Plaintiff
and
THE MINISTER OF PUBLIC WORKS
AND GOVERNMENT SERVICES CANADA
and HER MAJESTY THE QUEEN
Defendants
REASONS FOR ORDER AND ORDER
[1]
This is a
motion by the plaintiff for an Order directing the defendants to produce a
better affidavit of documents and to provide information concerning documents
in respect of which they have asserted claims of privilege.
Background
The underlying proceeding
[2]
This
proceeding was commenced on September 1, 2004 by way of an application for
judicial review. This Court ordered on December 2, 2005 that the proceeding be
converted to an action. The background to the underlying action is set out at
paragraphs 4 to 9 of my Reasons for Order dismissing a motion for summary
judgment in Agustawestland International Ltd. v. Canada (Minister of Public
Works and Government Services), 2006 FC 767.
The document disclosure process
[3]
On
February 14, 2006, the Court issued an Order on consent (the “February Order”)
reflecting the agreement reached between the parties concerning documentary
disclosure. In particular, the Court ordered that the plaintiff serve its
affidavit of documents by March 20, 2006 and that the defendants serve their
affidavit by May 1, 2006. The plaintiff was also ordered to serve, concurrent
with its affidavit, two lists of relevant documents which it believed to be in
the possession of the defendants. The first list (List A) was to refer to
requests made under the Access to Information Act (the Access Act), and
the second list was to provide a list of all other specific documents and
categories of documents (List B).
[4]
The
plaintiff delivered to the defendants its two lists on February 10, 2006. The
plaintiff also delivered to the defendants supplementary lists on March 3, 2006
(Supplementary List A and Supplementary List B). The plaintiff did not,
however, serve its affidavit of documents by March 20, 2006 as ordered.
Instead, the plaintiff sought and obtained an order extending the period of
time for it to serve the affidavit of documents to March 29, 2006.
[5]
On May 1,
2006, the defendants served their affidavit of documents sworn by Michel
Lapointe on April 12, 2006 (the First Affidavit). The First Affidavit was found
to be deficient, and, in an Order dated May 12, 2006 (the May Order), this
Court found that the defendant had not complied with the February Order. The
Court then ordered that:
1. The defendants
deliver a supplementary affidavit by July 31, 2006, encompassing relevant,
non-privileged documents listed in the plaintiff’s List A, List B, Supplemental
List A, and Supplemental List B;
2. The defendants
deliver documents to the plaintiff on a progressive basis as they become
available to counsel for the defendants;
3. The defendants
communicate to counsel for the plaintiff any determination that a document
identified in the plaintiff’s list is irrelevant or privileged when such
determination is made so that the matter may be resolved or determined on
motion; and
4. The parties proceed
with examination for discovery on dates in July and August 2006 to be agreed
upon by counsel for the parties, commencing first with discoveries concerning
the evaluation of the bids.
[6]
The defendants
provided a supplementary affidavit of documents sworn on August 2, 2006 (the
Second Affidavit). Between the issuance of the May Order and the delivery of
the Second Affidavit, the defendants produced 92,088 pages of documents over
the course of 13 production dates. The defendant also delivered a second
supplementary affidavit of documents, sworn October 5, 2006, comprising a
further 11,789 pages of documents (the Third Affidavit). The defendant also said
it would provide a third supplementary affidavit of documents on or before
November 2, 2006 (the Fourth Affidavit), the date set for this motion.
[7]
Since the defendants
began to produce documents, counsel for the plaintiff has sent several letters
to counsel for the defendants alleging deficiencies in the affidavits and the
documents produced therein. Since the plaintiff brought this motion, originally
aimed at compelling the production of a better affidavit of documents, the
parties have resolved some of these complaints and have agreed to address
certain alleged deficiencies out of court.
