Date: 20021213
Neutral citation: 2002 FCA 497
BETWEEN:
SEPROTECH SYSTEMS INC.
Applicant
and
PEACOCK INC., ZENON ENVIRONMENTAL INC. and
PUBLIC WORKS AND GOVERNMENT SERVICES CANADA
Respondents
Docket: A-632-02
BETWEEN:
THE MINISTER OF PUBLIC WORKS AND GOVERNMENT SERVICES
Applicant
and
PEACOCK INC., ZENON ENVIRONMENTAL INC. and SEPROTECH SYSTEMS
INC.
Respondents
Motion dealt with in writing without appearance of parties.
Judgment delivered at Ottawa, Ontario, on December 13, 2002.
REASONS FOR ORDER BY: NOËL J.A.
Date: 20021213
Neutral citation: 2002 FCA 497
BETWEEN:
SEPROTECH SYSTEMS INC.
Applicant
and
PEACOCK INC., ZENON ENVIRONMENTAL INC. and
PUBLIC WORKS AND GOVERNMENT SERVICES CANADA
Respondents
Docket: A-632-02
BETWEEN:
THE MINISTER OF PUBLIC WORKS AND GOVERNMENT SERVICES
Applicant
and
PEACOCK INC., ZENON ENVIRONMENTAL INC. and SEPROTECH SYSTEMS
INC.
Respondents
REASONS FOR ORDER
[1] The applicants Seprotech Systems Inc. (Seprotech) and the Minister of Public Works and Government Services (PWGS) each move, pursuant to rule 369, for orders to stay that portion of the Determination of the Canadian International Trade Tribunal (CITT) dealing with its Recommendation (File No. PR-2002-015, dated October 15, 2002) pending the disposition of the applications for judicial review.
[2] The CITT upheld the Complaint in part and recommended that the contract awarded to Seprotech in June 2002 be terminated and the proposals from the other two bidders Peacock Inc., and Zenon Environmental Inc. (Zenon) be re-evaluated.
[3] Having regard to the facts presented on these applications, I am satisfied that the criteria for a stay have been met (RJR McDonald Inc. v. A.G. Canada, [1994] 1 S.C.R. 311). There is at least one serious issue to be dealt with on the Applications for Judicial Review, namely whether the CITT erred in finding that the terms of Annex "A" of the Request for Proposal required written confirmation from the original equipment manufacturers, or their distributors, authorized dealers or agents in respect of components that were not commercially available or available as an off-the-shelf item.
[4] There could be irreparable harm to Seprotech as a result of the termination of the contract pending the hearing of the applications. Seprotech is a small publicly traded company and the greater part of its revenues stem from the contract (affidavit of Turcotte, at paragraph 19). Zenon recognizes that Seprotech is in a vulnerable position and I am satisfied that the termination of the contract could give rise to permanent market loss, permanent loss of specialized employees, and irrevocable damage to its business reputation.
[5] The balance of convenience also tilts in favour of allowing Seprotech to continue to offer its services to the Department of National Defence under the present contract. While the evidence establishes that Seprotech could suffer irreparable harm, I have not been convinced that the respondent Zenon would suffer any significant harm as a result of allowing the contract to remain in place pending the outcome of the applications for judicial review.
[6] The above described Recommendation of the CITT will therefore be stayed pending the final disposition of the applications for judicial review.
"Marc Noël"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET:A-612-02
STYLE OF CAUSE:Seprotech Systems Inc. v.
Peacock Inc., Zenon Environmental Inc. and Minister of Public Works and Government Services Canada
MOTION DEALT WITH IN WRITING
WITHOUT THE APPEARANCE OF PARTIES
REASONS FOR ORDER BY: NOËL J.A.
DATED:December 13, 2002
WRITTEN REPRESENTATIONS BY:
Gerry H. StoboFOR THE APPLICANT
Ronald D. LunauFOR THE RESPONDENT,
Phuong T.V. NgoZenon Environmental Inc.
SOLICITORS OF RECORD:
Borden Ladner Gervais, s.r.l.FOR THE APPLICANT
Ottawa, Ontario
Gowling Lafleur Henderson LLPFOR THE RESPONDENT,
Ottawa, OntarioZenon Environmental Inc.
Morris RosenbergFOR THE RESPONDENT,
Attorney General of CanadaDeputy Minister of PWGSC
Stikeman ElliottFOR THE RESPONDENT,
Montréal, QuébecPeacock Inc.