TPG Technology Consulting Ltd. v. Canada, (2011) 396 F.T.R. 276 (FC)

• Judge: Near, J.
• Court: Federal Court (Canada)
• Case Date: September 07, 2011
• Jurisdiction: Canada (Federal)
• Citations: (2011), 396 F.T.R. 276 (FC);2011 FC 1054

TPG Tech. Consulting Ltd. v. Can. (2011), 396 F.T.R. 276 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. SE.010

TPG Technology Consulting Ltd. v. Her Majesty The Queen

(T-494-08; 2011 FC 1054)

Indexed As: TPG Technology Consulting Ltd. v. Canada

Federal Court

Near, J.

September 7, 2011.

Summary:

The plaintiff provided specialized information technology services to the federal government from 1999 until December 2007, when its latest contract expired. One of the plaintiff's competitors successfully bid on the most recent contract to provide such services. The plaintiff filed four complaints with the Canadian International Trade Tribunal (CITT). Two were rejected, one was not worthy of investigation and the fourth was time-barred. The plaintiff sued the federal Crown for $251,000,000 in damages, alleging breach of contract, negligence, inducing breach of contract by the plaintiff's subcontractors, and intentional interference with economic interests by unlawful means. The federal Crown moved for summary judgment dismissing the action on the grounds that there was no genuine issue for trial and the action constituted an abuse of process. At issue was (1) whether the court had jurisdiction to hear actions involving procurement disputes (i.e., whether the CITT had exclusive jurisdiction over such disputes), (2) whether the action was res judicata as a result of the unsuccessful CITT complaints (i.e., abuse of process) and (3) whether the plaintiff's pleadings disclosed a genuine issue for trial.

The Federal Court first held that the court had jurisdiction to hear the action. However, the court granted summary judgment dismissing the entire action on the ground that the plaintiff's speculative pleadings raised no genuine issue for trial. It was unnecessary to resolve whether the action also constituted an abuse of process.

Courts - Topic 4027

Federal Court of Canada - Jurisdiction - Federal Court - Crown contracts or claims - [See Trade Regulation - Topic 1301 ].

Crown - Topic 1649

Torts by and against Crown - Actions against Crown - Defences, bars or exclusions - Existence of alternative remedy - [See Trade Regulation - Topic 1301 ].

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - The plaintiff provided services to the federal government until December 2007, when its contract expired - One of the plaintiff's competitors successfully bid on the most recent contract to provide such services - The plaintiff filed four complaints with the Canadian International Trade Tribunal (CITT) respecting the procurement process - Two were rejected, one was not worthy of investigation and the fourth was time-barred - The plaintiff then sued the federal Crown for $251,000,000 in damages, alleging breach of contract, negligence, inducing breach of contract by the plaintiff's subcontractors, and intentional interference with economic interests by unlawful means - The federal Crown argued that res judicata precluded the action, as the same elements founding the plaintiff's civil action had been raised and rejected in the CITT complaints - The Federal Court held that neither issue estoppel (issue decided in prior proceeding) nor cause of action estoppel (issue could have been decided in prior proceeding) barred the plaintiff's present action - See paragraphs 46 to 63.

Estoppel - Topic 387

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Matters or claims available in prior proceedings - [See Estoppel - Topic 386 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - The plaintiff provided services to the federal government until December 2007, when its contract expired - One of the plaintiff's competitors successfully bid on the most recent contract to provide such services - The plaintiff filed four complaints with the Canadian International Trade Tribunal (CITT), challenging the fairness of the procurement process - Two were rejected, one was not worthy of investigation and the fourth was time-barred - The plaintiff sued the federal Crown for $251,000,000 in damages, alleging breach of contract, negligence, inducing breach of contract by the plaintiff's subcontractors, and intentional interference with economic interests by unlawful means - The Federal Court allowed the federal Crown's motion for summary judgment dismissing the entire action for failing to disclose a genuine issue for trial - The court stated that "after a two-and-a-half day hearing and a review of the record, I have come to the conclusion that there is no genuine issue for trial. [The plaintiff] has been unable to convince me that there is any factual basis for their claims - that there is either evidence already in existence or that will be adduced at the trial that will support their theory of the case. The evidence is speculative at best, and proceeding to trial will only allow [the plaintiff] to engage in a further fishing expedition at [the federal Crown's] expense. ... [the plaintiff] has made wide-sweeping allegations that [it] is unable to reasonably support. A court trial is not the appropriate forum for working out a theory based purely on speculation, conjecture and bald accusations. It is equally inappropriate to argue that the court's time is not wasted because evidence may appear after others are forced to participate in this exercise via subpoena. [The plaintiff] has not put its best foot forward in formulating a theory of the case and simply relies on bare allegations. ... [The plaintiff] has essentially reversed the onus of proof and asks the Crown to come to court to disprove [the plaintiff's] claims and allegations which are largely baseless." - See paragraphs 64 to 122.

