Date: 20000526
Docket: A-481-99
CORAM: DESJARDINS J.A.
ROTHSTEIN J.A.
McDONALD J.A.
BETWEEN:
NOVELL CANADA LTD.
Applicant
and
THE MINISTER OF PUBLIC WORKS
AND GOVERNMENT SERVICES CANADA and
MICROSOFT CORPORATION
Respondents
HEARD at Ottawa, Ontario, on Wednesday, May 24, 2000
JUDGMENT DELIVERED from the Bench at Ottawa, Ontario, on Friday, May 26, 2000
REASONS FOR JUDGMENT OF THE COURT BY: ROTHSTEIN J.A.
Date: 20000526
Docket: A-481-99
CORAM: DESJARDINS J.A.
ROTHSTEIN J.A.
McDONALD J.A.
BETWEEN:
NOVELL CANADA LTD.
Applicant
and
THE MINISTER OF PUBLIC WORKS
AND GOVERNMENT SERVICES CANADA and
MICROSOFT CORPORATION
Respondents
REASONS FOR JUDGMENT
(Delivered from the Bench at Ottawa, Ontario
on Friday, May 26, 2000)
ROTHSTEIN J.A.
[1] This is a judicial review of a July 7, 1999 decision of the Canadian International Trade Tribunal. In its decision, the Tribunal recommended that the department of Human Resources Development Canada terminate a contract for 600 Microsoft NT server licences and that HRDC"s requirement for a contingent technical alternative to its Network Operating System be competed.
[2] The applicant says that the Tribunal declined to exercise its jurisdiction to determine, according to the applicant"s claim, whether the government respondents were engaging in contract splitting so as to avoid their obligations under the North American Free Trade Agreement S.C. 1993 c. 44, the Agreement on Government Procurement pursuant to the World Trade Organization Agreement, S.C. 1994 c. 47, and the Agreement on Internal Trade S.C. 1996 c. 17.
[3] The contract at issue involved the provision of software licences for Y2K purposes. By letter dated July 28, 1999, the Minister of Public Works and Government Services Canada informed the Tribunal that, pursuant to section 30.18 of the CITT Act, the Department would not be implementing the Tribunal"s recommendation since it was not possible to conduct a competition and to install a back-up operating system by December 31, 1999. On August 6, 1999, the applicant sought judicial review in the Trial Division asking for an order directing the Minister to comply with subsection 30.18(1) of the CITT Act by implementing the Tribunal"s recommendation to the greatest extent possible. After January 1, 2000, the respondent had no further need for the licences. On January 31, 2000, Campbell J. issued an order providing:
| Upon the undertaking of the Government of Canada given in open court today, that the 600 Microsoft licences the subject matter of this judicial review application will not be used by Human Resources Development Canada, or any other department agency of the Government of Canada, and that the licences will forthwith either be donated to a public school education for use within such program only, or destroyed; |
By consent, this application is withdrawn.
[4] Subsection 30.11(1) of the CITT Act provides:
| 30.11(1) Subject to the regulations, a potential supplier may file a complaint with the Tribunal concerning any aspect of a procurement process that relates to a designated contract and request the Tribunal to conduct an inquiry into the complaint. |
30.11 (1) Tout fournisseur potentiel peut, sous réserve des règlements, déposer une plainte auprès du Tribunal concernant la procédure des marchés publics suivie relativement à un contrat spécifique et lui demander d'enquêter sur cette plainte. |
[5] There is now no designated contract at issue. The contract was for a Y2K requirement and the software licences acquired have been disposed of. While subsection 30.11(1) is broad enough to confer on the Tribunal jurisdiction to consider any aspect of a procurement process that relates to a designated contract, there must be a designated contract in order to trigger the broader inquiry. As there is now no designated contract at issue, the Tribunal is without jurisdiction to enter into any procurement process inquiry. In other words, there is no jurisdiction in the Tribunal under subsection 30.11(1) to conduct an at-large inquiry into the procurement processes of the government.
[6] The appeal should be dismissed with costs.
"Marshall Rothstein"
J.A.