r v. New Brunswick, 2018 FCA 18

A-329-16 2018 FCA 18 Attorney General of Canada ( Applicant ) v. The Access Information Agency Inc. ( Respondent ) Indexed as: Canada (Attorney General) v. Access Information Agency Inc. Federal Court of Appeal, Nadon, Pelletier and Gauthier JJ.A.—Ottawa, September 5, 2017 and January 18, 2018.

Crown — Contracts — Judicial review of Canadian International Trade Tribunal decision ruling it had jurisdiction to investigate procedure followed during procurement regarding provision of professional services, notwithstanding subsequent cancellation of procurement — Respondent filing complaint after being advised by Global Affairs Canada (GAC) that contract to be awarded to other bidder — In light of complaint, GAC cancelling procurement process — Applicant submitting that due to cancellation, Tribunal no longer having jurisdiction to investigate because inquiry no longer concerning designated contract — Arguing that based on Novell Canada Ltd. v.

Canada (Minister of Public Works and Government Services) even if contract awarded, subsequent cancellation of contract depriving Tribunal of its jurisdiction — Whether Tribunal’s jurisdiction depending on existence of designated contract — Tribunal not losing jurisdiction when GAC cancelling procurement — Novell wrongly decided, overlooking Canadian International Trade Tribunal Act in several regards — Court’s concern in Novell was that in absence of specific contract, Tribunal may read into Act, s. 30.11(1) power to conduct at-large inquiry into procurement processes — That concern not addressed in Act — Act not requiring specific contract in uninterrupted existence while complaint active — Rather, requiring that complaint address processes followed with respect to award of contract subject to trade agreements — Tribunal may not conduct inquiry unless potential supplier files complaint designating specific contract — Inquiry limited to subject-matter of complaint — Act, ss. 30.11(1), (2) , 30.14(1) not allowing Tribunal to conduct at-large inquiry into the procurement processes of the government — Also telling that Act, s. 30.13(5) giving Tribunal latitude not to conduct inquiry where inquiry having no practical effect — This provision would have limited scope if Tribunal could conduct inquiry only when still possible to award contract at any time — Application dismissed.

Administrative Law — Judicial Review — Standard of Review — Canadian International Trade Tribunal ruling it had jurisdiction to investigate procedure followed during procurement regarding provision of professional services, notwithstanding subsequent cancellation of procurement — Respondent filing complaint after being advised by Global Affairs Canada (GAC) that contract to be awarded to other bidder— In light of complaint, GAC cancelling procurement process — Applicant submitting that due to cancellation, Tribunal no longer having jurisdiction to investigate because inquiry no longer concerning designated contract — Citing Canada (Attorney General) v.

Northrop Grumman Overseas Services Corp. (Northrop) to argue that review of Tribunal’s decision regarding question of jurisdiction subject to standard of correctness — Presumption of reasonableness applying herein —

Interpretation of a tribunal’s home statute presumed reasonable — One exception is where question raised true question of jurisdiction — Northrop following case law prior to Dunsmuir v. New Brunswick, not addressing true question of jurisdiction — Courts should be slow to qualify an issue of

interpretation as jurisdictional — Such issues should be subjected to broader curial review when there is doubt as to their nature — Here, question of whether Tribunal losing jurisdiction when contract cancelled one of interpreting Act , not raising true question of jurisdiction —Northrop no longer good law.

This was an application for judicial review of a decision by the Canadian International Trade Tribunal (Tribunal) ruling that it had jurisdiction to investigate the procedure followed during a procurement regarding the provision of professional services, notwithstanding the subsequent cancellation of the procurement. The respondent filed a complaint when Global Affairs Canada (GAC) advised it of its intention to award another bidder a contract resulting from a procurement process. In light of the complaint, GAC canceled the procurement process.

