the navigator - toronto law firm - fernandes hearn

INTHISISSUEPAGE1COURTSANDTHEINTEGRITYOFTHEPROCUREMENTPROCESS

PAGE2FIRMANDINDUSTRYNEWS

PAGE5VACCINATIONSCHEDULESFORSUPPLYCHAINWORKERS

PAGE7PERSONALLIABILITYOFCORPORATEDIRECTORS

PAGE9DOWNGRADEOFCOMMERCIALCLASSDDRIVER’SLICENCEFORMEDICALREASONSPAGE11PROCUREMENTCOMPLAINTSTOCITT

PAGE13FLIGHTDELAYSAND DAMAGESUNDER MONTREALCONVENTION

FERNANDES HEARN LLP NEWSLETTER MARCH 2021

In a recent and quite lengthy decision, the Federal Court of Appealresolved a years long dispute regarding complaints addressed anddecided by the Canadian Interna<onal Trade Tribunal (CITT) inconnec<on with bids solicited by Public Works and GovernmentServicesCanada(PWGSC)fortheCanadianCoastGuard.Theprizewasa3-yearcontracttoprovidetwotowingvesselsforopera<onsontheBCcoastworth$67million.TwodecisionsofCITTwerechallengedinno less than 5 judicial review applica<ons, all heard together by theFederal CourtofAppeal asHeiltsukHorizonMari0meServices Ltd. v.Atlan0c Towing Ltd. (*1), inwhich all par<es, including the ARorneyGeneral as intervener, sought to challenge the CITT’s decisions. Thecase dealt with a number of interes<ng legal issues, but this casecommentfocusesmainlyontheCourt’sbroadwillingnesstointerveneinatribunal’sfindingtopreservetheintegrityofthebiddingprocessinprocurement.

Background

Although a complex mul<-proceeding maRer, the dispute can beboiled down to a review by the Federal Court of Appeal of twodecisions of the CITT arising from complaints brought by HeiltsukHorizonMari<meServices in respectoffindingsofPWGSC; thefirst,that Atlan<c Towing’s bid was non-compliant with a mandatory bidrequirement regarding minimum towing power (MR 12) and thesecond – a\er CITT found that PWGSC could re-evaluate all bids inresponsetothefirstcomplaint–thatCITTexceededitsjurisdic<onbyinterpre<ngMR12inawaythatwasinconsistentwiththeRequestforProposals(RFP),thuschangingitsmandatoryrequirements.TheCourtreferredtothese,respec<vely,asDecisionIandDecisionIIoftheCITT.

DecisionI

DecisionIrelatedtothecomplaintofHeiltsukHorizontotheCITTthatAtlan<c Towing (“Atlan<c”) had submiRed a non-compliant bid inrespectofMR12,inthatAtlan<c’sbollardpullcer<ficate,whicheachbidder had to submit, did not show a bollard pull exceeding 120

HeiltsukHorizonMari0meServicesLtd.v.Atlan0cTowingLimited:TheCourtsandtheIntegrityofthe

ProcurementProcess

THENAVIGATOR

FERNANDES HEARN LLP NEWSLETTER MARCH 2021 PAGE 2

FIRMANDINDUSTRYNEWS• Women in LogisQcs Impact AwardCeremonywill be held virtually on April 1,2021.KimStollwillaRendandrepresentthefirm.

• Women’s Shipping & InternaQonal Trading AssociaQon (WISTA) Canada, onApril 13, 2021, will present the next (virtual) edi<on ofWISTA Canada’s Women inLeadershipSeriesfeaturingguestspeakerTheHonourableLisaRaiZ,Vice-Chair,GlobalInvestmentBanking,CIBCCapitalMarkets.KimStoll,inherroleasVPCentralRegionofWISTACanadawillbehos<ng.ThiseventisopentoWISTAmembersandfriends.PleasecontactKim([email protected])ifyouwouldliketoaRend.

• RuiFernandeswillbepresen<ngaFernandesHearnLLPwebinaron“TrendsinTransporta<on in 2020” on Friday April 16th, 2021 from 9 am to 10:30 am. [email protected].

• TheUnitedStatesMariQmeLawAssociaQonSpring2021Mee<ngsandAnnualDinnerwilltakeplaceinNewYorkonMay4-7,2021.

• GordonHearnwillbepar<cipa<ng inapaneldiscussionaddressing“StrategiesinBrokerand3PLRiskManagement”attheTransportaQonIntermediariesAssociaQon2021 Capital Ideas Conference being held virtually fromPhoenix, Arizona onMay 13,2021.

• TheTorontoCommercialArbitraQonSocietyAnnualGeneralMee<ngwill takeplaceonMay27th,2021inToronto.RuiFernandesandKimStollwillbeaRending.

• TheCanadianBoardofMarineUnderwritersSpringConferencewill takeplaceonMay27th,2021virtually.

• TheCanadianMariQmeLawAssociaQonAnnualGeneralMee<ngandSeminarwill take place June 7-8, 2021 in ORawa. Rui Fernandes as Central Region VP isorganizingtheSeminar.

• The TransportaQon Lawyers AssociaQon Annual Conference /CanadianTransportLawyersAssociaQonMidyearMee<ngwilltakeplaceinLakeTahoeCaliforniaJune23-26,2021.GordonHearnwillbechairingan“Interna<onalTransporta<onLawUpdate”panel.

• TheInternaQonalConferenceonAdmiraltyandMariQmeLawwilltakeplaceJuly12-13,2021inORawa,Ontario.

• TheInternaQonalMariQmeLawSeminarwilltakeplaceOctober28,2021inLondonEngland.

