Federal Appeal

Civil Procedure

Risks of costs being awarded did not disappear when complainant decided not to defend tribunal’s determination

Canadian International Trade Tribunal made procurement determinations upholding, in part, complaints made by complainant pursuant to Canadian International Trade Tribunal Act. Complaints related to contracts issued to qualified bidders in process governed by Networking Equipment Support Services National Master Standing Offer which is means by which federal government departments may obtain computer networking equipment. Crown contended tribunal lacked jurisdiction to determine complaints because complainant did not submit bid. Tribunal found that no act of Public Works and Government Services Canada (“PWGSC”) in procurement process precluded complainant from submitting bid. Crown’s application for judicial review granted. Amount of costs awarded to Crown should not be reduced or limited because complainant did not oppose consolidated application. Crown not relieved of normal burden on applicant to produce record, prepare memorandum of fact and law, and appear at hearing to make submissions. Having initiated complaint proceedings, complainant bore risk that tribunal’s determinations might be successfully challenged and that Crown might be awarded costs. Risk did not disappear when complainant decided not to defend tribunal’s determination.

Enterasys Networks of Canada Ltd. v. Department of Public Works and Government Services

(June 20, 2011, F.C.A., Blais C.J., Sharlow and Mainville JJ.A., File No. A-264-10; A-312-10; A-321-10) 204 A.C.W.S. (3d) 899 (18 pp.).

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