Date: 20040519
Docket: A-101-03
Citation: 2004 FCA 196
CORAM: DESJARDINS J.A.
LÉTOURNEAU J.A.
NADON J.A.
BETWEEN:
ENTREPRISE MARISSA INC.
Applicant
and
DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT
SERVICES OF CANADA
Respondent
Hearing held at Québec, Quebec, on March 31, 2004.
Judgment rendered at Ottawa, Ontario, on May 19, 2004.
REASONS FOR JUDGMENT: NADON J.A.
CONCURRED IN BY: DESJARDINS J.A.
LÉTOURNEAU J.A.
Date: 20040519
Docket: A-101-03
Citation: 2004 FCA 196
CORAM: DESJARDINS J.A.
LÉTOURNEAU J.A.
NADON J.A.
BETWEEN:
ENTREPRISE MARISSA INC.
Applicant
and
DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT
SERVICES OF CANADA
Respondent
REASONS FOR JUDGMENT
NADON J.A.
[1] This is an application for judicial review from a decision by the Canadian International Trade Tribunal (the Tribunal) on February 5, 2003, not to inquire into a complaint filed by the applicant because it was not filed within the deadline specified by subsection 6(1) of the Canadian International Trade Tribunal Procurement Inquiry Regulations (the Regulations).
[2] The applicant's complaint related to a call for tenders issued by the respondent Public Works and Government Services Canada (the respondent) on April 19, 2000, regarding the performance of dredging work in part of the St. Lawrence River. The closing date for the call for tenders was May 11, 2000.
[3] Appendix 1 of the call for tenders provided that the dredge used by the bidder to perform the work had to be registered and manufactured in Canada. A bidder wishing to use a dredge not manufactured in Canada had to obtain and file with his bid a pre-qualification certificate from the federal Department of Industry Canada. The relevant extract from Appendix 1 indicates in fine that [TRANSLATION] "pre-qualification certificate applications may be made in the manner given in the attached questionnaire". That questionnaire required that the bidder supply the following information:
[TRANSLATION]
1. Name and address of owner
2. Name and address of operator
3. Name of unit
4. Official number
5. Type of unit (dredge)
6. Registered in Canada since:
7. Date of construction:
8. Name of dockyard:
9. Work done on unit in Canada: for each major series of work indicate date, dockyard, type of work, cost, country of origin of equipment installed
10. If the unit has changed hands, indicate on a separate page the current names and addresses of the preceding owner(s) for each job mentioned in point 9
[Emphasis added.]
[4] On June 1, 2000, the respondent informed the applicant that the contract had been awarded to Verreault Maritime Inc. (Verreault) and that its bid was not accepted because of the fact that no proof of Canadian manufacture or the obtaining of a pre-qualification certificate from Industry Canada was submitted with the bid.
[5] It should be noted that the dredge offered by the applicant and that offered by Verreault were both of foreign manufacture, and consequently their use required the obtaining of a pre-qualification certificate from Industry Canada.
[6] On January 17, 2003, the applicant filed a complaint with the Tribunal, based on two reasons which may be stated as follows:
1. the fact that in the call for tender documents there were no express, accessible and public criteria relating to the granting of the pre-qualification certificate required for vessels built outside Canada;
2. the awarding of the contract to Verreault, a business whose dredge did not meet the conditions for issuing the pre-qualification certificate.
[7] At the hearing counsel for the applicant informed the Court that his client's complaint, and consequently the application for judicial review in this Court, would henceforth only be concerned with the illegal awarding of the contract to Verreault.
[8] Relying on subsection 6(1) of the Regulations, which provides that "a potential supplier who files a complaint . . . shall do so not later than 10 working days after the date on which the basis of the complaint became known or reasonably should have become known to the potential supplier", the Tribunal concluded that the complaint could not be allowed, since the applicant should have discovered the facts on which its complaint was based between June 2000 and August 2001. The relevant passages from the decision by the Tribunal on February 5, 2003, read as follows:
[TRANSLATION]
In the case at bar, the documents accompanying the complaint indicated that the call for tenders was published in April 2000 and that Marissa was informed in June 2000 that its bid had been rejected and Verreault Maritime Inc. (Verreault) had obtained the contract. The panel notes that Marissa first contacted Industry Canada in October 2000 regarding the requirements for obtaining a pre-qualification certificate. Further, as indicated in the documents filed in support of the complaint, Marissa received information from Industry Canada at a meeting in February 2001 on the requirements for obtaining a pre-qualification certificate. In August 2001, as the result of an access to information application, Marissa also received information on communications between Verreault and Industry Canada. Accordingly, in the panel's opinion the basis of the complaint should reasonably have become known to Marissa between June 2000 and August 2001.
