Date: 20000811
Docket: T-1297-00
BETWEEN:
TELUS INTEGRATED COMMUNICATIONS,
Applicant,
- and -
THE ATTORNEY GENERAL OF CANADA,
Respondent,
- and -
BCE NEXXIA INC.,
Respondent.
REASONS FOR ORDER
LEMIEUX J.:
INTRODUCTION
[1] The central question to be decided in this application launched by the Attorney General for Canada, supported by BCE Nexxia Inc., seeking to strike a judicial review application made by Telus Integrated Communications ("Telus"), is whether the procurement review mechanism provided for in the Canadian International Trade Tribunal Act (the "Act") constitutes an adequate alternative remedy barring Telus from further continuing its judicial review and seeking interim relief by way of injunction. In the alternative, the respondents seek a stay of the judicial review pending the outcome of the inquiry being conducted by the Canadian International Trade Tribunal ("CITT") into Telus" procurement complaint.
BACKGROUND
| (a) Bid solicitation to contract award |
[2] In early 2000, Telus and three other telecommunications companies submitted bids in response to an October 20, 1999 request for proposal (Solicitation number W-8484-7-AB09/C) (the "RFP") issued by the Department of Public Works and Government Services Canada ("Public Works"), on behalf of the Department of National Defence, for the telecommunications services renewal project (the "project").
[3] The procurement related to the supply of telecommunication services for various Department of National Defence locations across Canada for a period of five years, with the option to extend the services for two more years.
[4] On April 17, 2000, Telus received a request for clarification from the responsible procurement officer at Public Works. Telus responded the next day.
[5] Public Works determined that BCE Nexxia Inc. was the successful bidder and on June 16, 2000, entered into a contract with BCE Nexxia Inc. for the provision of the telecommunications services specified in the RFP.
[6] On June 19, 2000, Public Works informed Telus that a contract for the project had been entered into with BCE Nexxia in the amount of $87,740,021.40. According to the affidavit of Daniel Williams, Telus" Director, Strategic Accounts, filed in this proceeding, Telus" bid price was substantially lower than $87,740,021.40.
[7] Mr. Williams, in his affidavit, says that on June 19, 2000, Telus was also told, for the first time, that its proposal had been found to be non-compliant because it allegedly did not meet a mandatory requirement of the RFP.
| (b) The complaint to the CITT |
[8] On June 28, 2000, Telus, pursuant to subsection 30.11 of the Act, filed a complaint with the CITT alleging that Public Works failed to follow the bid evaluation procedures set out in the RFP, and failed to evaluate Telus" bid in accordance with the evaluation criteria set out in the RFP. Telus said Public Works violated Article 506(6) of the Agreement on Internal Trade (the "AIT").
[9] Specifically, Telus says in its complaint the procedure for evaluating bids in the RFP is a step by step procedure meaning the Public Works evaluation team could not move on to the next step in the process until the previous stage had been completed. Step two of the process, Telus says, is where a determination is made whether a proposal meets all mandatory requirements, i.e. the bidder is compliant.
[10] Telus alleges in its complaint with the CITT, that the nature of the clarifications sought by Public Works from Telus in April 2000 related to information provided in the financial aspect of the proposal which meant the evaluation team at Public Works was in step four of the process where "the financial proposals from the compliant proposals only will be evaluated".
[11] Telus complains that if Public Works believed Telus had committed a mathematical error in its proposal it should have notified Telus during the step two process. Rather than following the proper procedure, Telus says Public Works buried the fact that its April request for clarification was to determine whether it was non compliant.
[12] In its June 28, 2000 complaint, Telus asked the CITT to make an expeditious determination of its complaint. Telus asked the CITT to order, pursuant to the Act, the postponement of the awarding of the contract and a stop order, pursuant to the AIT, from doing further work under the contract. The ultimate relief sought by Telus is that the CITT make a recommendation that the Public Works contract with Bell Nexxia be cancelled or terminated.
