Date: 20050104
Docket: T-1605-04
Citation: 2005 FC 1
OTTAWA, Ontario, January 4th, 2005
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
AGUSTAWESTLAND INTERNATIONAL LIMITED
Applicant
and
MINISTER OF PUBLIC WORKS AND GOVERNMENT SERVICES
AND SIKORSKY INTERNATIONAL OPERATIONS, INC.
Respondents
REASONS FOR ORDER AND ORDER
(With respect to costs)
[1] The parties have made submissions on costs with respect to two motions:
1. a motion by the respondents to strike this application for judicial review; and
2. a motion by the applicant for a declaration that the application is timely, or in the alternative, that an extension of time for applying for judicial review be granted.
[2] The applicant was successful on both motions and is seeking costs on a solicitor and client basis or, in the alternative, costs on an increased scale. The respondents submit that costs should be in the cause.
Agusta
[3] Agusta submits that it was the delaying actions of Public Works which resulted in the need for a motion for an extension of time. Agusta also submits that Public Works told Agusta that it would object to the Canadian International Trade Tribunal's jurisdiction to review the procurement on the basis that Agusta was not a "Canadian supplier", and that this was one of the reasons Agusta did not file a procurement complaint before the Tribunal. Agusta submits that Public Works stated that the Tribunal did not have jurisdiction, and then after the date for filing a procurement complaint before the Tribunal, Public Works stated that Agusta should have complained to the Tribunal before commencing an action for judicial review. In my Reasons for Order dated November 3, 2004 at paragraph 68 I held:
For all of these reasons, the Court is satisfied that Agusta had a reasonable basis for not filing a complaint with the Tribunal until this time.
In the alternative, Agusta submits that the complex legal issues and the amount of work involved in these two motions justify an award of increased costs under Rule 403(3) of the Federal Court Rules,
1998.
Sikorsky
[4] Sikorsky submits that costs in the cause should be awarded because Agusta's judicial review application was late and the Tribunal "does" provide an adequate alternate remedy. It should be noted that since the Tribunal did not take up Agusta's complaint, and it is the Tribunal which has the power to find on its own jurisdiction under s. 7 of the Canadian International Trade Tribunal Procurement Inquiry Regulations, SOR/93-602, it is incorrect of Sikorsky to state that the Tribunal provides such a remedy. There is only the possibility that it does, and while it might have been an "appropriate" forum, as outlined at paragraph 69 of the Nov. 3 Reasons, the Tribunal declined to proceed on this matter.
[5] Sikorsky submits that the lateness of the judicial review application is an issue that has not yet been fully resolved, since in its view Agusta is challenging two separate decisions of Public Works - the structuring of the procurement process and the contract award. It also argues that the confusion over the adequate alternate remedy issue is due to the fact that Agusta failed to file its complaint with the Tribunal in the first instance, so the Tribunal did not have the opportunity to decide whether Agusta is a "Canadian supplier", as required to trigger Tribunal jurisdiction.
Public Works
[6] Public Works submits that solicitor-client costs are only awarded for behaviour that is "reprehensible, scandalous or outrageous" (as per Apotex Inc. v. Canada (Minister of Health and Welfare), (2000), 194 D.L.R. (4th) 483) and that Public Works has done nothing to deserve this kind of censure. It submits that it could not give Agusta its position on the jurisdiction of the Tribunal at the motions hearing because it did not have instructions from its client, nor did it have the submissions Agusta would ultimately make to the Tribunal on jurisdiction to which it could respond. Public Works also submits that the determination of whether Agusta is a "Canadian supplier" was irrelevant because Agusta had self-frustrated the remedy by not filing a complaint to the Tribuanl in time.
[7] Regarding Agusta's alternative submissions, Public Works submits that Agusta has not quantified and described in detail the exact nature of the complexity and extra work involved, and that it is required to do so in order to receive costs on an increased scale.
ANALYSIS
[8] In my Nov. 3 Reasons, I commented upon Public Works' position before the Court that while it was submitting the Tribunal was an adequate alternate remedy, it could not say whether it would argue the opposite once before the Tribunal. Agusta submitted that it had been told by a Public Works official that the Tribunal jurisdiction to hear its complaint would be contested, as it was when Agusta's former incarnation, E.H. Industries Ltd., made a complaint to the Tribunal at the beginning of the helicopter procurement process in 2000.
[9] While the conduct of Public Works may certainly be termed contradictory, it is not conduct, in my view, that could be considered reprehensible, scandalous or oppressive so as to warrant solicitor-client costs. Agusta must satisfy itself and not rely on advice from a Public Works official in making a decision on whether to file a procurement complaint. Solicitor-client costs are therefore not warranted.
[10] With respect to the arguments against the extension of time by the respondents, there is extensive jurisprudence indicating that extensions of this type are granted regularly by the Court in similar circumstances.
[11] I find that it is appropriate for Agusta to be awarded its costs on the two motions. Because of the position taken by the respondents, the Court found that it was in the interests of justice for Agusta to have the opportunity to file its complaint with the Tribunal. Agusta did so, and the Tribunal decided it could not receive the complaint because it was out of time. Because of the work and complexity involved in preparing the motions, I would also award Agusta its costs on an increased scale, at the high end of Column IV of Tariff B, with a direction that these motions reasonably required two counsel for each party.
ORDER
THIS COURT ORDERS THAT:
Agusta is awarded its costs for both motions on an increased scale in accordance with these Reasons, and in any event of the cause.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1605-04
STYLE OF CAUSE: Agustawestland International Limited v.
Minister of Public Works and Government Services
and Sikorsky International Operations, Inc,.
PLACE OF HEARING: Ottawa Ontario
DATE OF HEARING: Tuesday, October 26, 2004
REASONS FOR ORDER
AND ORDER
(With respect to costs): The Honourable Mr. Justice Kelen
DATED: Tuesday, January 4, 2005
APPEARANCES:
Mr. G. Cameron
Ms. M. Gardner
Ms. V. Cherneski APPLICANT
Mr. M. Ciavaglia
Mr. J. Brongers RESPONDENT, Minister of Public Works and Government Services
Ms. B.A. McIsaac, Q. C.
Mr. R. B. Mills
Ms. V. Gruben RESPONDENT, Sikorsky International Operations, Inc.,
SOLICITORS OF RECORD:
Blake Cassels & Graydon, LLP
Ottawa Ontario APPLICANT
Morris Rosenberg,
Deputy Attorney
General of Canada RESPONDENT, Minister of Public Works & Government Services
McCarthy Tetrault
Ottawa Ontario RESPONDENT, Sikorsky International Operations, Inc.
FEDERAL COURT
Date: 20050104
Docket: T-1605-04
BETWEEN:
AGUSTAWESTLAND INTERNATIONAL LIMITED
Applicant
and
MINISTER OF PUBLIC WORKS AND GOVERNMENT SERVICES AND SIKORSKY INTERNATIONAL OPERATIONS, INC.
Respondents
REASONS FOR ORDER
AND ORDER
(With respect to costs)