Agustawestland International Ltd. v. Canada (Minister of Public Works and Government Services), 2005 FC 627

Date: 20050505

Docket: T-1605-04

Citation: 2005 FC 627

BETWEEN:

                                 AGUSTAWESTLAND INTERNATIONAL LIMITED

                                                                                                                                            Applicant

                                                                         - and -

                                            MINISTER OF PUBLIC WORKS AND

                                        GOVERNMENT SERVICES CANADA, and

                                 SIKORSKY INTERNATIONAL OPERATIONS INC.

                                                                                                                                      Respondents

                                                        REASONS FOR ORDER

                        (With respect to Sikorsky witness re-attending cross-examination

                                         to answer questions and produce documents)

KELEN J.

[1]                This is a motion by the applicant for an Order requiring Daniel Francis Hunter, a representative of the respondent Sikorsky, to re-attend at a cross-examination on his affidavit to:

(i)          answer the questions set out in schedule A to the motion which Sikorsky objected to on grounds of relevancy;

(ii)         produce the documents set out in schedule B to the motion which Sikorsky objected to on grounds of relevancy;

(iii)        provide answers to questions taken under advisement set out in schedule C to the motion.

[2]                The applicant categorized the objections made by Sikorsky into four categories:

(i)          those going to Sikorsky's decision-making and risk-assessment process for the decision on whether or not to bid, and if so, what to bid;

(ii)         those going to U.S. International Trade in Arms Restrictions ("ITAR") licensing restrictions on Sikorsky's ability to deliver the Maritime Helicopter within 48 months;

(iii)        those pertaining to Sikorsky's Master Schedule; and

(iv)        those pertaining to specific events in the Summary Master Schedule.

[3]                The four categories of objections relate to information and documents internal to Sikorsky, which Sikorsky did not submit to the Minister of Public Works and Government Services Canada (the "Minister"), and upon which the Minister could not have based his decision. Sikorsky submits that the applicant is not entitled to cross-examine about the Sikorsky state of mind, about internal Sikorsky documents not disclosed to the Minister, and about the internal Sikorsky decision-making process related to this procurement because these questions and documents are not relevant to the Minister's decision-making process, which is the subject of this judicial review. The applicant submits that they are relevant to the fact that Sikorsky knew it could not deliver the helicopter within the 48-month mandatory delivery deadline in the contract.

THE NATURE OF THIS APPLICATION FOR JUDICIAL REVIEW AND THE REMEDIES SOUGHT

Remedies Sought

[4]                This application for judicial review, filed on September 1, 2004, seeks four declarations as remedies:

No. 1. The manner in which the helicopter procurement has been carried out raises a reasonable apprehension of bias by the Minister;

No. 2. The Minister has conducted the procurement in violation of his legal obligations applicable to public invitations to tender;

No. 3. The Minister has structured and carried out the procurement in a manner that violates the principles of natural justice and procedural fairness in that the procurement was designed to discriminate against the Applicant; and

No. 4. The Minister has exceeded his legal authority by conducting the procurement for an irrelevant and improper purpose to avoid the political embarrassment that would have resulted if the Applicant were successful in this procurement.

Grounds

[5]                The "grounds" for judicial review are set out in the application under the heading "Overview" as follows:

No. 1. The Minister acted in a manner that gives rise to an apprehension of bias in that the procurement was structured to prevent the applicant's helicopter from being selected;

No. 2. The Minister evaluated the bids for the procurement in a biased and unfair manner, in particular:

i.           The Minister used a "fairness monitor" who:

·            was a registered and paid lobbyist for one of the principal partners in the Sikorsky bid;

·            was a registered and paid lobbyist for other defence contractors; and

·            was a long-time associate of officials who were conducting the procurement and evaluating the bids.

ii.           The Minister evaluated the Sikorsky bid as compliant even though the Minister knew that (emphasis added by the Court):

·            Sikorsky cannot deliver the Maritime helicopter within the 48-month mandatory delivery deadline stipulated in the procurement; and

·            Sikorsky intentionally provided a certificate in its bid that misrepresented its ability to meet the deadline.

No. 3. The Minister made exceptions and accommodations on other non-compliant elements in the Sikorsky bid; and

No. 4. The Minister committed serious errors in the evaluation of Sikorsky's bid which favoured Sikorsky and discriminated against the applicant.

Fraud and perjured evidence not pleaded

[6]                Upon analyzing the remedies sought in this application and the grounds for the application, the Court concludes that the applicant alleges that the Minister and Sikorsky knew that Sikorsky cannot deliver the helicopter within the 48-month mandatory delivery deadline stipulated in the procurement, and the Minister intentionally ignored this fact because he wanted to award the contract to Sikorsky, and not to the applicant. This allegation is inconsistent with the allegation raised by the applicant at the hearing of this motion that Sikorsky fraudulently represented to the Minister that it could deliver the helicopter within the 48-month mandatory delivery deadline, and the Minister's decision was based on this fraud or perjured evidence.

