Date: 20010803
Docket: T-1319-01
Ottawa, Ontario, Friday, August 3, 2001
Present: The Honourable Mr. Justice François Lemieux
BETWEEN:
AMÉNAGEMENT GRANRIVE INC.
Applicant
and
MINISTER OF PUBLIC WORKS
AND GOVERNMENT SERVICES OF CANADA
and
ATTORNEY GENERAL OF CANADA
FOR HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Respondents
ORDER
An order shall issue enjoining the Department of Public Works and Government Services of Canada to invite the applicant forthwith to the process of supplying additional information about its projects. The Department shall evaluate the information supplied by the applicant on the same basis as any other promoter wishing to be qualified for project LE/SH-00-11. The applicant is entitled to its costs.
The applicant shall, in cooperation with the respondents, submit to the Court an accelerated schedule of proceedings for the hearing of the application for judicial review on the merits, no later than August 13, 2001.
"François Lemieux"
J.
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
Date: 20010803
Docket: T-1319-01
Neutral Citation: 2001 FCT 853
BETWEEN:
AMÉNAGEMENT GRANRIVE INC.
Applicant
and
MINISTER OF PUBLIC WORKS
AND GOVERNMENT SERVICES OF CANADA
and
ATTORNEY GENERAL OF CANADA
FOR HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Respondents
REASONS FOR ORDER
LEMIEUX J.
[1] This is a motion for an interlocutory order requested by Aménagement Granrive Inc. ("Granrive").
[2] In early May 2001, Public Works and Government Services Canada ("PWGSC") published in certain newspapers a request for information concerning the possibility of leasing 28,000 usable square metres of office space situated in the cities of Hull and Gatineau in the province of Quebec.
[3] The French text of the request includes the following two paragraphs:
Votre réponse comprend:
a) Une description de votre projet;
b) Un plan montrant l'immeuble proposé et les artères principales et trottoirs qui le desservent;
c) Une description cadastrale de l'immeuble;
d) La durée du bail.
Comme étape préliminaire à une éventuelle invitation à soumissionner TPSGC invitera les promoteurs retenus à soumettre des renseignements supplémentaires sur leur projet.
[4] The English version of these paragraphs reads as follows:
Your response includes:
(a) a description of your project;
(b) a plan showing the location and main arteries and sidewalks serving it;
(c) a legal description of the land;
(d) the proposed term of the lease.
As a preparatory step to a potential invited tender, selected developers will be requested to submit additional information.
[5] The applicant Granrive, the owner of the Place du Centre in Hull, responded to the request for information on May 28, 2001 and proposed two options.
[6] On June 29, 2001, Daniel Champagne of the PWGSC wrote to Granrive stating that he was unable to accept "[Translation] your response since it does not include a plan showing the sidewalks servicing the building in the case of both your option ‘A' and your option ‘B', as required by item ‘b' of the notice."
[7] On July 19, 2001, Granrive filed an application for judicial review of the PWGSC decision of June 29, 2001 by which it had refused to invite it to submit some further information about its project as a preliminary step to a possible invitation to bid.
[8] In its application for judicial review, Granrive sought: (1) a declaration that its response to the request for information was consistent with that request; (2) an order that PWGSC invite it to submit some additional information concerning its project as a preliminary step to a possible invitation to bid.
[9] On the same day, July 19, 2001, Granrive filed a motion for the issuance of an order enjoining PWGSC to invite the applicant forthwith to the process of supplying additional information about its project.
[10] In practice, what Granrive is seeking is an order of this Court requiring that PWGSC send it the information kit to enable it to undertake the next stage of the process, that is, the qualification of the bidders in a potential request for bids.
[11] The Court has been advised that PWGSC sent the promoters who were retained the information kit, which is to be completed and received by it by September 7, 2001.
ANALYSIS
[12] The order sought by Granrive is governed by the principles laid down in RJR-MacDonald Inc. v. Attorney General of Canada, [1994] 1 S.C.R. 311.
[13] Granrive must establish: (1) that its application for judicial review raises a serious question to be tried; (2) that irreparable harm will result if its application for interlocutory relief is not granted; and (3) that the balance of inconvenience favours it.
