Le Groupe Conseil Bronson Consulting Inc. and Cox & Kings Ltd. v. Attorney General of Canada, 2019 ONSC 2436

COURT FILE NO.: CV-18-75993 DATE: 2019/04/18

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

LE GROUPE CONSEIL BRONSON CONSULTING INC. and COX & KINGS LTD. Plaintiffs – and – ATTORNEY GENERAL OF CANADA Defendant

COUNSEL: Peter Mantas and Christopher McLeod, for the Plaintiffs Adrian Johnston and Andrew Kinoshita, for the Defendant

HEARD: January 24, 2019

RULING ON MOTION

Corthorn J.

Introduction

[1] The plaintiffs claim damages in excess of $195,000,000 based on what they allege are breaches by the defendant of contract, fiduciary duty, and confidentiality obligations. The plaintiffs responded to a Request for Proposal (the “RFP”), in which the defendant sought a service provider for visa application centres in a number of locations around the world. The plaintiffs allege that they were the successful parties on the RFP.

[2] The defendant’s position is that (a) the RFP was cancelled before the evaluation process was complete, (b) the RFP was subsequently re-issued, with a number of changes made, and (c) upon completion of the evaluation process, the plaintiffs were not the successful bidder on the re-issued RFP.

[3] The action is in its early stages. The defendant is proceeding with a motion for partial summary judgment and/or an order striking portions of the statement of claim. That motion was originally scheduled to be heard over two days in March 2019. On consent, the motion was adjourned and is scheduled to be heard in the summer of 2019. The parties have agreed upon a timetable for the completion of steps, for example cross-examinations, in preparation for the defendant’s motion.

[4] In the interim, the plaintiffs seek relief because of the defendant’s failure or refusal to respond to a demand for particulars of allegations made in the statement of defence. The issues to be determined on this motion are (a) the extent to which the defendant is required to provide particulars, and (b) whether the plaintiffs are entitled to an extension of the time within which to deliver a reply.

Background

[5] The history of the action to date includes the following:

Mar. 28/18 - The statement of claim is issued; Apr. 3/18 - The statement of claim is served on the defendant; Apr. 9/18 - The defendant serves the plaintiffs with a demand for particulars; Apr. 23/18 - The plaintiffs serve the defendant with a response to demand for particulars; May 29/18 - The statement of defence dated May 29, 2018 is served on the plaintiffs; May 30/18 - The defendant serves the plaintiffs with the notice of motion for partial summary judgment and/or an order striking out portions of the statement of claim; and Jun. 19/18 - The plaintiffs serve the defendant with a demand for particulars (“the DFP”). The plaintiffs also serve a request to inspect.

[6] The request to inspect served in June 2018 was also a subject of this motion. On the morning of the return of the motion, the parties resolved the issues related to the request to inspect. The only issues to be determined on the motion arise from the refusal of the defendant to respond to the DFP.

[7] The DFP identifies 11 matters for which particulars are requested. The particulars requested relate to paragraphs 9, 13, 18, 19, 20, 21, 26, 32, 47, and 50 (two matters) of the statement of defence. The plaintiffs submit that the particulars requested are required to permit them to:

a) Prepare and deliver their reply to the statement of defence; b) Know the defendant’s position in preparation for the motion for summary judgment; and c) Narrow the issues in dispute and allow the oral and documentary discovery process to be meaningful and to proceed efficiently.

[8] In support of their request for an order compelling the defendant to provide the particulars requested, the plaintiffs rely exclusively on the substance of the defendant’s pleading as evidence of deficiencies. The plaintiffs did not file any affidavit evidence in support of their request for particulars.

[9] In response to the plaintiff’s motion, the defendant makes procedural and substantive arguments:

a) The time prescribed by the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 25.04(3) for the delivery of a reply has passed, pleadings have therefore closed, and the plaintiffs are not entitled to deliver a reply; b) Even if the plaintiffs still have a right of reply, that right is qualified by r. 25.08(3). The matters for which particulars are demanded do not go to the plaintiffs’ ability to deliver a reply that includes one or both of (a) a version of the facts that is different from the version pleaded in the statement of defence (r. 25.08(1)), and (b) an affirmative reply (r. 25.08(2)). The particulars demanded are not relevant for the purpose of pleading; c) The materials filed in support of the plaintiffs’ motion are deficient. An affidavit in support of the relief requested is required because the statement of defence is detailed in its substantive content; d) The parties have yet to complete the oral and documentary discovery process. The particulars, if any, to be ordered must therefore be limited to those that the plaintiffs require to: i) Respond to the defendant’s pleading, and ii) Be in a position to conduct meaningful examination for discovery of the defendant’s representative; and e) The defendant’s motion with respect to partial summary judgment and/or striking out portions of the statement of claim does not change (i.e. increase) the defendant’s obligations with respect to the substantive content of its pleading.

