Docket: A-359-16
Citation:
2017 FCA 165
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CORAM:
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WEBB J.A.
DE MONTIGNY J.A.
GLEASON J.A.
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BETWEEN:
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FRANCIS
H.V.A.C. SERVICES LTD.
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Applicant
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and
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MINISTER OF
PUBLIC WORKS AND GOVERNMENT SERVICES AND MODERN NIAGARA OTTAWA INC.
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Respondents
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REASONS
FOR JUDGMENT
DE MONTIGNY J.A.
[1]
This is an application for judicial review in
respect of a decision of the Canadian International Trade Tribunal (the CITT)
dated September 2, 2016 which determined that Francis H.V.A.C. Services Ltd.’s
(the applicant or Francis Ltd.) complaint regarding the procurement process followed
by the respondent Minister of Public Works and Government Services Canada
(PWGSC) was not valid pursuant to subsection 30.14(2) of the Canadian
International Trade Tribunal Act, R.S.C. 1985, c. 47 (4th Supp.)
(the Act).
[2]
At issue in this application is whether the CITT
erred in finding that the second respondent, Modern Niagara Ottawa Inc. (MNO),
had the necessary security clearance to meet the terms of a Request for
Proposal (RFP) at the time of bid closing. This matter also raises the question
of whether the CITT erred in finding that PWGSC did not offend the rule against
bid repair when it corrected MNO’s calculation errors and verified MNO’s
security status after the bid closing date.
[3]
Having carefully considered the record and the
submissions of the parties, and taking into account the deferential standard of
reasonableness to be applied when reviewing decisions of the CITT, I would
dismiss this application for the following reasons.
I.
Background
[4]
On February 5, 2016, PWGSC issued an RFP for the
provision of maintenance services in respect of heating, ventilation, air
conditioning (HVAC), commercial refrigeration and boiler equipment at the
Department of National Defence’s Connaught Range location in Ottawa, Ontario.
It called for the award of a single contract for these services to the
responsive bidder with the lowest evaluated price. The closing date for the bid
was slated for March 21, 2016.
[5]
Francis Ltd. has operated in the heating and
ventilation industry in the greater Ottawa area since 1992. In March 2016, it
responded to the RFP, and was later informed by PWGSC on April 7, 2016 that it
was the successful bidder. A contract was thus formed between Francis Ltd. and
Her Majesty the Queen in Right of Canada.
[6]
On April 11, 2016, PWGSC communicated with
Francis Ltd. seeking to terminate that contract by mutual consent. The
explanation given by PWGSC was to the effect that Francis Ltd. was not the
lowest bidder, but rather, the second lowest. Francis Ltd. was also informed
that the respondent MNO, to whom the contract was ultimately awarded, was
initially found to be non-compliant with the RFP requirements, but after
re-assessment by PWGSC, was deemed to have submitted a responsive bid. It was
later revealed that this was due to an error regarding the identity of MNO as bidder,
which in turn led to confusion surrounding the status of MNO’s Facility Security
Clearance.
[7]
MNO submitted its bid under a business name,
Modern Niagara Building Services (MNBS). It carries on business in and around
Ottawa in the fields of mechanical contracting, electrical contracting,
building controls, and maintenance services in respect of heating, ventilation
and air conditioning equipment. It is a subsidiary of Modern Niagara Group
Inc., a national company that began as a plumbing service business in Ottawa
over 56 years ago.
[8]
MNO came into being in January 2016 through the
amalgamation of several pre-existing corporations, including one also bearing
the name Modern Niagara Ottawa Inc. (the former MNO). The registered office of
MNO is the same as that of the former MNO; four of the five
administrators/directors are also the same.
[9]
The record shows that the former MNO had a valid
Facility Security Clearance of Top Secret as of July 23, 2015, and that MNO had
the same Facility Security Clearance on June 30, 2016 (Appeal Book, Vol. 2, Tab
11, at pp. 524-525). It is unclear on the record before us, however, whether
MNO held such a clearance at the time of bid submission, as required by section
6.1 of the RFP.
[10]
On April 22, 2016, Francis Ltd. filed its
complaint with the CITT, alleging that the contract that had been awarded to it
was improperly cancelled and then awarded to another bidder after “bid repair” and without an intervening solicitation.
It sought the cancellation of the contract awarded to MNO and restoration of
the contract to it, or in the alternative, the re-opening of the bid process,
together with compensation for its losses. The CITT decided to conduct an
inquiry into the complaint in accordance with subsection 30.13(1) of the Act,
which resulted in the decision under review.
