TPG Technology Consulting Ltd. v. Canada

TPG Technology Consulting Ltd. v. Canada
Court (s) Database
Federal Court Decisions
Date
2011-09-07
Neutral citation
2011 FC 1054
File numbers
T-494-08
Notes
Digest
Decision Content
Federal Court
Cour fédérale
Date: 20110907
Docket: T-494-08
Citation: 2011 FC 1054
Ottawa, Ontario, September 7, 2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
TPG TECHNOLOGY CONSULTING LTD.
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
[1] The Plaintiff/Respondent, TPG Technology Consulting Ltd. (TPG) has brought an action in the Federal Court alleging breach of contract and other tortious conduct on the part of the Defendant/Moving Party, Her Majesty the Queen (the Crown). The alleged conduct arises from a solicitation process undertaken by the Department of Public Works and Government Services Canada (PWGSC) to acquire engineering and technical support (ETS) services for the Information Technology Services Branch (ITSB).
[2] TPG was the incumbent contractor, providing ETS to the Crown from1999 until December 2007. TPG was unsuccessful in bidding for the subsequent contract, which was awarded to CGI Information Systems and Management Consultants (CGI) on October 31, 2007.
[3] TPG seeks to recover damages in excess of $251,000,000 for negligence, breach of contract, inducing breach of contract and intentional interference with economic interests by unlawful means.
[4] The present matter is a motion for summary judgement dismissing the action as pleaded in the Amended Amended Statement of Claim in whole or in part, brought by the Crown. The Crown claims that the action is an abuse of process and that TPG has failed to establish any genuine issue for which a trial is warranted.
I. Background
A. Facts
[5] TPG is a Canadian corporation that supplies specialized information technology (IT) services. TPG primarily provides these services to the Crown.
[6] TPG held the ETS contract, the subject of this action, from 1999 until December 21, 2007, at which time the contract expired. TPG supplied ETS services to the ITSB through the deployment of approximately 200 subcontractors. The subsequent contract was awarded to CGI. CGI is a direct competitor of the TPG.
[7] TPG alleges that the procurement process conducted by PWGSC in order to award the ETS contract was improper.
[8] In anticipation of the expiration of the ETS contract, PWGSC published a request for proposals for a new ETS contract (the ETS RFP) on May 30, 2006. The estimated value of the new ETS contract was $428 million. The procurement was subject to international trade agreements including WTO-AGP, NAFTA and AIT. PWGSC retained Mr. Robert Tibbo of PPI Consulting Ltd., through a public tendering process to assist in drafting the ETS RFP and to facilitate the technical evaluation of the proposals.
[9] PGWSC received three proposals, including one from TPG and one from CGI. All three solicitation responses were determined to be compliant with the requirements of the ETS RFP. The Crown submits that the proposals were assessed as per the evaluation process set out in the ETS RFP. This process was reviewed and approved by the Office of the Chief Risk Officer. CGI was awarded the new ETS contract on October 31, 2007 and TPG was formally advised of this on November 5, 2007.
[10] In 2007, TPG made four complaints to the Canadian International Trade Tribunal (CITT) regarding the ETS solicitation, alleging that the process was unfair. The CITT rejected two of the complaints, refused to conduct an inquiry into one of the complaints, and found that another complaint was time-barred.
[11] In June 2006, TPG had its subcontractors sign teaming agreements restricting them from offering their services to any entity competing with TPG on the ETS solicitation. In June 2007, prior to contract award, TPG had its subcontractors sign amendments to these agreements which would restrict the subcontractors from working for a winning bidder other than itself until four months after the completion of the transition of the new ETS contract.
[12] The Crown submits that CGI met all the contractual requirements for the transition phase to the new contract. TPG disputes this.
[13] TPG commenced the action for damages on March 27, 2008. TPG alleges that the Crown implemented a plan from the evaluation process all the way to and through contract award, to award the ETS contact to CGI and induce breaches of contract by TPG’s subcontractors. TPG argues that this issue could not have been, and was not before the CITT.
