Summary

Keywords

Administrative law — International trade — Canada — European Union Comprehensive Economic and Trade Agreement — Jurisdiction — Standard of review — Supplier from European Union challenging a requirement in an Ontario request for bids that production take place in Canada —Administrative decision-maker’s decision dismissing supplier’s complaint — Divisional Court quashing both request for bids and administrative decision-maker’s decision — Court of Appeal allowing appeal — What is the proper approach to examining Canada’s compliance with international trade obligations in administrative and judicial review? — Whether Ontario breached its duty under a trade agreement to provide an impartial and independent domestic review process for claims — If so, what are the consequences of such a breach?

Summary

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

In 2021, Ontario’s Ministry of Transportation issued a request for bids for the production of identification cards. The request for bids included a requirement that production take place in Canada. The applicant, Thales DIS Canada Inc. (“Thales”), bid on the project and proposed to produce the card stock at a manufacturing plant in Poland. Thales challenged the requirement that the card stock be produced in Canada through an internal bid review process within the Ontario government. Thales argued that the requirement breached Canada’s non-discrimination obligations under the Canada-European Union Comprehensive Economic and Trade Agreement (“CETA”). The decision following the internal bid review process dismissed Thales’s complaint on the basis that the requirement fit within the public safety exception under CETA and also rejected Thales’s position that the Ontario government failed to implement a proper dispute resolution process under CETA. Thales brought an application for judicial review, challenging both the decision dismissing its complaint and the request for bids itself. The Divisional Court granted the application for judicial review. The Ontario Court of Appeal allowed Ontario’s appeal and dismissed Thales’s application for judicial review. It held that the majority of the Divisional Court erred in its application of the reasonableness standard of review by improperly deciding the issue afresh. Applying the reasonableness standard of review, the Court of Appeal held that the decision was reasonable. In addition, it held that the request for bids was not subject to judicial review.

Lower Court Rulings