[13] The record contains a letter from the Secretary of the CITT to counsel for Telus dated July 19, 2000, stating that it would not issue a postponement of award order because the contract for the project had been awarded to BCE Nexxia Inc. on June 16, 2000. The Secretary of the CITT advised Telus that its powers contained in subsection 30.13(3) of the Act extends only to the postponement of the contract to be awarded and does not encompass postponing the performance of a contract already awarded.
| (c) The judicial review application |
[14] On July 18, 2000, Telus filed its judicial review application with the Court. The application is in respect of the decision of the Minister of Public Works "made sometime in May of 2000 to award a contract to the respondent, BCE Nexxia before advising the applicant [Telus] that its proposal in respect of .... the Solicitation... had been found to be non-compliant with a mandatory requirement of the Solicitation and therefore disqualified and thereby depriving the applicant of an opportunity to seek full remedies from ... the CITT pursuant to the AIT".
[15] In its application, Telus seeks declarations that the Minister (a) exceeded his jurisdiction or acted without jurisdiction; (b) failed to observe procedural fairness; (c) erred in law; and (d) acted contrary to law when the Minister made the decision to award the contract to BCE Nexxia before advising Telus that its proposal with respect to the RFP had been found to be non-compliant with a mandatory requirement of the solicitation and therefore disqualified and thereby depriving Telus of an opportunity to seek full remedies from the CITT pursuant to the AIT.
[16] Telus, in its judicial review application, also seeks an order "declaring that the said decision of the Minister ... is unlawful and invalid and setting aside such decision until such time as the CITT has completed its review of the complaint filed with it by the applicant and issued its decision and recommendation to the Minister...". Moreover, Telus seeks an interlocutory injunction "prohibiting the Minister from continuing with any contract entered into with the respondent BCE Nexxia, or any other contractor, pending the determination of this application for judicial review, or until such time as the CITT has completed its review of Telus" complaint ... and issued its decision and recommendations to the Minister...".
[17] In its judicial review application, Telus claims that the Minister has a deliberate policy of not advising an unsuccessful bidder of the results of an evaluation until after the award of a contract. Telus claims this policy has been adopted to avoid the risk of an unsuccessful bidder attempting to contest the proposed award. Telus adds that the CITT does not appear to have any authority to order the Government to stop work on a contract which has already been awarded to another bidder and points out that under subsection 30.13(3) of Act, the CITT may only order the government institution to postpone the awarding of a contract until it determines the validity of a complaint where the contract has yet to be awarded.
[18] Telus says that the CITT ultimately has the power to recommend, if it finds a complaint is valid, that a contract be terminated and a new contract be awarded to a complainant but states that the Tribunal must consider all circumstances relevant to its recommendation including the prejudice to other parties.
[19] Telus concludes that the actions of the Minister in awarding the contract to BCE Nexxia before advising the applicant that its proposal had been found non-compliant were directed towards thwarting the applicant"s rights under the AIT and under the Act to seek to have the award postponed. Telus adds the actions of the Minister in the circumstances were contrary to the Government"s obligations under the AIT to promote fair, open and impartial procurement procedures.
THE LEGISLATION
[1] Section 30.1 and sections 30.11 to 30.19 of the Act govern the CITT"s handling of complaints by potential suppliers of goods and services that has been or is proposed to be awarded by contract from any department or ministry of state of the Government of Canada or any other designated body.
[2] Subsection 30.11(1) of the Act defines the scope of a complaint which a potential supplier may file with the CITT. A potential supplier may file a complaint "concerning any aspect of the procurement process that relates to a designated contract and request the Tribunal to conduct an inquiry into the complaint".
[3] Where the Tribunal has decided to conduct an inquiry into a complaint that concerns a designated contract proposed to be awarded by a federal government institution, subsection 30.13(3) of the Act empowers the Tribunal to order the government institution to postpone the awarding of the contract until it determines the validity of the complaint.
