Digests

Ready John Inc. v. Canada (Department of Public Works and Government Services)

A-372-03, A-433-03

2004 FCA 222, Evans J.A.

8/6/04

23 pp.

Judicial review arising from award of contract to supply chemical toilets and hand wash stations to Department of National Defence (DND)--In March 2003, Public Works and Government Services Canada awarded standing offer to Plaggenborg's Ltd. (Plaggenborg) to supply and service chemical portable toilets and hand wash stations to Canadian Forces Base Gagetown (CFBG)--Supply to be on "on demand" basis over two-year period, starting April 1, 2003-- Ready John Inc. (Ready John), only other compliant bidder and holder of previous standing offers to supply chemical toilets to CFBG, complained to Canadian International Trade Tribunal (CITT) award of contract invalid because Plaggenborg's bid did not comply with mandatory requirement 14.1.1 found in specification for proposed procurement--Ready John complained to CITT under Canadian International Trade Tribunal Act, s. 30.11(1), and maintained Plaggenborg not in possession of 250 toilets as required by requirement 14.1.1, since, when contract awarded, Plaggenborg neither owned, nor had in its inventory, requisite number of toilets--CITT dismissed complaint on ground Plaggenborg in possession of requisite number of units because it could "control allocation of units to this procurement" by virtue of agreement with supplier--CITT refused to award Crown its costs, because of lack of clarity in requirement 14.1.1--Ready John applied for judicial review to set aside CITT's dismissal of its complaint (A-372-03)-- Attorney General alleging decision not to award costs to Crown unreasonable (A-433-03)--Meaning of "possession" --CITT correctly concluding person may be in possession of something, even though they do not own it--New Shorter Oxford English Dictionary on Historical Principles, Oxford: Clarendon Press, 1993 defines possession as "action or fact of holding or having something . . . in one's control; actual holding . . . ." and in law, "visible power or control over a thing"--When used in legal context, core meaning of possession is physical control of thing and often, but not necessarily, exclusive control--Whether person in possession of property may depend upon kind of property over which possession claimed and on particular legal context in which determination must be made--Possession expresses relationship between individual and particular piece of property--Thus, as applied to tangible personal property, it connotes control, often exclusive of others, or legal right to assume control--Whether person has sufficient control over particular chattel to have it "in their possession" for purpose of legal rule question of mixed fact and law--Requirement of control makes possession narrower concept than that of access or availability--As to possession for purpose of requirement 14.1.1, general purpose of requirement 14.1.1 to ensure that, when DND orders delivery to CFBG of specified number of chemical toilets, contractor will be able to perform in accordance with terms of standing offer--Inspection requirement of 14.1.1 may also suggest that, before contract awarded, contractor must be able to identify toilets it intends to use to fulfil its obligations under standing order--Three possibilities as to when requirement of "possession" to be met: immediately prior to or on award of standing offer; both when contract awarded and for its duration; immediately prior to, or on award of contract, contractor establishing able to take possession of at least 250 toilets at short notice, at any time during life of contract--However, last interpretation difficult to square with words of requirement 14.1.1--CITT of view Plaggenborg complied with requirement 14.1.1 because in possession of minimum number of toilets immediately prior to and soon after contract awarded by virtue of leasing agreement --Not unreasonable for CITT to have concluded these were times at which contractor had to be in possession of prescribed number of units--CITT equated "possession" with de facto ability of Plaggenborg to ensure, at time contract awarded, that it was able to allocate sufficient units to procurement--CITT's decision not rationally supportable and defect in its reasoning sufficiently obvious and immediate as to make decision unreasonable--First, CITT misdirected inquiry when it equated "possession" in context with ability on part of contractor to "control allocation of units to this procurement" --Fails to focus on Plaggenborg's relationship with respect to particular goods and to address key question of whether Plaggenborg had 250 chemical toilets in its de facto control-- Second, CITT of view Plaggenborg in possession of toilets which, when ordered, would be delivered without delay-- Error in that equates lease of particular chattel with agreement to lease at some future date unspecified number of goods of generic description--Third, CITT also based decision on evidence that, having secured reliable source of supply, A-1 would in fact be able to perform contract to lease units to Plaggenborg--However, this alone cannot satisfy requirement contractor must have at least 250 toilets in its possession when contract awarded--Ready John's application allowed-- Crown's application dismissed--Canadian International Trade Tribunal Act, R.S.C., 1985 (4th Supp.), c. 47, s. 30.11(1) (as enacted by S.C. 1993, c. 44, s. 44).