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TABLE OF CONTENTS

• ORDER
• STATEMENT OF REASONS
• • INTRODUCTION
  • POSITIONS OF THE PARTIES
  • • Meta’s Position
    • CRA’s Position
  • TRIBUNAL’S ANALYSIS
  • CONCLUSION

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IN THE MATTER OF a complaint filed by Meta-Business Advantage Ltd. pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C. 1985 (4th Supp.), c. 47;

AND FURTHER TO the Canadian International Trade Tribunal’s preliminary indication of the level of complexity of the complaint case and its preliminary indication of the amount of the cost award.

BETWEEN
META-BUSINESS ADVANTAGE LTD.	Complainant
AND
THE CANADA REVENUE AGENCY	Government Institution

In its determination of November 10, 2009, the Canadian International Trade Tribunal, pursuant to section 30.16 of the Canadian International Trade Tribunal Act, awarded Meta-Business Advantage Ltd. its reasonable costs incurred in preparing and proceeding with the complaint. The Canadian International Trade Tribunal’s preliminary indication of the level of complexity for this complaint case was Level 1, and its preliminary indication of the amount of the cost award was $1,000.

After considering the submissions of the parties concerning that determination, the Canadian International Trade Tribunal hereby confirms its preliminary indication by awarding Meta-Business Advantage Ltd. its costs in the amount of $1,000 for preparing and proceeding with the complaint and directs the Canada Revenue Agency to take appropriate action to ensure prompt payment.

Dominique Laporte
Dominique Laporte
Secretary

INTRODUCTION

1. In its determination issued on November 10, 2009, the Canadian International Trade Tribunal (the Tribunal), pursuant to section 30.16 of the Canadian International Trade Tribunal Act,¹ awarded Meta-Business Advantage Ltd. (Meta) its reasonable costs incurred in preparing and proceeding with the complaint. In its determination, the Tribunal’s preliminary indication of the level of complexity for the complaint was Level 1, and its preliminary indication of the cost award was $1,000, in accordance with its Guideline for Fixing Costs in Procurement Complaint Proceedings (the Guideline).

2. On November 17, 2009, Meta filed a submission in which it indicated that it disagreed with the Tribunal’s preliminary indication of the level of complexity for the complaint. On November 19, 2009, the Canada Revenue Agency (CRA) responded to that submission.

POSITIONS OF THE PARTIES

Meta’s Position

3. Meta submitted that it should be awarded costs at the Level 2 amount, i.e. $2,400. Meta agreed with the Tribunal’s preliminary determination regarding the complexity of the procurement (medium) and proceedings (low); however, it disagreed with the Tribunal’s preliminary determination of the complexity of the complaint itself, which the Tribunal had identified as being “low”. Meta submitted that the complexity of the complaint should have been assessed as “medium” because the issue involved ambiguous or overly restrictive specifications, it included the concept of latent ambiguity and the evaluation was based on a combination of mandatory and rated requirements.

4. Meta also submitted that the Tribunal should not limit its considerations to the level of complexity of the proceedings, but should also consider criteria similar to those set out in section 400 of the Federal Courts Rules,² including subsection 400(3):

. . .

(g) the amount of work;

. . .

(i) any conduct of a party that tended to shorten or unnecessarily lengthen the duration of the proceeding;

(j) the failure by a party to admit anything that should have been admitted . . .

. . .

5. Meta submitted that the CRA could have shortened or even avoided the complaint process had it recognized that its restrictive interpretation of the term “project” was in error. Meta submitted that the error was clearly articulated during the objection process and that the CRA should have addressed it in the context of the procurement process instead of requiring Meta to file a complaint with the Tribunal. Meta also submitted that the CRA had in its possession, at the time of the objection and debriefing, its own notes regarding the comments made by the reference regarding Meta’s Projects 1, 2 and 3. Meta submitted that, had the CRA disclosed its notes at that time, Meta’s complaint would have been based on a simple misreading by the CRA of the reference’s comments, as opposed to a misapplication of the evaluation criteria. Finally, Meta submitted that its costs exceeded even the amount contemplated by a Level 3 award and that this was appropriate given the seriousness of the breach, the consequences to Meta’s business, the research required to address the concept of latent ambiguity and the Government of Canada’s previous treatment of the word “project”, and the length of the solicitation documents and the many amendments.

CRA’s Position

6. The CRA agreed with the Tribunal’s recommended cost award. It submitted that, as there had been only one ground of complaint, no motions had been filed and an oral hearing had not been required, the Level 1 cost award was appropriate. It submitted that section 400 of the Federal Courts Rules had no applicability to this case.

TRIBUNAL’S ANALYSIS

7. The Tribunal notes that it is not bound by the Guideline and will depart from the levels of complexity and the rates set out in the Guideline where circumstances justify it. As paragraph 1.3 of the Guideline states, “. . . each case will be considered individually, and the guideline is not intended to replace, limit or detract from the discretion of the Tribunal . . . .”

8. The Tribunal disagrees with the submissions of Meta as to why the complexity of the complaint should be described as “medium”. Even though the overall evaluation was based on mandatory and rated requirements, it remains that the substance of the complaint was limited to the interpretation of a single mandatory criterion, which the Tribunal considers to be a straightforward issue.

9. Regarding Meta’s submission that its costs were even higher than the normal amount of a Level 3 cost award, the Tribunal notes that the first principle of its Guideline ³ is that costs awarded will normally represent only a partial indemnity.

10. In light of the foregoing, the Tribunal confirms that the level of complexity for this complaint case is Level 1 and confirms its preliminary cost award in the amount of $1,000.

CONCLUSION

11. The Tribunal hereby confirms its preliminary indication by awarding Meta its costs in the amount of $1,000 for preparing and proceeding with the complaint and directs the CRA to take appropriate action to ensure prompt payment.

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¹ . R.S.C. 1985 (4th Supp.), c. 47.

² . SOR/98-106.

³ . Para. 2.1.