[10] Before addressing the merits of the each of the matters that is a subject of the request for particulars, I turn to the defendant’s procedural argument based on the status of the pleadings (para. 9(a), above).

Status of the Pleadings

a) Exchange of Pleadings to Date

[11] The statement of claim was served on April 3, 2018. The defendant had 20 days within which to deliver its statement of defence (r. 18.01(a)). That deadline ended on April 23, 2018 (calculated in accordance with r. 3.01(1)(a)).

[12] The defendant served a demand for particulars on April 9, 2018. It did so before serving its pleading. The plaintiffs had seven days within which to respond to that demand (r. 25.10). The plaintiffs did not respond until April 23, 2018—14 days after they were served with the demand and seven days beyond the deadline prescribed by the Rules for their response to it.

[13] There is no evidence before the court that the defendant attempted to rely on strict compliance with the deadline prescribed by the Rules for the plaintiff’s response to the April 9, 2018 demand for particulars.

[14] The statement of defence is dated May 29, 2018 and was served on that date. May 29, 2018 is 36 days subsequent to the deadline prescribed by r. 18.01(a) for delivery (service and filing) of the defendant’s pleading. That date is also 36 days after the defendant was served with the plaintiffs’ response to the defendant’s demand for particulars.

[15] There is no evidence that the plaintiffs were attempting to rely on strict compliance with the Rules for the delivery of the statement of defence.

[16] There is also no evidence as to when the statement of defence was filed with the court—completing the second part of the two-part process for delivery of a pleading. Regardless, the statement of defence was delivered well after the deadline for same prescribed by the Rules.

[17] The deadline for the plaintiffs’ reply was June 11, 2018 (rr. 3.01(1)(a) and (c) and 25.04(3), based on service of the statement of defence on May 29, 2018). Instead of delivering a reply, the plaintiffs served the DFP on June 19, 2018.

[18] In the interim, the defendant served its notice of motion for partial summary judgment and/or an order striking portions of the statement of claim. The notice of motion is dated May 30, 2018 and was served on that date. The defendant’s notice of motion does not identify a return date.

[19] There is no evidence as to when the related motion record was served or when a return date for the defendant’s motion was first identified and/or agreed upon. Regardless, the defendant’s motion was originally scheduled to be heard on March 21 and 22, 2019.

[20] I draw an inference and find that, as of late May 2018 and thereafter, the parties were aware that (a) the status of the plaintiffs’ claim would remain uncertain until at least a determination at first instance of the defendant’s motion, and (b) the litigation would not reach the stage of examinations for discovery until sometime after the defendant’s motion is determined and with respect only to those portions, if any, of the plaintiffs’ claims that survive the defendant’s motion.

[21] The DFP was served on June 19, 2018 by email from plaintiffs’ counsel to the defendant’s counsel. Defendant’s counsel responded to the DFP on June 20, 2018 in an email to plaintiffs’ counsel. In his email, defendant’s counsel took the position that pleadings were closed, the particulars requested were not required for the plaintiffs to plead, and the DFP was “not in compliance with the Rules.”

[22] The June 20, 2018 email from defendant’s counsel is the only evidence in the record of any effort made by one of the parties to rely strictly on the deadlines prescribed by the Rules for the delivery and close of pleadings.

[23] The exchange of emails between counsel continued on June 20 and 21, 2018. In that exchange, counsel set out their respective positions with respect to the DFP, and other matters.

b) Analysis

[24] The defendant’s procedural argument with respect to the timing of service of the DFP runs contrary to a number of the principles to be applied when interpreting the Rules.

[25] First, r. 1.04(1) provides that “[the] rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” It is difficult to see how strict adherence to the deadline for delivery of a reply would be just in light of the defendant’s (a) failure to meet the deadline prescribed by the Rules for the delivery of its pleading, and (b) pending motion, the outcome of which may have an impact on the pleadings in the action.

[26] Second, even if the parties had adhered strictly to the deadlines prescribed by the Rules for the delivery of pleadings (which I find they had not), the defendant’s procedural argument overlooks the discretion of the court to extend a deadline prescribed by the Rules. Pursuant to r. 3.02(1), a time prescribed by the Rules may be extended “on such terms as are just.” An extension may even be granted after the time prescribed has expired (r. 3.02(2)).

[27] I find that, until the outcome of the motion for particulars is determined, the plaintiffs are unable to decide whether they will deliver a reply. If the defendant is ordered to provide any of the particulars demanded, the plaintiffs are entitled to a reasonable period within which to a) consider the particulars provided, and b) decide whether they will deliver a reply to the statement of defence.

[28] Finally, even if it is concluded that particulars are not necessary for the purpose of preparation of a reply, the plaintiffs may otherwise be entitled to particulars. Rule 25 governs “Pleadings in an Action”, including a demand for particulars. No deadline is prescribed for a demand for particulars to be made.

[29] The only time prescribed is for a response to a demand for particulars. Rule 25.10 provides, “Where a party demands particulars of an allegation in the pleading of an opposite party, and the opposite party fails to supply them within seven days, the court may order particulars to be delivered within a specified time.”

