R. v. Dowdall, 2013 ONCA 196

ENDORSEMENT

1The appellants appeal the order of Hackland R.S.J. of the Superior Court of Justice dated July 18, 2012 dismissing their application for certiorari of the decision of Alder J. of the Ontario Court of Justice dated October 25, 2001. In that decision, Alder J., acting as a preliminary inquiry judge, committed the appellants to stand trial for bid rigging contrary to s. 47 of the Competition Act and conspiracy to commit bid rigging contrary to s. 465(1) of the Criminal Code. The appellants seek an order allowing the appeal from Hackland R.S.J.’s order and quashing the decision of Alder J. and substituting an order discharging the appellants from the charges they face.

2The issue on appeal is whether Hackland R.S.J. erred by concluding that the preliminary inquiry judge did not make a jurisdictional error when she determined that there was some evidence on the basis of which a reasonable jury properly instructed could conclude that the Requests for Proposals issued by the federal Government were ‘calls or requests for bids or tenders’ within the meaning of s. 47 of the Competition Act.

3The appellants’ main argument on their appeals is, as it was before Hackland R.S.J. and Alder J., that the RFPs cannot be considered as calls or requests for bids or tenders because they did not result in the appellants receiving any contractual entitlement to perform any services.

4We do not accept this submission.

5With one caveat, we accept the analysis and conclusions of Hackland R.S.J. To the extent that his reasons may be taken to suggest that there was no “Contract B”, in the parlance of bid/tender jurisprudence, we do not agree. In our view, it does not follow, simply because there was no final binding contract for the actual purchase and sale of IT services under the rubric of the procurement process in question, that there is no “Contract B” or that there is no “call or request for bids or tenders” as contemplated by s. 47 of the Competition Act on the facts. Other factors – depending upon how the evidence develops and is interpreted at trial – may lead to the conclusion the appellants and the Government intended to enter into contractual arrangements that complied with a bid/tender paradigm as the evolving jurisprudence on that concept, and s. 47, envisage.

6With the foregoing qualification, we particularly endorse the following comments of Hackland R.S.J. in his reasons:

38I am of the opinion that the preliminary inquiry judge was correct in her finding that the many contractual indicia, which she described, are sufficient to potentially characterize this procurement process as creating a bidding contract.

39The applicants’ position is that, in circumstances where the fundamental nature or goal of the procurement process is merely to create a list of potential qualified suppliers with no specific or clearly identified project nor commitment to engage any services at all, any proposals to obtain such work are simply proposals and not contractual bids or tenders. They argue with some force that, without the likelihood of a Contract B as discussed in the jurisprudence, there is no Contract A and any proposals furnished in a procurement process structured in that manner are not bids or tenders within s. 47(2) of the Competition Act. I respectfully disagree with this submission. The controlling appellate jurisprudence requires the court to make a finding as to whether the parties intended a contract in the sense of creating binding rights and obligations with respect to the procurement process. Such an intention is to be inferred from the terms of the RFP and all other relevant circumstances. A term permitting the party issuing the RFP to retain the discretion not to proceed to call up work or services is but one aspect of the analysis. The preliminary inquiry judge reasonably concluded that there was some evidence to go to the jury on whether this procurement process was contractual and, therefore, whether the RFP was a request for bids or tenders.

7An accused seeking to quash a committal for trial has a high hurdle to overcome. The Superior Court and this Court may only interfere where the preliminary inquiry judge has made a jurisdictional error, such as finding there is some evidence where no evidence exists to support the charge. Here, we do not agree that no such evidence exists. Like the judges below, we are satisfied that there is some evidence on the basis of which a properly instructed trier of fact could find that the appellants had made “bids” in response to “a call or request for bids or tenders” within the meaning of s. 47.

8The appeals are therefore dismissed.