The applicant submitted that due to the procurement’s cancellation, the Tribunal no longer had jurisdiction to investigate because the inquiry no longer concerned a designated contract. The applicant cited the Court’s previous case law, including Canada (Attorney General) v. Northrop Grumman Overseas Services Corp. ( Northrop ), holding that the review of the Tribunal’s decision regarding a question of jurisdiction be subject to the standard of correctness. The applicant also argued that, based on the Court’s decision in Novell Canada Ltd. v.

Canada (Minister of Public Works and Government Services) , even if a contract was awarded, the subsequent cancellation of the government contract deprived the Tribunal of its jurisdiction. At issue was whether the Tribunal’s jurisdiction depends on the existence, at any time during the examination of a complaint, of a designated contract or on the possibility of awarding such a contract. Held , the application should be dismissed. The presumption of reasonableness applied herein. A tribunal’s

interpretation of its home statute is presumed to be reasonable. One exception is where the question raised is a true question of jurisdiction. Northrop followed the case law prior to Dunsmuir v. New Brunswick and did not address a true question of jurisdiction. Courts should be slow to qualify an issue of

interpretation as jurisdictional, and therefore subject it to broader curial review when there is doubt as to its nature. There can be no doubt that the Tribunal has the jurisdiction to inquire into the procedure followed with respect to a government contract subject to trade agreements. The question of whether the Tribunal loses jurisdiction when such a government contract is cancelled is simply one of interpreting the Act and does not raise a true question of jurisdiction. The Supreme Court decided, if only implicitly, that Northrop is no longer good law. The fact that a question of

interpretation of its home statute affects the conditions under which the Tribunal may exercise its statutory powers is not in itself a question of vires , to which the standard of correctness applies. The Tribunal did not lose its jurisdiction when GAC cancelled the procurement. Novell was wrongly decided because it overlooked the Canadian International Trade Tribunal Act in several regards. The Court’s concern in Novell was that in the absence of a specific

contract, the Tribunal may read into subsection 30.11(1) a power to conduct an at-large inquiry into the procurement processes of thegovernment. That concern is not addressed in the Act. The wording of the Act does not require that there be a specific contract inuninterrupted existence while a complaint is active. The Act simply requires that a complaint address the processes followed with respectto the award of a contract subject to trade agreements.

The Tribunal may not conduct an inquiry into the process followed by a federalinstitution unless a potential supplier files a complaint designating a specific contract. The supplier must also specify the reasons for thecomplaint. Once the Tribunal is convinced that the complaint meets the statutory requirements, it may determine whether an inquiry iswarranted, but the inquiry must be limited to the subject-matter of the complaint.

In sum, the provisions of the Act, i.e. subsections30.11(1),(2) and 30.14(1) do not allow the Tribunal to conduct an at-large inquiry into the procurement processes of the government,contrary to the Court’s concern in Novell. It was also telling that subsection 30.13(5) of the Act gives the Tribunal the latitude to decidenot to conduct an inquiry when its inquiry could have no practical effect and raises no questions as to the integrity or efficiency ofprocurements.

This provision would have a very limited scope if the Tribunal could conduct an inquiry only when it was still possible toaward a contract at any time. STATUTES AND REGULATIONS CITED Canadian International Trade Tribunal Act, R.S.C., 1985 (4th Supp.), c. 47, ss. 16, 30.1 “designated contract”, 30.11(1),(2), 30.13(5),30.14(1). Canadian International Trade Tribunal Procurement Inquiry Regulations, SOR/93-602, s. 3. CASES CITED NOT FOLLOWED: Canada (Attorney General) v. Northrop Grumman Overseas Services Corp., 2008 FCA 187, [2009] 1 F.C.R. 688, affd 2009 SCC 50,[2009] 3 S.C.R. 309; Novell Canada Ltd. v.

Canada (Minister of Public Works and Government Services), [2000] F.C.J. No. 950 (QL)(C.A.). APPLIED: McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; Miller v. Canada (Attorney General), 2002FCA 370, 220 D.L.R. (4th) 149. CONSIDERED: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Quebec(Attorney General) v. Guérin, 2017 SCC 42, [2017] 2 S.C.R. 3, 412 D.L.R. (4th) 103; Edmonton (City) v. Edmonton East (Capilano)Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293; Mouvement laïque québécois v.