The documents in dispute
[8]
The plaintiff
has categorized the alleged deficiencies in the defendants’ production under 4
schedules: A to D:
Schedule A
“Patent deficiencies” in the documents produced, which are
further divided into the following subcategories:
1.1 Patent deficiencies
discovered in non-confidential documents;
1.2 Access Act documents
produced with improper severances; and
1.3 Patent deficiencies in
confidential documents;
Schedule B
Relevant documents which the defendants have failed or
refused to produce, which are further divided into the following subcategories:
1.1 Access Act documents
identified in List A and Supplementary List A which the defendants have failed
or refused to produce;
1.2 Non-confidential
documents identified in List B and Supplementary List B which the defendants
have failed or refused to produce; and
1.3 Confidential
documents identified in List B and Supplementary List B which the defendants have
failed or refused to produce.
Schedule C
Missing documents:
1.1 Missing documents
identified in List B and Supplementary List B, including:
A. Contract
versions of certain Proposal Plans;
B. Status
documents; and
Schedule D
Key officials from whom little if any documents have been
produced.
[9]
The defendants
submit that they and their counsel have made diligent and extensive efforts to
provide the plaintiff with copies of all relevant documents on a timely basis.
In particular, the defendants contend that every relevant, non-privileged
document in the possession, power or control of the defendants will have been
collected and produced by November 2, 2006. The only documents which may not be
produced are those subject to review by the Privy Council Office for Cabinet
privilege, and documents requiring U.S.
International Traffic in Arms Regulations (ITAR) clearance.
[10]
While the
plaintiff originally sought an order compelling the production of the documents
identified in the Schedules to its motion, the defendants have produced several
of these documents, including those in the Fourth Affidavit filed for the
hearing date of this motion. Accordingly, the parties have advised that it is
only necessary for the Court to address the defendants’ following objections to
production based on irrelevance.
Objections on the basis of irrelevance
[11]
The three
categories of documents in respect of which the defendants have resisted
disclosure on the basis of irrelevancy are:
1. documents
created after the contract award was announced by the Minister on July 23, 2004;
2. documents
which originated from the pre-qualification stage of the procurement; and
3. the Proposal Evaluation Software and
data base used for this procurement.
Issues
[12]
With the
parties agreeing since the plaintiff brought this motion to resolve between
themselves many of the issued raised in the motion, there are only four issues
which the Court is asked to decide on this motion:
1. the
preliminary issue concerning the admissibility of affidavits sworn by Mr. Alan
J. Lenczner, Q.C., the lead counsel for the defendants in this action;
2. are
documents created after the contract award was announced by the Minister on
July 23, 2004 relevant with respect to the action for judicial review of the
decision dated July 23, 2004; i.e., are documents created after the decision
properly the subject of judicial review by the Court?;
3. are
documents which originated from the pre-qualification stage of the procurement
relevant?; and
4. is the Proposal Evaluation Software and data base
used for this procurement relevant?
Analysis
Issue No. 1: Admissibility of the
Lenczner Affidavits
[13]
The defendants
have provided in their motion record two affidavits of Alan J. Lenczner, Q.C.
In the Affidavits, Mr. Lenczner describes in detail the process by which the defendants
have searched for and reviewed documents for the purposes of producing them to
the plaintiff. Mr. Lenczner has personally had carriage of the defence of this
action on behalf of the defendants since April 25, 2006. Mr. Lenczner has
managed the team of lawyers and law clerks responsible for collecting, scanning
and coding the over 120,000 pages of documents related to this litigation. Mr.
Lenczner has further described the defendants’ production efforts and its
response to several of the plaintiff’s alleged deficiencies in an affidavit
provided in the defendants’ supplementary motion record. This description
generally supports the defendants’ assertion that they have committed extensive
time and resources to comply in good faith with their production obligations.
[14]
The plaintiff
objects to the admissibility of the Lenczner Affidavits. The plaintiff argues
that, as a solicitor’s affidavit, each of the Lenczner Affidavits is largely
composed of hearsay and that much of it is irrelevant. The plaintiff relies on
Rule 82 of the Federal Courts Rules, which states:
|
Use of solicitor's
affidavit
82. Except
with leave of the Court, a solicitor shall not both depose to an affidavit
and present argument to the Court based on that affidavit.
|
Utilisation de
l’affidavit d’un avocat
82.