• Markyourcalendars.ThenextFernandesHearnLLPAnnualSeminarwilltakeplaceonFebruary10,2022.Sendusanemailtoinfo@hllp.catoletusknowwhattopicsyouwouldlikeustocover.

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tonnes “when all required engine drivenconsumers were accounted for” (*2) asrequired by the RFP. Despite this, PWGSCfoundall12bidders,includingAtlan<c,tohavebeen compliant with MR 12. A later VesselConfirma<on Assessment of Atlan<c’s vessels,the top-ranked bidder, showed, as alleged byHeiltsukHorizon,thatAtlan<cTowingfailedtosa<sfy MR 12, leading to Heiltsuk Horizon’sfirstcomplainttotheCITT.

InDecisionI,renderedonJanuary2,2019,theCITT found in favour of Heiltsuk Horizon inpart. ItagreedwithHeiltsukHorizonthat,“ontheir face,”Atlan<c’scer<ficatesdidnotshowdeduc<on for engine driven consumers.Atlan<c did not dispute this but noted thatdeduc<ons weren’t necessary because of thepresenceofauxiliarygenerators.CITTwasalsoconcerned because one of the evaluators“took it for granted” that Atlan<c’s bid wascompliant with MR 12 even though this wasnot shown on the face of the cer<ficates.Although successful, Heiltsuk Horizon did notgettheremedyitwanted–thatitbefoundtheonly compliant bidder and be awarded thecontract. Instead, CITT recommended thatPWGSC re-evaluateMR 12 for all <mely bidsreceived, and that the contract remain withAtlan<c un<l this was completed. The re-evalua<on,bywhichAtlan<cwas foundtobecompliant with MR 12, led to HeiltsukHorizon’ssecondcomplainttoCITT

DecisionII

In its second complaint, Heiltsuk Horizonargued before the CITT that the processadoptedbyPWGSCinre-evalua<ngbidswasinfactinbreachofDecisionI,allegedlyforfailingto follow theCITT’s recommenda<ons.Anewevalua<on team was struck which againassessedbidders’compliancewithMR12.Thenewteaminterpreted“required”inthephrase“whenallrequiredenginedrivenconsumers…are taken into account” as meaning those“required”tooperatethevesselsafelyforthepurposeofaBollardPulltestaccordingtotheClassifica<on Society Bollard Pull tes<ng

procedure. By applying this interpreta<on, thenew team of evaluators found all bidderscompliant,andthereforefurtherfoundthatthecontracthadbeenproperlyawardedtoAtlan<c.

In its second complaint Heiltsuk Horizon wasagainpar<allysuccessful.CITTfoundinDecisionII,renderedonOctober18,2019,thatPWGSC’sre-evalua<on process proceeded on anincorrect interpreta<on of MR 12. In CITT’sview, the evaluators ought to have taken theword “required” to mean “required foremergency towing opera<ons,” and thereforewould have to make deduc<ons for engine-driven consumers in these condi<ons from thecer<fiedbollardpull(*3).TheCITTthusorderedinpartthattheevaluators:

…mustensurethatavesselwouldhavea func0onal bollard pull of at least 120tonnes, even during an emergencytowing opera<on when power may bedrawn away from the engine to powerotherconsumers(*4).

All par<es ended up challenging Decision II byjudicialreview.HeiltsukHorizonchallengedthisdecisiononthegroundsthatAtlan<ccouldnothave been allowed to par<cipate having beenfoundnot compliantwithMR12 inDecision I.Atlan<c, for its part, argued that the CITT hadexceeded its jurisdic<on by imposing newcondi<ons absent from the original RFP andthat it failed to give proper deference to theevaluatorsapproachtofindingcompliancewiththeMR12.TheARorneyGeneralintervenedtoraise the same issue as Atlan<c regarding theCITTexceedingitsjurisdic<on.

The Decision of the Federal Court ofAppeal

The Federal Court of Appeal’s decision on thecollec<on of judicial review applica<ons beforeit, all of which essen<ally favoured Atlan<c,illustrates a greaterwillingness of the courts tochallenge tribunal decisions in the wake of thelandmark2019decisionoftheSupremeCourtofCanada in Canada (Minister of Ci0zenship and


Immigra0on) v. Vavilov (*5). In reviewing thedecisions of the CITT at issue here, the FederalCourtofAppealfoundthatitcould“interveneiftheTribunal’sreasoninglacksinternalcoherenceandisnotdefensible inrespectofthefactsandthelaw”(*6).

On the ques<on of whether Decision I wasreasonable,theFederalCourtofAppealaffirmedtheCITT’sdecision. Itagreedwith theCITT thatoneof theevaluator’s taking itasassumed thatAtlan<c’s bollard pull cer<ficate was compliantwithMR12hadtaintedtheprocess,andthatallbids should therefore be re-evaluated. This didnot amount, in the Court’s view, to a decisionthat Atlan<c was not compliant with MR 12.Rather, theCITTwas concernedwithprotec<ngthe process of reaching a decision oncompliance, andnotwithdecidingwhether thebidwascompliantwiththeRFP.Itwasthereforejus<fied in ordering a re-evalua<on todetermine, in fact, which bids were compliant,andwhichwerenot.