1. Existence of a serious question to be tried
[14] Sopinka and Cory JJ., on behalf of the Court in RJR-MacDonald, supra, wrote this in regard to the first stage of the review:
Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is generally neither necessary nor desirable.
[15] There are two exceptions to this general rule that do not apply in the circumstances of the motion now before me.
[16] Counsel for Granrive argues that the judicial review application it has filed raises a number of serious questions, including:
(a) the plans accompanying its response to the PWGSC request for information identify the sidewalks since the major arteries are indicated in them;
(b) those responsible for managing the matter at PWGSC are well acquainted with the location proposed by Granrive since the PWGSC occupies some adjacent premises and knows very well that the major arteries (Hôtel de Ville street, Laurier street, Maisonneuve boulevard, Promenade du Portage and Verchères street) are serviced by sidewalks;
(c) the conditions set out by PWGSC in its request for information are not imperative conditions;
(d) on the merits, Granrive meets the requirements of the request for information, considering that the purpose of the request for information is simply to identify the interested promoters;
(e) Granrive had a reasonable expectation that discussions would be held between the applicant and the PWGSC if there were some minor flaw in its response following some conversations between the two parties.
[17] All of the applicant's arguments are peremptorily dismissed by the respondents' counsel. According to him, (1) there is no question that on the face of the plans submitted by Granrive the sidewalks are not indicated; (2) the reasonable expectation is denied by the affidavits of Claude Séguin and Daniel Champagne; and (3) the conditions in the request for information are imperative. Granrive has failed to show any colour of right.
[18] I am unable to find that Granrive has not demonstrated one or more serious questions to be tried in its application for judicial review. The reasonableness of excluding Granrive at the preliminary stage in the specific circumstances of its response to a request for information is an important question as is the reasonable expectation, which will be decided by an evaluation of the apparently contradictory evidence. The questions of whether the conditions are imperative and were fulfilled are not frivolous or vexatious.
2. Irreparable harm
[19] RJR-MacDonald, supra, explains the notion of irreparable harm in these terms:
At this stage the only issue to be decided is whether a refusal to grant relief could so adversely affect the applicants' own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application.
"Irreparable" refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.
[20] I am satisfied that Granrive will suffer irreparable harm if the order is not issued. Without the order, Granrive will have no possibility of qualifying to respond to a call for bids.
[21] The damages that Granrive might obtain if its application for judicial review succeeded and subsequently if it brought an action for damages are hard to quantify and cannot adequately remedy its exclusion from the call for bids process. (See Glenview Corp. v. Canada, [1990] F.C.J. 242.)
(c) Balance of inconvenience
[22] Sopinka and Cory JJ. in RJR-MacDonald, supra, write that this third test, which repeats what Beetz J. said in Manitoba (Attorney General) v. Metropolitan Stores, [1987] 1 S.C.R. 110, consists of a determination as to which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits.
[23] It seems obvious to me that the balance of inconvenience favours Granrive. Its exclusion from the bidding process goes far beyond such harm, if any, that the respondents might suffer by allowing Granrive to qualify for the call for bids.
[24] If the judicial review application is dismissed, Granrive will be disqualified and its future participation in the process terminated.
[25] I think the interlocutory order that is sought maintains the status quo more effectively.
ORDER
[26] An order shall issue enjoining the Department of Public Works and Government Services of Canada to invite the applicant forthwith to the process of supplying additional information about its projects. The Department shall evaluate the information supplied by the applicant on the same basis as any other promoter wishing to be qualified for project LE/SH-00-11. The applicant is entitled to its costs.
[27] The applicant shall, in cooperation with the respondents, submit to the Court an accelerated schedule of proceedings for the hearing of the application for judicial review on the merits, no later than August 13, 2001.
"François Lemieux"
J.
Ottawa, Ontario
August 3, 2001
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: T-1319-01
STYLE: Aménagement Granrive inc. v. Minister of Public Works and Government Services of Canada et al.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: July 30, 2001
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE LEMIEUX
DATED: August 3, 2001
APPEARANCES:
Nicolas Gagnon FOR THE APPLICANT
Rosemarie Millar FOR THE RESPONDENTS
SOLICITORS OF RECORD:
LAVERY, de BILLY FOR THE APPLICANT
Montréal, Quebec
Quebec Civil Matters Branch FOR THE RESPONDENTS
Ottawa, Ontario