[7]                At this motion, for the first time, the applicant said it was seeking judicial review under subparagraph 18.1(4)(e) of the Federal Courts Act, which reads as follows:

[8]                The applicant did not raise this as a "ground" for judicial review in its application. In fact, this ground is inconsistent with the main argument that the Minister knew that Sikorsky could not deliver the helicopter within 48 months. If the Minister knew that Sikorsky could not deliver the helicopter within 48 months, then obviously Sikorsky did not misrepresent this fact to the Minister by fraud or perjured evidence.

[9]                The applicant has not sought declaratory relief on this ground. This is an important allegation and should be specifically pleaded. An allegation of fraud will not be inferred. See Commercial Union Assurance Co. PLC v. M.T. Fishing Co., (1996) 107 F.T.R. 291 per Dubé J. at paragraph 7. The Court will not read into an allegation of a false claim an allegation of a fraudulent claim. See Temple v. Canada (Minister of National Revenue - M.N.R.), (2001) 214 F.T.R. 305 per Hargrave P. at paragraph 36. The Federal Court Rules 1998, SOR/98-106, as amended, describe at Rule 181(a) how fraud must be pleaded.

[10]            The applicant submits that it was pleaded and points to paragraph 24 of its Notice of Application, where it states:

Sikorsky was fully aware that it could not meet the mandatory 48 month deadline or any deadline close to that ...

and to paragraph 25 where it states:

The Minister was and is aware that Sikorsky cannot meet the mandatory 48 month deadline and that Sikorsky has misrepresented its ability and intention in that regard in the certificate filed with its bid ...

As discussed above, this pleading is inconsistent with fraud. If the Minister knew, then it cannot be said that Sikorsky defrauded the Minister. The applicant seems to be raising a new alternate ground upon which to set aside this decision, namely that the Minister acted by the reason of fraud or perjured evidence. This new ground and new allegation cannot be raised without a significant amendment to the pleadings, which the Court may or may not grant.

JURISDICTION OF THE COURT

[11]            The Court has the jurisdiction to set aside a decision of the Minister if it is obtained by reason of fraud or perjured evidence. If Sikorsky fraudulently certified that it can deliver the helicopter within 48 months, and if this condition is of fundamental importance to the decision, the Court could set aside the decision to award the contract to Sikorsky. Similarly, if the applicant can prove that Sikorsky relied upon perjured evidence with respect to the 48-month deadline to obtain this decision, the Court could set aside the decision to award the contract to Sikorsky. However, fraud and perjured evidence must be expressly pleaded and cannot be raised for the first time on a motion to compel Sikorsky to answer questions and produce documents.

SCOPE OF CROSS-EXAMINATION AND PRODUCTION OF DOCUMENTS

[12]            Different treatments have been given in the reported cases to the scope of cross-examination and breadth of production of documents on cross-examination of affidavits in applications for judicial review. However, I am satisfied that the Federal Court of Appeal has broadened cross-examination on such affidavits so that it may extend to relevant matters beyond the four corners of the affidavit and require production of documents outside the affidavit material itself. The cross-examination and the production of documents are limited by what is relevant. See Stanfield v. Canada (Minister of National Revenue - MNR), (2004) 255 F.T.R. 240, 2004 FC 584, per Hargrave P. at paragraphs 24 to 29 where Prothonotary Hargrave thoroughly reviews the jurisprudence. Hargrave P. stated at paragraph 28:

... In essence what the Court of Appeal has done in Stella Jones is not only to broaden cross-examination on an affidavit so that it may extend to relevant matters well beyond the four corners of the affidavit, but also to broaden production of documents by requiring production of material related to previous dealings, being relevant documents clearly outside of the affidavit material itself. The Court of Appeal was of the view that it was not open to the motions judge to exclude the possibility that previous dealings might shed relevant light. Of course, cross-examination and document production arising out of cross-examination are bounded by what is relevant, including relevance as discussed by Mr. Justice Hugessen in Merck Frosst (supra) and by the Court of Appeal in Stella Jones Inc. (supra).

RELEVANCE

[13]            The relevance of questions and requests for the production of documents on a cross-examination of an affiant in an application for judicial review has been set out by Hugessen J. in Merck Frosst Canada Inc. v. Canada (Minister of Health), (1997) 146 F.T.R. 249, [1997] F.C.J. No. 1847 (QL) at paragraphs 6, 7 and 8:

¶ 6            For present purposes, I think it is useful to look at relevance as being of two sorts: formal relevance and legal relevance.