II.
The impugned decision
[11]
Before the CITT, Francis Ltd. argued that MNO,
being the entity that was ultimately awarded the contract, was not compliant
with the security requirements of the RFP at the time of bid closing. Francis
Ltd. contended that, in re-evaluating the status of its security clearance,
PWGSC improperly allowed MNO to engage in bid repair. Further, as MNO submitted
its bid under its registered business name, Francis Ltd. submitted that it was
unclear at the time of bid closing whether MNO had the requisite clearance
level as set out in the RFP. Francis Ltd. also submitted that since MNBS is a
business name, MNBS had no capacity to submit a bid, and that the business name
was not registered to the post-amalgamation entity. It also pointed to the fact
that revisions were made to the initial bid which were left unsigned by MNO,
another allegation in support of its bid repair claim.
[12]
Relying on its own jurisprudence, the CITT first
noted that evaluators are afforded a great deal of deference when complaints
are launched into the reasonableness of their bid evaluations. It then went on
to determine that MNBS was a “potential supplier”
in keeping with sections 30.1 and 30.11 of the Act, which has been interpreted
as being an entity that is in a position to fulfill the terms of the contract.
The CITT found that although the name MNBS had been registered to the former MNO,
its use by MNO did not cause any uncertainty over the identity of the bidder and
it did not contravene any of the RFP requirements. Accordingly, the CITT
accepted that the business name MNBS was intended to identify MNO as the
bidder.
[13]
Second, the CITT noted PWGSC’s acknowledgement
that it erred in its initial evaluation of MNBS’ security clearance status, and
thus had to proceed to a re-assessment in order to correct its mistake. It saw
no reason to conclude that the security clearance granted to MNO was not
specific to it, and determined that both PWGSC and its internal body responsible
for the issuance of security clearances, the Canadian Industrial Security
Directorate (the CISD), were aware of the amalgamation with the predecessor
company. The CITT consequently determined that the amalgamation was considered
in granting the requisite security clearance to MNO. It thus found that PWGSC
reasonably met its obligations in concluding that MNO held the requisite
security clearance on the submission of its bid.
[14]
Finally, the CITT considered Francis Ltd.’s
allegations that PWGSC permitted MNBS to engage in bid repair both with respect
to its security clearance and the revisions to its financial bid. On the first
issue, the CITT noted that it is incumbent upon contracting authorities to take
appropriate steps to correct errors upon their discovery in a bid evaluation
process. It also held that the RFP did not require proof of compliance with the
security clearance requirement, but rather, merely that the Contractor/Offeror
hold a valid Facility Security Clearance at all times during performance of the
Contract/Standing Offer (see section 7.3 of the RFP, Application Record, Vol.
1, Tab E-3 at p. 100). It noted that, had PWGSC continued its contractual
relationship with Francis Ltd. upon being notified of its mistake, it would
have been in direct contravention of section 4.2 of the RFP providing that the
contract be awarded to the lowest responsive bidder (Application Record, Vol.
1, Tab E-3 at p. 95). In so doing, PWGSC would have also been in violation of
the applicable trade agreements which require that contracts be awarded
pursuant to the terms set out in the tender documents. The CITT could thus not
ground a finding of bid repair on the security clearance front.
[15]
As for the question of whether corrections to the
initial bid following the closing date are a further indicator of bid repair,
the CITT determined that these revisions were initiated by PWGSC and were only
made to adjust calculation errors. It cited its own jurisprudence to state that
contracting authorities may seek clarifications to better understand the
contents of a bid. The CITT explained that although new information may not be
considered at the close of a procurement process, explanations may always be
sought. As the revisions undertaken by PWGSC did not constitute a new bid, but
rather, corrections to certain portions of a financial bid already signed and
submitted, the CITT found that they did not require signature from MNO.
[16]
The CITT thus determined, in light of the
circumstances, that Francis Ltd.’s complaint was not valid pursuant to
subsection 30.14(2) of the Act. Despite this finding, it found that the parties
should bear their own costs, given PWGSC’s conduct in the matter.
III.
Issues
[17]
In my view, this application for judicial review
raises two issues:
A.
Did the CITT make a reviewable error in failing
to find bid repair, with respect to the security clearance check or the
financial revisions?
B.
Did the CITT make a reviewable error in
determining that the revisions to MNO’s initial bid did not require a
signature?