Practice - Topic 3661

Evidence - Affidavits - Striking out - General - The Crown sought summary judgment dismissing the plaintiff's action - The Crown sought to strike five affidavits filed by the plaintiff in response to the motion, arguing that "they were replete with speculation, hearsay, opinion, legal argument and conclusion, and contain statements that are either irrelevant or lacking any foundation or are clearly beyond the personal knowledge of the deponent" - The Federal Court declined to strike the affidavits, where the Crown did not properly bring forward a motion to strike the affidavits or show prejudice - The court stated that "the discretion to strike out affidavits ought to be exercised sparingly and only where it is in the interests to do so, for example where a party would be materially prejudiced or where not striking would impair the orderly hearing of the application" - See paragraphs 24 to 30.

Trade Regulation - Topic 1301

Commissions - Canadian International Trade Tribunal - Jurisdiction - The plaintiff filed four complaints with the Canadian International Trade Tribunal respecting its unsuccessful bid on a government services contract - The CITT Act provided a complete code for addressing procurement complaints - The plaintiff's complaints were rejected - The plaintiff sued the federal Crown for damages for negligence, breach of contract, inducing breach of contract and interference with economic interests - The federal Crown argued that the exclusive jurisdiction granted to the CITT over matters involving procurement contracts deprived the court of jurisdiction to hear the plaintiff's action - The plaintiff argued that "the CITT only has a narrow jurisdiction to hear complaints relating to breaches of trade agreements, not to adjudicate actions alleging tortious conduct, breaches of contract, or other legal obligations rooted in common law" - The Federal Court held that the Act did not oust the court's jurisdiction by exclusively occupying the whole field respecting procurement contracts or by providing an adequate alternate remedy to a civil suit - The alternate remedy argument pertained primarily to judicial review applications - Common law actions, including tort and contract, were not provided for in the Act, nor did the Act preclude civil actions as other statutes have done - The CITT itself had held that the issues of contract administration or contract performance did not fall within its jurisdiction - The primary function of the CITT was to determine whether Canada breached obligations under specified international and domestic trade agreements - The CITT was not a court for the resolution of common law claims against the Crown - See paragraphs 31 to 45.

Cases Noticed:

Lameman et al. v. Canada (Attorney General) et al., [2008] 1 S.C.R. 372; 372 N.R. 239; 429 A.R. 26; 421 W.A.C. 26; 2008 SCC 14, refd to. [para. 17].

Granville Shipping Co. v. Pegasus Lines Ltd. S.A. et al., [1996] 2 F.C. 853; 111 F.T.R. 189 (T.D.), refd to. [para. 20].

Nicholas (Trevor) Construction Co. v. Canada (Minister of Public Works), [2011] F.T.R. Uned. 39; 2011 FC 70, refd to. [para. 21].

Canada (Minister of Citizenship and Immigration) v. Laroche, [2008] F.T.R. Uned. 372; 169 A.C.W.S.(3d) 866; 2008 FC 528, refd to. [para. 22].

Canada (Attorney General) v. Quadrini (2010), 399 N.R. 33; 2010 FCA 47, refd to. [para. 26].

McNabb v. Canada Post Corp. (2006), 300 F.T.R. 57; 2006 FC 1130, refd to. [para. 26].

Foodcorp Ltd. v. Hardee's Food Systems Inc., [1982] 1 F.C. 821; 40 N.R. 349 (F.C.A.), refd to. [para. 26].

Van Duyvenbode v. Canada (Attorney General), [2009] N.R. Uned. 35; 2009 FCA 120, refd to. [para. 26].