WithregardstoDecisionII,theFederalCourtofAppealwas,however,preparedtofindtheCITT’sapproachunreasonable. Itcri<cizedtheCITTforessen<ally rewri<ng the original RFP. Thedecisionoverreachedby,insteadoftakingMR12atfacevalue,proceedingtotreatthebollardpullcer<ficates as mere “star<ng points” to somenewstandardofevalua<on.TheFederalCourtofAppeal therefore agreed with the ARorneyGeneral that thenew requirements imposedby

DecisionII“bearsliRleresemblancetowhatwaspublishedintheRFP”(*7)

Conclusion

In narrow terms, this decision should givecomforttothosewhoseeitasimportantforthecourtstohavethepowertopolicethetenderingprocesstoensurethatitisbothrules-basedandresults in a fair outcome. On a broader level,however, this is a decision illustra<ng just howimportant the Supreme Court’s decision inVavilov will be in future judicial reviewapplica<ons.As predictedby early analysts, thedecisioninVavilovwasammuni<onforthelowercourtstobegintooverruletribunaldecisionsbygiving greater scope to viewing decisions asunreasonable. The decision in Heiltsuk Horizonseems to confirmpredic<ons of greater judicialac<vism in terms of ques<oning the findings ofadministra<vetribunals.

OlegM.Roslak

Endnotes(*1) Heiltsuk Horizon Mari0me Services Ltd. v.Atlan0c Towing Limited 2021 FCA 26 [HeiltsukHorizon].(*2)HeiltsukHorizonatpara.16.(*3)HeiltsukHorizonatpara.51.(*4)HeiltsukHorizonatpara.54.(*5)2019SCC65.(*6)HeiltsukHorizonatpara.63.(*7)HeiltsukHorizonatpara.129.

INVESTOR NEWSLETTER ISSUE N°3 FALL 2008FERNANDES HEARN LLP NEWSLETTER MARCH 2021 PAGE 4

2. VaccinaQon Schedules for Supply ChainWorkers

The Public Health Agency of Canada hasadvised that it is up to each province todeterminevaccineeligibilityandnotthefederalgovernment. Indeed, the provinces are alltaking a slightly different approach to supplychainworkers.

“Phase Two” of the vaccine roll-out inOntariowillincludeadultsover60yearsold,individualswithspecifichealthcondi<ons,andafewselectclasses of other people at elevated risk,including those who cannot work from home.This is said to explicitly include workers in“transporta<on,warehousinganddistribu<on”.(*1). It is currently an<cipated that this phasewillrunfromaboutApril2021toJuly2021.(*2)

“Long haul” truck drivers, and workers whoregularly cross theNovaSco<a-NewBrunswickborder forwork, are similarly scheduled to beincluded in Nova Sco<a’s “Phase Two”.However, other supply chain workers are notincludedasaprioritygroundinNovaSco<a,astheyare inOntario.(*3).NovaSco<a’s<melinewilllikelybesimilartothatinOntario,following“Phase One”, which includes those over 80years old, residents and workers in long-termcarehomes,andasmalllistofothergroups.

Commercial truck drivers have already beenincluded in the vaccine roll-out in PrinceEdward Island. Other “non-frontline essen<alworkers” will be included in “Phase Two”,scheduledforApril2021toJune2021.(*4)

In New Brunswick, it is an<cipated that truckdrivers and “regular cross-border commuters”will be eligible later this month.(*5). Othersupply chain workers may have to wait un<l“Phase Three”, unless they otherwise qualifyearlier due to age or other reasons.(*6).Newfoundland and Labrador similarly plans toinclude in its “Phase Two” people who“regularly travel inandoutof theprovince forwork,includingtruckdrivers”.(*7)

Bri<sh Columbia has classified “wholesale/warehousing employees” and “cross-bordertransport staff” as “front-linepriorityworkers”for the AstraZeneca/SII COVISHIELD vaccine,star<ngsome<meinApril.(*8)

The plans for Alberta,(*9) Saskatchewan,(*10)andManitoba (*11) are primarily based uponage. No specialpriority is given to the supplychainsector.

Quebec, similarly, has made no specialprovisionforsupplychainworkers.(*12).

Intheterritories,alladultsover18yearsoldareeligible for a vaccine now. Residents shouldconsulttheavailabilityintheirlocalareas.

AlanS.Cofman

Endnotes(*1)Popula<onsEligibleforPhaseTwoCOVID-19Vaccina<on,online:<hRps://news.ontario.ca/en/backgrounder/60570/popula<ons-eligible-for-phase-two-covid-19-vaccina<on>.(*2)See“Ontario’sCOVID-19Vaccina<onPlan”,online:<hRps://covid-19.ontario.ca/ontarios-covid-19-vaccina<on-plan>.(*3)“Coronavirus(COVID-19):Vaccine”,online:<hRps://novasco<a.ca/coronavirus/vaccine/>.(*4)“COVID-19VaccinesandImmunicza<onPhasedApproach”,online,<hRps://www.princeedwardisland.ca/en/informa<on/health-and-wellness/covid-19-vaccines-and-immuniza<on-phased-approach>.(*5)UpdatedCOVID-19Vaccina<onPlan”,online:<hRps://www2.gnb.ca/content/gnb/en/news/news_release.2021.03.0194.html>.(*6)COVID-19Vaccines,online:<hRps://www2.gnb.ca/content/gnb/en/corporate/promo/covid-19/nb-vaccine.html#3>.(*7)NewfoundlandandLabradorCOVID-19Immuniza<onPlan,online:<hRps://www.gov.nl.ca/covid-19/vaccine/files/NL-COVID19-Immuniza<on-Plan-1.pdf.>


https://www2.gnb.ca/content/gnb/en/corporate/promo/covid-19/nb-vaccine.html%22%20%5Cl%20%223