[30] An order for particulars may be made before or after the close of pleadings. For example, in Six Nations of the Grand River Band v. Canada (Attorney General), the Ontario Court of Appeal concluded that the complexity of the litigation required that particulars be ordered during the discovery process ((2000), 48 O.R. (3d) 377 (C.A.)). Particulars were ordered in that context to assist the parties in preparing for trial.

[31] In summary, regardless of the status of the pleadings, the plaintiffs were entitled to serve a demand for particulars and the defendant is required, subject to the merits of the demand made, to respond to it.

[32] I turn next to the evidentiary issues raised by the defendant—the lack of a supporting affidavit from the plaintiffs (para. 9(c), above).

Evidence in Support of the Motion

[33] The parties agree with respect to the law on this issue. It is not disputed that, “a supporting affidavit is not required [on a motion for particulars] if the allegations are so general and bald that it is clear that particulars of them are necessary [citations omitted]” (Pennyfeather v. Timminco Limited, 2011 ONSC 4257, 107 O.R. (3d) 201, at para. 62).

[34] The parties differ, however, as to whether affidavit evidence is required in support of the relief requested by the plaintiffs. The plaintiffs’ position is that the allegations in the statement of defence for which particulars are requested are “so general and bald that it is clear that [the] particulars … are necessary.” The plaintiffs have not filed an affidavit in which the affiant states that the particulars requested are (a) not within his or her knowledge, and (b) needed for the plaintiffs to complete their pleadings in the action.

[35] The defendant disagrees. It argues that the statement of defence is detailed in context; the allegations for which the plaintiffs request particulars are neither “general” nor “bald”. As a result, in the absence of the requisite supporting affidavit, the plaintiffs’ motion for particulars must fail.

[36] Whether a supporting affidavit is required is addressed on an item-by-item basis under Issue No. 1, below.

The Issues

[37] The issues determined on this motion are:

1. Which, if any, of the particulars demanded is the defendant required to provide?
2. If the defendant is required to provide any particulars, are the plaintiffs entitled to an extension of time within which to deliver a reply?

Demands for Particulars

[38] At para. 60 of his decision in Pennyfeather, Perrell J. summarizes the role particulars play in litigation:

In between material facts and evidence, is the concept of “particulars”. Particulars are additional details that enhance the material facts, and particulars have a role to play different from just being evidence … Particulars are ordered primarily to clarify a pleading sufficiently to enable the adverse party to frame his or her answer, and their secondary purpose is to prevent surprise at trial … Particulars have the effect of providing information that narrows the generality of pleadings … Particulars define the issues, enable preparation for trial, prevent surprise at trial and facilitate the hearing … A function of particulars to a statement of claim is to define the claim sufficiently to allow a defendant to respond intelligently to it [citations omitted].

[39] What general observations can be made about the pleadings in the action?

a) The Pleadings

[40] The statement of claim is 84 paragraphs and 18 pages in length. The substantive allegations are detailed.

[41] In their pleading, the plaintiffs address in detail some of the matters raised in the statement of defence and for which the plaintiffs have demanded particulars. For example, in para. 49 of the statement of claim, the plaintiffs allege that portions of their bid in response to the RFP were disclosed by the defendant. Specifically, the plaintiffs allege that their “pricing strategy was communicated by PPSC to IRCC and others within the Government.” Yet the plaintiffs demand particulars of the defendant’s allegation that “certain aspects of the Bronson bid were shared with IRCC” (para. 26 of the statement of defence).

[42] The statement of defence is detailed. It includes 35 paragraphs and is 13 pages long. Very few of the paragraphs include only a single sentence. As a whole, the defendant’s pleading is anything but “general” and “bald”. Given the level of detail included in the statement of claim, it is difficult, in the absence of supporting evidence, to conclude that the plaintiffs require the particulars demanded so as to be able to decide whether to prepare a reply (and, if necessary thereafter, prepare the reply).

b) The Plaintiffs’ Alternative Arguments

[43] The plaintiffs submit that they are, in any event, entitled to the particulars demanded to (a) permit them to know the defendant’s position on the pending motion for partial summary judgment, and/or (b) narrow the issues in dispute for the purpose of the oral and documentary discovery process. For the reasons that follow immediately below, I reject the plaintiffs’ two alternative arguments.

i) Motion for Partial Summary Judgment

[44] There is no evidence before the court upon which to base a determination with respect to the defendant’s position on the pending motion for partial summary judgment. None of the materials filed on that motion are before the court. The court is simply not able to assess the extent to which the materials filed disclose (or fail to disclose) the defendant’s position.

[45] The parties have agreed to a schedule for the exchange of materials, cross-examinations on affidavits, and the delivery of facta for the purpose of the pending motion for partial summary judgment. If, after cross-examinations, the plaintiffs are of the view that they do not have particulars of any matter (including matters not raised in the DFP), they are not precluded from serving another DFP. There is no time limit by which they are required to serve a DFP.

