Docket: A-128-17
Citation:
2017 FCA 227
CORAM: NOËL C.J.
TRUDEL J.A.
WEBB 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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HEWLETT-PACKARD
(CANADA) CO.
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Respondent
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and
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CANADIAN
INTERNATIONAL TRADE TRIBUNAL
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Intervener
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REASONS
FOR ORDER
WEBB J.A.
[1]
The Canadian International Trade Tribunal (CITT)
has brought a motion for an order striking the application of the Attorney
General of Canada (AG) for judicial review of a decision of the CITT. The CITT
dismissed the Shared Services Canada’s (SSC) preliminary motion to dismiss the
complaint filed by Hewlett-Packard (Canada) Co. (HP) before the hearing was
held.
[2]
HP had filed a complaint with the CITT on
November 11, 2016. On December 15, 2016 SSC brought a motion before the CITT
alleging that the CITT lacked the jurisdiction to hear HP’s complaint. The CITT
issued an order dismissing this motion on January 10, 2017. The reasons for
dismissing this motion were included with the reasons issued by the CITT on
March 20, 2017 following its determination of HP’s complaint. SSC was
successful in relation to the merits of HP’s complaint. HP did not seek
judicial review of the final determination but the AG is seeking judicial
review of the preliminary decision of the CITT on whether the CITT had the
jurisdiction to hear the complaint.
[3]
In this motion, the CITT raised a number of
grounds. In particular it raised the ground that the application for judicial
review should be dismissed because it is moot.
[4]
In Borowski v. Canada (Attorney General),
[1989] 1 S.C.R. 342, at 353, 92 NR 110, Justice Sopinka, writing on behalf of
the Supreme Court of Canada the two step analysis in relation to the doctrine
of mootness:
The approach in recent cases involves a
two-step analysis. First it is necessary to determine whether the required
tangible and concrete dispute has disappeared and the issues have become
academic. Second, if the response to the first question is affirmative, it is
necessary to decide if the court should exercise its discretion to hear the
case. …
[5]
In paragraph 10 of the AG’s memorandum filed in
relation to this motion, it is stated that “Canada
acknowledges that this application is moot”. Therefore the only issue is
whether this Court should exercise its discretion to hear this application.
[6]
This decision is a discretionary decision. The
Supreme Court of Canada has provided some guidelines in Borowski, at
pages 358 – 359, to assist a court in determining whether the discretion to
hear the case should be exercised. In particular the Supreme Court noted that:
The first rationale for the policy and
practice referred to above is that a court's competence to resolve legal
disputes is rooted in the adversary system. The requirement of an adversarial
context is a fundamental tenet of our legal system and helps guarantee that
issues are well and fully argued by parties who have a stake in the outcome. It
is apparent that this requirement may be satisfied if, despite the cessation of
a live controversy, the necessary adversarial relationships will nevertheless
prevail.
[7]
In this case, HP is not participating in the
judicial review application. This only leaves the AG and the CITT, as an intervener.
It is the CITT’s own decision that is the subject of the judicial review
application. The CITT would be defending its own decision. In my view, this
factor does not weigh in favour of exercising the discretion to hear the
matter.
[8]
The Supreme Court also referred to the concern
for judicial resources as a factor to be considered at pages 360 - 361. In
relation to this aspect, an important consideration will be the frequency in
which the issue under review arises. In the AG’s memorandum, it is stated that:
21. The issue in this case is evasive of
review. If the Court declines to hear this application, Canada must await (a)
the issuance of a procurement subject to the Omnibus NSE, (b) a complaint from
a potential bidder about that procurement, and (c) for the CITT to uphold the
complaint (upon dismissing a motion from SSC on jurisdictional grounds). The
Omnibus NSE was invoked in 2012 and not once since the invocation has a case
arisen that satisfies these three criteria. Contrary to the CITT’s assertion
that it regularly receives procurement challenges regarding SSC procurements,
not a single complaint has been filed relating to a procurement subject to the
Omnibus NSE since the CITT released its decision in this case. It is thus
entirely speculative as to when this issue will be ripe for the Court’s review,
which justifies exercising this Court’s discretion to hear it now.
[9]
The CITT, in paragraph 30 of its reply
submissions, disputes these assertions and submits that there are more
opportunities for the AG to raise this issue.
[10]
If, as submitted by the AG, this is rare and may
not arise again, this does not weigh in favour of exercising the discretion to
hear this case. If, as submitted by the CITT, there may be several other
opportunities to raise this issue, in my view, this would also not weigh in
favour of exercising the discretion to hear this application. If there are
other occasions to raise this issue, there should be a case where there is an
opposing party, other than the CITT, to advance the arguments that would be
opposed to the arguments that would be advanced by the AG on the merits of the
judicial review application.
[11]
As a result, I would not exercise the discretion
to have this matter heard. I would allow the motion of the CITT and dismiss
this application for judicial review.
“Wyman W. Webb”
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“I agree
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Marc Noël C.J.”
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“I agree
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Johanne Trudel J.A.”
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