Sauf avec l’autorisation de la Cour, un avocat ne peut à la fois être
l’auteur d’un affidavit et présenter à la Cour des arguments fondés sur cet
affidavit.
|
[15]
In my
view, it is not improper in the circumstances for Mr. Lenczner to depose as to
the facts contained in the Lenczner Affidavits. As noted above, Mr. Lenczner
has personal knowledge of the facts contained within the Lenczner Affidavits
since he is personally responsible for the management of the production
process. I accept Mr. Lenczner’s submission that there is no person in
government who is more familiar with the production process engaged by this
litigation than he is. Quite simply, there is likely no other person who could more
appropriately provide the evidence contained within the Lenczner Affidavits.
[16]
With
respect to Rule 82, the prohibition against use of a solicitor’s affidavit only
applies when a solicitor deposes to an affidavit and presents argument
to the Court based on that affidavit. Mr. Lenczner has not presented argument
to the Court based on the Lenczner Affidavits. He retained Mr. Brongers to
argue the motion, and his co-counsel Ms. Fuerst provided written submissions in
the responding motion record.
[17]
The plaintiff
further argues that, by deposing to the Lenczner Affidavits, Mr. Lenczner has
shielded the defendants from cross-examination on the affidavits. I cannot
agree. Mr. Lenczner has made clear to the plaintiff his availability and
willingness to be cross-examined on his affidavits. Indeed, to the extent that
the plaintiff challenges the defendants’ process of production itself, it may
be to the plaintiff’s benefit to avail itself of this opportunity, or seek
leave to cross-examine one of the deponents of the affidavits of documents.
[18]
For the
foregoing reasons, I conclude that the Lenczner Affidavits are admissible in
the circumstances.
Issue No. 2: Documents created after
the contract award was announced on July 23, 2004
[19]
The defendants
have resisted disclosure of the documents identified in Schedule C to the plaintiff’s
motion on the basis that documents relating to events after July 23, 2004 are
irrelevant to the proceedings.
[20]
The plaintiff
argues that these documents are relevant as they pertain to the performance of
the contract which the plaintiff alleges cannot be performed by Sikorsky within
the terms set out in the RFP. The April 2005 Order was issued before this
proceeding was converted into an action and, as such, the disclosure
obligations are broader than they were previously when this proceeding took the
form of an application for judicial review.
[21]
The defendants
argue that, notwithstanding the conversion of these proceedings from an
application to an action, the only relevant evidence at trial are those
documents which were before the decision-maker before the announcement that
Sikorsky would be awarded the contract. I do not agree. While it is well
established that judicial review of a decision is to be conducted on the basis
of the material that was before the decision-maker when it made its decision,
an exception exists where it is alleged that the decision-maker breached
procedural fairness or committed jurisdictional error: Assn. of Architects
(Ont.) v. Assn. of Architectural Technologists (Ont.), [2003] 1 F.C. 331 at
para. 30 (F.C.A.); leave to appeal to S.C.C. refused [2002] S.C.C.A. No. 316;
see also Rule 306, Federal Courts Rules.
[22]
The
exception to the general rule above was applied by Mr. Justice Campbell in Schwarz
Hospitality Group Ltd. v. Canada (Attorney General), 2002 FCT 961, where at
paragraphs 7 and 8 he confirmed the admissibility of post-decision evidence in
cases where bad faith or bias is alleged:
With respect to the Ethier Affidavit of
May 30, 2003 […] exhibiting post-decision evidence, the Applicant argued before
the Prothonotary that the evidence goes to the decision under review as having
been made in “bad faith” and maintains this argument on the present appeal.
The Prothonotary decided that, since the
evidence in the Ethier Affidavit was not before the decision maker at the time
the decision was made, it is irrelevant. Post-decision evidence can be very
relevant to an argument of “bad faith” or “bias”, and, therefore, I find
that the Prothonotary’s ruling is unresponsive to the argument made and, thus,
is made in error.