[4] The CITT"s postponement power is subject to government override pursuant to subsection 30.13(4) of the Act. Under that provision, the CITT is obligated to rescind a postponement order if, within a prescribed period, the government institution certifies in writing that the procurement of the goods or services to which the designated contract relates is urgent or that a delay in awarding the contract would be contrary to the public interest.
[5] At the conclusion of its inquiry, the CITT is to determine whether the complaint is valid on the basis of whether the procedures and other requirements prescribed in respect of the designated contract have been or are being observed (subsection 30.14(2)).
[6] By subsection 30.15(2), the CITT is required, within a prescribed period after a complaint is filed, to determine the complaint and where it finds that a complaint is valid, "may recommend such remedy as it considers appropriate, including any one or more of the following remedies:
| (a) that a new solicitation for the designated contract be issued; |
| (b) that the bids be reevaluated; |
| (c) that the designated contract be terminated; |
| (d) that the designated contract be awarded to the complainant; or |
| (e) that the complainant be compensated by an amount specified by the Tribunal". |
[7] Subsection 30.15(3) provides that the CITT must, in recommending an appropriate remedy, "consider all of the circumstances relevant to the procurement of the goods or services to which the designated contract relates, including:
| (a) the seriousness of any deficiency in the procurement process found by the Tribunal; |
| (b) the degree to which the complainant and all interested parties were prejudiced; |
| (c) the degree to which the integrity and efficiency of the competitive procurement system was prejudiced; |
| (d) whether the parties acted in good faith; and |
| (e) the extent to which the contract was performed". |
[8] Under subsection 30.18(1), where the CITT makes a recommendation under section 30.15, the federal government institution shall, subject to the regulations, implement the recommendations "to the greatest extent possible".
[9] The Canadian International Trade Tribunal Procurement Inquiry Regulations govern the CITT"s procedures in this area. Section 12 prescribes the time limits within which the CITT is to issue its findings and recommendations. Normally, the CITT is to render its decision within 90 days after the filing of the complaint. This time limit may be shortened by the CITT to 45 days if it grants a request for an express option. Furthermore, the time limit may be extended by the CITT up to but no more than 135 days after the filing of the complaint.
ANALYSIS
[10] The Attorney General for Canada, supported by BCE Nexxia, bases its application to strike Telus" judicial review application on the adequate alternative remedy doctrine relying principally on two decisions of the Supreme Court of Canada (C.P. Limited v. Matsqui Indian Band et al. , [1995] 1 S.C.R. 3 and [1979] 2 S.C.R. 561">Harelkin and the University of Regina, [1979] 2 S.C.R. 561) and one Federal Court of Appeal decision (Anderson v. Canada, [1997] 1 F.C. 273).
[11] In Harelkin, supra, at page 587, Beetz J. considered whether the appellant"s right of appeal to the University"s Senate Committee concerning his expulsion as a student from the University was an adequate alternate remedy to the orders sought by him in his judicial review application seeking certiorari to quash the decision concerning his expulsion. In writing for the majority, Mr. Justice Beetz found that the appellant"s right of appeal provided him with an adequate alternative remedy adding that this remedy was a more convenient remedy for the appellant as well as for the University in terms of costs and expeditiousness (p. 592).
[12] At page 588 of the reported case, Beetz J. enumerated some of the factors which must be taken into account in order to evaluate whether the appellant"s right of appeal to the Senate Committee constituted an adequate alternative remedy and "even a better remedy than a recourse to the Courts by way of prerogative writs". He said this:
| ... Several factors should have been taken into account amongst which the procedure on the appeal, the composition of the senate committee, its powers and the manner in which they were probably to be exercised by a body which was not a professional court of appeal and was not bound to act exactly as one nor likely to do so. Other relevant factors include the burden of a previous finding, expeditiousness and costs. |
[13] Mr. Justice Beetz, in coming to the conclusion he did, noted:
| (a) The Senate Committee possessed the ordinary powers of an appellate jurisdiction including the power to set aside the decision of the Council Committee and render on the merits the decision that the Council Committee should have rendered or send it back before the Council Committee for a proper hearing. He wrote "there is thus no jurisdictional lacuna in the senate committee which could have prevented it from giving full justice to the appellant" (page 590); |
| (b) In the context of the statute, an appeal to the Senate Committee was a trial de novo rather than a "pure" appeal and, as a result, the appellant would not have been confronted with the adverse finding of the Council Committee (page 591); |
| (c) Any lack of expertise in the composition of the Senate Committee could be overcome in the form of expert testimony (page 592). |
[14] In C.P. Limited, supra, the Supreme Court of Canada considered whether an appeal procedure established by the Matsqui Band for review of Band tax assessments was an adequate alternative remedy to the judicial review sought by C.P. Limited. The Supreme Court of Canada so found.
