Date: 20130726
Docket: T-1097-13
Citation: 2013 FC 814
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, July 26, 2013
PRESENT: Richard Morneau, Prothonotary
BETWEEN:
|
|
EUROCOPTER
CANADA LIMITED
|
|
|
|
Applicant
|
|
and
|
|
|
THE
ATTORNEY GENERAL OF CANADA
and
THE
MINISTER OF PUBLIC WORKS AND GOVERNMENT SERVICES
|
|
|
|
Respondents
|
|
|
|
|
REASONS
FOR ORDER AND ORDER
[1]
This is a motion by Bell Helicopter Textron Canada Limited
(BHTC or Bell Helicopter) under paragraphs 104(1)(b) and 303(1)(a)
of the Federal Courts Rules (the Rules) for an order to have itself
added as a respondent to the application for judicial review filed on
June 20, 2013, (the application for review) by the applicant Eurocopter
Canada Limited (Eurocopter).
Background
[2]
In its application for review, Eurocopter claims that in
seeking to purchase helicopters, the Minister of Public Works and Government
Services (the Minister) established technical requirements in a request for
proposals that were tailored in favour of Bell Helicopter.
[3]
The application for review includes the following principal
allegations:
[translation]
1. This
is an application for judicial review under section 18.1 of the Federal
Courts Act (R.S.C. 1985, c. F‑7), as amended. It involves the
refusal of the Minister of Public Works and Government Services (the Minister
or PWGSC) to reconsider and modify the technical requirements of Request for
Proposals No. F7013‑120014/C (the Request for Proposals) for the
procurement of light-lift helicopters for the Canadian Coast Guard, despite
the fact that the requirements are tailored in favour of third party Bell
Helicopter Textron Canada Ltd. (Bell Helicopter or the Third Party).
2. The
impugned decision (the Decision) materialized at solicitation closing, which
occurred at 2:00 p.m. on June 4, 2013.
. . .
17. Eurocopter
Canada participated in the consultation process and the Request for Proposals,
but it was prevented from submitting a proposal. The mandatory technical
requirements in the Request for Proposals made it impossible for Eurocopter
Canada to submit a compliant bid.
18. Eurocopter
Canada submits that the Request for Proposals was tailored to favour Bell
Helicopter. More specifically, the technical requirements were based on the
technical specifications of the Bell 429 aircraft, thereby excluding from the
outset any other helicopter manufacturer from the solicitation and eliminating
any competition for Bell Helicopter.
[My emphasis.]
[4]
Paragraphs 3 to 5 of the application for review
indicate the principal remedies sought by Eurocopter:
[translation]
3. An
Order declaring invalid and illegal or an Order quashing, in whole or in part,
the Decision and Request for Proposals.
4. An
interim interlocutory Order enjoining the Minister or PWGSC or both to suspend
the Request for Proposals and prohibiting the awarding of a contract following
the Request for Proposals pending a judgment of this Court in these proceedings.
5. An
Order enjoining the Minister or PWGSC or both to start again with a new request
for proposals that respects and is fully compliant with the principles of
fairness, openness and transparency.
[5]
Moreover, page 18 of the application for review
contains a request pursuant to Rule 317 that the Minister deliver to
Eurocopter any documents that the Minister may possess relating to an exemption
granted to Bell Helicopter in the past with respect to the excess weight of its
Bell 429 aircraft.
Analysis
[6]
Section 104 and paragraph 303(1)(a) of the
Rules read as follows:
|
104. (1)
At any time, the Court may
(a)
order that a person who is not a proper or necessary party shall cease to be
a party; or
(b)
order that a person who ought to have been joined as a party or whose
presence before the Court is necessary to ensure that all matters in dispute
in the proceeding may be effectually and completely determined be added as a
party, but no person shall be added as a plaintiff or applicant without his
or her consent, signified in writing or in such other manner as the Court may
order.
(2) An order
made under subsection (1) shall contain directions as to amendment of the
originating document and any other pleadings.
. . .
303. (1)
Subject to subsection (2), an applicant shall name as a respondent every
person
(a)
directly affected by the order sought in the application, other than a
tribunal in respect of which the application is brought; …
[My emphasis.]
|
104. (1)
La Cour peut, à tout moment, ordonner :
a)
qu’une personne constituée erronément comme partie ou une partie dont la
présence n’est pas nécessaire au règlement des questions en litige soit mise
hors de cause;
b)
que soit constituée comme partie à l’instance toute personne qui aurait dû
l’être ou dont la présence devant la Cour est nécessaire pour assurer une
instruction complète et le règlement des questions en litige dans l’instance;
toutefois, nul ne peut être constitué codemandeur sans son consentement,
lequel est notifié par écrit ou de telle autre manière que la Cour ordonne.
(2)
L’ordonnance rendue en vertu du paragraphe (1) contient des directives quant
aux modifications à apporter à l’acte introductif d’instance et aux autres
actes de procédure.