[46] I am unable to find that the plaintiffs are, at this stage, prejudiced in any way in preparing for the motion for partial summary judgment.

ii) The Discovery Process

[47] I also reject the plaintiffs’ argument with respect to narrowing the oral and documentary discovery process. The plaintiffs submit that the discovery process is not to be a substitute for particulars. I agree. However, given the level of detail in the statement of defence and in the absence of supporting evidence on the motion, I am unable to conclude that the plaintiffs are prejudiced in their preparation for the discovery process by virtue of a lack of particulars.

[48] In response to the plaintiffs’ argument with respect to the discovery process, the defendant relies on the decision of Douglas J. in Van-Rob Inc. v. Rapid Metals LLC, 2016 ONSC 1321, 92 C.P.C. (7th) 413. I note that at para. 9 of that decision, Douglas J. comments that, “[the] deponent in the supporting affidavit on a motion for particulars should be the moving party and not the solicitor representing that party; otherwise, little weight will be given to the affidavit [citations omitted].”

[49] The plaintiffs chose not to have one of their representatives swear a supporting affidavit and be exposed to cross-examination on this motion. That was a strategic choice on their part. That choice, however, has consequences. One of those consequences is that the plaintiffs lack the evidence to support an order for the particulars demanded to be provided other than for an allegation that is “general” or “bald”. That is the only basis upon which the particulars may be ordered in the circumstances.

[50] I turn to consider each of the particulars demanded and whether the allegations upon which the demand is based are “general” or “bald”.

Issue No. 1 – Particulars Demanded

[51] Each of the particulars demanded is addressed in chart form. The chart includes a) the text of the relevant paragraph from the statement of defence, b) the particulars demanded, c) the plaintiffs’ position, and d) the defendant’s position. My decision with respect to each item is set out in the regular text that follows the chart.

Paragraph 9 – Value of the Contract

9. The value of the contract to which the RFP pertained was not $867,582,813.00 as contended by the Plaintiffs, but for far less.

1. With respect to paragraph 9, provide particulars with respect to the allegation that the value of the contract to which the RFP pertained was far less than $867,582,813.00, including particulars as to the value of the contract as alleged by the Defendant.

Plaintiffs: Particulars of the value of the contract, as alleged by the AG. Simply stating that it was “far less” than the Plaintiffs’ position ($867,582,813.00) provides no useful insight for the purposes of pleading in Reply. The value of the contract is clearly a material fact that goes to damages and the importance of the solicitation to the parties. It is a fact that is within the knowledge of the AG. The AG’s position on the value of the contract should be set out in the AG’s pleading so that the Plaintiffs can understand the AG’s position and decide whether to address it in Reply.

Defendant: The Defendant’s position as to the precise value of the RFP is not required in order to proceed to discovery. The point being made in paragraph 9 of the Statement of Defence is simply that the value of the RFP is less than what the Plaintiffs suggest. The Defendant’s position with respect to the precise valuation of the RFP is not required at this stage of the proceeding.

[52] Paragraph 9 of the statement of defence is a denial in “general and bald” terms only. Supporting evidence is not required from the plaintiffs.

[53] For two reasons, the defendant is required to provide the particulars demanded with respect to paragraph 9.

[54] First, I find that the value of the contract is material to the calculation / assessment of the plaintiffs’ claims for damages. An assessment of damages may ultimately be required even if there is no finding of liability on the defendant’s part.

[55] The plaintiffs claim for damages is $195,000,000 for profits they allege they would have earned had they been awarded the contract. The plaintiffs advance an alternative claim for damages of $1,000,000 for reimbursement of the cost of preparation of their submissions in response to the RFP and the second request for proposal.

[56] The plaintiffs’ potential damages are an important factor for the parties to consider with respect to the principle of proportionality. “[The] amount involved” is one of several factors relevant to the application of the principle of proportionality as this litigation progresses (r. 1.04(1.1)).

[57] The plaintiffs are not in a position to consider proportionality as they pursue their claims if they do not have the particulars demanded for the value of the contract.

[58] Second, r. 27.03(1) prescribes how a defendant is to plead when it intends to advance a different version of the facts from the version alleged in the statement of claim. The rule states that, “a denial of the version so pleaded is not sufficient, but the party shall plead the party’s own version of the facts in the defence.”

[59] If the defendant is in a position to allege that the value of the contract is “far less than $867,582,813.00”, then it must know the value of the contract. It is not sufficient for the defendant to make a general and bald allegation in that regard. I find that the defendant is required by r. 27.03(1) to provide the particulars demanded of the value of the contract.

[60] The defendant shall, no later than Friday, May 3, 2019, provide the particulars demanded with respect to paragraph 9 of the statement of defence.

