COURT FILE NO.: 07-CV-37522

DATE: 2012/03/13

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ENVOY RELOCATION SERVICES INC., and NATIONAL RELOCATION SERVICES (RELONAT) INC. (as contractual joint venture called Envoy Relocation Services), Plaintiffs

AND

THE ATTORNEY GENERAL OF CANADA, Defendant

BEFORE: Mr. Justice Peter Annis

COUNSEL:
Ronald D. Luneau/Phuong T.V. Ngo/ Stephanie Pearce, Counsel, for the plaintiffs

Derek Rasmussen/Gregory S. Tzemenakis/ Elizabeth Kikuchi, Counsel, for the defendant

HEARD: By written submissions

Amended ENDORSEMENT ON ADMISSIBILITY OF DOCUMENTS

This is an amendment to the endorsement released on March 8, 2012. The amendments occur at paragraph [1] and in reference to counsel’s names.

[ 1 ] Further to my endorsement of November 24, 2011 requiring the production of certain documents described therein, I rule that the documents that have been produced in accordance with that order as described below (“the documents”) are admissible in evidence for the purposes described herein.

[ 2 ] Because the defendant has acknowledged, in part, the relevance of the produced documents concerning the 2002 Request for Proposal (“RFP”), and because I find little merit otherwise to the submissions objecting to the admissibility of the documents, I will make only brief remarks which will address the defendant’s arguments.

[ 3 ] I have already ruled that the produced documents may be used for the purpose of cross‑examination to test the credibility of witnesses. Apart from the directory of service providers, they have already been implicitly referred to by the witness, Ram Singh, in his testimony.

[ 4 ] As mentioned, the defendant acknowledges that the documents relating to the 2002 RFP are relevant in so far as they pertain to the knowledge that government officials had during the 2004 procurement process. I would expand this admission by stating more generally that the documents are also relevant to demonstrating bias or preferential treatment in favour of Royal Lepage Relocation Services Limited (“RLRS”).

[ 5 ] The defendant contends that the documents cannot be tendered as proof of their contents as they constitute hearsay. I do not agree inasmuch as these documents were required to be provided in accordance with the terms of the 2002 and 2004 RFPs. In effect, they are a form of contract document required to be provided by RLRS and the truth of their contents may be evaluated and are admissible on that basis.

[ 6 ] In any event, in terms of the truth of the content of the documents, it would appear that their primary purpose is to prove that RLRS charged members or employees of the Government of Canada for property management services by applying the ceiling rates described in the commitment letters and information packages, as opposed to the 0% ceiling rate contained in RLRS’ tenders. I cannot imagine that the defendant will contest this obvious fact which has already been acknowledged by other evidence such as that from the Auditor General’s report and the defendant’s acknowledgement that the amounts charged transferees have been repaid.

[ 7 ] It is not clear what the defendant’s position is on the authenticity of the information packages as it is not certain that they are those precisely submitted in compliance with requirements of the RFP. Apparently, the Government has not maintained documents provided to it by RLRS which have either become lost or destroyed.

[ 8 ] The defendant states that it believes that these were the information packages submitted by RLRS pursuant to the RFPs. That belief would appear to be logical given the date on the documents and, in respect of the 2004 RFP at least, the similarity of their contents to the information package contained in the RLRS’ tender. I am prepared to accept the defendant’s belief as to their authenticity, particularly as it were otherwise, this would be due to the Crown having lost or destroyed the originals.

[ 9 ] I also cannot comprehend the defendant’s submissions that it did not consider these documents to have been relevant to the litigation prior to the order of this Court. The plaintiffs have pleaded that RLRS allowed property management services to be charged despite bidding a 0% ceiling rate. In addition, they are all documents required to be provided by RLRS to the defendant in accordance with its contract with the Crown and therefore particularly relevant with respect to these issues. In my view, they should have been listed in the defendant’s affidavit of productions.

[ 10 ] The defendant also objects to the admission of all of the 2004 documents. It argues that only the fairness of the procurement processes for relocation services is in issue. By this logic, any documents created after the 2004 process was completed are irrelevant to determining whether the processes were unfair.

[ 11 ] This argument appears again to ignore the plaintiffs’ contention that the Crown was biased against them, in particular, by allowing RLRS to charge for property management services when not entitled to do so by its tenders. Evidence of bias or preferential treatment after the 2004 procurement process is relevant to establishing bias during the procurement processes where the complained of conduct continues.

[ 12 ] This logic applies with equal force to the use of these documents to cross‑examine Mr. Singh to demonstrate his alleged bias and favouritism towards RLRS. His alleged knowledge that the RLRS was not complying with the contract terms after the 2004 process was completed is relevant and confirmatory of similar conduct occurring at an earlier time. In addition, the plaintiffs allege that he has misstated their contents by testifying that he thought they contained no mention of ceiling rates.

[ 13 ] I also reject the defendant’s argument that the documents should be subject to my earlier confidentiality order. These documents were required to be provided by RLRS pursuant to the contract terms. They would not be subject to any greater confidentiality protection than the numerous RLRS documents already admitted into evidence in this trial.

[ 14 ] This view applies equally to the directory of service providers provided by Brookfield. It is my understanding that the information packages and commitment letters were in the possession of the defendant and did not have to be reconstituted by Brookfield as was the case for the directory.

[ 15 ] All these documents are, in any event, so dated that none of the information could be described as having any confidential value.

[ 16 ] Accordingly, I rule that the documents provided by the defendant under cover of its letter from Mr. Rasmussen to Mr. Lunau dated January 16, 2011, and as Tabs A and B to the Supplementary Written Submissions of the defendant dated February 8, 2012, may be admitted into evidence for the purposes described herein.

[ 17 ] Obviously, I will consider the purpose that these documents are being tendered for at the time they are introduced at trial. At this stage, I am only in a position to assume how the parties may wish to make use of them, which may differ from their actual intended purpose at trial.

[ 18 ] The plaintiffs are entitled to their costs in respect of this ruling on a partial indemnity basis in any event of the cause.

Annis J.

Date: March 13, 2012

COURT FILE NO.: 07-CV-37522

DATE: 2012/03/13

ONTARIO SUPERIOR COURT OF JUSTICE RE: ENVOY RELOCATION SERVICES INC., and NATIONAL RELOCATION SERVICES (RELONAT) INC. (as contractual joint venture called Envoy Relocation Services), Plaintiffs AND THE ATTORNEY GENERAL OF CANADA, Defendant BEFORE: Mr. Justice Peter Annis COUNSEL: Ronald D. Luneau/Phuong T.V. Ngo/ Stephanie Pearce, Counsel, for the plaintiffs Derek Rasmussen/Gregory S. Tzemenakis/ Elizabeth Kikuchi, Counsel, for the defendant Amended ENDORSEMENT ON ADMISSIBILITY OF DOCUMENTS Annis J.

Released: March 13, 2012