Finally, although Marissa received more detailed information regarding Verreault's application for its certificate on January 6, 2003, in the panel's opinion that information was not significantly different from the information which it already had.
In view of the foregoing, the panel considers the complaint was not filed with it within the deadlines specified in subsection 6(1) of the Regulations, namely within ten working days after the date on which the basis of the complaint became known. Consequently, the panel cannot admit the complaint.
The panel accordingly will not inquire into this complaint and consequently closes the matter.
[9] As appears from these passages, it was the Tribunal's opinion that the applicant should have discovered the facts on which its complaint was based between June 2000 and August 2001. In particular, regarding the only ground of complaint that is still at issue, the Tribunal noted that in August 2001 the applicant received "information on communications between Verreault and Industry Canada" in August 2001. Further, in the Tribunal's view the information received by the applicant in early January 2003 was not "significantly different from that already in its possession", namely the information received in August 2001.
[10] The applicant challenged the Tribunal's decision. In its view, the latter was patently unreasonable since there was nothing to justify the filing of a complaint with the Tribunal before it learned on January 6, 2003, of a letter mailed by Industry Canada on December 23, 2002.
[11] For the reasons that follow, I conclude that the application for judicial review should be dismissed.
[12] The applicant's complaint was that the contract was awarded to Verreault illegally, as its foreign-built dredge did not meet the necessary conditions for obtaining a pre-qualification certificate. The Tribunal concluded that the applicant had the information necessary to file a complaint in its possession by August 2001 at the latest.
[13] In order to determine whether the Tribunal's conclusion can stand, it is imperative to examine what information the applicant had in its possession in August 2001 and the impact, if any, of the information it acquired in early January 2003.
[14] First, it should be mentioned that René Lagacé, the applicant's president, met Émile Rochon of Industry Canada in Ottawa in February 2001. At that meeting Mr. Lagacé was told that a foreign-built dredge could only qualify if modifications had been made on the vessel to over 50% of the floating plant, the components of such modifications had to be Canadian content and maintenance repairs were not taken into account in this regard.
[15] Secondly, on June 12, 2001, the applicant received an expurgated copy of a letter dated May 3, 2001, which Industry Canada had sent to Verreault, confirming that it had obtained the pre-qualification certificate for its dredge. I set out below the copy of the letter as received by the applicant on June 12, 2001:
In the matter of your request for a pre-qualification certificate for your dredge by the name of Port-Méchins, we are given to understand that:
[TEXT EXPURGATED]
Under the above circumstances the dredge Port-Méchins meets Federal Government of Canada requirements for a certificate of pre-qualification for performing dredging services on federal government dredging projects under the Floating Plant Clause.
[16] On August 14, 2001, Industry Canada sent the applicant a letter to which was attached a copy of e-mail correspondence between Verreault and Industry Canada dated April 18, 2000. In that communication Verreault drew the attention of Industry Canada to the contracts it had performed for the respondent with its dredge since its purchase in 1992. Verreault further informed Industry Canada of the names of prior owners of the dredge for 1966 to 1992. Additionally, Verreault submitted to Industry Canada the information to be found in the dredge's registration certificate, that is its name, port of registry, country of construction, year of construction, the name of its builders and so on.
[17] On January 6, 2003, Mr. Lagacé learned of two documents, namely a letter from Industry Canada to the applicant on December 23, 2002, to which another copy of Industry Canada's letter to Verreault of May 3, 2000 was attached. This further copy provided the applicant with information which did not appear in the copy of the letter received on June 12, 2001. I set out below the copy of the letter of May 3, 2000, as received by the applicant on January 6, 2003.
In the matter of your request for a pre-qualification certificate for your dredge by the name of Port-Méchins, we are given to understand that:
· you acquired this vessel from Fraser River Pile and Dredge Ltd. (FRPD) in 1992 (at a cost of [TEXT EXPURGATED])
· it is being operated under Canadian registration documentation
· it was originally built in Renfrew, Scotland in 1949
· since 1992 you have undertaken [TEXT EXPURGATED] in modifications and repairs which were all completed in Canada at either Les Méchins Dockyard or Quebec City
· since 1992 your company has employed this vessel to perform several Federal Public Works dredging contracts
Under the above circumstances the dredge Port-Méchins meets Federal Government of Canada requirements for a certificate of pre-qualification for performing dredging services on federal government dredging projects under the Floating Plant Clause.
