INTERNAL TRADE |
Cognos Inc. v. Canada (Minister of Public Works and Government Services)
T-1234-02
2002 FCT 882, Beaudry J.
16/8/02
16 pp.
Motion for immediate interim order staying operation of certificate issued by Minister of Public Works and Government Services under Canadian International Trade Tribunal Act, s. 30.13(4) enjoining respondent from awarding contract pending determination of complaint or judicial review--Correctional Services Canada (CSC) deciding to move to different system of storage, retrieval (migration) of database--Determining only Core Software Corporation could provide products, services to fit their needs--Advance Contract Award Notice stating award of contract to sole source instead of open tender competition appropriate --Applicant filing complaint, requesting Canadian International Trade Tribunal (CITT) to issue stop award order, which it did--When respondent filed certificate stating contract urgent, delay contrary to public interest, CITT rescinding order--Motion dismissed--Applicant raising serious issues for trial: whether respondent properly applied s. 30.13(4); whether respondent required to provide reasons for issuing certificate--But harm caused to applicant not irreparable--S. 30.15(2) permitting CITT to recommend remedies upon determining complaint valid--Such remedies including monetary compensation--S. 30.18 providing where CITT making recommendations to government institution under s. 30.15 government institution shall implement recommendations to greatest extent possible--Thus CITT ruling imposing obligation on affected government institution --Respondent required to deliver any remedy CITT awarding, including monetary damages or rescission of contract, to greatest extent possible, or justify failure to do so--Court may intervene in event of failure by respondent to comply with recommendations--Range of remedies not reduced if injunction not granted as unlikely, as contract still under negotiation and migration process likely to take 14 to 16 months to complete, that performance of contract would be so far advanced as to preclude cancellation of contract--CITT ordering cancellation of contracts in previous cases-- Awarding, performance of contract not bar to cancellation-- Thus full range of remedies remaining open to CITT--As to balance of convenience, no proof respondent or CSC would routinely certify contracts urgent, delay contrary to public interest in order to circumvent process--Failure to grant injunction not bringing public procurement process into disrepute--No evidence supporting submissions granting of injunction would have resulted in prejudice in form of compromised public safety--Balance of convenience fairly even--Canadian International Trade Tribunal Act, R.S.C., 1985 (4th Supp.), c. 47, ss. 30.13(4) (as enacted by S.C. 1993, c. 44, s. 44), 30.15(2) (as enacted idem), 30.18 (as enacted idem).