Saguenay (City), 2015 SCC 16, [2015] 2S.C.R. 3. REFERRED TO: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; C.U.P.E. v. N.B. Liquor Corporation, (SCC), [1979] 2R.C.S. 227, (1979), 97 D.L.R. (3d) 417; Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3, [2015] 1 S.C.R. 161;Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, (1998), 36 O.R. (3d) 418. APPLICATION for judicial review of a decision by the Canadian International Trade Tribunal (The Access Information Agency Inc. v.Department of Global Affairs, File No.

PR-2016-001 (C.I.T.T.)) ruling that it had jurisdiction to investigate the procedure followedduring a procurement regarding the provision of professional services, notwithstanding the subsequent cancellation of the procurement.Application dismissed. APPEARANCES Alexandre Kaufman for applicant. Thomas Dastous for respondent. SOLICITORS OF RECORD Deputy Attorney General of Canada for applicant. The Access Information Agency Inc., Ottawa, for respondent. The following is the English version of the reasons for judgment rendered by Pelletier J.A.: I.

OVERVIEW [1] This is an application for judicial review of a decision whereby the Canadian International Trade Tribunal (the Tribunal) ruledthat the Tribunal had jurisdiction to investigate the procedure followed during a procurement regarding the provision of professionalservices, notwithstanding the subsequent cancellation of the procurement. The merits of the complaint regarding the procurement werethe subject of a second application for judicial review in docket A-323-16. [2] The reasons for the Tribunal’s decision (Reasons) are indexed under the following style of cause: The Access Information Agency

Inc. v. Department of Global Affairs , File No. PR-2016-001. [ 3 ] The decision in question was rendered following a complaint filed by the Access Information Agency Inc. (AIA) when Global Affairs Canada (GAC) advised it of its intention to award another bidder, LRO Staffing, a contract resulting from a procurement. In the light of the complaint, GAC decided to cancel the procurement.

The Attorney General submits that due to the procurement’s cancellation, the Tribunal no longer had jurisdiction to investigate because the inquiry no longer concerned a designated contract. [ 4 ] For the reasons set out hereunder, I would dismiss the application for judicial review. II. PROVISIONS OF THE ACT [ 5 ] The following analysis lies within a legislative framework. The provisions relevant to the Canadian International Trade Tribunal Act , R.S.C.,1985 (4th Supp.), c. 47 (the Act) are set out below. [ 6 ] The Tribunal’s mandate is assigned to it by

section 16 of the Act : Duties and functions 16 The duties and functions of the Tribunal are to … (b.1) receive complaints, conduct inquiries and make determinations under sections 30.1 to 30.19; [ 7 ] The definition of “designated contract” is found in

section 30.1 of the Act :

Definitions 30.1 … … designated contract means a contract for the supply of goods or services that has been or is proposed to be awarded by a government institution and that is designated or of a class of contracts designated by the regulations; ( contrat spécifique ) [ 8 ] A designated contract is a contract that is subject to any of the free trade agreements concluded by Canada and listed in subsection 3(1) of the Canadian International Trade Tribunal Procurement Inquiry Regulations , SOR/93-602 (the Regulations).