[18] Another important source of information for the applicant, if not the most important, came from Benoit Blouin, an engineer. Mr. Blouin, now an employee of the applicant, had apparently worked from 1977 to 1997 for the various owners of the dredge which Verreault had owned since 1992. According to Mr. Blouin, no modifications had been made to the dredge during those years, and further, he knew of no modifications to it since 1998.
[19] It therefore appeared, from the information supplied by Mr. Blouin, that there had been no modifications to Verreault's dredge since 1977. Consequently, the applicant questioned the information supplied by Verreault to Industry Canada, on which the latter relied in issuing the pre-qualification certificate.
[20] As I indicated earlier, the applicant's argument was that it was impossible for it to file a complaint before receiving Industry Canada's letter of December 23, 2002. At paragraphs 25 and 26 of its memorandum, the applicant stated:
[TRANSLATION]
25. Between the latter letter of August 2001 and that of December 23, 2002, then obtained on January 6, 2003, no other document was disclosed to the applicant on which it could rely in discovering the facts on which its complaint of January 17, 2003 was based. What is more, the applicant applied to the Information Commissioner of Canada on April 24, 2002 to file a complaint in order to obtain the undisclosed content of the said letter P-2 (Exhibit D-2, p. 26, of the case at bar). It was following that complaint to the Information Commissioner of Canada that Industry Canada finally, after consulting with the third party concerned (Verreault Navigation Inc.), agreed to disclose the additional information it attached to its aforesaid letter of December 23, 2002 (pp. 49 and 50 of the case at bar), and here again we would respectfully draw to this Honourable Court's attention that there was still a [TRANSLATION] "concealment" in the latter document disclosed.
26. This time, the [TRANSLATION] "concealments" in question did not prevent the applicant from at once filing its complaint in January 2003, since although the [TRANSLATION] "concealment" did not allow determination of the percentage of modifications and repairs made by Verreault Navigation Inc. to its dredge in relation to the latter's purchase price, the applicant alleged in its complaint that it supplemented this information through Benoit Blouin, an engineer now in its employ, who had worked on the dredge Port Méchins for several years (applicant's affidavit, para. 16, p. 12 of the case at bar, and Exhibit D-1, paras. 14 and 15, p. 17 of the case at bar). But for this information obtained from the said Benoit Blouin, the applicant would still not even have been able to discover the grounds of its complaint from the said document P-1, in view of the information still concealed in the latter.
[Emphasis added.]
[21] It is worth reading these statements together with paragraphs 12 to 16 of the complaint filed on January 17, 2003, which read as follows:
[TRANSLATION]
12. the complainant accordingly was only able to learn the requirements for granting a pre-qualification certificate through its president when he met with a representative of Industry Canada, and it is thus inter alia that the complainant learned of the requirement of over 50% modifications using Canadian labour and content;
13. however, as appears from the new information disclosed in Industry Canada's letter, and already filed as No. P-1 [copy of letter of May 3, 2000, received by the applicant on January 6, 2003], two concealments still prevent determining the quantity, proportion and/or amount representing modifications and repairs to the dredge Port Méchins that were apparently accepted as being done since 1992;
14. however, to the knowledge of Benoit Blouin, an engineer, now employed by the complainant, no modifications were made to the dredge Port Méchins by Verreault Navigation Inc., since the said Benoit Blouin worked with this vessel continuously during the years 1977 to 1997 inclusive;
15. further, the said Benoit Blouin was well acquainted with this vessel and did not know of any other modifications to it since 1998;
16. consequently, it now appears that the criteria applied by the Canadian government through Industry Canada in issuing a pre-qualification certificate are a matter of discretion, arbitrary action and inconsistent application by Industry Canada . . .
[22] As appears from paragraphs 25 and 26 of the applicant's memorandum and from paragraphs 12 to 16 of its complaint, what prompted the complaint was the information obtained in early January 2003 regarding the basis on which Industry Canada issued the pre-qualification certificate to Verreault. In particular, it appeared that Industry Canada issued the certificate as the result of a representation by Verreault that modifications and repairs, the value of which was not indicated in the letter, had been done in Canada.
[23] In my view, the applicant's position is very doubtful. It is clear from the evidence that in August 2001:
1. the applicant knew the conditions for the issuing of a pre-qualification certificate as a consequence of its meeting with Mr. Rochon of Industry Canada;
2. the applicant knew, or should have known, in view of the letter from the respondent on June 1, 2000, telling it that the contract had been awarded to Verreault, and the expurgated copy of the letter of May 3, 2000, which it received on June 12, 2001, that Industry Canada had concluded that the conditions for issuing the certificate had been met, namely that the necessary modifications had been made to the dredge.