[14] A ten week trial is to be scheduled by the Judicial Administrator, starting sometime after April 15, 2012.
II. Issues
[15] The issues to be decided by this Court on this Motion are:
(a) Whether this Court has jurisdiction to hear actions in procurement cases in light of the CITT’s existence, or whether the Canadian International Trade Tribunal Act, RSC, 1985, c 47 (4th Supp) (CITT Act) grants exclusive jurisdiction to the CITT to hear and determine complaints regarding the fairness of the evaluation process;
(b) Whether TPG’s action is res judicata as a result of TPG’s previous CITT complaints and is otherwise an abuse of process;
(c) Whether there are genuine issues for trial relating to TPG’s allegations of breach of contract and tortious conduct.
Summary Judgement – the Applicable Legal Principles
[16] The availability of summary judgment is governed by rules 213 to 219 of the Federal Courts Rules, SOR/98-106. These rules were amended effective December 10, 2009 as the result of a consultation process that concluded that the interests of justice would be better served by the adoption of a summary trial procedure.
[17] The purpose of summary judgement rules is to prevent claims or defences that have no chance of success from proceeding to trial (Canada (Attorney General) v Lameman, 2008 SCC 14, [2008] 1 SCR 372). Summary trial rules promote efficiency by enabling courts to dispose of actions efficiently.
[18] Rule 213 provides that a defendant may bring a motion for summary judgment dismissing all or some of the issues set out in the Statement of Claim at any time before the time and place for trial have been fixed. The response to such a motion cannot be based on conjecture as to what the evidence might be at a later stage in the proceedings. Rule 214 requires the response to set out specific facts and adduce the evidence showing that there is a genuine issue for trial. Both sides are required to file such evidence as is reasonably available to them.
[19] If, on a motion for summary judgement, the Court is satisfied that there is no genuine issue for trial, according to Rule 215, the Court shall grant summary judgement. If the Court finds that there is a genuine issue of fact or law, it may determine that issue by way of summary trial, or dismiss the motion in whole or in part and order that the issues not disposed of proceed to trial (Rule 215(3)).
[20] The Federal Court of Appeal adopted the basic principles governing summary judgements as set out by Justice Daniele Tremblay-Lamer in Granville Shipping Co. v Pegasus Lines Ltd SA, [1996] 2 FC 853, [1996] FCJ No 481 (QL) (FTD) at para 8:
1. the purpose of the provisions is to allow the Court to summarily dispense with cases which ought not proceed to trial because there is no genuine issue to be tried (Old Fish Market Restaurants v. 1000357 Ontario Inc. et al);
2. there is no determinative test (Feoso Oil Limited v. Sarla) but Stone J. A. seems to have adopted the reasons of Henry J. in Pizza Pizza Ltd. v. Gillespie (Pizza Pizza). It is not whether a party cannot possibly succeed at trial, it is whether the case is so doubtful that it does not deserve consideration by the trier of fact at a future trial;
3. each case should be interpreted in reference to its own contextual framework (Blyth and Feoso);
4. provincial practice rules (especially Rule 20 of the Ontario Rules) can aid in interpretation (Feoso and Collie);
5. this Court may determine questions of fact and law on the motion for summary judgment if this can be done on the material before the Court (this is broader than Rule 20 of the Ontario Rules of Civil Procedure) (Patrick);
6. on the whole of the evidence, summary judgment cannot be granted if the necessary facts cannot be found or if it would be unjust to do so (Pallman and Sears);
7. in the case of a serious issue with respect to credibility, the case should go to trial because the parties should be cross-examined before the trial judge (Forde and Sears). The mere existence of apparent conflict in the evidence does not preclude summary judgment; the court should take a "hard look" at the merits and decide if there are issues of credibility to be resolved (Stokes).
