Date: 20191209

Docket: A-356-18

Citation: 2019 FCA 307

CORAM:	BOIVIN J.A. DE MONTIGNY J.A. GLEASON J.A.
BETWEEN:
VIDÉOTRON LTÉE
Applicant
and
SHARED SERVICES CANADA and BELL CANADA
Respondents

Heard at Montréal, Quebec, on November 4, 2019.

Judgment delivered at Ottawa, Ontario, on December 9, 2019.

REASONS FOR JUDGMENT BY:	BOIVIN J.A.
CONCURRED IN BY:	DE MONTIGNY J.A. GLEASON J.A.

Date: 20191209

Docket: A-356-18

Citation: 2019 FCA 307

CORAM:	BOIVIN J.A. DE MONTIGNY J.A. GLEASON J.A.
BETWEEN:
VIDÉOTRON LTÉE
Applicant
and
SHARED SERVICES CANADA and BELL CANADA
Respondents

REASONS FOR JUDGMENT

BOIVIN J.A.

[1]  The applicant, Vidéotron Ltée (Vidéotron), seeks judicial review of an order of the Canadian International Trade Tribunal (the CITT) dated October 5, 2018 (PR-2018-006). As part of its order, the CITT granted a motion brought by Shared Services Canada (SSC) to dismiss Vidéotron’s procurement process complaint and to cease its inquiry, for lack of jurisdiction.

I.  Background

[2]  On May 25, 2018, Vidéotron filed a procurement process complaint with the CITT under subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C. 1985, c. 47 (4th Supp.) (the CITT Act). In its complaint, Vidéotron alleged that SSC had awarded, without a tendering process, one or more new contracts to Bell Canada or one of its affiliates (Bell) for telecommunications infrastructure related to the G7 Summit held in La Malbaie, Québec, on June 8-9, 2018. Vidéotron maintained that this awarding of contracts contravened chapter 5 of the Canadian Free Trade Agreement (the CFTA) and chapter 10 of the North American Free Trade Agreement. Vidéotron further maintained that it was a potential supplier for the work required, but was unable to take part in a non-existent tendering process.

[3]  The CITT accepted Vidéotron’s complaint for inquiry on May 29, 2018, pursuant to the requirements under subsection 30.13(1) of the CITT Act and subsection 7(1) of the Canadian International Trade Tribunal Procurement Inquiry Regulations, S.O.R./93-602.

[4]  On June 15, 2018, SSC filed a motion under section 24 of the Canadian International Trade Tribunal Rules, S.O.R./91-499 (the CITT Rules) requesting that the CITT decline jurisdiction over Vidéotron’s complaint and issue an order ceasing its inquiry. In its motion, SSC alleged that Vidéotron’s complaint was not related to a procurement process subject to the relevant trade agreements. SSC argued that the issue at stake was one rather of contract administration, which did not come within the CITT’s jurisdiction. Specifically, SSC made the point that the work at issue had been granted to Bell through previous procurement processes: one concerning local access telephone services in 2010 (LAS 2010) and another concerning government cellular services in 2017 (GCS 2017). SSC noted that each original contract it had awarded through these processes included an ad hoc clause under which it could request Bell to complete additional work, at an additional cost, for emergencies or for special, short-term events like the G7 Summit. SSC further pointed out that Vidéotron was not a potential supplier in these past procurement processes, that one of the contracts at issue was subject to a national security exception such that it was not subject to the relevant trade agreement provisions and, moreover, that Vidéotron’s complaint was in part untimely.

[5]  On June 19, 2018, Bell was granted intervener status before the CITT and in essence supported SSC’s arguments.

[6]  On October 5, 2018, the CITT issued its order and granted SSC’s motion. Vidéotron’s complaint was therefore dismissed and the CITT ceased its inquiry. In reaching its conclusion, the CITT found that it did not have jurisdiction over Videotron’s complaint because, as SSC and Bell had argued, the work subject to the complaint was carried out under two previous government contracts (LAS 2010 and GCS 2017). As such, the CITT found that “[m]atters subsequent to the award of a contract, i.e. matters of contract administration, are not within the Tribunal’s jurisdiction” (CITT’s decision at paras. 13, 14, 16 and 21).

