Digests

AgustaWestland International Ltd. v. Canada (Minister of Public Works and Government Services)

T-1605-04

2004 FC 1545, Kelen J.

3/11/04

33 pp.

Motion by respondents to strike application for judicial review of procurement process conducted by Public Works and Government Services Canada for contract to supply helicopters to Armed Forces, and motion by applicant for declaration application timely, or for extension of time to apply for judicial review--On July 23, 2004, applicant submitted proposal to supply helicopters--Contract awarded that same day to respondent Sikorsky International Operations, Inc.--Applicant sought answers to number of questions about decision from Public Works, which only responded on August 23--This application commenced September 1--Applicant alleging decision awarding contract to respondent Sikorsky made in bad faith, Minister of Public Works biased against applicant, evaluation process controlled, interfered with--Respondents seeking to have application struck on basis out of time, barred because adequate alternative statutory remedy, i.e. possible to file complaint with Canadian International Trade Tribunal (CITT)-- Adequate alternative remedy if that doctrine so clearly applies as to render judicial review application bereft of any chance of success--Factors to consider: (1) powers, nature of alternative body; (2) nature of error; (3) convenience of alternative remedy; (4) legal framework out of which matter arises; (5) burden of previous finding; (6) expeditiousness; (7) costs-- CITT having jurisdiction to conduct inquiry into complaint by potential supplier concerning any aspect of procurement process re: designated contract proposed to be awarded by government institution--CITT's procurement review process only applying if applicant "Canadian supplier" as defined in Agreement on Internal Trade--Insufficient facts for Court to determine whether applicant "Canadian supplier", whether adequate alternative remedy doctrine applying so as to render judicial review application bereft of any chance of success-- Court not agreeing with applicant's other arguments as to why CITT procurement review process not adequate alternative remedy, i.e. that there must be interprovincial aspect to complaint, that CITT procurement review process not applying to common law duty of fairness in process, law of bias, as F.C.A. having found, in Cougar Aviation Ltd. v. Canada (Minister of Public Works and Government Services) (2000), 264 N.R. 49, CITT's procurement review jurisdiction including duty of fairness, impartiality, right to raise reasonable apprehension of bias--CITT having broad powers, adequate alternative remedy for applicant's complaint if finds applicant "Canadian supplier"--Extension of time to file judicial review application of July 23 decision granted, as (1) applicant's allegations of bad faith warranting proper hearing, extension necessary to do justice between parties; (2) arguable case raised; (3) delay justified in light of Public Works' failure to respond in timely fashion to applicant and evidence of Agusta's continued intent to challenge procurement; (4) 10-day extension of procurement process will not prejudice parties as procurement process stretches back many years -- In light of fact Public Works earlier told applicant of objection to CITT's jurisdiction to hear complaint, applicant's status as "Canadian supplier" previously questioned by CITT, applicant not registered as Canadian supplier since 2000 and not operating in Canada, and Public Works not making commitment not to object to jurisdiction, applicant had reasonable basis not to file complaint with CITT--Parties and Court agreeing CITT appropriate forum in this case -- Applicant to file complaint with CITT--If CITT finds has jurisdiction, judicial review will be stayed--Motion to strike adjourned sine die.