[21] More recently, Justice Paul Crampton of this Court summarized the evidentiary burden of the parties when considering motions for summary judgement in Trevor Nicholas Construction Co. v Canada (Minister for Public Works), 2011 FC 70 at para 44:
[44] In short, under the current and former Rules: (i) to succeed in its motion for summary judgment dismissing the plaintiff's statement of claim, the defendant has the burden of establishing that all the relevant issues can properly be decided on the evidence before the Court; and (ii) the plaintiff must show that there is a genuine issue for trial. In this regard, the plaintiff is not required to prove all the facts in its case, but also cannot simply rely on bare "allegations or denials of the pleadings." Each party is required to "put its best foot forward," to enable the Court to determine whether there is an issue that should go to trial (Canada (Attorney General) v. Lameman, [2008] 1 S.C.R. 372, at para. 11; F. Von Langsdorff Licensing Ltd. v. S.F. Concrete Technology Inc. (1999), 165 F.T.R. 74, at paras. 9-12; AMR Technology, Inc. v. Novopharm Ltd., 2008 FC 970, at paras. 6-8; MacNeil Estate v. Canada (Department of Indian and Northern Affairs), 2004 FCA 50, at para. 25). However, "the test is not whether the plaintiff cannot succeed at trial; rather, it is whether the court reaches the conclusion that the case is so doubtful that it does not deserve consideration by the trier of fact at a future trial. Claims clearly without foundation should not take up the time and incur the costs of a trial" (AMR Technology, above, at para. 7). In addition, "each case must be interpreted in its own context and if the necessary facts cannot be found, or if there are serious issues of credibility, the matter should go to trial" (Suntec Environmental Inc. v. Trojan Technologies Inc., 2004 FCA 140, at para. 4; Emu Polishes Inc. v. Spenco Medical Corp., 2005 FCA 130, at para. 2). Finally, "a motions judge must subject the evidence to a 'hard look' in order to determine whether there are factual issues that really do require the kind of assessment and weighing of evidence that should properly be done by the trier of fact" (Von Langsdorff, above, at para. 13).
[22] It remains important for the motions judge to consider a motion for summary judgement with great care. As stated by Justice Anne Mactavish in Canada (Minister of Citizenship and Immigration) v Laroche, 2008 FC 528, 169 ACWS (3d) 866 at para 18:
[18] […] the effect of the granting of summary judgment will be to preclude a party from presenting any evidence at trial with respect to the issue in dispute. In other words, the unsuccessful responding party will lose its "day in court": see Apotex Inc. v. Merck & Co., 248 F.T.R. 82, at para. 12, aff'd [2004] F.C.J. No. 1495, 2004 FCA 298.
[23] In the present matter, the Crown bears the legal onus of establishing the facts necessary to obtain summary judgement, while TPG has the evidentiary burden of showing that there is a genuine issue for trial. Both parties submit that the other party has failed to carry out his required task in order to succeed.
Preliminary Issue: Are TPG’s Affidavits in Compliance with Rule 81?
[24] The Crown submits, as preliminary matter, that all five of TPG’s affidavits filed in response to this motion are seriously flawed and in violation of Rule 81(1) of the Rules. The Crown argues that these affidavits are replete with speculation, hearsay, opinion, legal argument and conclusion, and contain statements that are either irrelevant or lacking any foundation or are clearly beyond the personal knowledge of the deponent. The Crown further argues that TPG is attempting to subvert the Court’s Rule on the maximum length of a party’s Memorandum of Fact and Law by attaching the 150 page affidavit of Mr. Powell which largely contains argument and speculation. The Crown asks the Court to strike out each of the Affidavits in their entirety.
[25] TPG counters the Crown’s submission with the assertion that the affidavits of Mr. Powell, Mr. Estabrooks, Mr. Watts, Ms. Bright and Mr. Fleming are all confined to facts within each deponent’s personal knowledge. TPG further submits that the Crown should have brought a motion to strike parts of these affidavits before proceeding with the cross-examinations of TPG’s affiants. TPG argues that the Crown has not even referenced which specific portions of the various affidavits it finds objectionable, and that a bald assertion that all five affidavits are seriously flawed is not sufficient to strike parts of an affidavit.