[7]  The CITT also found that the two ad hoc clauses were reasonable inclusions in the LAS 2010 and GCS 2017 original contracts and that, contrary to Vidéotron’s claim, the ad hoc clauses did not leave essential conditions of each contract undetermined (CITT’s decision at paras. 29-30, 38-39). The CITT further found that Vidéotron was not a potential supplier in the two original calls for tenders. Finally, the CITT disregarded additional grounds for dismissing the complaint raised by Bell and concluded that it did not need to decide the issue raised with respect to a national security exception.

[8]  On November 5, 2018, Vidéotron filed an application for judicial review of the CITT’s decision before our Court.

[9]  For the reasons that follow, I would dismiss the application for judicial review with costs.

II.  Relevant statutory provisions

[10]  The relevant provisions for this judicial review are reproduced in the appendix.

III.  Issues

[11]  This appeal raises two main issues:

• Did the CITT violate any principles of natural justice or procedural fairness in rejecting Vidéotron’s complaint and ceasing its inquiry?

·  Was it reasonable for the CITT to conclude that it had no jurisdiction over Vidéotron’s complaint?

IV.  Analysis

A.  Standard of review

[12]  Issues of procedural fairness are to be reviewed on a correctness standard. While it may be that “no standard of review is being applied” when a court considers issues of procedural fairness because the question is “whether the procedure was fair having regard to all the circumstances,” this Court’s review is “best reflected in the correctness standard” for such issues (Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69, [2018] F.C.J. No. 382 at para. 54).

[13]  With respect to the CITT’s jurisdiction over Vidéotron’s complaint, this issue concerns an interpretation of the CITT’s enabling legislation as applied to the facts before it. As such, a reasonableness standard of review applies (Canada (Attorney General) v. Access Information Agency Inc., 2018 FCA 18, 287 A.C.W.S. (3d) 750 at paras. 16-20; Quebec (Attorney General) v. Guérin, 2017 SCC 42, 412 D.L.R. (4th) 103 at para. 35; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293 at para. 26).

[14]  It has repeatedly been observed that the CITT is a highly specialized tribunal that is entitled to deference. Hence, the role of this Court is not to re-weigh the evidence that was before the CITT but to determine whether its decision falls within a range of possible and acceptable outcomes that are defensible in respect of the facts and the law (Dunsmuir v. New Brunswick, 2008 SCC 9, [2018] 1 S.C.R. 190 at para. 47; Essar Steel Algoma Inc. v. Jindal Steel and Power Limited, 2017 FCA 166, 281 A.C.W.S. (3d) 762 at para. 15; Canada (Attorney General) v. Valcom Consulting Group Inc., 2019 FCA 1, 302 A.C.W.S. (3d) 385 at para. 18; Nova Tube Inc./Nova Steel Inc. v. Conares Metal Supply Ltd., 2019 FCA 52, 303 A.C.W.S. (3d) 541 at para. 22).

B.  Did the CITT violate any principles of natural justice or procedural fairness in rejecting Vidéotron’s complaint?

[15]  Vidéotron submits that the CITT violated principles of fundamental justice and procedural fairness as a result of having breached its right to a fair hearing by prematurely terminating the inquiry without due consideration of the applicable trade agreements.

[16]  More particularly, Vidéotron argues that while the CITT may dismiss complaints without conducting a full inquiry, it can only do so “after it has considered the applicable trade agreements” as a matter of procedure. Vidéotron submits that the CITT failed to consider whether the ad hoc clauses in the LAS 2010 and GCS 2017 contracts met the requirements of the CFTA and the Agreement on Internal Trade (the AIT) and maintains that this omission violated its right to a fair hearing (Vidéotron’s memorandum of fact and law at paras. 88, 91, 98, 113-116).