The phrase “trade agreements” refers to all of these agreements. [ 9 ] Any supplier or potential supplier that feels it has been prejudiced by the contract award procedure can file a complaint with the Tribunal: Filing of complaint 30.11

(1) Subject to the regulations, a potential supplier may file a complaint with the Tribunal concerning any aspect of the procurement process that relates to a designated contract and request the Tribunal to conduct an inquiry into the complaint. [ 10 ] The Tribunal may entertain a complaint only if certain requirements are met, in other words, if it states the following information: 30.11 (1) … Contents of complaint

(2) A complaint must (

a) be in writing; (

b) identify the complainant, the designated contract concerned and the government institution that awarded or proposed to award the contract; (

c) contain a clear and detailed statement of the substantive and factual grounds of the complaint; [ 11 ] If the Tribunal rules that the statutory requirements are met, it may decide to conduct an inquiry. If it so decides, it must address only the subject-matter of the complaint: Decision to conduct inquiry 30.13

(1) Subject to the regulations, after the Tribunal determines that a complaint complies with subsection 30.11(2), it shall decide whether to conduct an inquiry into the complaint, which inquiry may include a hearing. … Matters inquired into 30.14

(1) In conducting an inquiry, the Tribunal shall limit its considerations to the subject-matter of the complaint.

[12] If it is the Tribunal’s opinion that a complaint that meets the statutory requirements nevertheless is devoid of all interest or ismade in bad faith, it may decide not to investigate: 30.13 (1) … Decision not to conduct or to cease inquiry

(5) The Tribunal may decide not to conduct an inquiry into a complaint or decide to cease conducting an inquiry if it is of the opinionthat the complaint is trivial, frivolous or vexatious or is not made in good faith, and where the Tribunal so decides, it shall notify, inwriting, the complainant, the relevant government institution and any other party that the Tribunal considers to be an interested party ofthat decision and the reasons therefor. III. ANALYSIS A. The standard of review [13] To the extent that this case raises a question regarding the

interpretation of the Act, the Supreme Court has ruled that a tribunal’sinterpretation of its home statute is presumed to be reasonable, save for certain exceptions: McLean v. British Columbia (SecuritiesCommission), 2013 SCC 67, [2013] 3 S.C.R. 895 (McLean), at paragraph 21. One of these exceptions is a true question as to a tribunal’sjurisdiction. [14] In this case, the Tribunal and the Attorney General agreed that the issue was determining whether the Tribunal could, under itenabling legislation, investigate an AIA complaint. This agreement as to the issue is not binding on this Court.

We must decide whetherthis view is well-founded. [15] The issue of jurisdiction in this case is whether the Tribunal’s jurisdiction depends on the existence, at any time during theexamination of a complaint, of a designated contract or on the possibility of awarding such a contract. [16] The Attorney General cited this Court’s previous case law holding that the review of the Tribunal’s decision regarding a questionof jurisdiction be subject to the standard of correctness: Canada (Attorney General) v.

Northrop Grumman Overseas Services Corp.,2008 FCA 187, [2009] 1 F.C.R. 688, at paragraphs 27–28, affd Northrop Grumman Overseas Services Corp. v. Canada (AttorneyGeneral), 2009 SCC 50, [2009] 3 S.C.R. 309 (Northrop), at paragraph 10. However, the Supreme Court cast doubt on the soundness ofNorthrop in Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, atparagraph 33, and more recently in Quebec (Attorney General) v.

Guérin, 2017 SCC 42, [2017] 2 S.C.R. 3, 412 D.L.R. (4th) 103(Guérin), at paragraph 35. [17] In Guérin, the Supreme Court noted that the reasoning in Northrop followed the case law prior to Dunsmuir v. New Brunswick,2008 SCC 9, [2008] 1 S.C.R. 190, and did not address a true question of jurisdiction: Guérin, at paragraph 35. This comment isconsistent with the case law that holds that courts should be slow to qualify an issue of

interpretation as jurisdictional, and thereforesubject it to broader curial review when there is doubt as to its nature: C.U.P.E. v. N.B. Liquor Corporation, (SCC),[1979] 2 S.C.R. 227, (1979), 97 D.L.R. (3d) 417, at page 233. [18] The issue of the Tribunal’s jurisdiction in this case is very similar to the issue raised in Edmonton (City) v. Edmonton East(Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293 (Capilano).