[18]
Questions involving whether an RFP was conducted
in accordance with published requirements are “at the
core of the CITT’s expertise” and thus review of such determinations is
to be conducted under the deferential reasonableness standard of review (CGI
Information Systems and Management Consultants Inc. v. Canada Post Corporation,
2015 FCA 272 at para. 59, citing Siemens Westinghouse Inc. v. Canada
(Minister of Public Works and Government Services), 2001 FCA 241, at paras.
21-22, [2002] 1 F.C. 292). This is indeed consistent with the jurisprudence of
the Supreme Court, according to which the reasonableness standard is presumed to
apply when reviewing a tribunal’s decision involving the interpretation of its
own statute or statutes closely connected to its functions (see Edmonton (City)
v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47 at para. 22,
[2016] 2 S.C.R. 293; Mouvement laïque québécois v. Saguenay (City), 2015
SCC 16 at para. 46, [2015] 2 S.C.R. 3). It is thus well-settled that the
standard of reasonableness applies to these determinations, and that a
reviewing court owes a high degree of deference to the tribunal (see also Canada
(Attorney General) v. Almon Equipment Limited, 2010 FCA 193 at paras. 31-33,
405 N.R. 91).
[19]
Counsel for Francis Ltd. submits that, despite
the foregoing well-established line of authority, the standard of correctness
should be applied to the CITT’s analysis of bid modification, and relies for this
proposition on Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29 at
para. 91, [2016] 1 S.C.R. 770 [Wilson]. This argument is wholly without
merit, for at least two reasons. First, the question at issue in Wilson was
a pure question of statutory interpretation. This is much different from the
question at issue here, which is a mixed question of fact and law calling for
an assessment of the particular circumstances leading to the cancellation of
the contract initially awarded to Francis Ltd. and to the subsequent acceptance
of MNO’s bid. Second, the reasoning upon which counsel relies is that of the dissenting
judges in Wilson. The majority in Wilson firmly held that the
decisions of labour adjudicators or arbitrators interpreting statutes or
agreements within their expertise attract a reasonableness standard.
[20]
Accordingly, there is no reason to depart from
the reasonableness standard in the present case. In keeping with the principles
laid out in Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 47, [2008] 1
S.C.R. 190, my focus will therefore be to look into the “justification, transparency and intelligibility within the
decision-making process”, and to determine whether the decision of the
CITT falls within “a range of possible, acceptable
outcomes which are defensible in respect of the facts and law”.
IV.
Analysis
A.
Did the CITT make a reviewable error in failing
to find bid repair, with respect to the security clearance check or the
financial revisions?
[21]
Counsel for Francis Ltd. argues that MNBS
engaged in bid repair in revising its pricing, which amounted to a nearly
two-thirds reduction in the original amounts tendered. Francis Ltd. says that allowing
MNBS to amend its tender after the tendering process had closed not only
offends the principle of fairness which must govern the procurement process,
but also a number of trade agreements. For the applicant, the revisions
undertaken by PWGSC were not merely to gain a “better
understanding of the contents of a bid”, as found by the CITT at
paragraph 49 of its reasons, but rather constituted a wholesale re-write of the
bid.
[22]
I agree that there is no doubt that bidders
cannot make material corrections or amend their bids after the bid’s closing
date. The requirements found in an RFP must be met at the time of bid closing,
and a procurement entity is not entitled to consider information submitted
after that date. “Bid repair”, as it has come to
be known, is considered to be an indirect way of allowing a late bid. The
rationale behind the rule against bid repair is easy to understand: allowing a
bid to be modified or altered after the fact would undermine the bidding
process itself, as it would allow a change to be made to a bid at a time when
the bids of others are known or could be known (see Anne C. McNeely, Canadian
Law of Competitive Bidding and Procurement, (Aurora, On: Canada Law Book,
2010), as quoted in Asphalte ABC Rive-Nord Inc. v. Canada (Attorney General),
2013 FC 1287 at para. 56, 445 F.T.R. 119).
[23]
In the case at bar, MNO did not submit any new
information after the bid closing date of March 21, 2016. Rather, it was PWGSC
that corrected MNO’s mathematical errors on its own initiative. The bid
contained 23 individual tables, one for each building included in the RFP. Every
individual table broke down the unit price by individual HVAC unit and by year,
with subtotals set out by year at the bottom (see section 6.2.1.1 of the RFP,
Application Record, Vol. 1, Tab E-3 at pp. 145-155). The bid also contained
another table entitled “Summary of Pricing Schedule 1”
(the Summary Table) which added the subtotals from each of the 23 tables,
divided the annual totals into quarterly amounts, and used the quarterly
amounts to calculate the five year total price (see section 6.2.1.2 of RFP,
Application Record, Vol. 1, Tab E-3 at p. 156).