[26] Rule 81(1) requires that affidavits be confined to facts within the deponent’s personal knowledge. Affidavits are meant to adduce facts relevant to the dispute “without gloss or explanation” (Canada (Attorney General) v Quadrini, 2010 FCA 47, 399 NR 33 at para 18). As the Crown submits, this Court will strike out parts of affidavits that are abusive, argumentative or opinionated and contain legal conclusions (McNabb v Canada Post Corp, 2006 FC 1130, 300 FTR 57 at para 52, Quadrini, above). The Crown suggests that in the present matter it is impossible to separate the admissible from the inadmissible, and thus the affidavits in their entirety ought to be rejected (Foodcorp Limited v Hardee's Food Systems Inc, [1982] 1 FC 821 (FCA); Van Duyvenbode v Canada (Attorney General), 2009 FCA 120 at para 3).
[27] The affidavit of Mr. Powell is indeed suspiciously lengthy and replete with speculation. However, as TPG submits, the Crown has not properly brought forward a motion to strike the affidavits, a failure which has in the past lead this Court to deny the motion to strike. In Burns Lake Native Development Corp v Canada (Commissioner of Competition), 2005 FCA 256, 141 ACWS (3d) 697 the Court held at para 13:
[13] It is unusual for a party answering a motion to determine the content of the appeal book to seek, in that answer, the striking out of parts of the affidavit given in support of the motion. The normal procedure for striking out an affidavit or parts of it is to bring a motion to that effect. Thus, the party who produced the affidavit can adequately respond by serving and filing a respondent record. It would not be fair to the appellants to rule on the Commissioner's request that part of the affidavit in support of their motion be struck. I am, therefore, denying the Commissioner's request to strike parts of Ms. Wood's affidavit.
[28] Another of TPG’s submissions, which is indeed supported by the jurisprudence of this Court, is that in order to succeed in striking affidavits or portions thereof, the Crown is required to show prejudice. TPG submits that the Crown has failed to do so.
[29] The caselaw of this Court emphasizes that the discretion to strike out affidavits ought to be exercised sparingly and only where it is in the interests to do so, for example where a party would be materially prejudiced or where not striking would impair the orderly hearing of the application (Armstrong v Canada (Attorney General), 2005 FC 1013, 141 ACWS (3d) 5 at para 4). Justice James Hugessen dealt with this issue in Sawridge Band v Canada, 95 ACWS (3d) 20, [2000] FCJ No 192 (QL), a case cited with approval by Justice François Lemieux in Armstrong, above and by TPG. At paras 5 and 6 Justice Hugessen wrote:
[5] Dealing first with the motion brought by the interveners that the affidavit of Clara Midbo should be struck out as it is an improper affidavit within the meaning of the Rules, I may say that upon examination of that affidavit, I have no doubt whatever that it is improper. It is replete with conclusory and argumentative allegations, almost all of them being on matters of law as to which the deponent is not apparently qualified. I set out below, simply by way of example, paragraphs 3 and 4 of the affidavit in which the deponent attempts to interpret the pleadings, the Rules and various orders that have been made in this case, something which she is eminently unqualified to do and something which is clearly not a matter for evidence in any event:
[…]
[6] That said, I have not been persuaded that the affidavit should be struck. In my view, in a sane modern procedure, irregularities in proceedings should not be made the subject of motions and should not require the Court to give orders striking out or correcting such irregularities unless the party attacking the irregularity can show that it suffer some sort of prejudice as a result thereof. I put that point squarely to counsel for the interveners and the only prejudice he was able to suggest to me that his clients might suffer was that the Court, when it hears the main motion, might be induced to believe that these highly tendentious allegations in the affidavit were uncontested matters of fact. I think that counsel is ascribing to the Court a degree of gullibility which I hope he is not justified in doing. Accordingly, absent any showing of prejudice and notwithstanding that almost all of the affidavit is irregular and should not be before the Court, I have no grounds that would justify me in striking it out. Counsel for the interveners admits readily that virtually every paragraph of the affidavit is proper argument and can properly be made by counsel for plaintiffs and indeed has been made by counsel for plaintiffs in his written submissions in support of the main motion. I am therefore going to dismiss the motion to strike the affidavit.
