Date: 20000908
Docket: T-1297-00
BETWEEN:
TELUS INTEGRATED COMMUNICATIONS
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
- and -
BCE NEXXIA INC.
Respondent
REASONS FOR ORDER AND ORDER
HENEGHAN, J.
[1] Telus Integrated Communications ("Telus"), as applicant in the within proceedings for judicial review, seeks an interlocutory injunction prohibiting the Minister of Public Works and Government Services Canada (the "Minister") from continuing with any contract entered into with the respondent BCE NEXXIA Inc. ("BCE"), or any other contractor, pending a final determination of this application for judicial review, or until such time as the Canadian International Trade Tribunal (the "CITT") has completed its review of the complaint filed with it by the applicant and issued its decision and recommendations to the Minister.
[2] Both the Attorney General of Canada (the "Attorney General") and BCE , as respondents in the judicial review proceedings, oppose this request for an interlocutory injunction.
[3] For the purposes of this notice of motion, the facts can be briefly stated.
[4] On October 20, 1999, Public Works and Government Services Canada ("PWGSC"), issued a Request For Proposals ("RFP") for the Telecommunications Services Renewal Project ("TSRP") relating to telecommunications services to be provided for the Department of National Defence ("DND"). The RFP called for bids for the provision of expanded telecommunications services to DND offices across the country, requiring the installation of infrastructures as well as the management of certain existing contracts.
[5] Telus, a provider of telecommunications services who was already providing some of the services to DND, submitted its bid by February 15, 2000.
[6] On April 17, 2000, Telus received a request from PWGSC for clarification of its bid. On April 18, 2000, Telus responded to that request.
[7] On June 16, 2000, the Minister of PWGSC entered a contract with BCE for the provision of the services in question. On June 19, 2000, Telus was informed by PWGSC that the contract had been awarded to BCE.
[8] Following a meeting with representatives of PWGSC on June 27, 2000, Telus filed a complaint with the CITT on June 28, 2000. This complaint was filed pursuant to section 30.11 of the Canadian International Trade Tribunal Act, R.S.C. 1985, c. 47 (4th Supp.) (the "CITT Act"). The complaint included a request that the CITT deal with the complaint on an expedited basis.
[9] By letter dated July 5, 2000, the CITT advised that it had accepted the complaint for inquiry but that due to the nature of the complaint, the express resolution option was not appropriate. This means that the usual time lines will apply and the CITT must deal with the inquiry within a ninety (90) day period unless an extension is granted, in which case the time for filing a report into the complaint will be one hundred and thirty five (135) days.
[10] On July 17, 2000, Telus wrote the CITT and requested that a stop order be issued in relation to the BCE contract. This request was made pursuant to section 30.13(3) of the CITT Act. The CITT responded by letter dated July 19, 2000 and advised that it was without jurisdiction to issue a postponement award since the contract had already been awarded.
[11] On July 18, 2000, Telus commenced the within application for judicial review seeking declaratory relief, as well as an interlocutory injunction.
[12] On July 25, 2000, Telus filed its notice of motion seeking injunctive relief. On August 4, 2000, an order was made setting out the time limits within which affidavits were to be filed in connection with this notice of motion. On August 11, 2000, a further order of this Court was filed, dismissing a motion brought by the respondent, the Attorney General, seeking an order to strike out the within application for judicial review, or alternatively, an order to stay these proceedings pending a ruling by the CITT in relation to the complaint filed by Telus.
[13] As matters now stand, Telus is proceeding with its complaint before the CITT. The respondent, the Attorney General, has filed its reply to that complaint and Telus has submitted a response to the government's position. BCE has been granted intervener status before the CITT.
[14] In order to obtain an interlocutory injunction, Telus has to meet the three part test set out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General) [1994] 1 S.C.R. 311, 164 N.R. 1. This requires Telus to show that there is a serious issue arising from the application for judicial review, that irreparable harm will result to Telus if an interlocutory injunction is not granted at this stage and that the balance of convenience favours Telus, having regard to the respective positions of the affected parties, that is Telus, the Attorney General and BCE.
Serious issue
[15] Both respondents have argued that there is no serious issue arising from the within application for judicial review and that Telus is effectively trying to obtain from this Court a remedy which is not provided for in the CITT Act, that is an interim stay of a contract which has already been awarded, which remedy was refused by the CITT in its letter of July 19, 2000. Furthermore, the respondents argue that once the complaint is dealt with by the CITT, the foundation for this application for judicial review will disappear and consequently, that there is no serious question raised in this application for judicial review.
[16] The respondent BCE also argues that the declaratory relief sought by Telus in this application for judicial review is not properly the subject matter of an interlocutory application and that the subject matter of this application for judicial review is the same question before the CITT, that is whether the Telus bid was compliant within the meaning of the RFP. The respondent BCE says that the "serious issue" considered recently by Mr. Justice Lemieux, in dealing with the motion to strike brought by the Attorney General, is not the same "serious issue" which arises for consideration in a motion for interlocutory injunctive relief.
[17] I am not persuaded by these submissions.
[18] The applicant has clearly stated in its application for judicial review that the decision under review in the application for judicial review is the decision of the Minister to award the contract prior to advising Telus that its bid was non compliant, which decision, according to the applicant, was in breach of article C.4.3 of the RFP that provides for assessment of compliancy during, not after, the evaluation stage. Further, the applicant argues that this decision of the Minister if made pursuant to a government policy to defer advising bidders of non-compliancy in an attempt to avoid challenges to contract procurement, is contrary to article 514(2) of the Agreement on Internal Trade ("AIT").