[Emphasis added]
[23]
The plaintiff
alleges in its statement of claim that Sikorsky could not have met the delivery
date requirements following the terms of the model contract in the RFP, and
that the defendants knew or ought to have known this. The plaintiff alleges
bias and bad faith in the defendants’ decision to award the contract to
Sikorsky. The plaintiff also makes other allegations relevant to bias which the
court need not detail for the purpose of this Order.
[24]
This
proceeding for judicial review was commenced before the contract was awarded to
Sikorsky in November 2004. Since then, there exists a body of documents created
after the decision to award the contract to Sikorsky and which the plaintiff
claims prove bias and bad faith. These documents include a progression of
contract versions proposed by Sikorsky and status reports. Of course, the
allegation that Sikorsky could not deliver the helicopter within the 48 month
deadline may soon be resolved at the rate with which this action is
progressing. The 48 month deadline is November 2008. The Court has no
hesitation in finding that the ex post facto documents relevant to
proving the allegations of bias and bad faith on the part of the defendants are
relevant to these proceedings. It would be wrong and absurd to not produce ex
post facto documents which may be probative of bias and bad faith.
[25]
The
defendants argued during the hearing of this motion that the scope of
production in this proceeding is limited to documents relevant to the grounds
of judicial review pleaded by the plaintiff and specifically excludes documents
relevant only to the causes of action pleaded in the plaintiff’s statement of
claim. This is because, as the defendants argue, the Federal Court of Appeal’s
judgment in Grenier v. Canada,
2005 FCA 348, [2006] 2 F.CR. 287, 262 D.L.R. (4th) 337, 344 N.R.
102, requires that the judicial review of a ministerial decision precede any
action in damages arising out of that decision. As noted above, I am of the
view that the documents sought by the plaintiff in this motion properly fall
within the scope of the judicial review aspect of these proceedings. It is
therefore unnecessary to consider separately the scope of documents relevant to
the causes of action pleaded by the plaintiff. If I am wrong in this
conclusion, however, I would conclude in the alternative that Grenier
does not apply in these proceedings.
[26]
In my
Reasons for Order dated June 15, 2006, 2006 FC 767, I stated the following at
paragraph 47:
In Grenier v. Canada, the Federal
Court of Appeal held that a person cannot indirectly challenge the lawfulness
of a decision, by way of an action for damages, that is subject to judicial
review within 30 days after the decision is made pursuant to subsection 18.1(2)
of the Federal Courts Act. I
would add that subsection 18(3) of the Federal Courts
Act provides that the remedies of judicial review may
be obtained only on an
application for judicial review under section 18.1. The Grenier case applies to
administrative decisions which are generally subject to judicial review, not to
acts by the Crown which are normally subject to legal actions for breach of
contract or tort. For this reason, the plaintiff's action in this case for
breach of contract and for tort would not be barred if the plaintiff had not,
as the plaintiff has, also commenced applications for judicial review over the
same subject matter.
[Footnotes omitted]
[27]
I shall elaborate.
Grenier provides that an action in damages arising out of a ministerial
decision cannot precede the judicial review of the decision at issue. However,
I disagree with the defendants’ submission that Grenier has the
far-reaching effect of prohibiting an action in damages from proceeding
concurrently with a judicial review. A review of the Court of Appeal’s
policy reasons in Grenier for prohibiting collateral attacks leads me to
conclude that the ratio of that judgment does not extend to the facts of
this case.
[28]
The Court
of Appeal in Grenier cited three general policy grounds for prohibiting attacks
on a ministerial decision by way of an action in damages before challenging the
decision by way of judicial review: the division of jurisdictions between the
Federal Court and the provincial courts; the need for finality of decisions;
and the discouragement of indirect challenges. As I will discuss below, none of
these policy concerns are engaged in this proceeding.