[24]
It is clear from a review of MNO’s bid that it
contained the correct prices on all of the individual HVAC units. However,
there were errors in adding the subtotals for three of the 23 tables which were
easily discoverable by calculating the individual prices by year and comparing
them to the subtotals. There was also an error in the Summary Table, as it tallied
the annual subtotals but did not divide them by four, resulting in the
quarterly amounts actually constituting annual amounts. Again, this was easily
discoverable by adding the annual subtotals and comparing them to the amounts
in the Summary Table.
[25]
It is clear from the foregoing that it was PWGSC
that discovered the errors and corrected them, not MNO. PWGSC did not use any
information that was not already included in the bid. Indeed, PWGSC was entitled
to correct any mathematical error on its own and enter into a contract based on
MNO’s unit prices. It was only as a matter of courtesy that PWGSC sought
clarification and confirmation from MNO to ensure that its mathematical
corrections accurately reflected the actual content of the bid. In doing so,
PWGSC was not inviting MNO to engage in bid repair or to come up with a revised
bid based on either new information or a modification of its initial proposal,
but rather merely sought to confirm that the corrected numbers were accurate.
[26]
The case law relied upon by the applicant in
support of its bid repair claim is readily distinguishable from the facts at
bar. In Vachon Construction Ltd. v. Cariboo (Regional District) (1996),
136 D.L.R. (4th) 307, 24 B.C.L.R. (3d) 379 (C.A.) [Vachon], the bid
amount in numbers and in words were not the same. In that case, the British
Columbia Court of Appeal found that the bid itself was invalid as an offer
which is uncertain as to price, which, as a matter of contract law, cannot form
the basis of a binding contractual relationship. The Court in Vachon also
found that the bid could not be corrected after the close of tenders by
allowing the bidder to opt for the lower amount, as this would clearly amount
to bid repair. This is to be contrasted with MNO’s bid, because there is no
ambiguity regarding the unit prices; the errors only involve calculations based
on these unit prices, and there was no need for new information to correct the
mathematical inaccuracies.
[27]
Vachon was followed
by the Ontario Court of Appeal in Maystar General Contractors Inc. v.
Newmarket (Town), 2009 ONCA 675, [2009] O.J. No. 3939 [Maystar]. In
that case, there was again uncertainty as to price. According to the bid, the
stipulated price was $33,000,528.00, the GST was $2,346,960.00 and the total
cost (stipulated price + GST) was $35,874,960.00. These figures were clearly inconsistent
and led the Court to conclude that the price was therefore uncertain:
The application judge found that the price
was uncertain and therefore that the bid was non-compliant and incapable of
forming the basis of a contract. I agree. The stipulated price, set out in
words and in numbers, was $33,000,528.00. However, the G.S.T. amount of
$2,346,960.00 was not 7% of $33,000,528.00 but 7% of $33,528,000.00, a figure not
shown in the document; and the total cost of the work was $35,874,960.00, which
is the total of the GST of $2,346,960.00 plus $33,528,000.00. Because the
G.S.T. and the total cost of the work both reflect a stipulated price that is
different from the one shown, it is not possible to know which price Bondfield
intended.
Maystar at
para. 27
[28]
Given the uncertainty in the price, the Court
found that allowing the bidder to clarify this irregularity would alter the bid
in such a way that was not permitted by the bid’s terms. Again, this situation
differs from that under review. Here, it is entirely possible to ascertain the
price MNO bid because the only figures that are of relevance are the unit
prices; the errors in calculation are just that, and do not cast doubt on the
total bid price.
[29]
In light of the foregoing, I am of the view that
the CITT could reasonably find that MNO did not engage in bid repair by
confirming the revisions made by PWGSC with respect to the financial aspect of
the bid. For this same reason, it cannot be said that PWGSC considered any new
information not initially included in the bid. As such, PWGSC merely sought
confirmation from MNO that its corrected numbers accurately reflected the
initial bid.