(*8)COVID-19Immuniza<onPlan,online:<hRps://www2.gov.bc.ca/gov/content/covid-19/vaccine/plan#front-line-priority>.(*9)COVID-19VaccineProgram,online:<hRps://www.alberta.ca/covid19-vaccine.aspx#phases>.(*10)VaccineDeliveryPhases,online:<hRps://www.saskatchewan.ca/government/health-care-administra<on-and-provider-resources/treatment-procedures-and-guidelines/emerging-public-health-issues/2019-novel-

coronavirus/covid-19-vaccine/vaccine-delivery-phases>.(*11)COVID-19Vaccine:CurrentEligibilityCriteria”,online:<hRps://www.gov.mb.ca/covid19/vaccine/eligibility-criteria.html>.(*12)COVID-19Vaccina<onCampaign,online:<hRps://www.quebec.ca/en/health/health-issues/a-z/2019-coronavirus/progress-of-the-covid-19-vaccina<on/#c78786>.


https://www2.gov.bc.ca/gov/content/covid-19/vaccine/plan%22%20%5Cl%20%22front-line-priority




3.ThePersonal LiabilityofCorporateDirectorsfor Unpaid Wages Pursuant to BusinessCorporaQonsLegislaQon

In its recentdecisionAbbasbayli v.FieraFoodsCompanyetal.(“Abbasbayli”)(*1),theCourtofAppeal for Ontario offered some usefulcommentary regarding statutory claims thatmightbeallegedagainst corporatedirectors ina wrongful dismissal ac<on involving unpaidwages.

Facts

In Abbasbayli, the appellant commenced anac<onagainsthisemployers, together referredtoas“Fiera,”aswellastwoindividualcorporatedirectors of Fiera in their personal capaci<es,with respect to the termina<on of hisemploymentforcause.Theappellant,whowasterminated on the basis of <me-the\accusa<ons, alleged that his termina<onamounted to a reprisal because he had raisedconcerns about health, safety and storagerequirementviola<onsbyFiera,andhadtakensteps to encourage other employees tounionize. The appellant sought wrongfuldismissal damages, and moral and puni<vedamagesagainstFieraarisingfromthebadfaithmanner of his dismissal. He addi<onallyadvancedclaimsagainsttheindividualdirectorsfor unpaid vaca<on under sec<on 81 theEmployment Standards Act, 2000 (“ESA”) (*2)and under sec<on 131 of Ontario’s BusinessCorpora0onsAct(“OBCA”)(*3),aswellasrelieffrom oppression under sec<on 248 of theOBCA.

To offer some context, sec<on 81 of the ESAs<pulates certain condi<ons to be met beforepersonal liability canbe imposedon corporatedirectorsofanemployerforunpaidwages.

Sec<on131oftheOBCAprovidesthatdirectorsmay be held liable for debts owing toemployees arising from services performed bythe employees for the corpora<on, up to amaximumof sixmonths’wages, only if (i) thecorpora<on is sued in the ac<on against the

director and execu<on against the corpora<onis returned unsa<sfied, inwhole or in part; or(ii)beforeora\ertheac<oniscommenced,thecorpora<on becomes involved in insolvencyproceedings and the employee’s claim for thedebthasbeenproved.

Sec<on248oftheOBCAprovidesforapersonalremedy available to a complainant where acorpora<onor itsaffiliatesordirectorsact inamanner that is oppressive, unfairly prejudicial,or unfairly disregards the complainant’sinterests.

TheMo0onJudge’sDecision

The respondents brought a mo<on to strikecertain por<ons of the appellant’s claim forfailing todisclosea reasonablecauseofac<on(thatis,acomplaintforthecourttobeabletoaddress), forpleadingevidence (asopposedtothe proper prac<ce of only placing facts of acasebeforethecourt),andforbeingirrelevantandinflammatory.Themo<onjudgestrucktheappellant’s claims for unpaid wages undersec<on 81 of the ESA and sec<on 131 of theOBCA, finding that those claims had noreasonable prospect of success. The mo<onjudge addi<onally struck the appellant’soppressionclaimpursuanttosec<on248oftheOBCA, but granted leave to the appellant toamend those por<ons of the claim specific tothe oppression claim in order to clarify thereasonably-heldexpecta<onsthattheappellantclaimed were violated by the individualdirectorsinanoppressivemanner.

TheCourtofAppeal’sDecision

TheCourtofAppealforOntarioagreedwiththemo<on judge that the claims against thedirectors under sec<on 81 of the ESA wereinsufficient tomeet the requirements to triggerthatsec<on.

The Court of Appeal further agreed that themo<on judge properly granted the appellantleavetoamendhisoppressionclaim,andofferedthe following general observa<ons concerning


oppression claims in the context of wrongfuldismissals:

i. a wrongful dismissal on its ownwill notusuallyjus<fyafindingofoppression;

ii. a former employee is not always a“complainant”asintendedundersec<on248oftheOBCA;

iii.oppressionclaimstypicallyassertedinthewrongful dismissal context are thosemade by shareholder employees whoseinterestshavebeenunfairlydisregarded;

iv. it is not sufficient for a terminatedemployee to plead that individualdefendants acted oppressively asdirectors of the corporate defendantsandtoclaimalloftheformeremployees’damages against thedirectors by relyingonsec<on248oftheOBCA;and,

v. it is not sufficient for a terminatedemployee to allege that the directorsdirected the termina<on or that thedirectors failed to issue a Record ofEmployeetotheformeremployee.

The Court of Appeal further laid out thenecessary elements of an oppression claimundersec<on248oftheOBCA:

i. the complainant must iden<fy thereasonably held expecta<ons that theyclaim were violated by the conductalleged;

ii. the complainant must show that thesereasonable expecta<ons were violatedbycorporateconduct inawaythatwasoppressive, unfairly prejudicial, or thatunfairlydisregardedthe interestsofanysecurity holder, creditor, director orofficerofthecorpora<on;and

iii. theremustbeoppressiveconductthatisproperly aRributable to the director’simplica<on in the oppression, and theimposi<on of personal liabilitymust befitinallofthecircumstances.

