Dockets:
A-321-15
A-323-15
Citation:
2016 FCA 277
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CORAM:
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DAWSON J.A.
NEAR J.A.
WOODS J.A.
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BETWEEN:
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MONROE
SOLUTIONS GROUP INC.
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT
DAWSON J.A.
[1]
These two applications for judicial review arise
out of two federal government initiatives: the Build in Canada Innovation
Program (BinCIP) and the Canadian Safety and Security Program (CSSP). Calls for
Proposals were issued by Public Works and Government Services Canada (PWGSC)
under both programs. In response, Monroe Solutions Group Inc. submitted a
proposal under the BinCIP and two proposals for innovations made under the
CSSP. The proposal submitted under the BinCIP was rejected as being
noncompliant with mandatory screening criteria. The two proposals submitted
under the CSSP were not selected to advance because of various difficulties.
[2]
Monroe then filed complaints with the Canadian
International Trade Tribunal. While the Tribunal initially accepted the
complaints for inquiry, PWGSC moved under Rule 24 of the Canadian
International Trade Tribunal Rules, SOR/91-499 for an order ceasing the
inquiries. The Tribunal granted the motions and dismissed the complaints on the
basis that Article 506(12)(h) of the Agreement on Internal Trade
applied. Article 506(12)(h) exempts a procurement from the usual
competitive process where “only one supplier is able to
meet the requirements of a procurement” and where the procurement is in
respect of a “prototype or a first good or service to
be developed in the course of and for a particular contract for research,
experiment, study or original development, but not for any subsequent purchases”.
It followed that the complaints had no valid basis.
[3]
These are applications for judicial review from
two decisions of the Tribunal (rendered in file No. PR-2014-053 in respect of
the proposal made under the BinCIP, and in File Nos. PR-2014-054 and
PR-2014-056 in respect of the two proposals made under the CSSP).
[4]
On these applications Monroe submits that the
Tribunal decisions should be set aside because:
i
The Tribunal’s interpretation of the relevant
provisions of the Canadian International Trade Tribunal Act, R.S.C.,
1985, c. 47 (4th Supp.) (Act) and Article 506 of the Agreement on Internal
Trade is reviewable on the standard of correctness.
ii
The Tribunal erred by incorrectly interpreting
its jurisdiction under section 30.13(5) of the Act or incorrectly applying
Article 506 of the Agreement on Internal Trade.
iii
In the alternative, if the applicable standard
of review is reasonableness, the Tribunal’s decision was unreasonable.
iv
The Tribunal breached the duty of procedural fairness
as it did not receive submissions from Monroe on whether the complaints had a
valid basis.
[5]
I respectfully disagree for the following
reasons.
[6]
Both the Tribunal’s interpretation of the Act
and the Agreement on Internal Trade involve an administrative decision-maker
interpreting its home statute or a provision closely related to its function.
Nothing in the legislative context or in the nature of the interpretive
questions at issue rebuts the presumption of reasonableness review.
[7]
Further, as the Attorney General correctly
argues, no question of true jurisdiction arises. The Tribunal possessed
jurisdiction to dismiss the complaints pursuant to subsection 10(a) of
the Canadian International Trade Tribunal Procurement Inquiry Regulations
(SOR/93-602) which provides that the Tribunal may, at any time, order that a
complaint be dismissed where, taking into account relevant legislative
provisions and agreements, the Tribunal determines that “the complaint has no valid basis.” This was the
provision the Tribunal expressly relied upon when reaching its decisions.
[8]
The Tribunal determined that the complaints had
no valid basis because, in its view, the procurements fell within Article
506(12)(h) of the Agreement on Internal Trade. It follows that
these applications turn on whether the Tribunal reasonably construed the
procurement processes at issue to fall within Article 506(12)(h) of the Agreement
on Internal Trade.
[9]
On these applications Monroe does not challenge
the Tribunal’s conclusion that any procurement was in respect of a “prototype…to
be developed.” It challenges the Tribunal’s conclusion that “only one supplier
is able to meet the requirements of a procurement.”
[10]
In its decision rendered in File No. PR-2014-053
relating to the proposal submitted pursuant to the BinCIP the Tribunal wrote at
paragraph 21 of its reasons:
21. The process described in the CFP
has the rather unique result that the types of innovative goods and services
available in the pre-qualified proposals inform the needs of the
government, through the test department matching process, instead of responding
to an already identified government requirement. By definition,
therefore, only one supplier, the author of a given proposal, will be “able to meet the requirements of a
procurement”, and the condition set out in
Article 506(12) is met.
(Emphasis in original)
[11]
Similarly, in its decision rendered in File Nos.
PR-2014-054 and PR-2014-056 in respect of the two proposals submitted under the
CSSP the Tribunal wrote at paragraph 22:
22. The process described in the CFP
has the rather unique result that the types of goods and services that are
successful in the funding process are not responding to an
already identified government requirement, but rather are informing that
need. By definition, therefore, only one supplier, the non-government partner
in a given proposal, will be “able
to meet the requirements of a procurement”, and
the condition set out in Article 506(12) is met.
(Emphasis in original)
[12]
In my view, Monroe has failed to demonstrate
that the analysis of the Tribunal was not justified, transparent and
intelligible nor has it demonstrated that the outcome did not fall within the
range of rational, acceptable solutions defensible in light of the facts and
law.
[13]
The interpretation of the Agreement on
Internal Trade by the Tribunal was reasonable in the unique circumstances
presented by the BinCIP and CSSP initiatives. The sole-source nature of each
process was reflected in the fact that each Call for Proposal was express that
those placed in pre-qualified pools were not guaranteed a contract.
[14]
In the case of the BinCIP, the Call for Proposals
specified in section 2.2 that:
The establishment of
the Pre-Qualified Pool is “approved in principle” and will not constitute a
guarantee on the part of Canada that a contract will be awarded. Approved in
principle for contract consideration is defined as conditional acceptance of
the Proposal subject to meeting the criteria identified in Part 5, Basis of
Selection and the available funding.
[15]
In the case of the CSSP, the Synopsis and Full
Proposal and Stages of the Call for Proposals created a short list of suppliers
with which Canada could negotiate a contract if a number of further conditions
were met.
[16]
Finally, I have not been persuaded of any breach
of procedural fairness. Monroe made submissions to the Tribunal on the
application of Article 506(12) of the Agreement on Internal Trade and it
must be deemed to know that the Tribunal could at any time dismiss a complaint
if satisfied that the complaint had no valid basis.
[17]
It follows that I would dismiss the applications
for judicial review with costs.
“Eleanor R. Dawson”
“I agree
D.G. Near J.A.”
“I agree
Judith M. Woods
J.A.”
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