This article is an excerpt from Government Procurement, which is available for purchase.
In its December 2012 decision in 2145850 Ontario Ltd. (c.o.b. Highland Bus Services) v. Student Transportation of Eastern Ontario, the Ontario Superior Court of Justice rejected an application to strike down a lawsuit filed by a school bus company in response to a school bus services RFP. In seeking to have the lawsuit dismissed, the defendant argued that the plaintiff bus company’s case was barred by the statutory provisions of Ontario’s Broader Public Sector Accountability Act, which purportedly prohibited claims for injunction or judicial review in connection with procurements conducted by broader public sector entities. The court disagreed with the defendant’s position that the statute obviously barred claims relating to a failure to perform an act required by its provisions. The court accepted that the statute could potentially be interpreted as barring actions only in situations where the entity was complying with its statutory procurement obligations, not where, as was claimed by the school bus company, the public body was in breach of its statutory obligations:
The Plaintiffs plead facts in support of their allegations that the Defendant has engaged in unlawful acts that are not in accordance with the mandatory requirements of the directive and therefore the Act. Section 22(1)(c) insulates the Defendant from any cause of action that arises as a result of anything “done or not done in accordance with this Act… or the directives”. In simple terms, if the directive required the Defendant to do something, and the Defendant did it then it would seem to be protected under this section. Similarly, if the directive required the Defendant to not do something, and the Defendant did not do it, then it would seem to be protected under this section. Arguably, this is the extent of the protection. The dispute between the parties in regard to this section arises in the situation where the directive requires the Defendant to do something, but it does not do it. The Defendant’s position is that that conduct is protected under the phrase “not done in accordance with this Act… or the directives.” In my view, it is not plain and obvious that the Defendant is correct in this interpretation such that the Plaintiffs’ claims must fail. The Plaintiffs have pleaded that in this case the directive required the Defendant to do something, but it did not do it. The Plaintiffs submit that the sections cannot and should not be interpreted to protect the Defendant in that situation. In simple terms, the Plaintiffs submit that this section on a proper reading, reflecting the intention of the legislation, does not afford protection for conduct contrary to the Act or directives. I cannot find that the Plaintiffs’ claim in this regard is certain to fail. (para. 28)
The court therefore rejected the defendant’s motion to dismiss the legal challenge and left the question of the proper interpretation to be addressed by the trial judge. As this case shows, the legal immunity from judicial review apparently afforded by the Ontario’s Broader Public Sector Accountability Act may not be comprehensive. Ontario broader public sector entities will continue to face the risk of legal challenges to their procurement processes.
