Date:
20070503
Docket: A-246-06
Citation: 2007 FCA 177
CORAM: RICHARD C.J.
EVANS
J.A.
RYER J.A.
BETWEEN:
ENVOY RELOCATION SERVICES INC.
And NATIONAL RELOCATION SERVICES
(RELONAT) INC.
(as a contractual joint venture called
ENVOY RELATION SERVICES)
Applicants
and
THE
MINISTER OF PUBLIC WORKS AND GOVERNMENT SERVICES
Respondent
Heard at Ottawa,
Ontario, on March 28,
2007.
Judgment delivered at Ottawa, Ontario, on May 3, 2007.
REASONS FOR JUDGMENT BY: EVANS
J.A.
CONCURRED
IN BY: RICHARD
C.J.
CONCURRING
REASONS BY: RYER
J.A.
Date:
20070503
Docket: A-246-06
Citation: 2007
FCA 177
CORAM: RICHARD
C.J.
EVANS J.A.
RYER
J.A.
BETWEEN:
ENVOY RELOCATION SERVICES INC.
And NATIONAL RELOCATION SERVICES
(RELONAT) INC.
(as a contractual joint venture called ENVOY
RELATION SERVICES)
Applicants
and
THE MINISTER
OF PUBLIC WORKS AND GOVERNMENT SERVICES
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
[1]
This
is an application for judicial review by Envoy Relocation Services Inc. of a
revised decision by the Canadian International Trade Tribunal (“CITT”), dated
April, 26, 2006, recommending that Envoy be paid half of the expenses in
incurred in preparing unsuccessful bids on two government contracts.
[2]
Envoy
argues that it should have been awarded all its costs, since its bids prepared in
response to a Request for Proposals (“RFP”) by Public Works and Government
Services Canada (“PWGSC”) were never evaluated in accordance with the terms of
the RFP.
[3]
The
background to this application is found in the reasons for judgment in Canada (Attorney
General) v. Envoy Relocation Services Inc., 2007 FCA 176, which
was heard immediately before the present application. In that case, the
Attorney General argued that the CITT had erred by recommending that Envoy
should receive any compensation at all, other than its costs in connection with
the proceeding before the CITT. The argument was that PWGSC’s failure to
evaluate a section of Envoy’s proposal in accordance with the RFP caused it no
loss, since it would not have been awarded the contract in any event, and
unsuccessful bidders bear the cost of preparing their bids.
[4]
The
Court dismissed the Attorney General’s application for judicial review, on the
ground that, in the circumstances of that case, the CITT’s exercise of
discretion was not patently unreasonable, nor based on any incorrect interpretation
of its enabling statute.
[5]
In
the present case, counsel for Envoy made only a brief oral submission. He captured
in the following aphorism the essence of his argument that Envoy was entitled to
the full reimbursement of its bid preparation costs as a result of PWGSC’s
failure to comply with the evaluation methodology it had prescribed in the RFP.
“We were sold a lemon; we want our money back.”
[6]
Unfortunately
for Envoy, this plaintive cri de cœur is insufficient to win the
intervention of a reviewing Court when applying the standard of patent
unreasonableness to the impugned administrative decision. In my opinion, the
CITT’s decision to recommend that Envoy be paid half of its costs was an eminently
reasonable solution of the difficult and unusual problem created when it found
itself unable to order a re-evaluation of the disputed section in all bidders’
proposals.
[7]
In
view of the broad remedial discretion conferred by Parliament on the CITT and of
its expertise in selecting an appropriate remedy, it is not for the Court, in the
absence of an error of law, to second guess the CITT’s decision.
[8]
For
these reasons, I would dismiss the application for judicial review with costs.
“John M. Evans”
“I
agree.
J.
Richard C.J.”
RYER
J.A. (Concurring)
[9]
I
agree with Evans J.A. that this application for judicial review should be dismissed.
In Canada (Attorney General) v. Envoy Relocation Services Inc., 2007 FCA
176, I concluded, in dissent, that the decision of the Tribunal to award 50% of
Envoy’s bid costs as compensation was unsustainable. The same reasons that led
me to that conclusion compel me to reject Envoy’s claim for 100% of its bid
costs in this application.
“C. Michael Ryer”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-246-06
STYLE OF CAUSE: Envoy
Relocation Services Inc. and National Relocation Services (Relonat) Inc. (as a
contractual joint venture called Envoy Relocation Services) v. The Minister of
Public Works and Government Services
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: March 28, 2007
REASONS
FOR JUDGMENT BY: Evans J.A.
CONCURRED IN BY: Richard C.J.
CONCURRING REASONS BY: Ryer
J.A.
DATED: May 3, 2007
APPEARANCES:
|
Ronald Lunau
Catherine Beaudoin
|
FOR THE APPLICANTS
|
|
Derek
Rasmussen
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Gowling Lafleur
Henderson LLP
Ottawa, Ontario
|
FOR THE
APPLICANTS
|
|
John H. Sims,
Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario
|
FOR THE
RESPONDENT
|
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