ATTORNEY GENERAL OF CANADA Applicant v. SIEMENS ENTERPRISES COMMUNICATIONS INC., 2011 FCA 250

Federal Court of Appeal Cour d'appel fédérale Federal Court of Appeal Cour d'appel fédérale Date: 20110914 Docket: A-39-11 Citation: 2011 FCA 250 Present: SHARLOW J.A. PELLETIER J.A. MAINVILLE J.A. BETWEEN: ATTORNEY GENERAL OF CANADA Applicant and SIEMENS ENTERPRISES COMMUNICATIONS INC. Respondent and WEST ATLANTIC SYSTEMS Proposed Intervener Dealt with in writing without appearance of parties. Order delivered at Ottawa , Ontario, on September 14, 2011 . REASONS FOR ORDER BY: MAINVILLE J.A. CONCURRED IN BY: SHARLOW J.A. PELLETIER J.A. Date: 20110914 Docket: A-39-11 Citation: 2011 FCA 250 Present: SHARLOW J.A. PELLETIER J.A.

MAINVILLE J.A. BETWEEN: ATTORNEY GENERAL OF CANADA Applicant and SIEMENS ENTERPRISES COMMUNICATIONS INC. Respondent and WEST ATLANTIC SYSTEMS Proposed Intervener REASONS FOR ORDER MAINVILLE J.A. [ 1 ] This concerns a motion brought by West Atlantic Systems (“WAS”) for leave to intervene in these judicial review proceedings and to obtain related orders, including

a) directions to the applicant to serve on WAS the Notice of Application, the supporting affidavits, the documentary exhibits, the applicant’s record, as well as the transcript of the proceedings before the Canadian International Trade Tribunal (the “Tribunal”);

b) an extension of time for WAS to serve and file supporting affidavits and documentary exhibits;

c) an extension of time for WAS to serve and file a response to the applicant’s record; and

d) relief from costs throughout the proceedings. [ 2 ] The motion record should be accepted for filing even though it is does not answer all the requirements of the Federal Courts Rules ; however, for the reasons set out below I am of the view that the motion itself should be dismissed. [ 3 ] A short chronology of the aspects of the proceedings pertinent to the proposed intervention is useful to understand the peculiar circumstances in which this motion has been filed: a.

In August of 2010, Siemens Enterprise Communications Inc. (“Siemens”), formerly Enterasys Networks of Canada Ltd., filed various complaints with the Canadian International Trade Tribunal (the “Tribunal”). b. On October 8, 2010 WAS requested leave to intervene before the Tribunal in the proceedings concerning these complaints. c. On November 4, 2010 the Tribunal denied WAS’s request to intervene on the basis that though WAS is an “interested party” within the meaning of

section 30.1 of the Canadian International Trade Tribunal Act , R.S.C. 1985 (4 th Supp.) c. 47, its interests could be adequately represented by Siemens, the complainant in the proceedings. d. On December 23, 2010 the Tribunal issued its determination in these complaints, finding that the conduct of the Department of Public Works and Government Services (“PWGSC”) in the procurements at issue were deficient and failed to comply with Article 1007(1) of the North American Free Trade Agreement in certain instances, but did not preclude Siemens from submitting a bid nor justify any remedy for Siemens. e.

On January 19, 2011 the Attorney General of Canada (the “Crown”) applied for judicial review of this determination under sections 18.1 and 28 of the Federal Courts Act , R.S.C. 1985, c. F-7. f. Siemens chose not to file an appearance and did not participate in these judicial review proceedings. g. By order dated June 16, 2011, this application for judicial review was scheduled to be heard in Ottawa on September 14, 2001. h. On June 20, 2011, the Court released its reasons in Attorney General of Canada v.

Enterasys Networks of Canada Ltd. , 2011 FCA 207 (“ Enterasys ”) , a case which raised similar issues to those raised in these proceedings and in which neither Siemens nor WAS sought to participate.

i. On June 16, 2011, the Court requested counsel for the Crown to provide supplementary submissions (with a copy to Siemens) as to whether and to what extent the principles stated in Enterasys disposed of these judicial review proceedings. j. These supplementary submissions were served and filed on August 31, 2011. k. On September 2, 2011, on the request of the Crown, the Court ordered that this judicial review application would be disposed of without an oral hearing and on the basis of the material in the applicant’s record and the applicant’s supplementary submissions. l.