TheCourtofAppeal disagreedwith themo<onjudge’s decision to strike the claim against theindividual directors for unpaid wages under

sec<on 131 of the OBCA and found that theappellants claim for three weeks’ vaca<on paywasable toproperlygrounda claimunder thatsec<on.TheCourtofAppealopined that itwasnotprematurefortheappellanttoassertaclaimfor unpaid wages under sec<on 131, becausethis sec<on contemplates the corporateemployersbeingsuedinthesameac<onasthedirectors (which was the case in Abbasbayli),although the defendant directors would notbecome liable to pay the accrued vaca<on payun<l execu<on against Fiera was returnedunsa<sfied.

Takeaway

The Court of Appeal’s decision in Abbasbayliconfirms that employment claims, inclusive ofunpaidwagesandwrongfuldismissalclaims,canbe advanced against directors personally underapplicable business corpora<ons statutes, evenin cases where such claims may not beac<onable under employment standardsstatutes. Where any such claims are advancedpursuant to business corpora<ons legisla<on,complainantsshouldensurethattheirpleadingsarestyled inamannercompliantwithstatutoryandcommonlawrequirements.

JaniceC.Pereira

Endnotes(*1)2021ONCA95[“Abbasbayli”].(*2)S.O.2000,c.41[“ESA”].(*3)R.S.O.1990,c.B.16[“OBCA”].


4. Downgrade of Commercial Class DDriver’sLicenceforMedicalReasons

OnJune9,2019ThomasLengyelwasinvolvedinamotor vehicle accident (“MVA”). ThisMVA ledbothapoliceofficeraRending thesceneandanemergency room (“ER”) physician to fileinforma<onwiththeRegistrarofMotorVehicles(the “Registrar”) expressing their respec<veconcerns that Mr. Lengyel “may be or issuffering” from a medical condi<on that maymakeitunsafeordangerousforhimtooperateamotorvehicle.

Mr. Lengyel’s driver’s licencewas suspended formedicalreasonsonJuly16,2019.

On October 8, 2020 Mr. Lengyel’s Class GMdriver’slicencewasreinstated.

However, the Minister refused to reinstate theClassDlicense,ineffectdowngradingthelicencetoClassGM.

UndertheHighwayTrafficAct(Ont)theMinisterofTransporta<onisresponsibleforensuringthatcommercial drivers are medically fit to drivecommercialvehiclesonthehighwaypursuanttosec<on32(5)(b)(i)oftheActandsec<on14(1)(a)ofOntarioRegula<on340/94.

The Minister may require a driver to providesa<sfactory evidence that he or she is able todrivesafely.

A person whose license is downgraded mayappeal the downgrade to the Ontario LicenceAppealTribunal.Onappeal,theMinisterhastheburden of establishing that the licence shouldremain downgraded on the balance ofprobabili<es.

Mr. Lengyel appealed theMinister’s downgradeofhisClassDlicence.(*1)TheissueintheappealwaswhetherMr.Lengyelsufferedfromamedicalcondi<on, specifically seizures, which was likelytosignificantlyinterferewithhisabilitytodriveacommercialvehiclesafely.

On the appealMr. Lengyel tes<fied that hewastold that on June 9, 2019 he suffered twoseizures, one while driving his personal vehiclehome from the grocery store and one while inthe ER of the hospital following the MVA. Theappellantalsotes<fiedthathehadawitnessedaseizurewhile sleeping in2017,whenhewasonholidaysoutsideofCanada.

He also tes<fied that therewas “nothingwrongwith[him]”asthedoctorsinvolvedinhiscaredidnot find anythingwrong despite all of his tests.These tests included electroencephalograms(“EEG”s), which measure the electricalac<vity of the brain and magne<c resonanceimaging(“MRI”)ofhisbrain.

Hefurtherstatedthathedidnothaveanyfollow-up visit or call booked with his trea<ngneurologist, Dr. I., had refills on his an<-seizuremedica<on, had no family doctor and did “nothaveacondi<ontomonitor”.

He was of the opinion that his seizures werelikelycausedbystress.Hestatedthatitisknownthat stress, anxiety or even lack of sleep can“bringout”seizures.Furthermore,hestatedthatat the<meof his seizures noted above, hewasstressed, anxious and not sleeping wellbecause of the breakdown of his maritalrela<onshipovertheprecedingfewyears.

The adjudicator, however, noted that the e-dischargesummaryfromhishospitalstayinJune2019 following the MVA provided someinforma<on,sta<ng:

…the e-summary specifically states thatneither the appellant’s low calcium norsleepdepriva<onat that<mewere likelythe cause of his seizures, though it waspossible they played a slight contribu<ngrole. In medical terms, if something isdescribed as likely, it will meet thebalanceofprobabili<estest,whereas if itis described as slight, it will not.Furthermore,intheESformDr.I.checkedoff that the e<ology or cause of theappellant’s seizures is idiopathic or


unknown. In the ES form Dr. I. had theopportunity to check off “provokedse izure wi th no st ructura l bra inabnormality”, as the cause of theappellant’s seizures, but he did not.Nowhere in either the MR or ES formsdoes Dr. I. men<on stress, anxiety orsleep-depriva<on. Furthermore, theTribunal is aware that a normal EEG andnormal MRI do not rule out the medicalcondi<on of seizures. This is consistentwiththefactthatDr. I. toldtheappellantthatbytes<nghecouldnotfindanythingwrong, but that on a cellular level theremay be something wrong with theappellant’s brain. In medical terms, notbeing able to find anything wrong doesnot mean that there is not somethingwrong.[paragraph27]

T h e a d j u d i c a t o r f o u n d o n abalance of probabili<es that Mr. Lengyel hadsufferedanumberofseizuresoverthepast fouryears or so and suffered from the medicalcondi<onofseizures.