[29]
The Court
of Appeal stated at paragraph 26 that a plaintiff’s ability to indirectly
challenge a ministerial decision through an action in damages would run afoul
of the Federal Court’s exclusive jurisdiction provided in section 18 of the Federal
Courts Act:
It would also judicially reintroduce the
division of jurisdictions between the Federal Court and the provincial courts. It would revive in fact an
old problem that Parliament remedied through the enactment of section 18 and
the granting of exclusive jurisdiction to the Federal Court and, in the section
28 cases, the Federal Court of Appeal. It is precisely this legislative
intention that the Quebec Court of Appeal recognized in [Canada v. Capobianco, 2005 QCCA 209]
in order to preclude the action in damages filed in the Superior Court of
Quebec attacking the lawfulness of the decisions of federal boards, commissions
or other tribunals from leading, in fact and in law, to a dysfunctional
dismemberment of federal administrative law.
[Emphasis added]
In this case, there is no risk of any
“dysfunctional dismemberment” since the plaintiff has not pursued its action in
damages through separate proceedings in a provincial superior court. Indeed,
the plaintiff is pursuing its administrative law and common law relief within a
single action in the Federal Court. The division of jurisdictions referred to
in Grenier is not a concern in this case.
[30]
The Court
of Appeal also expressed concern at paragraphs 27 to 30 regarding the need for
finality of decisions, which would be undermined if plaintiffs could indirectly
challenge decisions after the 30 day time limit for commencing an application
for judicial review provided in subsection 18.1(2) of the Federal Courts Act:
To allow a proceeding under section 17,
whether in the Federal Court or in the provincial courts, in order to have
decisions of federal agencies declared invalid, is also to allow an
infringement of the principle of finality of decisions and the legal security
that this entails.
I need not expound at length on the
importance of the principles of res judicata and the finality of
decisions. Similarly, I need not say much about the abundant case law that
recognizes and promotes these principles. I will confine myself to saying that
these principles exist in the public interest and that Parliament’s intention
to protect that interest is illustrated by the short time limit allowed for
challenging an administrative decision.
Parliament has provided, in subsection
18.1(2), that the time for filing an application for judicial review is 30 days
from the time the impugned decision of the federal agency was communicated to the
applicant (subject to any extension of the periods allowed by the Court).
Concerning this time limit, this Court writes in [Canada v. Berhad,2005 FCA 267], at paragraph 60:
In my view, the most important reason why
a shipowner who is aggrieved by the result of a ship safety inspect ought to
exhaust the statutory remedies before asserting a tort claim is the public
interest in the finality of inspection decisions. The importance of that
public interest in the relatively short time limits for the commencement of
challenges to administrative decisions – within 30 days from the date on which
the decision is communicated, or such further time as the Court may allow on a
motion for an extension of time. That time limit is not whimsical. […] In this
case, the decision of the Chairman was not challenged until, a year and half
after it was made, the respondents filed their claim for damages.
In the present case, I note that the
claim for damages was brought about three years to the day after the impugned
decision was rendered.
Apart from the fact that the respondent, without explanation or justification,
overlooks the time limit provided in subsection 18.1(3), the proceeding he used
creates inappropriate and detrimental legal uncertainty as to the finality of
the decision and its execution.
[31]
The time limit under subsection 18.1(2)
is not at issue in this case. The plaintiff filed its notice of application for
judicial review on September 1, 2004, which was 10 days after the statutory
time limit. The plaintiff sought an extension of time. In my order dated
November 3, 2004, I granted the extension of time—the issue, incidentally, now
being res judicata: Agustawestland International
Ltd. v. Canada (Minister of Public Works and Government Services), 2004
FC 1545 at paras. 56-65. Unlike the case in Grenier, the plaintiff’s
action in damages does not represent an indirect attack of the administrative
decision that was foreclosed by the expiry of the statutory time limit. Indeed,
the plaintiff’s action in damages followed the conversion of this
proceeding from an application to an action, before which the plaintiff was
seeking only administrative law remedies. Since the Minister’s decision to
award the contract to Sikorsky was challenged on a timely basis, the principle
of finality of decisions is not engaged in these proceedings as it was in Grenier.
[32]
The third concern expressed by the Court of
Appeal in Grenier related to the promotion of indirect challenges. At
paragraph 31, the Court stated:
The principle of the finality of
decisions likewise requires that in the public interest, the possibilities for
indirect challenges of an administrative decision be limited and circumscribed,
especially when Parliament has opted for a procedure for direct challenge of
the decision within defined parameters.