On September 7, 2011 WAS filed a letter with the Registry asking that it “be given an opportunity this week to file a motion for intervener status prior to the end of the day Friday September 9, 2011.” m. On September 8, 2011 this Court directed that the panel considering the judicial review application would consider the motion proposed to be filed by WAS by the end of the business day on Friday September 9, 2011, hence the present motion. [ 4 ] By its motion, WAS is attempting to substitute itself for Siemens as the respondent in this judicial review application.

WAS seeks to challenge the application under a proposed order of the Court which would, for all intents and purposes, grant it a status equivalent to that of a respondent in these proceedings. The rules permitting interventions are intended to provide a means by which persons who are not parties to the proceedings may nevertheless assist the Court in the determination of a factual or legal issue related to the proceedings (Rule 109(2)

b) of the Federal Courts Rules ). These rules are not to be used in order to replace a respondent by an intervener, nor are they a mechanism which allows a person to correct its failure to protect its own position in a timely basis. [ 5 ] A person who proposes to intervene has a duty to make its motion at the earliest possible opportunity in order to minimize the disruption in the proceedings in which it seeks to participate ( Canada (Minister of Citizenship and Immigration) v. Mugesera , 2003 FCA 84 ).

In this case, WAS first indicated its intention to intervene only one week before the date originally set for the oral hearing of the application and after the Court had already ordered that the application would be decided on the basis of the record and submissions made. Although WAS asserts that it was not formally notified by the Crown of the judicial review application, it does not deny in the material submitted in support of its motion that it was aware of these proceedings since their inception, nor does it explain why it was otherwise impeded from acting earlier.

In these circumstances, I do not accept that WAS has met its duty to act at the earliest possible opportunity. [ 6 ] Moreover, the principal grounds raised by WAS to justify its intervention before the Tribunal were described as follows in a letter it sent to the Tribunal dated October 29, 2010 and attached as Exhibit C to the motion record before this Court: It is clear that one of the main grounds of complaint is that PWGSC is purchasing products outside of the scope of Categories 1.1 and 1.2, and in these cases PWGSC should either tender to the industry for a new category, as described in the NESS Annex A Statement of Work, where West Atlantic Systems could participate in these tenders and propose other products, or PWGSC should issue “RFP outside the NESS ”, and clearly West Atlantic has an interest in these RFP’s and could produce products other than Enterasys products. [ 7 ] These grounds of complaint were extensively canvassed by the Tribunal in its Reasons at paragraphs 218 to 261.

The Tribunal concluded at paragraph 262 of its Reasons that it was unable to accept Siemen’s claims of product “miscategorization” regarding any of the procurements in issue. This determination of the Tribunal was never challenged and is not the object of the Crown’s judicial review application.

The principal grounds of complaint raised by WAS to justify its intervention are thus not before this Court. [ 8 ] Finally, most of the issues raised by the Crown in its judicial review application have been already dealt with by this Court in Enterasys , and any submissions on these issues by WAS would be of no or of very limited assistance to this Court in these proceedings. [ 9 ] On the basis of all of the above reasons, WAS’s motion shall be denied. There shall be no order as to costs. "Robert M. Mainville" J.A. “I agree K. Sharlow J.A.” “I agree

J.D. Denis Pelletier J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-39-11 STYLE OF CAUSE: Attorney General of Canada v. Siemens Enterprises Communications Inc. and West Atlantic Systems MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES REASONS FOR ORDER BY: Mainville J.A. CONCURRED IN BY: Sharlow J.A. Pelletier J.A. DATED: September 14, 2011 WRITTEN REPRESENTATIONS BY : Phil Weedon FOR THE PROPOSED INTERVENER SOLICITORS OF RECORD : David M. Attwater Ottawa , Ontario FOR THE APPLICANT