[30]
The applicant also submits that the CITT erred
in finding that MNBS had the necessary security clearance to meet the terms of
the RFP at the time of bid closing. The required security clearance relied upon
by the representative of MNO was dated July 23, 2015, and there was never an
explanation provided by PWGSC as to how the security clearance held by the former
MNO came to be transferred to MNO. Moreover, Francis Ltd. says that MNO could
not write to PWGSC after its bid was rejected to claim that it held security
clearance, as this amounts to bid repair. It further submits that if PWGSC
somehow became satisfied as to MNO’s security clearance status, it was
incumbent upon PWGSC to provide some documentation as to how it arrived at that
conclusion without bid repair.
[31]
The relevant provisions of the RFP with respect
to security clearance are sections 6.1 and 7.3, which read as follows:
6.1 Security Requirement
1. At the date of bid closing
the following conditions must be met:
(a) the Bidder
must hold a valid organization security clearance as indicated in Part 7 –
Resulting Contract Clauses;
(b) the Bidder’s
proposed individuals requiring access to classified or protected information,
assets or sensitive work site(s) must meet the security requirement as
indicated in Part 7 – Resulting Contract Clauses;
(c) the Bidder
must provide the name of all individuals who will require access to classified
or protected information, assets or sensitive work sites;
[…]
7.3 Security Requirement
7.3.1 The
following security requirement (SCRL and related clauses) applies and form part
of the Contract.
1.
The Contractor/Offeror must, at all times during the performance of the
Contract/Standing Offer, hold a valid Facility Security Clearance at the level
of SECRET, issued by the Canadian Industrial Security Directorate
(CISD), Public Works and Government Services Canada (PWGSC).
2.
The Contractor/Offeror personnel requiring access to sensitive work
site(s) must EACH hold a valid personnel security screening at the level
of SECRET, granted or approved by CISD/PWGSC.
3.
Subcontracts which contain security requirements are NOT to be
awarded without the prior written permission of CISD/PWGSC.
4. The Contractor/Offeror must
comply with the provisions of the:
(a) Security
Requirements Check List and security guide (if applicable), attached at Annex B
(b) Industrial
Security Manual (Latest Edition).
See RFP, Application Record, Vol. I, Tab E-3
at pp. 98 and 100 [bold and underlining in the original]
[32]
It is clear from these provisions that the RFP
did not require bidders to provide any evidence that they possessed a Facility
Security Clearance. Section 6.1 only requires bidders to hold a valid security
clearance at the date of bid closing. It was therefore PWGSC’s responsibility
to confirm whether bidders had met this requirement. When MNO advised PWGSC
that it had a Facility Security Clearance of Top Secret and attached a Security
Status Report dated July 23, 2015, PWGSC had an obligation to determine whether
MNO had the required clearance at bid closing.
[33]
I agree with counsel for PWGSC that
disqualifying a compliant bidder based on PWGSC’s own error would be
antithetical to a fair procurement process. PWGSC could not turn a blind eye to
MNO’s representations. Once the mistake relating to the security clearance was
discovered, MNO emerged as the bidder with the lowest evaluated price. PWGSC thus
had an obligation to rectify its error by cancelling the contract award to
Francis Ltd. and issuing a new contract to MNO. Pursuant to section 4.2 of the
RFP, “[t]he responsive bid with the lowest evaluated
price will be recommended for award of a contract” (Application Record,
Vol. 1, Tab E-3 at p. 95). Had PWGSC continued its contractual relationship
with Francis Ltd. in these circumstances, PWGSC would have been knowingly
contravening that provision. The CITT determined as much, and I see no basis upon
which to interfere with its finding (Reasons at para. 43).
[34]
MNO did not engage in bid repair when it
provided the security clearance confirmation dated July 23, 2015, and PWGSC did
not go beyond the bid by confirming this information with the CISD. As a matter
of fact, MNO’s bid did not change as a result of the information provided to
PWGSC; the only thing that changed is the result of PWGSC’s security clearance check,
which came about as a consequence of correcting a mistake in the organization’s
name and assessing the actual bidder on the basis of the correct entity’s
record.
[35]
The only real issue with respect to security
clearance, it seems to me, is whether MNO truly held the required security
clearance at the time of bid closing. There is no direct evidence to this effect
on the record. All we have is the security clearance confirmation dated July
23, 2015 (Application Record, Vol. II, Tab E-11 at p. 525), which pertains to
the former MNO, as well as a confirmation by email from the CISD dated April 7,
2016 (Application Record, Vol. 1, Tab E-16 at p. 565) that MNO had a Facility Security
Clearance of Top Secret.