[30] I take the view that at this late stage, and on a motion for summary judgement it would be inappropriate to strike all of TPG’s affidavits. Indeed, this was not seriously pursued by the Crown at the hearing. I reiterate Justice Hugessen’s words in Sawridge, above- the Crown need not worry that the Court is so gullible as to uncritically accept the evidence contained in the affidavits. The Crown has not properly brought a motion to strike the affidavits, and at this time, absent a showing of genuine prejudice on the part of the Crown, I am not inclined to acquiesce to the Crown’s request.
A. Does the Federal Court have Jurisdiction to Hear this Claim?
[31] The Crown submits that the Federal Court lacks the jurisdiction to consider the fairness of the tender evaluation due to the existence of the CITT. The Crown takes the position that the CITT Act and its associated regulations, the Canadian International Trade Tribunal Procurement Inquiry Regulations bestow exclusive jurisdiction on the CITT to resolve complaints and disputes regarding allegedly unfair or improper procurement processes.
[32] TPG disputes that Parliament has ousted the jurisdiction of this Court to hear causes of action against the Crown arising from public tendering processes through the enaction of subparagraph 30.11 of the CITT Act. TPG asserts that the CITT only has a narrow jurisdiction to hear complaints relating to breaches of trade agreements, not to adjudicate actions alleging tortuous conduct, breaches of contract, or other legal obligations rooted in common law.
[33] Sections 30.1 – 30.19 of the CITT Act lays out a complete code of procedure for addressing procurement complaints. Potential suppliers may advance a complaint with respect to any aspect of a procurement process that is governed by an applicable trade agreement. In response to a complaint the CITT can conduct an inquiry. Section 30.15 of the CITT Act gives the CITT broad discretion to recommend a remedy it considers appropriate. Judicial review from decisions of the CITT is available in the Federal Court of Appeal. The Federal Court of Appeal described the process leading up to an inquiry, and the conduct of the inquiry itself in Canada (Attorney General) v Almon Equipment Ltd, 2010 FCA 193, 405 NR 91 starting at para 11:
[11] The Tribunal has oversight jurisdiction under this regulatory regime. In response to a complaint, it can conduct an inquiry and recommend remedies. The process leading up to an inquiry, and the conduct of the inquiry itself, is as follows:
(a) Complaints (sections 30.11 and 30.12 of the Act). A potential supplier may file a compliant with the Tribunal. The complaint must be regarding "any aspect of the procurement process" that relates to "a contract for the supply of goods or services that has been or is proposed to be awarded by a government institution" or a contract designated in the regulations. "Interested parties" are notified of the complaint.
(b) Screening (subsection 30.13(5) of the Act). The Tribunal may decide not to conduct an inquiry into the complaint.
(c) Inquiry (subsections 30.13(1), 30.13(2) and 30.14(1) of the Act). If the Tribunal decides to conduct an inquiry, it gives notice to the complainant, the relevant government institution and interested parties. They have an opportunity to make representations. The Act does not require the Tribunal to hold a hearing as part of its inquiry, but can do so. The Tribunal's inquiry is limited to the subject-matter of the complaint.
[12] At the end of the inquiry, under subsection 30.14(2) of the Act, the Tribunal must determine whether the complaint is valid, based on particular grounds:
30.14. (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. (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.
[13] Section 11 of the Regulations empowers the Tribunal to assess the complaint based on other grounds:
11. If the Tribunal conducts an inquiry into a complaint, it shall determine whether the procurement was conducted in accordance with the requirements set out in whichever of NAFTA, the Agreement on Internal Trade, the Agreement on Government Procurement, the CCFTA or the CPFTA applies.
11. Lorsque le Tribunal enquête sur une plainte, il décide si la procédure du marché public a été suivie conformément aux exigences de l’ALÉNA, de l’Accord sur le commerce intérieur, de l’Accord sur les marchés publics, de l’ALÉCC ou de l’ALÉCP, selon le cas.