The Court went on to review the principles
of administrative law applicable to judicial review proceedings which would be
undermined by permitting collateral attacks on administrative decisions. At
paragraph 33, the Court concluded that section 17 proceedings ought not be
permitted to allow plaintiffs to perform an end-run around the requirements of
subsection 18(3):
It is especially important not to allow a
section 17 proceeding as a mechanism for reviewing the lawfulness of a federal
agency’s decision when this indirect challenge to the decision is used to
obviate the mandatory provisions of subsection 18(3) of the Federal Courts Act.
[Emphasis added]
[33]
As noted above, the plaintiff is proceeding
concurrently by way of judicial review and by way of an action in damages. With
respect to the plaintiff’s allegation that the Minister’s decision is unlawful
on administrative law grounds, the standard of review and relief applicable
will be determined in accordance with the relevant administrative law
principles. Similarly, the Court will apply the appropriate standard of proof
and remedial principles in respect of the causes of action pleaded by the
plaintiff. In my view, nothing in this manner of proceeding offends the
mandatory provisions of the Federal Courts Act. Nor has the plaintiff
opted for a more favourable procedure. By pleading both administrative law
errors and distinct causes of action in its statement of claim, the plaintiff
has embraced the direct procedure contemplated by Parliament in respect of
judicial review proceedings while streamlining the consideration of its closely
related but nevertheless distinct claims for damages for breach of contract and
other wrongs. Given the complexity of these proceedings and the extensive
delays already experienced in proceeding to trial, the public interest in
efficient court processes and timely resolution of disputes overwhelmingly supports
the combined procedure pursued by the plaintiff. The alternative, if the
defendants’ interpretation of Grenier is adopted, would be to subject
the parties to an extra round of delays by postponing consideration of the
plaintiff’s civil claims until after the Court disposes of its judicial review
of the ministerial decision giving rise to those claims.
[34]
For these reasons, I cannot agree that Grenier
stands for the preposition posited by the defendants that the judicial review
of the Minister’s decision must precede the action in damages. In my view,
nothing in Grenier precludes the procedure adopted here wherein the
plaintiffs proceed concurrently with judicial review proceedings and an action
in damages.
Issue No. 3: Documents originating
from the pre-qualification stage of the procurement
[35]
Items 21 through 29 of the plaintiff’s List B
refer to documents from the pre-qualification stage of the Maritime Helicopter
Procurement. The plaintiff argues that the scope of this documentation is
limited and pertains directly to Sikorsky’s alleged inability to meet the
mandatory delivery schedule and the defendants’ knowledge thereof. The
documents refer to helicopter performance in shipboard operations, the
development required to create the Mission Data Management System (MDMS), and
specific items for the self-defence suite. The plaintiff argues that each of these
topics relates to Sikorsky’s need to perform significant work on the
development of its existing helicopter to convert it to a helicopter meeting
the defendants’ specifications for the Maritime Helicopter. The
pre-qualification documents pertaining to this work will, it is argued, provide
evidence relevant to the plaintiff’s allegations in this regard.
[36]
I am
satisfied that the prequalification documents sought to be produced are
relevant to how Sikorsky proposed to build the helicopter to meet the defendant’s
specifications. Moreover, these documents were incorporated into the Sikorsky
proposal submitted in response to the RFP. The plaintiff bases this action, inter
alia, on the allegation that the defendants knew that Sikorsky could not
undertake this work within the 48 month deadline to build a compliant maritime
helicopter. Moreover, this material was before the Minister when the decision
was made on July 23, 2004 to award the contract to Sikorsky.
[37]
I conclude
that the defendants cannot refuse production of the pre-qualification documents
identified by the plaintiff in items 21 to 29 of its List B on grounds of
irrelevancy.