The issue was whether the City of Edmonton’sAssessment Review Board had jurisdiction to increase a property assessment where the landlord’s application for review alleged that theassessment of its shopping centre was too high. The Supreme Court ruled that the issue whether the Board had the power to increase anassessment was simply one of

interpretation of the Board’s home statute and did not raise a true question of jurisdiction in the sense ofvires: …. It is clear here that the Board may hear a complaint about a municipal assessment. The issue is simply one of interpreting theBoard’s home statute in the course of carrying out its mandate of hearing and deciding assessment complaints. No true question ofjurisdiction arises. Capilano, at paragraph 26. [19] In this case, there can be no doubt that the Tribunal has the jurisdiction to inquire into the procedure followed with respect to agovernment contract subject to trade agreements.

The question of whether the Tribunal loses jurisdiction when such a governmentcontract is cancelled is simply one of interpreting the Act and, as in Capilano, does not raise a true question of jurisdiction. [20] In the light of these cases, I am of the view that the Supreme Court has decided, if only implicitly, that Northrop is no longergood law. The fact that a question of

interpretation of its home statute affects the conditions under which the Tribunal may exercise itsstatutory powers is not in itself a question of vires, to which the standard of correctness applies. The presumption of reasonableness setforth under McLean applies and has not been rebutted. [21] Moreover, the issue whether a contract has been awarded is a mixed question of fact and law because it calls for the applicationof a legal doctrine to the facts of the case.

In the case of a statutory appeal from the decision of an expert tribunal, “the standard ofreview must be determined on the basis of administrative law principles”: Mouvement laïque québécois v. Saguenay (City), 2015 SCC16, [2015] 2 S.C.R. 3, at paragraph 38. The standard of review for mixed questions of fact and law and questions of fact is that ofreasonableness: Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3, [2015] 1 S.C.R. 161, at paragraph 40. B.

A designated contract has been awarded [22] The Tribunal ruled that it had jurisdiction to pursue an investigation since a contract had been awarded to LRO Staffing. Thisconclusion was based on the email that GAC had sent the AIA on March 21, 2016 that “[a] call-up has been awarded to the successful

proposal submitted by LRO Staffing”: Reasons, at paragraph 31. The Attorney General, on the basis of Mr. Mucci’s testimony that acontract is only awarded once the designated form is delivered to the successful bidder, was of the opposite view. [23] It was not disputed that the government contract was subject to one of the trade agreements listed or described in

section 3 of theRegulations. This being the case, a contract awarded pursuant to such a government contract is a “designated contract”, which should beconclusive as to the issue of the Tribunal’s jurisdiction, unless the cancellation of the request for availability (RFA) has the extinctiveeffect that the Attorney General attributes to it. [24] In this case, the Tribunal, which is the fact finder, asked whether a contract had actually been awarded and answered in theaffirmative. The evidence before the Tribunal included Mr. Mucci’s testimony and the communications between GAC and AIA.

Thesecommunications included the email in which GAC advised AIA that a contract had been awarded to another supplier. It was for theTribunal to weigh the evidence and draw conclusions that it deemed credible. In exercising this power, the Tribunal found that a contracthad been awarded. [25] That conclusion necessarily implies an

interpretation of the words “contract … that has been … awarded” in the definition of“designated contract” in

section 30.1 of the Act. The Tribunal is not bound by the meaning given to that expression in the documentsprepared by the government institution and may give it a meaning consistent with the wording of the Act in its entire context, whichserves the fulfillment of the object of the Act: Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, (1998), 36O.R. (3d) 418, at paragraph 21. [26] In this case, the Tribunal interpreted the words “contract … that has been awarded” on the basis of the communication of thecontract award, not on the basis of contractual formalities.