[…]
[16] Where the Tribunal finds the complaint to be valid, it may recommend remedies. Subsections 30.15(2) and 30.15(3) govern these remedies.
[17] Subsection 30.15(2) of the Act is a list of remedies that the Tribunal may award:
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.
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.
[18] Subsection 30.15(3) is a mandatory recipe that the Tribunal must follow when considering its recommendation on remedies:
30.15. (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.
30.15. (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.
[19] In addition to the above remedies, the Tribunal also may provide "comments and observations on any matter...in connection with the procurement process" to a government institution: section 30.19 of the Act.
[20] After receiving the Tribunal's recommendation under subsection 30.15(3) of the Act, the affected government institution shall, subject to the Regulations, "implement the recommendations to the greatest extent possible" and report on its progress. If it "does not intend to implement them fully," it must set out "the reasons for not doing so": section 30.18 of the Act.
[34] The Crown maintains that the purpose of this statutory scheme is to ensure that allegations related to improper procurements are wholly dealt with by the CITT since it is an administrative tribunal with recognized expertise in dealing with procurement disputes. The Crown provides examples of courts recognizing that where Parliament has created a complete statutory code for dealing with a specific subject matter, the jurisdiction of the Court to hear complaints related to that subject matter is ousted (Neles Controls Ltd v Canada, 2002 FCA 107, 288 NR 260 at para 15; CB Powell Ltd v Canada (Border Services Agency), 2010 FCA 61, 400 NR 367 at paras 30 and 31).
[35] On this point, I accept the submission of TPG that the CITT Act cannot have been intended to completely insulate the Crown from common law actions relating to public procurements. While the Crown is correct that the CITT has been tasked by Parliament to investigate complaints regarding procurement processes related to “designated” contracts, this scheme does not, as in the cases cited by the Crown, provide relief that “occup[ies] the whole field in terms of the relief available” (Neles, above, at para 15), nor does it duplicate relief that could be offered by a Court.
[36] In essence, the parties disagree as to whether the doctrine of “adequate alternate remedy” applies in the present matter. This doctrine provides, as submitted by the Crown, that the Federal Court should not exercise its jurisdiction if there is an adequate alternate remedy provided by Parliament. Typically, this applies in the context of the Court declining to exercise judicial review. As per the Federal Court of Appeal in CB Powell, above, at para 31:
[31] […] absent exceptional circumstances, parties cannot proceed to the court system until the administrative process has run its course. This means that, absent exceptional circumstances, those who are dissatisfied with some matter arising in the ongoing administrative process must pursue all effective remedies that are available within that process; only when the administrative process has finished or when the administrative process affords no effective remedy can they proceed to court. Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted.
[37] Justice Michael Kelen listed the factors to be considered under the adequate alternate remedy test at para 44 of Agustawestland International Ltd. v Canada (Minister of Public Works and Government Services), 2004 FC 1545, 263 FTR 54 [Agusta 2004]:
1. the powers and nature of the alternate body;
2. the nature of the error;
3. the convenience of the alternate remedy;
4. the legal framework out of which the matter arises;
5. the burden of a previous finding;
6. expeditiousness; and
7. costs.
[38] TPG argues that, in accordance with the test, the remedies that the CITT can issue are not adequate alternatives to an enforceable court judgement, because firstly, it is not clear that a CITT remedy is enforceable and secondly, the government institution seems to have some degree of discretion over whether and how much to comply with the CITT’s recommendations. Although the CITT procedure may be more expeditious, it is at the cost of dispensing with procedural steps that would be available to the complainant in a court action.