Paragraph 13 – Team of Qualified Evaluators

13. Shortly after receiving the bids, PWGSC/PSPC, in collaboration with IRCC, commenced an evaluation of the technical component of all bids. A team of qualified evaluators, working with the support of IRCC, were tasked with reviewing the bids.

2. With respect to paragraph 13, provide particulars with respect to the team of qualified evaluators, including particulars of who they were and who they worked for.

Plaintiffs: Particulars with respect to the team of qualified evaluators. The identity and qualifications of the bid evaluators is a material fact that is critical to the Plaintiffs’ ability to properly plead in Reply. Without the identity of the evaluators and the details of their qualifications, as alleged (including where they work within the government of Canada), the Plaintiffs are without the ability to potentially assess the qualifications of the evaluators for purposes of pleading in Reply or alternatively know to raise the matter in Reply for purposes of framing discovery. In this action, the issue of the AG favouring the incumbent, and confidentiality, has been raised, making these particulars essential. It is plain and obvious that this information is known only to the AG.

Defendant: Similarly, the identity of the “team of qualified evaluators” referred to in paragraph 13 of the Statement of Defence, is simply not required to clarify any key issues in advance of discoveries. If the question is relevant to the proceeding, it will be answered at that time.

[61] Paragraph 13 of the statement of defence is neither “general” nor “bald”. Pursuant to the decision in Pennyfeather, in the absence of supporting evidence, the plaintiffs are not entitled to the particulars demanded with respect to this paragraph.

[62] In any event, it appears that the plaintiffs have some knowledge of the evaluation process. At paras. 17-20 of their pleading, the plaintiffs identify various phases of the evaluation process including “the technical and financial evaluation phase” (para. 18) and “the Financial Capability Assessment phase” (paras. 19 and 20). I find that the plaintiffs do not require the particulars requested for the purpose of clarification of the defendant’s pleading; nor will the particulars assist in narrowing issues in dispute.

[63] The demand for particulars of paragraph 13 is denied.

Paragraph 18 – Internal Preconditions

18. During the course of the financial assessment, a decision was made by PWGSC/PSPC, in consultation with IRCC, to cancel the RFP. The terms of the RFP had allowed for financial proposals that were not acceptable to IRCC. Contrary to what is asserted by Bronson, the decision to cancel the RFP was made before completion of the evaluation of the bids. Also, at the time that the RFP was cancelled, there were a number of internal preconditions that had to be satisfied by PWGSC/PSPC, including, but not limited to obtaining approval to enter into a contract from the Treasury Board. The statement by Bronson that it was the successful bidder is false.

3. With respect to paragraph 18, provide particulars with respect to the internal preconditions that had to be satisfied by PWGSC/PSPC, including particulars of what part of the evaluation and which internal preconditions remained outstanding.

Plaintiffs: Particulars with respect to the internal preconditions that had to be satisfied by PWGSC/PSPC, including particulars of what part of the evaluation remained outstanding, and what internal preconditions remained outstanding, strike to the heart of the matters at issue between the parties. These are critical material facts that are simply glossed over by the AG in its defence. The basis upon which the AG takes the position that the Plaintiffs had not been identified as the winning bidder also represents a material fact that is clearly only known to the AG. Understanding the AG’s position is critical to the Plaintiffs’ ability to plead in Reply and in particular to properly and proportionately define the scope of discovery in relation to these material facts.

Defendant: Demand #3 seeks disclosure of the internal PWGSC/PSPC preconditions that remained to be satisfied prior to formalizing a winning bid under the original RFP. The material fact set out in paragraph 18 of the Statement of Defence is simply that the Plaintiffs’ statement, that Bronson was the winning bidder, is false. The internal preconditions and elements of the bid evaluation process that remained outstanding constitute evidence that will go to proving this material fact. Evidence is not the proper subject-matter of a Demand for Particulars.

[64] I read paragraph 18 of the statement of defence differently than do the plaintiffs. I read it as ‘point last’, rather than ‘point first’, in form. The entire paragraph is an explanation in support of the final sentence. I find that the final sentence is neither “general” nor “bald” when read in that context.

[65] I find that the detail provided in paragraph 18 of the defendant’s pleading is such that, absent supporting evidence, the plaintiffs are not entitled to the particulars demanded. The demand for particulars with respect to paragraph 18 is denied.

Paragraph 19 – Serious Policy Distortions

19. On October 5, 2016, PWGSC/PSPC informed Bronson and other bidders that it would cancel the RFP. The basis of the PWGSC/PSPC decision was that the RFP design was problematic in that it allowed for $0 bids, which gave rise to serious policy distortions for Canada. Rather than disqualify Bronson, a decision was made by PWGSC/PSPC to cancel the RFP and re-tender (“Re-issued RFP”).

4. With respect to paragraph 19, provide particulars with respect to the serious policy distortions for Canada, including whether there was a stated policy and if yes, to provide particulars of the policy the Defendant relies upon. In addition, particulars of the basis upon which the Defendant could disqualify Bronson.

