Date: 19990421
Docket: A-695-98
Docket: A-696-98
| CORAM: STONE J.A. |
| DESJARDINS J.A. |
| McDONALD J.A. |
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
- and -
COREL CORPORATION
Respondent
- and -
THE CANADIAN INTERNATIONAL TRADE TRIBUNAL
Intervenor
Heard at Ottawa, Ontario, on Tuesday and Wednesday, April 20 and 21, 1999
Judgment rendered from the Bench at Ottawa, Ontario, on Wednesday, April 21, 1999
REASONS FOR JUDGMENT OF THE COURT: DESJARDINS J.A.
Date: 19990421
Docket: A-695-98
Docket: A-696-98
| CORAM: STONE J.A. |
| DESJARDINS J.A. |
| McDONALD J.A. |
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
- and -
COREL CORPORATION
Respondent
- and -
THE CANADIAN INTERNATIONAL TRADE TRIBUNAL
Intervenor
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench on Wednesday, April 21, 1999)
DESJARDINS J.A.
We are seized with two applications for judicial review with respect to a determination made by the Canadian International Trade Tribunal (the "Tribunal") on October 26, 1998, concerning two complaints1 filed by the respondent ("Corel"), pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act (the "Act").2
The complaints followed a Request for Proposal ("RFP") issued by Revenue Canada, Customs and Excise (the "Department") on April 23, 1998, with a view to implement a RC7 project aimed at establishing a standard year 2000 compliant desktop computer and server infrastructure at all departmental sites across Canada. Prior to that period, from 1991 to August 28, 1997, the Department, in accordance with government policy, acquired licences for Microsoft software productivity through a national master standing offer negotiated between the government of Canada and Microsoft. Between September 1997 and May 22, 1998, however, 16,468 licences were acquired from Microsoft in violation of a Treasury Board policy issued on August 28, 1997, which required the Department to acquire productivity software by competitive bidding.
The Tribunal determined that both complaints were valid.
We have not been persuaded that the Tribunal improperly embarked upon an inquiry into the incumbency of Microsoft, thereby exceeding its jurisdiction in deciding the first complaint filed by Corel, as claimed by the applicant.
The Tribunal had before it complaint No. PR-98-012 in which Corel claimed it had not been treated equally throughout the procurement process. Corel complained that the process discriminated against bidders offering non-Microsoft licences by combining, into one RFP, the procurement of software licences and integration and conversion costs.
The Tribunal made it clear, at the outset of its reasons, that it could only consider the issue of discrimination as it related to the procurement complained of. It stated that it wished to make clear:
| ... that the issue of whether the acquisition of more than 25,000 Microsoft OA suite licences by Revenue Canada since 1991 without competition is not before the Tribunal. |
It added that:
| ... as acknowledged by the Department, the effect of these acquisitions, and the Department's recognition that they must be addressed in the RFP, is before the Tribunal. In fact, all the issues raised by Corel with respect to discrimination come together in the single issue of whether the Department has sufficiently addressed this situation in the RFP with respect to bidders offering alternative OA suites to the Microsoft OA suite. For the reasons that follow, the Tribunal concludes that the Department has not succeeded in this effort. [Emphasis added] |
It was within the province of the Tribunal, as an expert tribunal with a mandate to investigate complex matters of this kind,3 to determine whether the government had rectified the situation created by the procurements after August 28, 1997, which, by the Department's own admission, were against government policy and to determine whether the steps taken had been sufficient.
The applicant does not contest that the proper test to be applied in reviewing decisions within the jurisdiction of the Tribunal is one of patent unreasonableness.4 On this first issue raised by the applicant, our intervention in therefore unwarranted.
The applicant submits, as a second issue, that the Tribunal erred in construing and interpreting subsection 30.15(3) of the Act as a method of calculating the amount of compensation to be awarded to the respondent. The applicant submits that the section is relevant to determining the type of remedy to be awarded. Once the Tribunal has determined the nature of the remedy, this section is no longer relevant.