[39] In Agusta 2004, above, Justice Kelen disagreed with the applicant’s submission that the CITT procurement process would not be an adequate alternative remedy to an application for judicial review in the Federal Court. At issue in that case was whether the applicant was a “Canadian supplier” for the purpose of accessing the jurisdiction of the CITT. However, the applicant also argued that the CITT was not an adequate alternate remedy because the procurement review process conducted by the CITT would not apply to the common law duty of fairness in the federal procurement contract process or to the law of bias. However, Justice Kelen refuted this argument, citing Cougar Aviation Ltd. v Canada (Minister of Public Works and Government Services), (2000) 264 NR 49, 26 Admin LR (3d) 30, in which the Federal Court of Appeal held that the CITT’s procurement review jurisdiction included the duty of fairness, impartiality and the right of an unsuccessful bidder to raise an allegation of a reasonable apprehension on bias. Indeed, TPG’s four complaints before the CITT raised exactly these issues. In Cougar Aviation, above, Justice John Maxwell Evans stated at paras 23 and 24:
[23] In my opinion, the various obligations imposed on the parties by the relevant Articles of the Agreement should be interpreted, to the extent that their language permits, in a manner consistent with the common law duty of fairness as it applies to the federal procurement contract process. In the context of administrative procedure, "impartiality" normally includes the appearance of impartiality.
[24] Furthermore, it would unduly fragment a challenge to an award of a contract if an unsuccessful bidder were required to raise an allegation of a reasonable apprehension of bias, not in the Tribunal which might be the appropriate forum for other aspects of a complaint, but on an application for judicial review in the Federal Court, Trial Division. Given the technical nature of the tendering process, and the legislative regime within which it is conducted, it would seem inconsistent with the statutory scheme to interpret the Tribunal's jurisdiction this narrowly.
[40] Broadly, the present matter does require the Court to examine allegations of unfairness and impartiality in the tender process. This would normally fall under the jurisdiction of the CITT, which would represent an adequate alternative remedy. However, it is a distinct situation, in my view, that the present matter is an action and not an application for judicial review. TPG allege specific common law causes of action - specific torts and breach of contract, not the violation of a trade agreement. These causes of action are not provided for under the CITT Act.
[41] TPG cites Agustawestland International Ltd. v Canada (Minister of Public Works and Government Services), 2006 FC 767, 307 FTR 62 [Agustawestland 2006] for the proposition that the doctrine of adequate alternate remedy does not apply to actions for breach of contract and tort arising from public tendering processes. Justice Kelen explained at para 46 of Agustawestland 2006:
[46] This action, in addition to judicial review, sues the defendants for breach of contract and for tort. These causes of action are not restricted by the doctrine that the Court should not assume jurisdiction if there is an adequate alternate remedy provided by statute.
[42] Justice Kelen went on to note that while administrative decisions are generally subject to judicial review, acts by the Crown are subject to legal actions for breach of contract or tort.
[43] Furthermore, as argued by TPG, the CITT Act does not expressly state that no civil proceedings lie against the Crown as in other statutes that state this intention explicitly and clearly. Additionally, the CITT has itself held that issues of contract administration or contract performance do not fall within its jurisdiction (Airsolid Inc. v Canada (Public Works and Government Services), 2010 CanLII 15681 (CITT) at para 16). I take these two facts to indicate that the CITT Act has not completely precluded Crown liability for tort and breach of contract in the context of public tendering.
[44] I am also persuaded by TPG’s submissions that the CITT Act and the procedure followed by the CITT suggest that its primary function is to determine whether Canada has breached obligations under specified international and domestic trade agreements. The CITT is not a court for the resolution of common law claims against the Crown.
[45] I am sensitive to the Crown’s argument that Parliament intended the CITT to provide an expeditious venue for the resolution of complaints regarding the procurement process and I am mindful of the danger of chipping away at the jurisdiction bestowed by Parliament onto the CITT by allowing actions largely dealing with allegations properly under the umbrella of the CITT entry into the Courtroom. However, given the nature and scope of the allegations in the present action, I am not satisfied that the CITT’s mandate has replaced the Court as the proper forum in which to try breach of contract and tort allegations that fall outside the scope of trade agreements.
B. Res Judicata
[46] The Crown submits that TPG is precluded from bringing this action on the basis of the doctrine of res judicata. TPG previously filed four complaints with the CITT. The Crown characterizes these complaints as a challenge to the fairness of the evaluation and decision to award the contract to CGI in broad terms, the same elements founding TPG’s cause of action.
