Docket: A-21-17
Citation: 2017 FCA 179
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CORAM:
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BOIVIN J.A.
RENNIE J.A.
WOODS J.A.
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BETWEEN:
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ATTORNEY
GENERAL OF CANADA
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Applicant
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and
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M.D. CHARLTON
CO. LTD.
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Respondent
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Heard at Ottawa, Ontario, on September 5, 2017.
Judgment delivered from the Bench at Ottawa, Ontario, on September
5, 2017.
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REASONS FOR JUDGMENT OF THE COURT BY:
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BOIVIN
J.A.
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Docket: A-21-17
Citation:
2017 FCA 179
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CORAM:
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BOIVIN J.A.
RENNIE J.A.
WOODS J.A.
|
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BETWEEN:
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ATTORNEY
GENERAL OF CANADA
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Applicant
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and
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M.D. CHARLTON
CO. LTD.
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on
September 5, 2017).
BOIVIN J.A.
[1]
The Applicant, the Attorney General of Canada
(the AGC), seeks judicial review of the costs portion of a decision by the
Canadian International Trade Tribunal (the CITT) rendered on December 16, 2016.
[2]
The AGC submits that it was successful in
defending its procurement process from M.D. Charlton Co. Ltd.’s allegations of
discrimination, and that the CITT erred in deciding that “each party will bear its own costs”.
[3]
As a matter of general principle, costs are
awarded to the successful party. This principle is also reflected in the CITT’s
Procurement Costs Guideline, updated on June 1, 2014. The Guideline
mandates that, “[i]n general,
costs should be awarded to the successful party, whether it be the complainant
or the government institution”. However, like all general principles it can be subject to exception
and the CITT may depart from the general principle on costs.
[4]
The problem with the CITT’s decision on costs is
that, in the CITT’s Determination and Reasons of December 16, 2016, there is no
explanation as to why it departed from the general principle. Further, there is
nothing in the record that supports the decision of the CITT to have each party
bear its own costs (Newfoundland and Labrador Nurses' Union v. Newfoundland
and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at
para. 12).
[5]
In these circumstances, we are all in agreement
that the CITT did not properly exercise its discretion in the costs portion of its
decision.
[6]
Before concluding, it is noteworthy that the
respondent did not file a notice of appearance and did not file a factum. An
Order of the Chief Justice dated 20 of June, 2017 set the time, location and
duration of the appeal hearing and this was sent to the respondent. The
respondent was contacted by the Registry and confirmed receiving the said
Order. However, the respondent also confirmed his intention to not attend the hearing.
[7]
For the above-stated reasons, the application
for judicial review will be granted. The CITT’s Order respecting costs will be
set aside.
"Richard Boivin"
FEDERAL
COURT OF APPEAL
NAMES
OF COUNSEL AND SOLICITORS OF RECORD
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DOCKET:
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A-21-17
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STYLE OF CAUSE:
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ATTORNEY
GENERAL OF CANADA v. M.D. CHARLTON CO. LTD.
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PLACE OF
HEARING:
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Ottawa, Ontario
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DATE OF
HEARING:
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September 5, 2017
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REASONS
FOR JUDGMENT OF THE COURT BY:
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BOIVIN J.A.
RENNIE J.A.
WOODS J.A.
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DELIVERED
FROM THE BENCH BY:
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BOIVIN J.A.
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APPEARANCES:
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Sanam Goudarzi
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For The
Applicant
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SOLICITORS OF RECORD:
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Nathalie G. Drouin
Deputy Attorney General of Canada
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For The
Applicant
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