Digests

Telus Integrated Communications v. Canada (Attorney General)

T-1297-00

Lemieux J.

11/8/00

21 pp.

Motion to strike judicial review application on ground procurement review mechanism provided for in Canadian International Trade Tribunal Act constituting adequate alternative remedy barring Telus from continuing judicial review, or for stay of judicial review pending outcome of Canadian International Trade Tribunal (CITT) inquiry into Telus' procurement complaint--Telus submitting bid related to supply of telecommunications services for various Department of National Defence locations--In April 2000 Telus receiving, responding to request for clarification--On June 16, 2000 Public Works entering into contract with BCE Nexxia Inc.--On June 19 Telus informed of contract, and that its proposal non-compliant for failing to meet mandatory requirement of request for proposal (RFP)--Telus filed complaint with CITT alleging Public Works failed to follow bid evaluation procedures set out in RFP; asking CITT to order postponement of awarding of contract--CITT advised Telus could only order postponement of contract to be awarded, not of contract already awarded--Telus filed judicial review application of decision to award contract, seeking to have decision set aside, interlocutory injunction prohibiting Minister from continuing with contract--Claiming Minister has policy of not advising unsuccessful bidder of results of evaluation until after contract awarded to avoid attempted contest of proposed award--Act, s. 30.11 permitting potential supplier to file complaint concerning any aspect of procurement process relating to designated contract, and request CITT to conduct inquiry into complaint --S. 30.13(3) empowering CITT to order government institution to postpone awarding of contract until determining validity of complaint--Postponement power subject to government override pursuant to s. 30.13(4)--CITT to determine whether complaint valid on basis of whether procedures, other prescribed requirements observed (s. 30.14(2))--Under 30.15(2), CITT may recommend such remedy as considers appropriate--In recommending appropriate remedy, CITT must consider all of circumstances (s. 30.15(3))--Under Canadian International Trade Tribunal Procurement Inquiry Regulations, s. 12, CITT normally to render decision within 90 days after filing complaint, but time limit may be shortened to 45 days, or extended to no more than 135 days--Application dismissed--Beetz J. enumerating factors to be considered to evaluate whether adequate alternative remedy in Harelkin v. University of Regina, [1979] 2 S.C.R. 561--Lamer C.J. building on Harelkin factors in Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3--Adding courts must consider adequacy of statutory appeal procedures created, not simply adequacy of appeal tribunals--All factors must be considered to assess overall statutory scheme--Correct question whether tribunals adequate forum, not whether better forum than courts--In Anderson v. Canada (Armed Forces), [1997] 1 F.C. 273 (C.A.), Stone J.A. holding must consider legal framework out of which matter arising to assess adequacy of alternative remedy--Test for striking out judicial review application set out in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 (C.A.) whether notice of motion so clearly improper as to be bereft of any possibility of success--Court not satisfied adequate alternative remedy doctrine so overwhelming as to render Telus' judicial review application bereft of any chance of success--Recognizing (1) CITT's mandate as chosen arbiter of procurement complaints involving federal institutions; (2) CITT's wide-ranging powers to inquire into any aspect of procurement process; (3) CITT's expertise; (4) tight time lines for decision making; (5) CITT's power to recommend contract termination; (6) government institution's obligation to implement recommendations to greatest extent possible--Telus' judicial review application not mere parallel proceeding to CITT complaint in respect of same decision with substantially overlapping factual issues--Factual underpinning in judicial review application not focussing on merits of decision Telus non-compliant, but on Minister's actions, policy in entering into contract before advising Telus non-compliant--Interim injunction, suspension remedy in judicial review application seeking to restore Telus to same position would have been in but for alleged unlawful actions of Minister based on policy, namely ability to seek postponement of award of contract, power which CITT says does not have if contract awarded--To grant stay of judicial review proceedings pending outcome of CITT's inquiry would render nugatory, meaningless Telus' judicial review application--Canadian International Trade Tribunal Act, R.S.C., 1985 (4th Supp.), c. 47, ss. 30.11 (as enacted by S.C. 1993, c. 44, s. 44), 30.13 (as enacted idem), 30.14 (as enacted idem), 30.15 (as enacted idem)--Canadian International Trade Tribunal Procurement Inquiry Regulations, SOR/93-602 (as am. by SOR/95-300), s. 12.