Sec<on 14(2)(a) of Regula<on 340/94 allowsthe Minister to consider the CanadianCouncil of Motor Transport AdministratorsMedical Standards for Drivers (the “CCMTAStandards”) when determining whether therequirements of s. 14(1) are met. Similarly, theOntario Licence Appeal Tribunal to take theCCMTA Standards into considera<on, althoughtheyarenotbindingrequirements.TheStandardsemphasize making a risk analysis of all relevantsources of informa<on that considers factors,includingwhethertheimpairmentispersistentorepisodic and the individual characteris<cs andabili<esofeachdriver(e.g.whetherthedriverisa commercial or non-commercial driver, thedriver ’s abi l i ty to compensate for anyimpairment, the driver’s compliance withtreatment, and whether the driver has insightinto theirmedical condi<onand the impact thattheirmedicalcondi<onmayhaveondriving).

The adjudicator found that Mr. Lengyel lackedadequate insight into his medical condi<on of

seizures.Atthe<meofthehearinghehadyettoaccept that he had a medical condi<on thatrequired monitoring or that he suffered fromidiopathic seizures (unknown cause) and hispreviousstress,anxietyorsleep-depriva<onlikelyplayed only a slight contribu<ng role in hisgeneralizedseizures.

The adjudicator noted that as per the CCMTAStandards, commercial drivers spendmore <medrivingininclementweatherandunderfarmoreadverse driving condi<ons than drivers of non-commercial vehicles, cannot readily abandontheir vehicle should they become unwell andshouldacrashoccur,theconsequencesofacrasharemuchmorelikelytobeserious.

In an October 8, 2020 leRer to Mr. Lengyel,the Ministerwasoftheopinionthat,inordertoreinstate his commercial driver’s licence, itrequired confirma<on that Mr. Lengyel hadremained seizure free for a period of five years,withorwithoutmedica<on.

The adjudicator also noted that there was nowriRen evidence from Dr. I. substan<a<ng Mr.Lengyel’sclaimthatDr.I.,histrea<ngneurologist,sawno reasonwhyhewasnotable to con<nueopera<ngacommercialvehicle.

The adjudicator having considered all of thee v i d e n c e , f o u n d t h a t o n abalance of probabili<es, Mr. Lengyel sufferedfrom the medical condi<on of seizures.F u r t h e r m o r e , h e f o u n d o n abalance of probabili<es, that this medicalcondi<on of seizures was likely to significantlyinterfere with his ability to drive a commercialClassDvehiclesafely.

The Minister’s downgrade of the licensewasupheld.

RuiFernandes

Endnotes

(*1)Lengyelv.MinisterofTransporta0on,2021CanLII11897(ONLAT).


6. Procurement Complaints to the CanadianInternaQonalTradeTribunal

A poten<al suppl ier to a governmentprocurementprocessmayfileacomplainttotheCanadian Interna<onal Trade Tribunal (“CITT”).The Tribunal is required to determine if thecomplaint complies with the CanadianInterna0onal Trade Tribunal Act and then isrequired to decide whether to conduct aninquiryintothecomplaint.

Therearestrict<melinesforfilingofcomplaints.A complainant has ten working days from thedate on which it first becomes aware orreasonably should have become aware, of itsgroundof complaint to either (1) object to thegovernment ins<tu<on or (2) file a complaintwiththeTribunal.Ifacomplainantobjectstothegovernment ins<tu<on within this <me frameand is denied relief, then the complainantmayfile a complaint with the Tribunal within 10workingdaysofreceivingactualorconstruc<veknowledgeofthedenialofrelief.(*1)

The Federal Court of Appeal has stated that inprocurementmaRers,<meisoftheessence.“…poten<al suppliers are required not towait forthe aRribu<on of a contract before filing anycomplaint they may have with respect to theprocess. They are expected to keep a constantvigilandtoreactassoonastheybecomeawareorreasonablyshouldbecomeawareofaflawintheprocess.”(*2)

ThedecisionoftheCITTinSeacoastADivisionofPolifibra Canada (1987) Inc. v. Department ofNa0onal Defence (*3) is illustra<ve of theapplica<onofthestrict<melines.

The complaint to theCITT related toaRequestfor Proposals (“RFP”) by the Department ofNa<onal Defence (“DND”) for the provision ofelectricalwire (Solicita<onNo.W8482-218004/A).

Thecomplainant,SeacoastadivisionofPolifibraCanada(1987)Inc.(“Seacoast”),allegedthattheproduct descrip<on in the RFPwas vague, that

theRFPspecifiedaproprietarypartnumber,andthatDNDdidnotansweritstechnicalques<ons.Seacoast requested that DND issue a newsolicita<on.

Background

Thesolicita<onwaspublishedonJuly31,2020.

OnAugust6, 2020, Seacoast contactedDND toallege that the product descrip<on of the RFPwas vague and to request clarifica<on. DNDrespondedonSeptember2,2020.

OnSeptember9,2020,thebidclosingdeadlinewasextendedtoSeptember30,2020.

On September 21, 2020, Seacoast requestedfurther clarifica<on from DND on technicalelementsoftheproductdescrip<on.

OnSeptember30,2020,thebidclosingdeadlinewasagainextendedun<lOctober21,2020.

