PWGSC must apply for and obtain a stay if it does not wish to implement recommendations of the CITT pending judicial review
As a result of a motion by Northrop Grumman Overseas Services Corporation (“Northrop Grumman”), the Federal Court of Appeal has held that, in the absence of a stay from the Court, the Crown must abide by recommendations made by the Canadian International Trade Tribunal (“CITT”) to remedy a complaint, even where the Crown is challenging those recommendations by judicial review.
In this case, the CITT had upheld a complaint by Northrop Grumman and issued a recommendation to re-evaluate parts of the bids. The Attorney General of Canada brought an application for judicial review of the CITT’s recommendation and refused to proceed with the re-evaluation while the Crown’s application was pending before the Court. Northrop Grumman brought a motion in response, and argued that the Crown could not unilaterally refuse to implement the CITT’s recommendation merely because the government was seeking judicial review of the recommendation. Instead, if the Crown wished to refuse to implement the recommendation, then it had to apply to the Court for a stay. In a decision released on October 26, 2007, Noel J. agreed with Northrop Grumman’s position.
This is a very noteworthy decision because it has been common practice of the Crown to delay implementing recommendations of the CITT simply because they intend to seek judicial review. As a result of Noel J.’s decision, it has been confirmed that the Crown cannot make that decision unilaterally. The Crown must seek an order from the Court staying implementation, and will only be successful if it can meet the following requirements for a stay:
- There is a serious question to be tried;
- The Crown will suffer irreparable harm if the stay is not granted;
- The balance of convenience favours the Crown.