[19] In my opinion, the issue raised by Telus, in this application for judicial review is different from the complaint which is before the CITT. The decision which is challenged in this proceeding is independent of the matters being considered by the CITT. Accordingly, I am satisfied that the applicant has met the first test, that there is a serious issue arising from this application for judicial review.
Irreparable harm
[20] The second branch of the test requires an applicant for injunctive relief to present evidence that irreparable harm that cannot be compensated in damages, will result if the relief sought is not granted. An applicant must provide evidence, not speculation, in that regard. The authorities are clear on this point; see Centre Ice Ltd. v. National Hockey League (1994), 53 C.P.R. (3d) 34; Caterpillar Inc. v. Chaussures Mario Moda Inc. (1995), 99 F.T.R. 299 and ITV Technologies, Inc. v. WIC Television Ltd. (1997), 140 F.T.R. 302.
[21] The applicant submits that as a result of the actions and decision of the Minister, it has been deprived of a contract which would have given it the opportunity to expand its market share nation-wide and enhance its ability to acquire more government work in the future. The applicant says that its primary concern is not loss of profit but loss of opportunity in developing its presence in the field of telecommunications across the country and that it is at risk of losing a competitive edge to BCE which, if lost, cannot be recouped.
[22] It submits that lack of precision as to the degree of market share it stands to lose is not fatal to its claim that it will suffer irreparable harm in the absence of injunctive relief, and in that regard relies upon the decision of this Court in Lubrizol Corp. v. Imperial Oil Ltd. (1989), 22 C.P.R. (3d) 493 at 505 (F.C.T.D.).
[23] Finally, Telus submits that there is no evidence of irreparable harm to BCE if the injunction is granted. Telus says there is evidence only of inconvenience to Telus. It is noteworthy that the respondent, the Attorney General, did not file an affidavit from any representative of DND or even PWGSC. Instead, the Attorney General chose to rely on the affidavit of Louis Savoie, General Manager, Federal Government Sales for BCE and a person who is familiar with this contract. Likewise, BCE relied upon the same affidavit in addressing this issue of irreparable harm.
[24] The relevant time frame for considering this issue is the time between the hearing of the motion and the time when the CITT makes its determination of the Telus complaint. If the CITT disposes of the matter within ninety (90) days after the complaint was filed, there will be a determination by September 26, 2000. If the CITT grants an extension of time, for which there has been no request, the time will be extended by forty five (45) days and a ruling will be delivered by November 10, 2000.
[25] The issue of irreparable harm must be considered in relation to the evidence of irreparable harm which would result to the applicant if the requested relief is denied.
[26] The applicant argues that although section 30.15(2) of the CITT Act provides the CITT with a wide range of remedies, including the authority to recommend termination of an awarded contract and to recommend that a contract be awarded to another bidder, it is less likely that the tribunal will recommend such a remedy if the contract in issue is already in performance. In support of that argument, the applicant relies upon two rulings by the CITT in Wescam Inc. (Re) [1999] C.I.T.T. No. 30 (File No. PR-98-039) and Novell Canada, Ltd. (Re) [1999] C.I.T.T. No. 46 (File No. PR-98-047).
[27] On the other hand, BCE has submitted other decisions of the CITT in which the tribunal did indeed exercise its discretion to recommend termination of contracts which were in the course of performance and in that regard, BCE relies upon the decisions of the tribunal in Novell Canada, Ltd. (Re) [1999] C.I.T.T. No. 54 (File No.: PR-99-001), and
Mechron Energy Ltd. and Department of Public Works and Government Services [1995] C.I.T.T. No. 59 (File No.: PR-95-001).
[28] In the normal course of events, and absent an extension of time, the tribunal is required to file its decision within ninety (90) days after the complaint is filed, that is by September 26, 2000. Under the terms of the contract which has now been awarded to BCE, the first ninety (90) days after the contract award is a transition period during which BCE is required to oversee existing contracts and to phase them out. This transition period will end on September 16, 2000, following which BCE is to begin with the installation of infrastructure required under the contract and the various other services required under the contract.
[29] There is no evidence that BCE will have completed the installation of this infrastructure by November 10, 2000, which is the latest date by which the CITT is to file a decision. Equally, there is no evidence that performance of the contract will be in such an advanced stage that the CITT would decline to exercise its power to recommend termination of the contract and its award to Telus, should Telus succeed before the CITT.
[30] I am in no better position than counsel for the parties in so far as anticipating how the tribunal may exercise the discretion conferred by section 30.15(2) of the CITT Act in the event that it upholds the complaint made by Telus. Section 30.15(2) of the CITT Act is not exhaustive but merely identifies some of the available remedies which may be recommended by the tribunal. The tribunal has the discretion to recommend a meaningful remedy to the applicant Telus, if Telus succeeds upon its complaint before the tribunal. It is inappropriate for me to speculate, either positively or negatively, how that tribunal may exercise its discretion to provide a remedy, and I decline to do so.
[31] Having regard to these factors and the nature of the evidence presented by Telus on the question of irreparable harm, I am not persuaded that Telus has established that it will suffer irreparable harm if injunctive relief is denied. Although loss of projected market share may be difficult to assess, this element is capable of some kind of assessment. The evidence presented by Telus to date does not meet the standard of certainty which has been consistently required by the Courts in dealing with requests for interlocutory injunctions.
[32] Since I have decided that Telus has not met the test on the issue of irreparable harm, it is not necessary for me to deal with the balance of convenience.
[33] For these reasons, the notice of motion seeking an interlocutory injunction is dismissed with costs in the cause.
"ELIZABETH HENEGHAN"
J.F.C.C.