¶ 7            Formal relevance is determined by reference to the issues of fact which separate the parties. In an action those issues are defined by the pleadings, but in an application for judicial review, where there are not pleadings (the notice of motion itself being required to set out only the legal as opposed to factual grounds for seeking review), the issues are defined by the affidavits which are filed by the parties. Thus, cross-examination of the deponents of an affidavit is limited to those facts sworn to by the deponent and the deponent of any other affidavits filed in the proceeding.

¶ 8             Over and above formal relevance, however, questions on cross-examination must also meet the requirement of legal relevance. Even when a fact has been sworn to in the proceeding, it does not have legal relevance unless its existence or non-existence can assist in determining whether or not the remedy sought can be granted. (I leave aside questions aimed at attacking the witness's personal credibility which are in a class by themselves). Thus, to take a simple example, where a deponent sets out his or her name and address, as many do, it would be a very rare case where the questions on those matters would have legal relevance, that is to say, have any possible bearing on the outcome of the litigation.

Accordingly, the question or document sought to be produced must have legal relevance, i.e. the answer to the question or the document to be produced can assist the Court in determining whether or not the remedy sought can be granted. Therefore, an affiant who swears to an issue of fact can only be compelled to answer a question with respect to that issue of fact if it is relevant to the remedy sought on judicial review.

CONCLUSION WITH RESPECT TO THE OBJECTIONS

[14]            The four categories of objections relate to questions and documents about internal Sikorsky information not submitted to the Minister, and upon which the Minister did not base the decision which is the subject of this judicial review. The four categories of objections are considered (and underlined) below.

[15]            The Sikorsky decision-making process is not legally relevant to the Minister's decision in this case. The relevant question is whether the Minister knew that Sikorsky allegedly cannot deliver the helicopter within 48 months. The questions and documents regarding the internal Sikorsky information and decision-making processes are not relevant to this issue. These questions and documents would be relevant if the applicant had pleaded that the Minister's decision was based on fraud or perjured evidence by Sikorsky.

[16]            Whether Sikorsky alerted Canada to U.S. export permits and licenses which it would have to obtain is irrelevant. What is relevant is what the Minister knew, and this information can and should be obtained from the Minister.

[17]            With respect to documents behind the Sikorsky Master Schedule, all that is relevant are the documents that were with the Minister in support of this Master Schedule. The documents in the possession of Sikorsky which support the accuracy of the Master Schedule are not relevant. The issue is whether the Minister had a reasonable basis to believe that the Master Schedule was accurate. This information can be obtained by examining the documents before the Minister on the subject.

[18]            With respect to specific events in the Master Schedule such as the ability of Sikorsky to perform maintenance demonstrations within the 48 months, again this is not relevant. What is relevant are the documents in the possession of the Minister on which his decision was based. The issue is whether the Minister reasonably concluded that Sikorsky had the ability to perform these demonstrations within the 48-month time period.

[19]            The answers and documents which the applicant seeks to compel from Sikorsky relate to what Sikorsky can and cannot do, not whether the Minister's decision was reasonable, patently unreasonable, biased or unfair. For these reasons, this motion is dismissed.

(Sgd.) "Michael A. Kelen"

          JUDGE

Vancouver, BC

May 5, 2005

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-1605-04

STYLE OF CAUSE: AGUSTAWESTLAND INTERNATIONAL LIMITED

- and -

MINISTER OF PUBLIC WORKS AND GOVERNMENT SERVICES CANADA, and SIKORSKY INTERNATIONAL OPERATIONS INC.

PLACE OF HEARING:                                 Ottawa, ON

DATE OF HEARING:                                   April 25, 2005

REASONS FOR ORDER:                           THE HONOURABLE MR. JUSTICE KELEN

DATED:                     May 5, 2005

APPEARANCES:

Mr. G. Cameron

Ms. M. Gardner                                                FOR APPLICANT

Mr. J. Brongers                                                 FOR RESPONDENT

Ms. T. Sandler                                                  Minister of Public Works

and Government Services Canada

Ms. B. A. McIsaac, Q. C.                                             FOR RESPONDENT

Mr. B. Mills                                                       Sikorsky International Operations Inc.

SOLICITORS OF RECORD:

Blake Cassels & Graydon, LLP

Ottawa, ON                                                      FOR APPLICANT

John H. Sims, Q.C                                            FOR RESPONDENT

Deputy Attorney General of Canada                  Minister of Public Works

and Government Services Canada

McCarthy Tetrault                                             FOR RESPONDENT

Ottawa, ON                                                      Sikorsky International Operations Inc.