Plaintiffs: Particulars of the serious policy distortions for Canada alleged by the AG, including identifying the policy or policies which were alleged to have been “distorted” and setting out, with specificity the nature and extent of the alleged distortions. This information is highly relevant and known only to the AG. It is also necessary for the Plaintiffs to understand the AG’s position, not be taken by surprise, and properly plead in Reply. Similarly, particulars with respect to the basis upon which the AG takes the position that it was entitled to disqualify the Plaintiffs.

Defendant: As with Demand #3, Demand #4 improperly seeks disclosure of facts and evidence that will ultimately be adduced to prove the material fact alleged in paragraph 19 of the Statement of Defence: that there was a significant negative policy impact associated with Bronson’s $0 bid proposal. Demand #4 also requests the basis upon which the Defendant could disqualify Bronson; however, paragraph 19 of the Statement of Defence does not plead that Bronson was, or could have been, disqualified. Particulars sought in respect of a point or issue not in fact plead are irrelevant and improper.

[66] Paragraph 19 of the statement of defence is neither “general” nor “bald”. Pursuant to the decision in Pennyfeather, in the absence of supporting evidence, the plaintiffs are not entitled to the particulars demanded with respect to this paragraph.

Paragraph 20 – Volumes and Distribution of Qualified People

20. The contention by Bronson that its bid under the RFP was the “best value” ignores the broader policy implications for IRCC. The cost of visa application services to Canada is not the sole consideration. IRCC must also consider, amongst other things, the cost to be incurred by visa applicants, which bears on Canada’s accessibility for new entrants, affecting immigrants, tourists, students, temporary workers or business people and the economic and social benefits from the presence of these individuals in Canada. Bronson’s bid would have placed a greater proportion of the cost onto visa applicants. This would have had a negative socio-economic impact on Canada, affecting the volumes and distribution of qualified people that would be willing to apply for a visa to come to Canada.

5. With respect to paragraph 20, provide particulars with respect to the effect on the volumes and distribution of qualified people willing to apply for a visa to come to Canada. This includes particulars of who made this determination and how and when was it made.

Plaintiffs: Particulars with respect to how the volumes and distribution of qualified people would be affected. Specifically, the particulars of who made this determination, how the determination was made, and when it was made. The material facts omitted by the AG and sought by way of this request again strike to the heart of the matters between the parties. They are materials facts known only to the AG, and they are necessary to the Plaintiffs in understanding the AG’s case, not be taken by surprise and to have the ability to plead properly in Reply.

Defendant: Demand #5 again seeks the premature disclosure of evidence. Paragraph 20 of the Statement of Defence states that the Plaintiff Bronson’s bid would have placed undue cost on visa applicants, negatively affecting the volumes and distribution of qualified people applying for Canadian visas. The particulars sought are the evidence by which this statement will be proved. The Plaintiffs’ request to know who made this determination, how, and when, is simply not required in advance of discoveries.

[67] Paragraph 20 of the statement of defence is neither “general” nor “bald”. Pursuant to the decision in Pennyfeather, in the absence of supporting evidence, the plaintiffs are not entitled to the particulars demanded with respect to this paragraph.

Paragraph 21 – Serious Error and False Assumptions

21. Bronson’s assertion that under its bid costs would not increase for visa applicants is in serious error and based on false assumptions. For instance, when conducting a comparison between the cost to an applicant under the existing contract and the cost to an applicant under the Bronson model, Bronson incorrectly applies certain fees that are not payable by an applicant and inflates the overall costs under the existing contract. This creates a false comparison. Bronson also contends that Canada could have removed the $85 biometric fee that is currently charged to applicants and which is required under regulation, making their bid far more palatable.

6. With respect to paragraph 21, provide particulars with respect to Bronson incorrectly applying certain fees that are not payable by an applicant and inflating the overall costs. This includes particulars of the “error” and “false assumptions”.

Plaintiffs: Particulars of the “certain fees” that the AG claims were incorrectly applied are a fundamental part of this case and a mystery to the Plaintiffs. Further, and suffering the same flaw, the particulars with respect to the allegedly inflated overall costs. These are facts solely within the knowledge of the AG and they are material to the issues between the parties. Without these particulars, the Plaintiffs have no ability to effectively respond to these allegations in Reply.

Defendant: Demand #6 repeats the theme of improperly requesting evidence. The relevant material fact set out in paragraph 21 of the Statement of Defence is that the Plaintiffs’ conclusion, that costs to visa applicants would not increase under Bronson’s proposal, is false. The facts that support this conclusion are evidence and need not be disclosed at this stage of a proceeding. In any event, paragraph 21 goes on to elaborate on the types of errors alleged to have been made by the Plaintiff Bronson. No further particularization of this paragraph is required before discovery.

[68] Paragraph 21 of the statement of defence is neither “general” nor “bald”. Pursuant to the decision in Pennyfeather, in the absence of supporting evidence, the plaintiffs are not entitled to the particulars demanded with respect to this paragraph.