[24] In my opinion, there can be no doubt that the copy of the letter of May 3, 2000, received by the applicant in early January 2003 did not have the crucial importance which it maintained. As the respondent pointed out, correctly in my opinion, the applicant's complaint was based primarily on the information from Mr. Blouin. It is that information which allowed the applicant to argue that a pre-qualification certificate should not have been issued to Verreault, since if the information from Mr. Blouin was correct no modifications were made to the dredge between 1977 and the date on which the contract was awarded.
[25] From this standpoint, the date on which Mr. Blouin told Mr. Lagacé that no modifications had been made to the Verreault dredge becomes of great importance, and the burden of informing the Tribunal of any important information in this regard rests with the applicant.
[26] Unfortunately for the applicant its complaint says nothing about this point, and there was no evidence before the Tribunal to suggest that the latter could not validly assume it was in possession of this information in August 2001 at the latest, since the complaint simply mentioned that Mr. Blouin was [TRANSLATION] "now" in its employ.
[27] Further, although this evidence was not presented to the Tribunal, I note that in his affidavit of March 21, 2003, filed in support of the application for judicial review, Mr. Lagacé did not indicate the date on which he was told by Mr. Blouin that no modifications had been made to the dredge since 1977. However, he alleged that the latter had been employed by the applicant since May 14, 2001, which in my opinion has the effect of confirming that the Tribunal's conclusion was not patently unreasonable.
[28] Consequently, based on the evidence that was before it, the Tribunal could conclude that in August 2001 the applicant had in its possession the information needed to file a complaint about the illegal awarding of the contract to Verreault.
[29] The parties agreed that the applicable standard of review is that of the patently unreasonable decision. In IBM Canada Ltd. v. Hewlett-Packard (Canada) Ltd., 2002 FCA 284, July 4, 2002, this Court concluded that when a question arises as to the application of section 6 of the Regulations the standard of review to be used is that of the patently unreasonable decision. At paragraphs 15, 16 and 17 the Court said the following, per Décary J.A.:
[15] In the case at bar, counsel for IBM argues that a less deferential standard should be applied because in deciding that a complaint is, or is not, time-barred, the Tribunal makes a decision regarding its own jurisdiction.
[16] I disagree. The temptation to qualify certain issues as "jurisdictional" for the purpose of attracting a less deferential standard is to be resisted (see Canada v. McNally Construction Inc. and Abco Industries Limited, [2002] F.C.J. No. 689, 2002 FCA 184, per Stone J.A. at para. 23). It is within the Tribunal's jurisdiction to decide whether a complaint is time-barred; there is no legal issue as to the interpretation of subsection 6(1) of the Regulations; the determination in the case at bar of the starting point is a pure question of fact; and the Tribunal's knowledge of the procurement process places it in the best position to decide when a complainant became aware or reasonably should have become aware of the basis of a complaint.
[17] The standard of review, therefore, is patent unreasonableness. I note that the same standard was applied by this Court, without much discussion, in circumstances similar to the present ones (Jastram Technologies Inc. v. The Minister of Public Works and Government Services, [2000] F.C.J. No. 367, March 14, 2000, F.C.A. A-406-98).
[30] In view of the applicable standard, it is impossible for me to conclude that this Court's intervention would be warranted. For these reasons, I would dismiss the application for judicial review with costs.
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"M. Nadon"
J.A.
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"I concur
Alice Desjardins J.A."
"I concur
Gilles Létourneau J.A."
Certified true translation
Suzanne M. Gauthier, C Tr, LLL
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-101-03
STYLE OF CAUSE: ENTREPRISE MARISSA INC. v. DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES CANADA
PLACE OF HEARING: QUÉBEC, QUEBEC
DATE OF HEARING: March 31, 2003
CORAM: DESJARDINS J.A.
LÉTOURNEAU J.A.
NADON J.A.
REASONS FOR JUDGMENT
OF THE COURT: NADON J.A.
CONCURRED IN BY: DESJARDINS J.A.
LÉTOURNEAU J.A.
DATE OF REASONS: May 19, 2004
APPEARANCES:
Sylvain Trudel FOR THE APPLICANT
Bernard Letarte FOR THE RESPONDENT
SOLICITORS OF RECORD:
Néron, Trudel et associés FOR THE APPLICANT
Charlesbourg, Quebec
Department of Justice Canada FOR THE RESPONDENT
Montréal, Quebec
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