Date: 19991217
Docket: A-710-99
C O R A M: STRAYER J.A.
B E T W E E N:
MIL SYSTEMS, a Division of Davie Industries Inc.
and FLEETWAY INC.
Applicants
" and "
CANADIAN INTERNATIONAL TRADE TRIBUNAL
the MINISTER OF PUBLIC WORKS AND
GOVERNMENT SERVICES CANADA
and SIEMENS WESTINGHOUSE INC.
Respondents
REASONS FOR ORDER
STRAYER J.A.
The question before me is as to whether I should issue an interlocutory injunction to restrain the respondent Minister from issuing any further requisitions or "call-ups" to the respondent Siemens Westinghouse Inc. ("Siemens") pursuant to a contested "contract" on which the applicants were unsuccessful bidders.
The applicants have filed with the Canadian International Trade Tribunal ("CITT") a complaint to the effect that Siemens had been identified by the Minister as the successful bidder in violation of the Agreement on Internal Trade. In their complaint the applicants asked that the CITT postpone the awarding of the contract pursuant to subsection 30.13(3) of the Canadian International Trade Tribunal Act1 which provides as follows:
| 30.13(3) Where the Tribunal decides to conduct an inquiry into a complaint that concerns a designated contract proposed to be awarded by a government institution, the Tribunal may order the government institution to postpone the awarding of the contract until the Tribunal determines the validity of the complaint.
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30.13(3) Le cas échéant, le Tribunal peut ordonner à l'institution fédérale de différer l'adjudication du contrat spécifique en cause jusqu'à ce qu'il se soit prononcé sur la validité de la plainte.
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The CITT has taken the position that a "contract" has already been "awarded" to the respondent Siemens. It has therefore declined to postpone the award of the contract pending determination by it of the complaint.
The applicants have filed an application for judicial review in this Court seeking an order requiring the CITT to redetermine the question of whether a contract has been awarded and whether, if not, the award should be postponed. Pending the hearing and determination of that application by this Court they seek an interim order in the present proceedings prohibiting the further performance of the alleged contract pending determination of the judicial review and pending determination by the CITT of the complaint which they have filed with it concerning the choice of Siemens as the successful bidder.
The question is a difficult one but I have concluded that no interim injunction should be issued.
I am of the view that the applicants have raised a serious issue as to whether the transaction in question between Siemens and the Minister constituted the award of a contract. I think the matter is at least arguable. Nor do I think that this is the kind of situation where the interim remedy being sought would really be a final determination of the matter. In such a case I would be obliged to consider the merits more extensively.2 The grant of an interim injunction here would merely postpone the continuation of performance of an alleged contract until either the judicial review application is heard or until the CITT determines the merits of the complaint. It would not of itself determine the ultimate entitlement to the contract. I am also of the view that this motion cannot be dismissed as being totally devoid of merit on the argument urged by counsel for Siemens, namely that what is being sought is an injunction against the Crown which is precluded by section 22 of the Crown Liability and Proceedings Act.3 It appears to me that the injunction is being sought against the Minister, not the Crown, and that this falls well within permissible judicial review under subsection 18(1) of the Federal Court Act.4 It also appears to me that a plausible argument has been made that if the allegation in the complaint can be substantiated, the Minister would have acted contrary to the requirements of the Agreement on Internal Trade Implementation Act5 and thus would enjoy no Crown immunity.
With respect to irreparable harm, I find very little to choose between the applicants and the respondent Siemens. Both sides have produced evidence of harm they will suffer in keeping or hiring skilled people to perform such a contract. The applicants, who have been engaged in similar work for the government up until now, are in danger of losing relevant staff if Siemens and its subcontractors continue to hire staff for the performance of the alleged contract. The applicants foresee harm to their reputation nationally and internationally as companies able to do this kind of work if they suffer a loss of staff during this hiatus while the CITT is deciding on whether a contract was properly awarded to Siemens. It appears to me however that the CITT can under subsection 30.15(2) of its Act recommend remedies including compensation to the applicants, remedies which by subsection 30.18(1) the relevant government institution is obliged to implement "to the greatest extent possible". It has been held that this creates a serious legal obligation.6 Presumably the applicants might well have an action for breach of contract against the government as well if the bidding process was not properly carried out. On the other hand the applicants are prepared to give an undertaking if an injunction is granted, and Siemens would have recourse to that undertaking if it suffers damage through, as it alleges, loss of money already expended on performance of the contract, salaries paid for staff who would either have to be let go or kept on without work pending the determination by the CITT, etc. From the information available to me I am unable to say with assurance that either side would suffer injuries which could not be, and would not be, compensated for by damages or the equivalent.
With respect to the balance of convenience, again there is not much to choose between the parties. The applicants are incumbent contractors in a similar contract with the government and they face the disruption of winding down their operation because of the alleged award of a new contract to another bidder. On the other hand the respondent Siemens contends it is the successful bidder on a new contract which must be treated as valid until the CITT rules otherwise, and which calls for performance now, a performance which the respondent Siemens has commenced.
Although there is little then to choose between the positions of the applicants and the respondents, I believe I should exercise my discretion against the grant of an interim injunction as I think the status quo will be best preserved by doing that. I am also mindful of the jurisprudence of this Court7 that normally there should not be judicial review of interlocutory orders of tribunals. What is in issue here is an interlocutory order of the CITT refusing to order postponement, pending its hearing of the complaint, of an award of a contract which it considers already to have been awarded. This issue can be addressed appropriately in the judicial review proceedings in the near future when the Court can consider after a full hearing whether there are special circumstances justifying review of the interlocutory order.
I have so concluded, however, on the basis that the hearing of the judicial review application should proceed as quickly as possible. Having consulted with counsel, I am directing that the hearing of the application for judicial review be at Ottawa on January 18, 2000, the hearing to last no longer than 1 day.
By agreement of counsel I will also order that the style of cause be amended to substitute the Minister of Public Works and Government Services for the Department of that title, and that there be kept under seal and confidential, except for access by the Court and counsel, the application records of the applicants and of Siemens Westinghouse Inc., together with contract number W8483-6-EFAA/001/MC dated October 8, 1999.
The respondents are entitled to their costs on this motion.
J.A.
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1 R.S. 1985, c.47 (4th sup.).
2 See e.g. RJR-MacDonald Inc. v. Attorney General of Canada et al [1994] 1 S.C.R. 311 at 338, and authorities cited there.
3 R.S.C. 1985, c. C-50.
4 R.S.C. 1985, c. F-7 as amended.
5 S.C. 1996 c.17.
6 See e.g. Wang Canada Limited v. Minister of Public Works and Government Services [1999] 1 F.C. 3 at 18 (F.C.T.D.).
7 See e.g. Ipsco Inc. v. Sollac et al [1999] F.C.J. 910, May 25, 1999 (unreported).
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