Digests

Xwave solutions Inc. v. Canada (Public Works and Government Services)

A-494-02

2003 FCA 301, Evans J.A.

9/7/03

18 pp.

Application to set aside decision of Canadian International Trade Tribunal rejecting complaint by applicant under Canadian International Trade Tribunal Act, s. 30.11(1)-- Tribunal holding applicant had not established requirement in request for procurement (RFP) for computer applications discriminatory under Agreement on Internal Trade (AIT)-- Procurement for supply of security and military police information system (SAMPIS) for use by Department of National Defence (DND)--Fielding requirements in RFP stipulating components must have been used successfully by minimum of three police forces, at least two of which in Canada--First, applicant alleging Tribunal breached duty of fairness as did not hold oral hearing even though regarded as key issue in disposition of applicant's complaint question of whether DND knew Versaterm Inc. only source of compliant occurrence management system (OMS)--Second, Tribunal erred in law in interpreting AIT, art. 504(3) as requiring complainant to prove DND knew only Versaterm's OMS satisfied fielding requirements--Act, s. 30.13(1) giving Tribunal discretion to hold oral hearing, as opposed to conducting paper inquiry into complaint--Reflecting common law in that duty of fairness not always requiring administrative decision-maker to hold oral hearing in order to be procedu-rally fair--In determining whether on particular facts Tribunal required by duty of fairness to hold oral hearing, Court should have regard to fact Parliament expressly entrusted Tribunal with discretion to make procedural choice, which Tribunal has exercised--Tribunal regarded question of whether DND knew fielding requirements could only be met by product from single source as relevant to decision--Fairness not requiring Tribunal to depart from normal practice of determining complaints on basis of written submissions and to hold oral hearing on issue of DND's knowledge--Only in clearest of cases should Court be prepared to set aside decision by Tribunal oral hearing not necessary for it to decide validity of complaint--Tribunal's refusal to accede to request for oral hearing not denying applicant reasonable opportunity of establishing validity of complaint--Function of procedural fairness to set minimum standards, not to enable reviewing court to determine how it would have exercised Tribunal's discretion as to when to hold hearing--Court should only intervene to prevent manifest unfairness--Generally, questions of law within Tribunal's expertise decided by it in course of procurement complaint reviewed on standard of patent unreasonableness--Question of law whether applicant had burden of proving DND's knowledge Versaterm sole source of compliant OMS--Since administrative tribunals normally not bound by law of evidence as applied by courts, question of which party bears burden of proof on particular issue not question of general law on which Tribunal's expertise less than that of reviewing court--Consequently, applicable standard of review patent unreasonableness--Not patently unreasonable for Tribunal to have applied general rule: those who allege must prove--Applicant had access to information relevant to DND's knowledge--Application dismissed--Canadian International Trade Tribunal Act, R.S.C., 1985 (4th Supp.), c. 47, ss. 30.11 (as enacted by S.C. 1993, c. 44, s. 44), 30.13 (as enacted idem)--Agreement on Internal Trade, Canada Gazette Part I, Vol. 129, No. 17 (29 April 1995).