Subsections 30.15(2) and (3) of the Act read:
| 30.15 (2) Subject to the regulations, where the Tribunal determines that a complaint is valid, it may recommend such remedy as it considers appropriate, including any one or more of the following remedies: (a) that a new solicitation for the designated contract be issued; (b) that the bids be re-evaluated; (c) that the designated contract be terminated; (d) that the designated contract be awarded to the complainant; or (e) that the complainant be compensated by an amount specified by the Tribunal. (3) The Tribunal shall, in recommending an appropriate remedy under subsection (2), consider all the circumstances relevant to the procurement of the goods or services to which the designated contract relates, including (a) the seriousness of any deficiency in the procurement process found by the Tribunal; (b) the degree to which the complainant and all other interested parties were prejudiced; (c) the degree to which the integrity and efficiency of the competitive procurement system was prejudiced; (d) whether the parties acted in good faith; and (e) the extent to which the contract was performed. [Emphasis added] |
| 30.15 (2) Sous réserve des règlements, le Tribunal peut, lorsqu'il donne gain de cause au plaignant, recommander que soient prises des mesures correctives, notamment les suivantes: a) un nouvel appel d'offres; b) la réévaluation des soumissions présentées; c) la résiliation du contrat spécifique; d) l'attribution du contrat spécifique au plaignant; e) le versement d'une indemnité, dont il précise le montant, au plaignant. (3) Dans sa décision, le Tribunal tient compte de tous les facteurs qui interviennent dans le marché de fournitures ou services visé par le contrat spécifique, notamment des suivants: a) la gravité des irrégularités qu'il a constatées dans la procédure des marchés publics; b) l'ampleur du préjudice causé au plaignant ou à tout autre intéressé; c) l'ampleur du préjudice causé à l'intégrité ou à l'efficacité du mécanisme d'adjudication; d) la bonne foi des parties; e) le degré d'exécution du contrat. [Nous soulignons] |
In the case at bar, the Tribunal recommended that the Department present to the Tribunal a proposal for compensation, developed jointly with Corel, that recognized the lost opportunity that Corel experienced by being unable to make a responsive bid and the possibility that it may have been awarded this solicitation. "Furthermore", the proposal for compensation, said the Tribunal, should address whether "further" compensation should be awarded in the context of paragraphs 30.15(3)(a), (b) and (c) of the Act.
While the wording chosen by the Tribunal may indicate that paragraphs 30.15(3)(a), (b) and (c) of the Act were additions to the amount of damages, we do not detect the error claimed by the applicant.
A reading of subsections 30.15(2) and (3) simply indicates that the remedy contemplated by the Tribunal must be made with a consideration of both subsections. They are not additional to each other, but complementary to each other. The Tribunal recommended that the parties develop a proposal for compensation under paragraph 30.15(2)(e) which would take into consideration the criteria set out in paragraphs 30.15(3)(a), (b) and (c) of the Act. In our view, this was a valid recommendation.
These applications will therefore be dismissed with costs.
"Alice Desjardins"
J.A.
__________________1Nos. PR-98-012 and PR-98-014.
2R.S.C. 1985, c. 47 (4th Supp.).
3Section 30.14 of the Act reads:
| 30.14 (1) In conducting an inquiry, the Tribunal shall limit its considerations to the subject-matter of the complaint. (2) At the conclusion of an inquiry, the Tribunal shall determine whether the complaint is valid on the basis of whether the procedures and other requirements prescribed in respect of the designated contract, or the class of contracts to which it belongs, have been or are being observed. |
30.14 (1) Dans son enquête, le Tribunal doit limiter son étude à l'objet de la plainte. (2) Le Tribunal détermine la validité de la plainte en fonction des critères et procédures établis par règlement pour le contrat spécifique ou la catégorie dont il fait partie. |
4Canada (Attorney General) v. Symtron Systems Inc., [1999] F.C.J. No. 178.