Ottawa technology firm TPG Technology Consulting Ltd. is suing five current and former members of the Competition Bureau after they were acquitted in a criminal bid-rigging case, citing negligence on the part of the commissioners.
“This is to vindicate the rights of several people who were faced with the force of the government,” says Charles Gibson, partner with Vincent Dagenais Gibson LLP, who is representing TPG and other plaintiffs from the bid-rigging case in their suit against the commissioners. “My clients spent over $3 million in defence of this matter, and it’s something that could have been dealt with at the outset. It’s about the power of the state and the misuse of that power.”
The case involved an IT procurement bid for the federal government from 2005, which the Competition Bureau investigated. It laid charges against TPG, two of its executives and a few other companies and individuals who worked for those companies. The charge was bid rigging under the Competition Act, as well as conspiracy charges under the Criminal Code.
The criminal bid-rigging case was one of the largest and most complex of its kind in Ontario, and it featured more than a million pages of documentation. It also required a courtroom that was specially wired to handle the various computer systems to manage the volume.
Gibson says that, in the criminal process, peace officers and other investigators have a large discretion, which should be exercised in a professional matter.
The statement of claim in the suit alleges that the Competition Bureau commissioners did not meet the necessary level of professionalism required in the case.
Gibson is representing TPG and fellow plaintiffs Spearhead Management Canada Limited, Sue Laycock, Marina Mancini and Donald Powell. The defendants in the case are listed as the federal attorney general, the minister of Innovation, Science and Economic Development Canada, the Competition Bureau and current and former commissioners John Pecman, Sheridan Scott, Melanie Aitken, Stephen Fitzpatrick and Colette Morin-Wade. As well, Shaun Pritchard, a competitor of TPG’s who made the initial complaint, was also named.
Cited in the statement of claim are allegations that bureau investigators did not consult the government’s request for proposal in their investigation of the bids, and that they failed to understand the government’s procurement procedures and mechanisms as well as the IT industry, that they failed to remain objective in their determination of whether there was probable cause for charges, that they operated with “tunnel vision” and were not acting in good faith, that they failed to interview key witnesses including public servants with knowledge of the formation of team bids and that they failed to consult independent experts to get an understanding of how government IT procurement works.
Gibson is also serving as counsel for TPG and Powell on a related claim, filed in 2010, regarding abuse of public office.
“There were 60 counts with the various people and, ultimately, the jury acquitted on all 60 counts and threw the case out,” says Peter Mantas, partner with Fasken Martineau DuMoulin LLP in Ottawa, who represented TPG during the criminal bid-rigging trial.
“It’s important for a lot of lawyers in the competition space because there haven’t been a lot of bid-rigging cases that have gone all the way in Canada [or] even the United States and Britain.”
Mantas says that, at trial, he had two lawyers, a student and eight computers running because of the magnitude of documentation.
“It was a long case, and we won,” he says.
Mantas notes that the case attracted attention from the United States and Europe in the competition law field, and that he has fielded calls from as far away as Hong Kong about the case, in part because the instructions to the jury are serving as legal guidance in lieu of a written decision.
Gibson says he felt compelled to take the case because it was one where the powers of the state were being used to ends that he didn’t feel were justified.
“I’ve done many cases against the government for malicious prosecution and negligent investigation,” says Gibson. “I believe it’s important that the courts check the powers of the state. It shouldn’t have unfettered discretion to do what they want and should be held accountable by the courts if they do something outside of their mandate.”
Not everyone is comfortable with the message that the lawsuit sends. W. Michael Osborne, partner with Affleck Greene McMurtry LLP in Toronto, is concerned about the chilling effect on legitimate enforcement work by the bureau. Osborne was not involved in the case.
“It’s troubling,” says Osborne, who has previously represented the commissioner of Competition in cases before the Competition Tribunal.
“The officers at the bureau need to be able to do their jobs free from the fear that a defendant who is successful is acquitted and then turns around and sues them for damages. Even if this suit is ultimately tossed out, it’s still troubling that this can even happen.”
Osborne says part of what troubles him is that there is no provision in the criminal law to seek recovery of costs, while this case seems to be an attempt to get those costs in a roundabout way.
“The duty of care of an investigator is to the public,” says Osborne.
“To then superimpose on that a duty to the particular accused can create problems in terms of how they then perform their role.”
Osborne adds that while the Supreme Court of Canada recognized the tort of negligent police investigation in 2007, he sides with the dissent in that case that such a tort should not be recognized.
As of press time, the Competition Bureau stated that it had not been served with the lawsuit and could not comment. The office of the minister of Innovation, Science and Economic Development did not respond to a request for comment. The Public Prosecution Service of Canada said it was “aware of the comments made by TPG Technologies in the media,” but said it would be inappropriate to comment.