[15] Chief Justice Lamer, at page 31 of the decision, building on Harelkin, supra, said this about the factors which should be taken into account in determining the question:
| On the basis of the above, I conclude that a variety of factors should be considered by courts in determining whether they should enter into judicial review, or alternatively, should require an applicant to proceed through a statutory appeal procedure. These factors include: the convenience of the alternative remedy, the nature of the error, the nature of the appellate body, (i.e. its investigatory, decision-making and remedial capacities). I do not believe that the category of factors should be closed, as it is for the courts, in particular circumstances, to isolate and balance the factors which are relevant. |
[16] Chief Justice Lamer added that when applying the adequate alternative remedy principle, the courts must consider the adequacy of the statutory appeal procedures created and not simply the adequacy of appeal tribunals where only certain factors would be relevant such as the expertise of members or allegations of bias or the appeal to the Federal Court, Trial Division. He said that all factors must be considered in order to assess the overall statutory scheme.
[17] The Chief Justice also examined the issue whether it was unreasonable for the trial judge to conclude that the statutory appeal tribunals were a better forum which to consider the jurisdictional issue raised by C.P. Limited. He concluded that both the trial judge and the Federal Court of Appeal had asked themselves the wrong question. The correct question was whether an appeal tribunal established under subsection 83(3) of the Indian Act is an adequate forum for resolving, at the first instance, the respondent"s jurisdictional challenge. He said this did not necessarily require a finding that the tribunals are a better forum than the courts (page 38).
[18] He concluded by saying this at page 38:
| ...a hearing before the appeal tribunal will allow for a wide ranging inquiry into all of the evidence. Moreover, although the issues may be complex, to suggest ... that the appeal tribunals are ill-equipped to consider such issues is contrary to the intention of Parliament as evidenced by section 83(3) of the Act. When Parliament required bands to establish appeal procedures on both the classification and valuation aspects of the assessment process, Parliament must have believed that the appeal tribunals would be capable of resolving the issues on which they had authority to adjudicate. Otherwise, the existence of the requirement that appeal procedures be established makes no sense. |
[19] In Anderson, supra, the issue before the Federal Court of Appeal was whether the trial judge was right in refusing to strike a judicial review application on the ground that there was available an adequate alternative remedy which Mr. Anderson had chosen not to exhaust. The Federal Court of Appeal allowed the appeal. Mr. Justice Stone reconfirmed the Harelkin criteria for determining whether an adequate alternative remedy exists and added that in order to assess the adequacy of the alternative remedy in the light of the circumstances, one must take into account the legal framework out of which the matter arises. He then quoted section 29 of the National Defence Act providing a member of the Armed Forces could grieve as a matter of right to such superior authorities as are prescribed by regulations made by the Governor in Council.
| (2) The test for striking out a judicial review application |
[20] In my view, the test for striking out a judicial review application is as set out by the Federal Court of Appeal in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. et al., [1995] 1 F.C. 588 where the applicant sought to strike an originating notice of motion for prohibition. The Federal Court of Appeal dismissed an appeal from the Trial Division refusing to strike the originating notice of motion.
[21] Strayer J.A. said at page 600 that the Court has jurisdiction "to dismiss in a summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success". He added "such cases must be very exceptional and cannot include cases such as the present one where there is simply a debatable issue as to the adequacy of the allegations in the notice of motion".
