Digests

Telus Integrated Communications v. Canada (Attorney General)

T-1297-00

Heneghan J.

8/9/00

11 pp.

Applicant seeking interlocutory injunction prohibiting Minister from continuing with contract entered into with BCE Nexxia Inc. pending final determination of application for judicial review, or until Canadian International Trade Tribunal (CITT) completing review of complaint, issuing decision--Telus submitting bid to provide telecommunications services to Department of National Defence--Public Works entering contract with BCE for provision of services in question--Subsequently advising Telus contract awarded to BCE--Telus filing complaint with CITT, application for judicial review seeking declaratory relief, interlocutory injunction--Three-part test set out in RJR--MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 applied --(1) Serious issue arising from application for judicial review--Decision challenged in this proceeding independent of matters considered by CITT--Minister's decision to award contract prior to advising Telus bid non-compliant under review in judicial review application--Allegedly in breach of request for proposal providing for assessment of compliancy during, not after, evaluation stage--Applicant also arguing Minister's decision, if made pursuant to government policy to defer advising bidders of non-compliancy in attempt to avoid challenges to contract procurement, contrary to Agreement on Internal Trade--Issue raised in application for judicial review different from complaint before CITT--(2) But Telus not establishing irreparable harm if injunctive relief denied--Applicant must provide evidence, not speculation, irreparable harm not compensable in damages will result if relief sought not granted--Submitting deprived of opportunity to expand market share and at risk of losing competitive edge to BCE which, if lost, cannot be recouped--Relevant time frame for considering issue time between hearing of motion, time when CITT making determination of Telus complaint--In normal course of events, absent extension of time, tribunal required to file decision within 90 days after complaint filed (September 26, 2000)--First 90 days after contract awarded transition period during which BCE required to oversee existing contracts, phase them out--Transition period ending September 16, 2000--No evidence BCE will have completed installation of infrastructure by November 10, 2000, latest date by which CITT to file decision--No evidence performance of contract will be in such advanced stage that CITT would decline to exercise power to recommend termination of contract and award to Telus, should Telus succeed before CITT--Inappropriate to speculate how tribunal may exercise discretion to provide remedy--Although loss of projected market share may be difficult to assess, evidence presented by Telus not meeting standard of certainty consistently required by courts in dealing with requests for interlocutory injunctions--Motion dismissed.