The Tribunal’s point of view is not unreasonable. The definition of“designated contract” plays a limiting role in the Act because it limits access to the complaint and investigation process to disputesarising from government contracts subject to trade agreements. The Tribunal has chosen to define one of the components of this limitingelement in relation to communicating the contract award to one or more bidders, a public gesture, rather than in relation to contractualformalities which are, in fact, non-public. [27] This is entirely consistent with the Tribunal’s view that its

interpretation contributes to its ability “to ensure that the procurementprocess is fair, competitive, efficient and conducted with integrity” [italics in original; footnote omitted]: Reasons, at paragraph 34. Theexercise of this jurisdiction over the supply contract award process does not violate the Tribunal’s discretion under subsection 30.13(5) ofthe Act, not to conduct an inquiry where the complaint is trivial, frivolous or vexatious: Reasons, at paragraphs 33–37. In sum, theTribunal’s finding that a contract was awarded in this case is not unreasonable and therefore does not call for our intervention. C.

The cancellation of the contract did not deprive the Tribunal of its jurisdiction [28] The Attorney General argues that even if a contract was awarded, the subsequent cancellation of the government contractdeprived the Tribunal of its jurisdiction. The Attorney General bases his argument on a case decided by this Court, Novell Canada Ltd. v.Canada (Minister of Public Works and Government Services), [2000] F.C.J. No. 950 (QL) (C.A.) (Novell). [29] In Novell, a supplier (Novell) contested the government’s awarding of a contract without having conducted a competitiveprocess.

The government institution alleged that it did not have to conduct a competition because the contract was not covered by tradeagreements. Novell was of the opposite view and further alleged that awarding the contract in this way was part of a contract splittingstrategy. The Tribunal found in favour of Novell on the grounds that the contract was indeed subject to one or more trade agreements.However, the Tribunal did not rule on the issue of contract splitting.

Despite its success before the Tribunal, Novell filed an applicationfor judicial review before this Court, alleging that the Tribunal should rule on the issue of contract splitting. [30] The supply at issue was designed to prevent the possibility of a computer system failure in the federal institution during thetransition from 1999 to 2000, the famous Y2K problem, which, at the end of the day, turned out to be a non-event.

After January 1, 2000had come and gone without incident, the federal institution no longer needed the supply and, in the light of Novell’s complaint, divesteditself of everything it had acquired under the contract at issue. [31] Given these facts, this Court [at paragraph 5] dismissed the application for judicial review, stating: There is now no designated contract at issue....

While subsection 30.11(1) is broad enough to confer on the Tribunal jurisdiction toconsider any aspect of a procurement process that relates to a designated contract, there must be a designated contract in order to triggerthe broader inquiry. As there is now no designated contract at issue, the Tribunal is without jurisdiction to enter into any procurementprocess inquiry. In other words, there is no jurisdiction in the Tribunal under subsection 30.11(1) to conduct an at-large inquiry into theprocurement processes of the government. [32] The Tribunal considered Novell.

It pointed out that it had previously noted that that case should be understood in the light of itsparticular facts, including the fact that after the Tribunal had ruled in favour of the complainant, the government institution had indicatedthat it no longer needed the services at issue and had discarded the software it had previously acquired.

The Tribunal was of the opinionthat this explained the result in Novell: Reasons, at paragraph 41. [33] This attempt by the Tribunal to limit Novell to its particular facts would be persuasive if this Court had decided that theapplication for judicial review should be dismissed because the issue was moot, which was certainly the case. Thus, the decision todismiss the application for judicial review would simply be an exercise of discretionary power not to proceed with an application forjudicial review, which in fact, could not have any practical implications for the parties.

But this Court decided the case on a question ofjurisdiction, which is entirely different. We must abide by this Court’s decision and not substitute for it the one it could have made. Itfollows that, if Novell was correctly decided, the Tribunal lost jurisdiction over AIA’s complaint when the government contract wascancelled. The question is then whether Novell was correctly decided. [34] The consistency of the doctrine of a court of appeal requires that each panel respect and apply in good faith the ratio decidendi ofany decision rendered by another panel of the Court.