[17]  Vidéotron’s contention conflates a prima facie substantive issue with procedural fairness. The only potential issue of procedural fairness stemming from Vidéotron’s contention and the CITT’s ultimate decision is whether Vidéotron knew the case to be met before the CITT and had a full and fair chance to make that case. A review of the record fails to reveal any evidence that the CITT hampered Vidéotron’s ability to understand the case to be met and to fully make its case. For instance, Vidéotron had multiple opportunities to articulate fulsome submissions: from the outset, in its initial complaint, then when the CITT solicited input after Bell asked for intervener status, as well as in response to SSC’s motion. In addition, the CITT gave Vidéotron additional time to complete its submissions in response to the extensive and thorough ones made by SSC, which further informed Vidéotron of the case to be met. Furthermore, I see no reason why, at the motion stage, Vidéotron could not have written to the CITT to communicate its view that the file was incomplete and that SSC’s motion did not comply with CITT Rule 24. Finally, Vidéotron could have asked for an oral hearing under CITT Rule 105, but chose not to do so. It follows that Vidéotron’s contention of alleged violations of principles of fundamental justice or procedural fairness must fail.

C.  Was it reasonable for the CITT to conclude that it had no jurisdiction over Vidéotron’s complaint?

[18]  On the basis of the evidence before it, the CITT found that Vidéotron’s complaint did not concern a procurement process per se, but rather contract administration over which it had no jurisdiction pursuant to subsection 30.11(1) of the CITT Act. As noted earlier, in support of its finding, the CITT interpreted the ad hoc clauses included in the LAS 2010 and GCS 2017 contracts awarded to Bell. These ad hoc clauses are quite similar and given their central importance to the CITT’s finding, they are reproduced in full.

[19]  The ad hoc clause in the LAS 2010 contract reads as follows:

1.8 (b) Infrastructure related to Special Events, Emergencies and Special Needs

(i) From time to time, Canada may require LAS in relation to a special, short-term event. For example, in recent years LAS has been required for events such as the Olympics, the North American Leaders Summit, or the G8 conference. From time to time, there may also be emergency situations that require a sudden, short-term concentration of LAS in a particular location or locations. In the case of special, short-term events or emergencies that dramatically increase Canada’s requirements for LAS in a particular location or locations, where the Contractor can demonstrate that those needs exceed the capacity of the Contractor’s existing infrastructure (for example, the capacity at its Central Offices), Canada and the Contractor may negotiate terms and conditions, and related pricing, for putting in place the necessary infrastructure to support LAS. Any negotiated terms and conditions, and related pricing, will only be effective if documented in a Contract Amendment issued by the Contracting Authority.

[Emphasis added]

[20]  The ad hoc clause in the GCS 2017 contract reads as follows:

1.27 Infrastructure related to Special Events, Emergencies and Special Needs

1.27.1 From time to time, Canada may require cellular services in relation to a special, short-term event. For example, in recent years, such services have been required for events such as the North American Leaders Summit, or the G8 conference. From time to time, there may also be emergency situations that require a sudden, short-term concentration of GCS in a particular location or locations (such as an event like the Olympics). In the case of special, short-term events or emergencies that dramatically increase Canada’s requirements for GCS in a particular location or locations, where the Contractor can demonstrate that those needs exceed the capacity of the Contractor’s existing infrastructure (for example, the number of towers in place), Canada and the Contractor may negotiate terms and conditions, and related pricing, for putting in place the necessary infrastructure or removing and/or redeploying the infrastructure to support the GCS required for the special event, short-term requirement or emergency. Any negotiated terms and conditions, and related pricing, will only be effective if documented in a Task Authorization and/or Contract Amendment issued by the Contracting Authority.