OnOctober21,2020,SeacoastfollowedupwithDND to ask whether the tender would beextended and to again request answers to itstechnical ques<ons. On October 22 and 29,2020, Seacoast again contacted DND to notethatthetenderhadnotbeenextended,thatthedeadline had now passed, and that it s<ll hadnot received a reply to its technical ques<ons.There is no indica<on that DND responded toany of the queries that Seacoast sent betweenSeptember21,2020,andOctober29,2020.

DND awarded the contract on December17,2020.

On December 22, 2020, Seacoast contacted theTribunal to indicatethat itwishedtodisputethecontract award. The sameday, the Tribunal sentSeacoast instruc<ons on how to file a complaintand informedSeacoastofthedeadlinesforfilingacomplaint.

SeacoastfileditscomplaintonJanuary4,2021.

The Tribunal decided not to conduct an inquiryintoSeacoast’scomplaintonJanuary5,2021.


Analysis

The Tribunal found that Seacoast’s ini<alobjec<ontothecontrac<ngauthoritywas<mely.Seacoast’scentralgroundsofcomplaint—i.e.thatthe product defini<on allegedly was vague andcontained a proprietary part number—becameknown when the solicita<on was published.Within10workingdaysofthepublica<onofthesolicita<on,SeacoasthadobjectedtoDNDaboutthevaguenessoftheproductdescrip<on.

However, the complaint to the Tribunalwas not<mely. The complaint had to be filed within 10working days of Seacoast receiving actual orconstruc<veknowledgethatDNDhaddeniedthereliefitsoughtinitsobjec<on.

The Tribunal considered Seacoast to havehad construc<ve knowledge of the denial ofreliefwhenthesolicita<onclosedonOctober21,2 0 2 0 . P r e v i o u s l y , t h e Tr i b u n a l h a sinterpreted“construc<veknowledgeofthedenialof relief” to include instances where thecomplainant’s objec<onhasnotbeenaddressedbythe<meofbidclosing.

The Tribunal found therewas no indica<on thatDND replied to any of the four emails thatSeacoastsentbetweenSeptember21,2020,andOctober 29, 2020, in which Seacoast repeatedlyrequested c lar ifica<on on the productdescrip<on. However, by the <me that thesolicita<on had closed on October 21, 2020,

Seacoast ought to have known that it hadeffec<vely been denied relief by DND. It wouldhavebeentoolateforSeacoasttohavereceivedclarifica<on on the product descrip<on a\erbiddinghadclosed.

Seacoast’s deadline to complain to the Tribunalwas therefore November 4, 2020, 10 workingdaysa\erthesolicita<onclosed.Seacoastdidnotcontact the Tribunal un<l December 22, 2020,and it did not file its complaint un<l January 4,2021. Its complaint was therefore about twomonthslate.

TheTribunalfoundthatSeacoast’scomplaintwasnot filed within the deadlines set out insubsec<on6oftheRegula0ons

TheTribunalthereforedecidednottoconductaninquiry into Seacoast’s complaint on January 5,2021.

RuiFernandes

Endnotes(*1)SeeSubsec<ons6(1)and(2)oftheCanadianInterna<onalTradeTribunalProcurement InquiryRegula<ons.(*2)IBMCanadaLtd.v.Hewle]Packard(Canada)Ltd.2002FCA284atparas.18,20.(*3)2021-01-12CITTCaseno.PR-2020-072


6. Missing a Flight Due to PersonalImmigraQonIssuesareNotDamagesOccasionedbyDelayUndertheMontrealConvenQon

Mpamugo v FlightHub Canada Inc. et al., 2021ONSC 1671 (CanLII) is the latest airline case inOntarioshowcasingthestrengthoftheMontrealConven0on in Canada and demonstra<ng thatclaims thatdonot fallunder itwillbedismissedearlyonbytheCourt.

The plain<ffs, Lawrence and KathleenMpamugo(the“Mpamugos”),suedFlightHub,WestJet,andDeltaAirLinesforapproximately$7.5millionpluspuni<ve damages of $500,000 for breach ofcontract and negligence. Due to immigra<onissues, LawrenceMpamugowas unable to clearUnited States customs and board his flight. Theplain<ffsclaimedthatDeltaAirLinesowedthema duty, in contract and negligence, to replacetheir <ckets with flights on another airline totransport them to Nigeria at the <me that theywere supposed to arrive there on their originalDeltaAirLinesflight.

Delta Air Lines brought amo<on to dismiss theclaims against it for disclosing no reasonablecauseof ac<on (that is, a complaint that canbeaddressed by the Court). The Court found infavourofDeltaAirLines.

TheMpamugos booked airline <ckets online fortheir tr ip from Toronto to Niger ia onFlightHub.com. The Mpamugos were to travelfromTorontotoAtlanta,GeorgiaonWestJet,andthenfromAtlantatoNigeriaonDeltaAirLines.

The Mpamugos were travelling to Nigeriabecause Lawrence was to aRend his corona<onas Eze or King of Ikwuano County, Umuahia inAbiaStateofNigeria.Theplain<ffsalsoneededtoarrange for their ill daughter in Nigeria to beflowntoLondon,Englandformedicalcare.

At the <meof booking, Kathleen did not realizethat Lawrence had poten<al immigra<on issueswith the United States. A\er booking the trip,Kathleen called FlightHub who assured her thattheir <ckets could be changed to fly through

Europe. The Mpamugos alleged that FlightHubsaidthatsomeonewouldgetbacktoher,butnoone did. A few days before the flights werescheduled to leave, Kathleen again calledFlightHub, who told her to pick up their new<cketsattheWestJetcounteratPearsonAirportonthedayoftheirtrip.

