COMPETITION |
BCE Nexxia Inc. v. Canada (Commissioner of Corrections)
A-747-00
2002 FCA 9, Stone, Rothstein and Sexton JJ.A.
5/12/01
12 pp.
Application for judicial review of Canadian International Trade Commission (CITT) decision it had jurisdiction to consider Telus' complaint that proposal to provide telephone services to inmates for Corrections Service of Canada (CSC) in Canadian prisons not compliant with mandatory requirements stipulated in Request for Proposals issued by CSC, and recommending contract be awarded to Telus--BCE and CSC submit CITT erred in finding it had jurisdiction; CITT's decision patently unreasonable--Application allowed --CITT without jurisdiction to consider Telus' complaint--Agreement on Internal Trade (AIT), c. 5 not applying to procurement by CSC of telephone services for prisoners--CITT, while reciting text of definition of "procurement value", did not engage in any analysis of term "financial commitment"--CITT's bare conclusion that services necessarily involving financial commitments failing to deal with meaning of term "financial commitment", which is central question to be determined--CITT's entitlement to deference as expert tribunal will be weakened by absence of reasoned explanation for its interpretation of relevant provisions of AIT--Monetary threshold for application of AIT, c. 5 to procurement of services, as herein, set at $100,000--According to Telus, consideration flowing from CSC to supplier not monetary amount, but in form of "exclusive franchise"--Generally, "financial commitment" connoting monetary obligation--Context in which definition of "procurement value" used supporting construction that monetary obligation intended by term "financial commitment"--Granting of exclusive franchise not ejusdem generis with other words used to describe remuneration in AIT, s. 505(2)--Expectation of remuneration in form of telephone tolls and charges paid by prisoners, not CSC--In fact, no financial commitment to supplier from either CSC or prisoners--CSC paying no remuneration--Prisoners making no commitments of any kind--Supplier accepting risk prisoners may not sufficiently use telephone services to justify investment--As no "financial commitment" resulting from procurement by either CSC or prisoners, no "procurement value" for purposes of AIT, s. 502(1)(b)--AIT, c. 5 not intended to be all-encompassing; construing term "financial commitment" to exclude procurements where government not assuming monetary obligation to pay supplier not inconsistent with less than pervasive scope of Chapter 5--Financial commitment must be that of procuring entity; fact supplier's cost of providing monitoring services to CSC well above $100,000 irrelevant--Agreement on Internal Trade, Canada Gazette, Part I, vol. 129, No. 17 (April 29, 1995), ss. 502, 505.