Paragraph 26 – Aspects of Plaintiffs’ Bid Shared with IRCC

26. On September 27, 2016, there was a meeting between certain employees of PWGSC/PSPC and IRCC. Certain aspects of the Bronson bid were shared with IRCC, which is standard procedure for any procurement, but the identity of Bronson as a bidder was not shared. Although these measures are not required, PWGSC/PSPC operates on a need to know basis.

7. With respect to paragraph 26, provide particulars with respect to the aspects of the Bronson bid that were shared with IRCC. This includes particulars of what was shared, how, when and to whom.

Plaintiffs: Particulars with respect to the “certain aspects” of the Plaintiffs’ bid that was shared with IRCC. This is a material fact as between the parties that is only within the knowledge of the AG. Breach of confidentiality is a part of the claim. Without these particulars, the Plaintiffs will not know whether it is necessary to plead that insufficient or improper information was provided to IRCC.

Defendant: Demand #7 again seeks the improper disclosure of evidence. Paragraph 26 of the Statement of Defence states that certain aspects of the Bronson bid, but not the identity of Bronson, were shared by PWGSC/PSPC with IRCC. Further details as to this disclosure are not required in advance of discovery – the issue is clearly delineated and the Plaintiffs can enquire further at that time, should they choose to do so.

[69] Paragraph 26 of the statement of defence is neither “general” nor “bald”. Pursuant to the decision in Pennyfeather, in the absence of supporting evidence, the plaintiffs are not entitled to the particulars demanded with respect to this paragraph.

[70] In any event, it appears that the plaintiffs have some knowledge of the “portions” of their bid that were disclosed by the defendant. At paras. 78-79 of the statement of claim, the plaintiffs allege that their pricing strategy was communicated to “IRCC and others within the government”; see also para. 49 of the plaintiffs’ pleading.

Paragraph 32 – Changes to the Re-Issued RFP

32. On January 12, 2017, PWGSC/PSPC published the Re-Issued RFP, identified by solicitation number B8694-150140/D. PWGSC/PSPC made a number of changes in the Re-Issued RFP to avoid the policy distortions that had arisen in the first RFP. The suggestion by Bronson that the concerns found in the first RFP were never rectified by PWGSC/PSPC in the Re-issued RFP is false.

8. With respect to paragraph 32, provide particulars with respect to the changes in the reissued RFP made to avoid the policy distortions.

Plaintiffs: Particulars with respect to the changes to the Re-Issued RFP made to avoid the policy distortions that the AG alleges were present in the first RFP. Which changes were intended to address the alleged distortion is only within the knowledge of the AG, and based on the AG’s pleading should be easy to identify. The Plaintiffs need this information to plead Properly in Reply as without it the Plaintiffs will be left to simply make a blanket denial.

Defendant: Again, Demand #8 seeks evidence that may be adduced to prove the material fact contained in paragraph 32 of the Statement of Defence: namely, that changes were made in the Re-Issued RFP to avoid the policy distortions that had arisen on the First RFP. Further, the Plaintiffs bear the onus of proving that the particulars sought are not within their knowledge. Since the Plaintiff Bronson would have received both the original and Re-Issued RFPs, it is unclear why it would not be able to discern the differences between the two.

[71] In their pleading, the plaintiffs refer to “modifications” (para. 53) and “amendments” (para. 54) to the RFP. They do not appear to lack knowledge of the changes made to the RFP when the second request for proposal was created. For example, at para. 53, the plaintiffs allege that “[in] particular, the technical requirements were adjusted so that the incumbent would be more likely to obtain a perfect or near-perfect score, and a score higher than other bidders including the Plaintiffs”.

[72] For the reasons set out above with respect to the particulars requested in regard to paragraph 13 of the statement of defence, the request for particulars of paragraph 32 is denied.

Paragraph 47 – CITT and Federal Court

47. The only live issue which has not been adjudicated by the CITT or the Federal Court is whether PWGSC/PSPC was entitled to cancel the RFP and retender the Re-issued RFP, and only because this aspect of the Complaint was time barred under the Canadian International Trade Tribunal Act and because Bronson discontinued the judicial review application. Bronson has chosen to remain silent on these other proceedings in its Claim.

9. With respect to paragraph 47, provide particulars with respect to the allegations made by Bronson in these proceedings that have been fully adjudicated by the CITT.

Plaintiffs: Particulars with respect to the specific allegations made by Bronson that the AG is claiming were adjudicated by the CITT. The AG’s pleading provides insufficient detail in this respect and the AG should identify which allegations it asserts were previously adjudicated. The AG knows its position and the Plaintiffs have not received the particulars of that position by way of the pleadings. Failing to order these particulars would leave the Plaintiffs to try and surmise the specifics of the AG’s position, which is unreasonable, and will simply result in a broad denial by the Plaintiffs which is unhelpful to the parties or this Court.