[36]
Had PWGSC only relied on the security clearance of
July 23, 2015 to award the contract to MNO, it would clearly have been in
error. But it did verify MNO’s security status on April 7, 2016, and was
advised by the CISD that MNO had the required clearance status. Again, we have
no direct evidence that the CISD took into account the post-amalgamation status
of MNO to come to its conclusion; we do, however, have a letter to the CITT
dated July 11, 2016 from Mr. Roy Chamoun, counsel to PWGSC, where he states the
following:
PWGSC submits
that, as required, Modern Niagara Ottawa Inc. had advised the Canadian
Industrial Security Directorate (CISD) of the amalgamation of January 1, 2016.
This information was considered by CISD and a determination was made that the
latest corporate structure of Modern Niagara Ottawa Inc., bearing corporation number
001942170, referred to as MNO #2 in the Complainant’s Comments, holds a
Facility Security Clearance at the Top Secret Level.
Application
Record, Vol. II, Tab E-12 at p. 526
[37]
The CITT considered this issue and chose to
believe the genuineness of that information. At paragraph 35 of its reasons, it
states:
The Tribunal finds no reason to conclude
that the security clearance granted to MNO was not specific to Ontario
Corporation No. 1942170. PWGSC and CISD were aware of the amalgamation of the
predecessor company (Ontario Corporation No. 1847249), and this information was
considered in the granting of a security clearance to post-amalgamation MNO
(Ontario Corporation No. 1942170).
[38]
There is no reason to believe that counsel for
PWGSC was untruthful in its submissions to the CITT or tried in any way to
mislead the tribunal. Moreover, the applicant did not try to impugn its good
faith or to file any contrary evidence. In these circumstances, the CITT could
reasonably rely on PWGSC’s representations and come to the conclusion, based on
Mr. Chamoun’s letter and on surrounding circumstances, that PWGSC had met its
obligations in determining that MNO had the required security clearance on the
bid closing date. Such a finding falls squarely within the expertise and core
jurisdiction of the CITT and it is entitled to a high degree of deference.
[39]
To this, I would only add that Francis Ltd.’s
true challenge appears to be to the CISD’s decision to grant a security
clearance to MNO after its amalgamation. However, neither the CITT nor this
Court is seized with this question, and it would therefore be inappropriate to
answer or to even speculate into the reasonableness of this conclusion as it is
beyond the scope of the current judicial review proceeding.
B.
Did the CITT make a reviewable error in
determining that the revisions to MNO’s initial bid did not require a
signature?
[40]
Francis Ltd. also submits that the revisions
made to MNO’s original bid actually constituted, in fact and in law, a full new
bid. As such, it says the amendments had to be signed in order to be
responsive. As they were not, it claims that the second bid comprising the new
pricing was not valid, making Francis Ltd. the lowest responsive bidder.
[41]
This argument is totally without merit. MNO did
not submit a completely new bid document, but merely incorporated into its
original, signed bid, the corrected totals PWGSC had calculated.
[42]
It was entirely reasonable for the CITT to find
that the revisions MNO submitted “did not require a
signature” and that they did not constitute “a
new or full bid” (Reasons at para. 51).
[43]
Francis Ltd. also makes the argument that the
bid for the contract awarded to MNO was made in the name of MNBS, which is not
a legal entity but only a business name. Since MNBS was registered to the former
MNO, it says that the bid was therefore made in the name of an entity that no
longer existed and the business name was accordingly no longer legally
registered.
[44]
Again, this is a fallacious argument. As noted
by the CITT, the lack of registration of the business name did not cause any
uncertainty over the identity of the bidder or contravene any requirements of
the RFP. Not only was it clear from the record that PWGSC accepted that the
business name “MNBS” was intended to identify
MNO as the bidder, but this information was also publicly available. Moreover,
an amalgamated corporation possesses all the property, rights, privileges and
franchises of the amalgamating corporations pursuant to section 179 of Ontario’s
Business Corporations Act, R.S.O. 1990, c. B-16.
V.
Conclusion
[45]
For all of these reasons, I propose that this
application for judicial review be dismissed, with costs in the all-inclusive amount
of $1,500.00 for each of the respondents.
“Yves de Montigny”
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“I agree
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Wyman W. Webb J.A.”
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“I agree
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Mary J.L.
Gleason J.A.”
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