Burns Lake Native Development Corp. et al. v. Commissioner of Competition et al., [2005] N.R. Uned. 108; 141 A.C.W.S.(3d) 697; 2005 FCA 256, refd to. [para. 27].

Armstrong v. Canada (Attorney General), [2005] F.T.R. Uned. 613; 141 A.C.W.S.(3d) 5; 2005 FC 1013, refd to. [para. 29].

Sawridge Indian Band v. Canada, [2000] F.T.R. Uned. 180; 95 A.C.W.S.(3d) 20 (F.C.T.D.), refd to. [para. 29].

Canada (Attorney General) v. Almon Equipment Ltd. (2010), 405 N.R. 91; 2010 FCA 193, refd to. [para. 33].

Neles Controls Ltd. v. Minister of National Revenue (Customs and Excise) (2002), 288 N.R. 260; 2002 FCA 107, refd to. [para. 34].

Powell (C.B.) Ltd. v. Canada Border Services Agency (President) et al. (2010), 400 N.R. 367; 2010 FCA 61, refd to. [para. 34].

AgustaWestland International Ltd. v. Canada (Minister of Public Works and Government Services) et al. (2004), 263 F.T.R. 54; 2004 FC 1545, refd to. [para. 37].

Cougar Aviation Ltd. v. Canada (Minister of Public Works and Government Services) et al. (2000), 264 N.R. 49; 26 Admin. L.R.(3d) 30 (F.C.A.), refd to. [para. 39].

AgustaWestland International Ltd. v. Canada (Minister of Public Works and Government Services) et al. (2006), 307 F.T.R. 62; 2006 FC 767, refd to. [para. 41].

Airsolid Inc. v. Canada (Minister of Public Works and Government Services), 2010 CanLII 15681 (C.I.T.T.), refd to. [para. 43].

R. v. Duhamel, [1984] 2 S.C.R. 555; 57 N.R. 162; 57 A.R. 204; 14 D.L.R.(4th) 92, refd to. [para. 48].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 49].

Bjarnarson (H.R.) v. Manitoba (1987), 48 Man.R.(2d) 149; 38 D.L.R.(4th) 32 (Q.B.), refd to. [para. 60].

Doering v. Grandview (Town), [1976] 2 S.C.R. 621; 7 N.R. 299; 61 D.L.R.(3d) 455, refd to. [para. 60].

Britannia Airways Ltd. v. Royal Bank of Canada, [2005] O.T.C. 1; 5 C.P.C.(6th) 262; 136 A.C.W.S.(3d) 56 (Sup. Ct.), refd to. [para. 61].

Hoque v. Montreal Trust Co. of Canada et al. (1997), 162 N.S.R.(2d) 321; 485 A.P.R. 321; 75 A.C.W.S.(3d) 541 (C.A.), refd to. [para. 62].

Grinshpun v. Canada, [2001] F.T.R. Uned. 809; 110 A.C.W.S.(3d) 260; 2001 FCT 1262, refd to. [para. 70].

Double N Earthmovers Ltd. v. Edmonton (City) et al., [2007] 1 S.C.R. 116; 356 N.R. 211; 401 A.R. 329; 391 W.A.C. 329; 2007 SCC 3, refd to. [para. 94].

Collins (J.G.) Insurance Agencies Ltd. v. Elsley's Estate, [1978] 2 S.C.R. 916; 20 N.R. 1; 83 D.L.R.(3d) 1, refd to. [para. 99].

Drouillard v. Cogeco Cable Inc. et al. (2007), 223 O.A.C. 350; 86 O.R.(3d) 431; 2007 ONCA 322, refd to. [para. 109].

Havana House Cigar & Tobacco Merchants Ltd. et al. v. Naeini et al. (1998), 147 F.T.R. 189; 80 C.P.R.(3d) 132 (T.D. Protho.), refd to. [para. 121].

Counsel:

Ronald D. Lunau, Phuong T.V. Ngo and Martha J. Savoy, for the plaintiff;

Michael Ciavaglia and Brian Harvey, for the defendant.

Solicitors of Record:

Gowling Lafleur Henderson LLP, Ottawa, Ontario, for the plaintiff;

Department of Justice, Ottawa, Ontario, for the defendant.

This motion was heard on March 22-24, 2011, at Ottawa, Ontario, before Near, J., of the Federal Court, who delivered the following judgment on September 7, 2011.