When the Mpamugos aRended at the WestJetcounter, therewere no<cketswai<ng for them.WestJetsuggestedtheytrytospeaktosomeoneat Delta Air Lines. The Delta Air Lines agentadvised the Mpamugos that nothing could bedone at that <me, however, if for some reasonthe plain<ffs were unable to fly through theUnited States, they could come back to her torebooktheirflighttoflythroughEuropewithAirFranceorLu\hansa.

The Mpamugos proceeded to US Customs andImmigra<on Service in advance of their TorontotoAtlantaflightonWestJet.KathleenclearedUSimmigra<on and could have boarded the flight;however, Lawrence was denied permission toentertheUnitedStates.

The Mpamugos claimed that they got the“runaround”byFlightHub,WestJetandDeltaAirLines.Theplain<ffswereunabletogettoNigeriafor a week. As a result, they alleged thatLawrence lost his en<tlement to the throne andaccompanyingbenefits. Inaddi<on, theplain<ffsclaimed that their daughter passed away beforethey were able to get to Nigeria to take her toEnglandformedicalcare.

Theques<onon themo<onwaswhether itwasplainandobviousthattheclaimaspleadedcouldnotsucceedeveniftheplain<ffsprovedatatrialeverything that they alleged. Secondly, whether,withamendment, theclaimmightberestated inawaythatmightsucceed.

The Court found that the claims were governedbytheCarriagebyAirAct,RSC1985,cC-26whichproclaims into force in Canada the MontrealConven<on(theConven<onfortheUnifica<onofCertainRulesRela<ngtoInterna<onalCarriagebyAir).


Ar<cle29oftheMontrealConven<onlimitsclaimsagainstairlinesrela<ngtoairtraveltothoseallowedundertheconven<on.

Theplain<ffsrelyuponAr<cle19oftheMontrealConven<onwhichreadsasfollows:

Ar<cle19—Delay

Thecarrier is liablefordamageoccasionedbydelay in the carriage by air of passengers,baggage or cargo. Nevertheless, thecarrier shall not be liable for damageoccasionedbydelay if itprovesthat itand itsservants and agents took all measures thatcould reasonably be required to avoid thedamageorthatitwasimpossibleforitorthemtotakesuchmeasures.

The Court found that missing a flight due toimmigra<on problems was not “damageoccasioned by delay in the carriage ofpassengers”. There was no contractual termpleadedwherebyDeltaAirLineswasresponsiblefor the plain<ffs’ immigra<on problem thatpreventedthemfromtravelling.

“Airlines cannot assure passengers of theirpersonal immigra<on status and cannot beheldliableforthepassengers’failuretoensurethat they have arranged visas or otherdocuments required to enter a country towhichtheywishtofly.”

Theplain<ffsalsoclaimedagainstDeltaAirLinesinnegligence,pleadingthatDeltaAirLinesowedadutyofcaretotheplain<ffsasabookingagentand as an airline transporta<on company. Theplain<ffsallegedthatDeltaAirLinesbreacheditsduty of carewhen, among other things, it kneworoughttohaveknownthatLawrencewouldnotbeallowedbytheUSAimmigra<ontoboardWestJet or Delta Airlines travelling through/transit intheUSA toNigeria having been informed of theplain<ff'spriorpredicament/plightwithtravellingthroughtheUSA.

The Court found that the plain<ffs pleaded nobasis in law for thedu<es theyalleged;norwasthereabasistofindadutyforcareoutsideoftheexpress terms of the par<es’ highly regulatedcontract.Theplain<ffsalsopresentednobasisinlaw to allege that they were en<tled to sueoutside of theMontreal Conven0on to force anairlinewhoseflighttheymissedduetotheirownimmigra<on issues to rebook theMpamugos (a)on a compe<tor airline; (b) transi<ng onlythroughcountrieswhichtheywereauthorizedtoenter; and (c) to arrive at the same <me as themissed flight and to hold the airline liable forfailingtodoso.Itwasplainandobviousthattheplain<ffs could not succeed on their claim asdra\ed.

The plain<ffs next argued that they should beable to amend their claim again to include thatwhentheDeltaAirLinesdeskclerksaidshecouldrebooktheflightthroughEurope,andthenDeltaAir Lines was unable to help, Delta Air Linescaused the plain<ffs’ losses and should be heldliable.The Court found that it was plain and obviousthat a gratuitous offer to help was not acontractualpromise.Therewasnoconsidera<onflowingtoDeltaAirLines. Moreover,theairline’sliability s<ll remained subject to the MontrealConven<on.

Lastly, the Court found that there was nothingthat the plain<ffs could plead that would makeDelta Air Lines responsible for the plain<ffs’failuretoensurethattheyhadtheabilitytoentertheUnited States to get toAtlanta for the flightthat they booked. Theymight have an ability toclaimarefundfortheirunused<cketsdependingon thewordingof theapplicable tariff.However,there was simply no basis in the law for anamendment to make Delta responsible incontract or tort for the losses suffered by theplain<ffsinthecircumstances.

AndreaFernandes



DISCLAIMER & TERMS This newsletter is published to keep our clients and friends informed of new and important legal developments. It is intended for information purposes only and does not constitute legal advice. You should not act or fail to act on anything based on any of the material contained herein without first consulting with a lawyer. The reading, sending or receiving of information from or via the newsletter does not create a lawyer-client relationship. Unless otherwise noted, all content on this newsletter (the "Content") including images, illustrations, designs, icons, photographs, and written and other materials are copyrights, trade-marks and/or other intellectual properties owned, controlled or licensed by Fernandes Hearn LLP. The Content may not be otherwise used, reproduced, broadcast, published, or retransmitted without the prior written permission of Fernandes Hearn LLP.

Editor: Rui Fernandes, Articles Copyright Fernandes Hearn LLP, 2021

Photos: Rui Fernandes, Copyright 2021

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