



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dowdall, 2013
    ONCA 196

DATE: 20130402

DOCKET: C55877, C55879, C55880 and C55881

MacPherson, Blair and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Barry Dowdall, David Gelineau and Donna Cona Inc.

Appellants

AND BETWEEN

Her Majesty the Queen

Respondent

and

TPG Technology Consulting Ltd.

Appellant

AND BETWEEN

Her Majesty the Queen

Respondent

and

Philip McDonald

Appellant

AND BETWEEN

Her Majesty the Queen

Respondent

and

Spearhead Management Canada Ltd.

Appellant

William L. Vanveen, for the appellants Barry Dowdall,
    David Gelineau and Donna Cona Inc.

Peter N.
    Mantas, for the appellant TPG Technology Consulting Ltd.

Patrick McCann, for the appellant Philip McDonald

Donald Powell, for the appellant Spearhead Management
    Canada

Denis Pilon, for the respondent

Heard: March 26, 2013

On appeal from the order of Regional Senior Justice
    Charles Hackland of the Superior Court of Justice dated July 18, 2012
    dismissing the appellants application for certiorari of the decision of
    Justice Alder of the Ontario Court of Justice dated October 25, 2011.

ENDORSEMENT

[1]

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

[2]

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

[3]

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

[4]

We do not accept this submission.

[5]

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

[6]

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

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

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

[7]

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

[8]

The appeals are therefore dismissed.

J.C.
    MacPherson J.A.

R.A.
    Blair J.A.

R.G.
    Juriansz J.A.


