The reasons comprised over 1800 paragraphs, fact-finding alone representing more than a thousand paragraphs. Over more than 500 pages, the decision reviewed complicated, acronym and formulaic laden evidence, based on a wide assortment of credibility driven issues, contained in 47 volumes of evidence. Legal determinations alone responded to over a week of submissions. The liability and damages award exceeded $29 million. This was followed by a 56 page pre-judgment interest and costs award of $3,077,826 and $4,766,679 respectively. The reasons, including those on costs, were delivered four months after the completion of submissions.
There is no question of reading the Envoy decision, perhaps apart from perusing the 10-page table of contents and the introductory first chapter. Instead, I call on the late singularly honoured Thomas G. Heintzman O.C., Q.C., FCIArb to provide his analysis of the case, which he critiqued in three articles. His critique led with the caption “The Mother of All Tender Cases”. Mr. Heintzman ended his analysis in the third article with the following remarks:
“This article concludes the analysis of the decision in Envoy Relocation Services, truly the Mother of All Tender cases. The decision can be filed away for future reference on a wide variety of issues relating to tenders and procurements. And it can be pulled out to be read any time we need to be reminded about the importance of the courts to the impartial resolution of disputes between the government and the private sector.”
The latter comment may have referenced Mr. Heintzman’s citation of a passage from my reasons in his second article. It related to my commitment to the rule of law in overcoming obstacles regarding the appropriate conduct of a fulsome factual and legal hearing in the face of otherwise compromising legislation.
“The fundamental difference between a court like the Superior Court of Justice and the CITT involves the capacity to determine facts. It would frankly be unthinkable for any judicial body, but a trial court to hear a matter such as this one.
If I may resort to a Proustian sentence to make the point: this matter involves facts extending over several years [and the trial judge continued in one sentence for seventeen lines concluding] …and everything else that goes with a trial in which factual findings are fundamental to the ultimate decision that teams of lawyers have spent thousands of hours working on.
I cannot imagine more inappropriate circumstances in which to advance an argument that the jurisdiction of the Superior Court should be ousted because Parliament intended that cases of this nature should be resolved before the CITT.
This is not intended to be disrespectful towards the CITT, but it is clearly not a fact-finding quasi-judicial institution. Matters of contract, tort and remedies resulting therefrom are generally fact driven. One cannot replace a trial court with an administrative tribunal, unless the tribunal takes on the general characteristics of the trial court, such as has happened in many respects in labour law. But there is nothing in the constitution and procedures before the CITT that suggests it has either the capacity or the experience to make factual determinations, unless of a fairly rudimentary nature…
In matters of procurement, there is an obvious need in some cases for recourse to a judicial institution whose primary responsibility is the finding of facts in the pursuit of justice. I consider this to be a strong policy argument supporting the conclusion that Parliament could not have intended to exclude the Superior Court’s jurisdiction in this area without the clearest words to that effect.”
LINK to Envoy liability decision
LINK to published Envoy costs decision
Another procurement decision of interest is Rapiscan Systems, Inc. v. Canada (Attorney General), 2014 FC 68; 2015 FCA 96
The significant issue related to governance issues of the Canadian Air Transport Security Authority concerning the suitability of a public law remedy involving a commercial procurement contract to purchase airport passenger screening machines. By innovatingly subsuming management’s conduct in advising on the procurement, the decision of the Governing Board was set aside as unreasonable and unlawful and subject to a declaration that CATSA failed to follow its Contracting Procedures enacted pursuant to the CATSA Act, as upheld by the Federal Court of Appeal.
Peter Annis Dispute Resolution 