Defendant: As with Demand #8, the Plaintiffs have not provided an affidavit attesting that the particulars sought in Demand #9 are not already known to them. The Plaintiff Bronson was the moving party before the CITT and Federal Court, as it is now before this court – it should be able to discern what matters have been previously adjudicated. In any event, paragraph 47 of the Statement of Defence clearly states that all issues in the current claim, other than whether PWGSC/PSPC was entitled to cancel the RFP and retender the Re-issued RFP, were previously adjudicated. No further particulars are necessary.

[73] Paragraph 47 of the statement of defence is neither “general” nor “bald”. In addition, the defendant argues that the plaintiffs, as participants in the CITT and Federal Court proceeding have knowledge of the issues adjudicated in those matters. I agree with the defendant that in the absence of supporting evidence, the plaintiffs are not entitled to the particulars demanded with respect to this paragraph.

Paragraph 50 – Policy Concerns and Policy Distortions

50. All of the bidders, including Bronson, were treated fairly by PWGSC/PSPC and the decision to cancel the RFP was made by taking into account bona fide policy concerns, which PWGSC/PSPC was entitled to do in law, including under the terms of Contract “A”. A contract that transfers all costs to visa applicants would have created serious and unacceptable policy distortions.

10. With respect to paragraph 50, provide particulars with respect to the bona fide policy concerns taken into account by PWGSC/PSPC in deciding to cancel the RFP. 11. With respect to paragraph 50, provide particulars with respect to the serious and unacceptable policy distortions.

Plaintiffs: Particulars with respect to the “bona fide policy concerns” taken into account by PWGSC/PSPC when deciding to cancel the RFP, as well as the serious and unacceptable “policy distortions”. These are material facts that speak to the basis for PWGSC/PSPC’s decision to cancel the RFP. Understanding which policy concerns were considered by PSGSC/PSPC is critical to understanding the AG’s case and knowing whether and how to plead in Reply. These material facts are only within the knowledge of the AG.

Defendant: Demands #10 and #11 again seek the premature disclosure of evidence that will be adduced to prove the statements, in paragraph 50 of the Statement of Defence, that the decision to cancel the RFP was based on bona fide policy concerns and the desire to avoid serious policy distortions. Further, some of the policy concerns are clear on the face of the Statement of Defence and include the increased cost to visa applicants and potential cooling effect on the number of qualified people applying to come to Canada. Further detail is the purview of the discovery process.

[74] Paragraph 50 of the statement of defence is neither “general” nor “bald”.

[75] In addition, it appears that the plaintiffs have some knowledge as to why the RFP was cancelled. For example, at para. 69 of their pleading, the plaintiffs allege that it could not have been within their reasonable contemplation (or that of any bidder) that “the RFP would be cancelled on the basis that there would be an adverse impact on visa applicants” (i.e. the very reason identified by the defendant in para. 50 of the statement of defence). At para. 72 of their statement of claim, the plaintiffs allege that “it was not open to the Defendant to introduce new criteria into the procurement, or ignore the terms of the RFP.”

[76] In the absence of supporting evidence, the plaintiffs are not entitled to the particulars requested. The demand for particulars of paragraph 50 is denied.

Issue No. 2 - Extension of Deadline to Deliver Reply

[77] The defendant has until Friday, May 3, 2019, within which to provide the particulars requested of para. 9 of the statement of defence. In the circumstances, the plaintiffs are granted an extension of the deadline by which to deliver a reply if they choose to deliver one. The plaintiffs shall, no later than Friday, May 17, 2019, delivery their reply, if any.

Summary

[78] I order as follows:

1. The defendant shall, no later than Friday, May 3, 2019, provide particulars with respect to the allegation, in paragraph 9 of the statement of defence, that the value of the contract to which the RFP pertained was “far less than $867,582,813.00”, including particulars as to the value of the contract as alleged by the defendant.
2. The plaintiffs shall, no later than Friday, May 17, 2019, deliver their reply, if any.

Costs

[79] In the event the parties are unable to agree upon costs of the motion with respect to the request to inspect and the DFP, they may make written submissions as follows:

a) The submissions shall be limited to a maximum of four pages, exclusive of a bill of costs; b) Written submissions shall comply with Rule 4 of the Rules of Civil Procedure; c) Hard copies of any case law or other authorities relied on shall be provided with the submissions and shall comply with Rule 4 of the Rules of Civil Procedure with respect to font size; d) The submissions, the documents referred to therein, case law, and other authorities, shall be on single-sided pages; e) Written submissions shall be delivered by 5:00 p.m. on the twentieth business day following the date on which this Ruling is released; and f) In the event any party wishes to deliver a reply to the costs submissions of the opposing party, the reply submissions shall be delivered by 5:00 p.m. on the twenty-fifth business day following the date on which this Ruling is released. Reply submissions shall comply with paragraphs (a) to (d) above.

Madam Justice Sylvia Corthorn

Released: April 18, 2019