[Emphasis added]

[21]  In challenging the CITT’s finding based on the ad hoc clauses, Vidéotron argues that the ad hoc clauses are not properly written and “lack structure”. Specifically, Vidéotron submits that these clauses would have had to address “some contractual right, duty or obligation to administer” and that instead, they are too uncertain and vague about essential contractual elements, such as price, to be valid contractual provisions (Vidéotron’s memorandum of fact and law at paras. 68, 71-72). On that basis, Vidéotron adds that the work performed under the ad hoc clauses necessarily stemmed from the negotiation of new contracts and new procurement for which the CITT has jurisdiction.

[22]  Vidéotron further contends that the CITT’s finding that these ad hoc clauses were a reasonable inclusion in the LAS 2010 and GCS 2017 contracts “undermines the purpose and intent of all of the trade agreements” (Vidéotron’s memorandum of fact and law at para. 79). Vidéotron maintains that ad hoc clauses, like the ones at issue, seriously undermine the purpose of ensuring fair and open access to government procurement opportunities through a transparent and efficient framework (Vidéotron’s memorandum of fact and law at paras. 82-86). Vidéotron therefore argues that the CITT erred in finding that its complaint concerned matters of contract administration outside of the CITT’s jurisdiction.

[23]  For the reasons that follow, Vidéotron’s challenge to the CITT’s finding that it had no jurisdiction because the complaint concerned matters of contract administration is unpersuasive.

[24]  First, and as observed by the CITT, “the calls for tenders stated that the Government of Canada’s needs would fluctuate” (CITT’s decision at para. 22). Thus, from the outset, it was envisaged that SSC could require that, during the life of the contracts, existing infrastructure would be improved.

[25]  Second, the ad hoc clauses are sufficiently clear as to when they could be triggered. The ad hoc clauses expressly state that SSC could require from time to time additional services for special needs of an exceptional nature, short-term requirements, emergencies or special events. Such a “special event” occurred when Canada hosted the G7 Summit at La Malbaie in 2018. Indeed, the “G8 conference” (now G7) is expressly referred to in the ad hoc clauses as an example of such a “special event”. Significantly, in the context of the G7 Summit in La Malbaie, approximately 9000 RCMP employees, 2000 members of military forces, 1000 civil servants and 1000 dignitaries from abroad were expected to be present. This sudden influx of people doubled the population in the area and thus exceeded the capacity of Bell’s existing infrastructure in the area (CITT’s decision, at p. 5, footnote 19; SSC’s memorandum of fact and law at paras. 9-10).

[26]  Third, the ad hoc clauses are sufficiently clear regarding each party’s obligations for special events and emergencies. As the CITT observed, the ad hoc clauses express the fact that SSC could not require Bell to build more infrastructure at its own cost, but that SSC would need to compensate Bell for upgrading infrastructure required for ad hoc needs (CITT’s decision at para. 30).

[27]  Fourth, it was reasonable for the CITT to conclude that SSC did not obtain new goods or services under the ad hoc clauses. Bell continued to supply the same services that the LAS 2010 and GCS 2017 contracts already contemplated and the additional infrastructure ultimately belonged to Bell.

[28]  Further, as both SSC and Bell note, the value of the work performed under the impugned ad hoc clauses amounts to less than 4% of the total value of each contract. The value of the G7 Summit work was worth approximately $9.5 million under the LAS 2010 contract, which was originally valued at about $570 million, and approximately $14.6 million under the GCS 2017 contract, which was valued at about $370 million.

[29]  In these circumstances, it was reasonable for the CITT to conclude that SSC did not engage in a new procurement process when it requested that Bell upgrade its services for the G7 Summit, a “special event” contemplated under the LAS 2010 and GCS 2017 contracts. In considering the facts before the CITT, Vidéotron’s contention that the ad hoc clauses were a means for SSC to circumvent its obligations under section 503 of the CFTA are also unfounded.

[30]  Notwithstanding the above, it does not follow that all work performed under ad hoc clauses automatically qualifies as a matter of contract administration. For instance, if the value of work performed under an ad hoc clause significantly exceeded or represented a substantial portion of the value of the awarded contract, it could potentially be viewed as an attempt by the procurement entity to modify the initial contract and the terms of its mandatory requirements. In these circumstances, the complaint could fall within the CITT’s jurisdiction (Eclipsys Solutions Inc. v. Canada Border Services Agency, [2016] C.I.T.T. No. 30, 2016 CarswellNat 971 (CITT) at paras. 37-41). However, these were not the facts before the CITT in the present case.