Issue No. 4: Proposal Evaluation
Software and Database
[38]
The defendants
have not produced all of the requested database material generated through the
Proposal Evaluation Software. The plaintiff argues that the software was used
as a tool for the evaluation of the Maritime Helicopter Part 3 Technical
Proposals. The software was designed to ensure the integrity of the Part 3
evaluation process. In particular, the plaintiff contends that the software was
supposed to have certain built-in features that would control the evaluation
process by ensuring that evaluators followed the prescribed evaluation
methodology. The plaintiff alleges that the software did not work in the manner
prescribed or that the evaluators found ways to defeat its fairness protections
and audit functions. The plaintiff therefore seeks a complete review of the
software and database, including the daily status reports, to determine the
extent and significance of the non-compliance including how and when the
integrity was comprised by the evaluators.
[39]
The defendants
state that data in the Proposal Evaluation Software consisting of RFP Final
Reports for the plaintiff and Sikorsky were printed out and included in the defendants’
First Affidavit as items 34 to 45. The database no longer exists in the same
form as it did at the time of the evaluation of the bids, although backup data
on CDs still exists. The defendants assert that they have spent considerable
time producing, from the backup CDs, additional documents consisting of PES
references provided by the bidders, and the evaluators’ clarification requests.
The only information contained in the backup CDs that has not been produced
consists of information indicating the status of the evaluation on a daily
basis. The defendants argue that the progress of each evaluator on each day is
not relevant to these proceedings, and that it would require hundreds of hours
of work to produce this information.
[40]
I agree
with the plaintiff that the information sought through the Proposal Evaluation
Software and its database is relevant to the allegations of bias and
impropriety in the evaluation process. It is well established that the purpose
of full disclosure in advance of trial is to assist in determining the truth of
matters in issue, to narrow the issues, and to expedite the trial of the real
issues outstanding: Apotex Inc. v. Wellcome Foundation Ltd., [1993]
F.C.J. No. 1119. To this end, the parties are broadly entitled to access all
documents that may advance their case or damage the opposing party’s case. The
daily status reports in the proposal evaluation software database are relevant
to showing whether the evaluators used the software or, as alleged by the
plaintiff, found ways to avoid it, therefore defeating its fairness protections
and audit functions. Consistent with the principle of full disclosure in the
discovery process, I consider it appropriate in the circumstances to order the defendant
to produce the backup CDs on which the Proposal Evaluation Software data is
maintained. This will obviate the need for the defendants to dedicate hundreds of
hours of work to extract information for production. To the extent that the backup
CDs contain information extraneous to these proceedings, the plaintiff will be
required to undertake to limit its use of such information to the purposes of
this litigation.
Conclusion
[41]
For the
foregoing reasons, the Court concludes:
1. the
Lenczner Affidavits are admissible. However, Mr. Lenczner cannot present
argument on the motion for which he has sworn the affidavit. Moreover, the
plaintiff may seek leave to cross-examine any deponents of the affidavits of
documents;
2. documents
created after the contract award was announced on July 23, 2004 are subject to
production to the extent they are relevant to the allegations in the statement
of claim including bias and bad faith;
3. documents
originating from the pre-qualification stage of the procurement are relevant to
how Sikorsky proposed to build the helicopter to meet the defendants’
specifications and 48 month deadline; and
4. the Proposal
Evaluation Software and database material generated through the software are
relevant to showing whether the evaluators used the software or, as alleged by
the plaintiff, found ways to circumvent it, thereby defeating the fairness
protections and audit functions intended by the software.
ORDER
THIS COURT ORDERS that:
1. This motion is allowed in that the following
three categories of documents are relevant:
a. documents
created after the contract award was announced on July 23, 2004 are subject to
production to the extent they are relevant to the allegations in the statement
of claim including bias and bad faith;
b. documents
originating from the pre-qualification stage of the procurement are relevant to
how Sikorsky proposed to build the helicopter to meet the defendants’ specifications
and 48 month deadline; and
c. the
Proposal Evaluation Software and database material generated through the
software are relevant to showing whether the evaluators used the software or,
as alleged by the plaintiff, found ways to circumvent it, thereby defeating the
fairness protections and audit functions intended by the software.
2. the Lenczner Affidavits are admissible; and
3. the plaintiff is entitled to its costs of this
motion in the cause.
“Michael A. Kelen”
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