The need for finality and certainty in law demands no less. That being said, since a

court is a human institution, the possibility of error cannot be ruled out and, given the limited number of applications for leave granted by the Supreme Court, not to mention the costs of such an approach, these errors may not be corrected. That is why the law gives courts of appeal the option to intervene when a decision rendered by a panel is clearly erroneous. [ 35 ] This Court provided guidance on this possibility to intervene in Miller v. Canada (Attorney General) , 2002 FCA 370 , 220 D.L.R. (4th) 149 ( Miller ).

One panel of this Court cannot depart from a decision of another panel unless “the previous decision is manifestly wrong, in the sense that the Court overlooked a relevant statutory provision, or a case that ought to have been followed”: Miller , at paragraph 10 . [ 36 ] I am of the opinion that, evidently, Novell was wrongly decided by this Court because it overlooked the Act in several regards.

The Court’s concern in Novell seemed to have been that in the absence of a specific contract, the Tribunal may read into subsection 30.11(1) a power to conduct an at-large inquiry into the procurement processes of the government. That concern is not in any way addressed in the provisions of the Act. [ 37 ] The wording of the Act does not require that there be a specific contract in uninterrupted existence while a complaint is active. The Act simply requires that a complaint address the processes followed with respect to the award of a contract subject to trade agreements.

The Tribunal rejected the argument based on the “extinguishing effect” of the cancellation of a procurement because a cancellation does not necessarily relate to the procedural flaws highlighted in the complaint and does not allow the Tribunal to fulfil its role of preserving trust in the integrity of procurement procedures: Reasons, at paragraph 35. [ 38 ] The concern that, in the absence of a specific contract, the Tribunal [at paragraph 41] is allowed “to conduct an at-large inquiry into the procurement processes of the government” overlooks several other provisions of the Act . [ 39 ] Subsection 30.11(1) authorizes the filing of a complaint with respect to a specific contract, but no inquiry is authorized unless the complaint meets the statutory requirements.

Subsection 30.11(2) of the Act sets out the conditions a complaint must meet, including: “identify the complainant, the designated contract concerned and the government institution that awarded or proposed to award the contract” and “contain a clear and detailed statement of the substantive and factual grounds of the complaint”. All this ensures that any inquiry is limited to the circumstances surrounding a specific designated contract.

Moreover, since subsection 30.14(1) provides that, in conducting an inquiry, the Tribunal shall limit its considerations to the subject-matter of the complaint, the Tribunal must therefore stand by the process followed with respect to the contract designated in the complaint. [ 40 ] The effect of all these provisions is that the Tribunal may not conduct an inquiry into the process followed by a federal institution unless a potential supplier files a complaint designating a specific contract that was awarded or could be awarded. The supplier must also specify the reasons for the complaint.

Once the Tribunal is convinced that the complaint meets the statutory requirements, it may determine whether an inquiry is warranted, but the inquiry must be limited to the subject-matter of the complaint. In sum, these provisions do not allow the Tribunal to conduct an at-large inquiry into the procurement processes of the government, contrary to the Court’s concern. [ 41 ] It is also telling that, as the Tribunal noted, subsection 30.13(5) allows the Tribunal to decide not to conduct an inquiry into a complaint or to cease conducting an inquiry if it is of the opinion that the complaint is trivial.

This provision gives the Tribunal the latitude to decide not to conduct an inquiry when its inquiry could have no practical effect and raises no questions as to the integrity or efficiency of procurements. This provision would have a very limited scope if the Tribunal could conduct an inquiry only when it was still possible to award a contract at any time. [ 42 ] In the light of these provisions, I conclude that this Court did not consider all the provisions of the Act pertaining to the operation of the Tribunal and, therefore, made a manifestly wrong decision. Novell is no longer good law.

Consequently, the Tribunal did not lose its jurisdiction when GAC cancelled the procurement. IV. CONCLUSION [ 43 ] I conclude that the Tribunal’s decision on its jurisdiction is not unreasonable. [ 44 ] The application for judicial review should therefore be dismissed, with costs. Nadon J.A. : I agree. Gauthier J.A. : I agree.