[31]  In view of the evidentiary record, it was thus reasonable for the CITT to find that (i) the work Bell performed for the G7 Summit, an extraordinary “special event”, was expressly contemplated in the LAS 2010 and GCS 2017 contracts and fell within the requirements of the original procurement; (ii) the essential conditions of the contracts were not left undetermined; (iii) the implementation of the ad hoc clauses did not result in the acquisition of new goods or services by SSC; (iv) SSC did not attempt to circumvent its obligations under section 503 of the CFTA; and, consequently, (v) Vidéotron’s complaint did not relate to a procurement process. In the end, and as observed by the CITT, “as there was no acquisition of new goods or services, there was no government procurement and [the CITT could not] conduct an inquiry, as there [was] no “designated contract” at issue” (CITT’s decision at para. 39).

[32]  As noted earlier, Vidéotron also submits that the CITT erred in failing to consider a number of relevant trade agreements including the AIT and CFTA. Yet, Vidéotron failed to raise the AIT, the predecessor to the CFTA, in its arguments before the CITT. As such, Vidéotron cannot in the circumstances raise this argument for the first time in its memorandum of fact and law before this Court. Further, a review of the relevant provisions of the trade agreements referred to by Vidéotron before this Court reveals that the vast majority apply in the context of a procurement process. Since the CITT reasonably concluded that there was no procurement process at issue, most of the provisions are inapplicable and there was therefore no need for the CITT to address them in detail. The CFTA article that is most relevant to this matter is article 503, whereby procuring entities are not permitted to design procurements or modify awarded contracts in such a way as to avoid their obligations under the agreement. As mentioned above, the CITT reasonably addressed Vidéotron’s argument regarding article 503 and rejected it (CITT’s decision at paras. 38-39).

[33]  Finally, although Vidéotron is critical of the CITT for making a finding as to its status as a potential supplier, this finding was in relation to the original LAS 2010 and GCS 2017 contracts, not in relation to the ad hoc clauses regarding the G7 Summit. As the relevant question would have been whether Vidéotron was a potential supplier for the alleged new projects—had the CITT not found that there was no new procurement process at issue—the CITT’s analysis regarding a potential supplier does not have the relevance purported by Vidéotron. This is particularly so because Vidéotron would have been out of time to contest the original LAS 2010 and GCS 2017 contracts had it indeed been a potential supplier.

V.  Conclusion

[34]  For the reasons above, I would dismiss the application for judicial review with costs. As Bell did not ask for costs, I would grant costs to SSC payable by Vidéotron.

“Richard Boivin

“I agree

Yves de Montigny J.A.”

“I agree

Mary J.L. Gleason J.A.”

APPENDIX

 

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

	Docket:		A-356-18
STYLE OF CAUSE:		VIDÉOTRON LTÉE v. SHARED SERVICES CANADA and BELL CANADA
PLACE OF HEARING:			Montréal, Quebec
DATE OF HEARING:			November 4, 2019
REASONS FOR JUDGMENT BY:			BOIVIN J.A.
CONCURRED IN BY:			DE MONTIGNY J.A. GLEASON J.A.
DATED:			December 9, 2019

APPEARANCES:

Peter Kirby Brandon Farber	For The Applicant
Benoît de Champlain Bernard Letarte	For The Respondent SHARED SERVICES CANADA
Mark Phillips	For The Respondent bell canada

SOLICITORS OF RECORD:

Fasken Martineau DuMoulin LLP Montréal, Quebec	For The Applicant
Nathalie G. Drouin Deputy Attorney General of Canada Ottawa, Ontario	For The Respondent SHARED SERVICES CANADA
Borden Ladner Gervais LLP Montréal, Quebec	For The Respondent BELL CANADA