[…]
303. (1)
Sous réserve du paragraphe (2), le demandeur désigne à titre de
défendeur :
a)
toute personne directement touchée par l’ordonnance recherchée, autre
que l’office fédéral visé par la demande;
[Je souligne.]
|
[7]
It appears to the Court that paragraph 303(1)(a)
of the Rules is the most appropriate provision on which to rely in the context
of an application for judicial review to determine who shall be named as a
respondent in such a dispute, as that provision contains the test to apply in
precisely this situation.
[8]
With that in mind, having additional recourse to
paragraph 104(1)(b) of the Rules adds little beyond providing a
procedural vehicle for the motion of a respondent who wishes to be designated
as such in an application for judicial review.
[9]
In this respect, as I indicated at paragraph 13 of Richards
Packaging Inc. v Canada (Attorney General), 2006 FC 257:
13. By prescribing that a
person who ought to have been joined as a party may be added as a party by the
Court, rule 104(1)(b) really brings our attention forward to rule 303(1)(a)
where a mandatory duty is imposed on an applicant in a judicial review
application to name as respondent every person directly affected by the order
sought in the application. In other words, a person who will be directly
affected by the outcome of the decision to be rendered on an application shall
be named as a respondent.
[My emphasis.]
[10]
It therefore appears to be of little use for this Court to
consider the necessity test also described at paragraph 104(1)(b) of
the Rules, which may be more useful in the case of an application to add a
party to an action.
[11]
In the circumstances, then, is it reasonable to conclude
that BHTC will be directly affected by the orders or remedies sought by
Eurocopter in its application for review? The Court considers this reasonable
for the following reasons.
[12]
First, despite the fact that, at paragraph 9 of its
written representations attached to its reply record regarding this motion,
Eurocopter described [translation]
“BHTC as a potentially interested party in this case, without, however, being
directly affected by the orders sought”, therefore making it appropriate simply
to send BHTC a courtesy copy of the application for review, Eurocopter itself,
at paragraph 14 of its application for review, was of the view in June
2013 that BHTC’s rights [translation]
“could be affected by the orders sought” in the application for review.
[13]
It is worthy of note that in Reddy-Cheminor, Inc.
v Canada (Attorney General (2001), 15 CPR (4th) 215 at para 30, the
phrase “directly affected by the order sought” found at paragraph 303(1)(a)
of the Rules was qualified as follows:
In order to be directly affected
by the orders Chemicor seeks in the judicial proceeding, Astra Zeneca must
point to how a sufficient interest in terms of legal rights or otherwise would
be adversely impacted or prejudiced by them.
[My emphasis.]
[14]
Such prejudice or impact is certainly present in terms of
the central dynamic that Eurocopter itself has established to obtain the remedial
orders sought, which are identified above at paragraph 4.
[15]
While the orders sought by Eurocopter could be viewed, as
Eurocopter claims, as being directed against the Minister, the fact remains
that Eurocopter identifies and targets BHTC and that the primary victim in the
event that the Request for Proposals is quashed and the award of the contract
suspended can only be BHTC because, according to Eurocopter, BHTC is the entity
that will benefit from the process being followed by the Minister. Therefore,
BHTC is directly affected by the orders sought.
[16]
The fact that the Request for Proposals contains a
provision to the effect that, ultimately, the Minister reserves the right to
reject any or all submissions or cancel the Request for Proposals is an
argument that should not and must not distract us in the context of this
dispute. There is no evidence of the potential for or likelihood of use of this
power by the Minister.
[17]
Moreover, the fact that Eurocopter and the current
respondents have agreed upon a timetable is not sufficient to eliminate the
possibility that Eurocopter will seek the interim orders it mentions in its
application for review through a separate motion brought under
section 18.2 of the Federal Courts Act.
[18]
Finally, BHTC is directly affected by the request to the
Minister for documents regarding its Bell 429 aircraft. That is the subject of
an order that the Court could potentially be called upon to render under Rules
317 and 318, and the fact that BHTC must be consulted in any event at the end
of the process does nothing to change the fact that it is directly affected by
the request to obtain these documents.
[19]
Furthermore, the Attorney General of Canada and the
Minister do not oppose the motion in question.
[20]
Therefore, for the reasons provided, BHTC’s motion will be
allowed in accordance with the order that follows, with costs, which the Court
sets at $2,000.00.
ORDER
1.
Bell Helicopter Textron Canada Limited is added to this
file as a respondent and the style of cause will now read as follows:
|
|
EUROCOPTER
CANADA LIMITED
|
|
|
|
Applicant
|
|
and
|
|
|
THE
ATTORNEY GENERAL OF CANADA
and
THE
MINISTER OF PUBLIC WORKS AND GOVERNMENT SERVICES
and
BELL
HELICOPTER TEXTRON
CANADA
LIMITED
|
|
|
|
Respondents
|
|
|
|
|
2.
Bell Helicopter Textron Canada Limited must serve and file
its notice of appearance on or before August 2, 2013.
3.
Bell Helicopter Textron Canada Limited must follow the
timetable already agreed upon by the existing parties.
4.
Costs in the amount of $2,000.00 are awarded to Bell
Helicopter Textron Canada Limited.
5.
This proceeding will continue as a specially managed
proceeding.
“Richard
Morneau”
Certified true translation
Francie Gow, BLC, LLB
Email this Content