[47] TPG submits that there is no merit to this argument because the issues in this action have not been previously decided.
[48] Res judicata has been defined as “something that has clearly been decided” (R. v Duhamel, [1984] 2 SCR 555, 14 DLR (4th) 92). The doctrine of res judicata springs from the idea that no one should be twice vexed by the same cause and the recognized need for judicial finality. The courts refuse to tolerate needless litigation. Res judicata takes two forms: cause of action estoppel and issue estoppel. Issue estoppel applies when a particular question has been decided in a previous proceeding, whereas cause of action estoppel applies when the question could have been decided.
(1) Issue Estoppel
[49] The essential elements of issue estoppel are:
(a) the same question must have been decided;
(b) the judicial decision which is said to create the estoppel was final; and
(c) the parties to the judicial decision must be the same.
(Danyluk v Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 SCR 460 at para 25)
[50] Both parties agree that the fundamental aspect of issue estoppel is an analysis of whether the question in the subsequent litigation can be said to be the “same”. The Crown submits that a different characterization of the question and a different process or different relief requested does not mean a different question. On the other hand, TPG asserts that there is no issue estoppel if the question arose collaterally or incidentally in the first proceeding or if the question must be inferred by argument from the decision (Danyluk, above, at para 24).
[51] Both parties admit that issue estoppel applies only to issues that were fundamental to the decision arrived at in earlier proceedings. However, the parties differ on their characterization of TPG’s earlier CITT complaints.
[52] With respect to TPG’s allegations of breach of contract, the Crown insists that the issues raised relate to the fairness and transparency of the procurement process, and these issues have already been before the CITT. In the Crown’s eyes, TPG brought four complaints in respect of the ETS evaluation, alleging variously that the Crown did not evaluate the bids fairly, impartially and in accordance with the RFP, that there was a reasonable apprehension of bias in the evaluation process, that the evaluation methodology had been altered after bid closing, all so as to favour one bidder over others.
[53] TPG submits that the CITT only ruled on very narrow questions based on provisions of the applicable trade agreements. TPG argues that two of the CITT complaints were never decided on the merits, and of the other two, one complaint dealt with the narrow issue of whether evaluators could give scores besides 0, 1 and 2 for one small subset of the RFP requirements, and the other whether PWGSC verified project references provided in each of the proposals. TPG insists that none of the narrow issues dealt with by the CITT are being re-litigated in this action.
[54] TPG brought four complaints to the CITT between the completion of the evaluation and the ultimate award of the contract to CGI. The complaints are as follows:
1) Complaint PR-2006-050 was initiated on March 23, 2007. TPG alleged that PWGSC did not evaluate the bids fairly, impartially and in accordance with the RFP, and that there was a reasonable apprehension of bias in the evaluation process. The CITT found that both grounds of complaint were time barred and consequently did not accept the complaint for inquiry. The Federal Court of Appeal allowed TPG’s application for judicial review, finding that the Tribunal had no factual grounds on which it could determine the starting point of the limitation period and that the CITT was patently unreasonable in its characterization of the second ground. Nonetheless, the complaint was premature given that there had been no formal communication of the results at the time the complaint was brought.
2) Complaint PR-2007-025 was initiated on June 27, 2007. TPG alleged that the evaluation methodology set out in the RFP was modified after bid closing and for some criterion scores of 0, 1 or 2 were given, instead of scores of 0 or 2. TPG argued this allowed evaluators to favour weak bidders. While the CITT found that the complaint was valid for 7 criteria out of 237 items in the evaluation matrix, the tribunal found no pattern indicating that one bidder was favoured over another. Further, the CITT concluded that the results would have been the same notwithstanding the irregularity, hence TPG suffered no prejudice, and there was no evidence that PWGSC had acted in bad faith. TPG sought, but then discontinued, an application for judicial review.
3) Complaint PR-2007-033 was initiated on August 29, 2007. TPG alleged the following: (1) PWGSC failed to fairly evaluate TPG's proposal; (2) there was a reasonable apprehension of bias and/or an appearance of conflict of interest in