[22] In terms of this motion to strike, the issue is whether the adequate alternative remedy doctrine so clearly applies as to render the Telus judicial review application bereft of any chance of success.
CONCLUSION
[23] I am not satisfied that the application of the adequate alternative remedy doctrine is so overwhelming in this case as to render Telus" judicial review application bereft of success.
[24] I recognize the strength of the Attorney General"s argument and those brought by Bell Nexxia: (1) the mandate given by Parliament in the implementation of the AIT obligations to the CITT as the chosen arbiter of procurement complaints involving federal institutions; (2) the wide ranging powers of the CITT to inquire into any aspect of the procurement process; (3) the expertise of the CITT; (4) the tight time lines for decision making; (5) the power of the CITT to recommend contract termination; (6) the obligation of a government institution to implement the recommendations "to the greatest extent possible" a provision which the Federal Court of Appeal said in Attorney General for Canada v. Syntrom Systems Inc. , [1999] 2 F.C. 514 at 522 is aimed at making non-compliance with the CITT"s recommendations an awkward and unusual process.
[25] If Telus" judicial review application was a mere parallel proceeding to its CITT complaint in respect of the same decision with substantially overlapping factual issues, I would have been inclined to grant the Attorney General"s motion to strike. However, I am persuaded by counsel for Telus that, arguably, this is not a proper way to look at Telus" judicial review application.
[26] The factual underpinning to the remedies sought by Telus in its judicial review application does not focus on the merits of the decision by Public Works that Telus was non compliant in submitting its proposal. Telus recognizes this issue is for the CITT to decide and that is one of the reasons it launched its complaint with the CITT.
[27] The factual circumstances raised in the judicial review focus primarily on the actions of the Minister and the policy said to be in place in entering into the contract before advising Telus that it was non-compliant therefore disqualified and thereby thwarting Telus" right to apply for a postponement of the award of the contract.
[28] It is fairly arguable in my view that the remedy sought by Telus in its judicial review application is to restore Telus in the same position it would have been but for the alleged unlawful actions of the Minister based on the policy, namely the ability to seek a postponement of the award of the contract, a power which the CITT says it does not have if a contract has been awarded. This is what the interim injunction and suspension remedy in the judicial review application seek and that is why these remedies are integrated or dovetailed with those of the CITT, i.e. until such time as the CITT has completed its review and issued its decision. The CITT could do no more than that under subsection 30.13(1) of the Act.
[29] Justice Lutfy in NFC Canada Ltd. v. Canada (Attorney General), [1999] F.C.J. No. 454, faced a situation where a judicial review had been launched in the Federal Court of Appeal from a CITT decision not to conduct a procurement complaint inquiry and a judicial review proceeding before the Trial Division arising out of a decision by Public Works which had determined the applicant"s bid failed to meet the financial mandatory requirement and was therefore non responsive.
[30] Justice Lutfy stayed the judicial review in the Trial Division pending determination by the Federal Court of Appeal of the issue before it because there was substantial overlap between the factual issues, there would be a duplication of the evidence and the possibility of conflicting decisions.
[31] The situation which Justice Lutfy faced is different than the one before me. I am not faced with the situation where the CITT has rendered a decision and judicial review is being sought in the Federal Court of Appeal as it must under subsection 28(1) of the Federal Court Act. I am faced with a situation where the CITT is currently inquiring into the complaint and I am asked to stay Telus" judicial review proceeding pending the outcome of the CITT"s inquiry.
[32] To grant the stay in these circumstances would render nugatory or meaningless Telus" judicial review application which for reasons given I am not prepared to strike out at this stage.
DISPOSITION
[33] For these reasons, the application to strike Telus" judicial review application or, alternatively stayed until the CITT has concluded its inquiry, is dismissed with costs fixed in the amount of $2,500 payable forthwith by the Attorney General of Canada.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
AUGUST 11, 2000
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