Government Operations Committee on May 2nd, 2017

[Prof. Sébastien Grammond]

If I may add, I agree with what has just been said. In fact, from my perspective, what's more important is to have a neutral review process when this is invoked, not perhaps trying to limit, in advance, the category of situations that might come under the exception.

[Erin Weir, NDP, Regina—Lewvan, SK]

Is there anything further on this, Mr. McLeod?

[Christopher McLeod]

I think it will be interesting to see where the CITT goes with these types of cases. We only have two where they've accepted jurisdiction or taken on a matter and looked at an NSE. They're walking a fine line right now with respect to what their role is in the definition of national security and whether or not their role is to look and determine whether there's a legitimate national security interest at play or whether their role is to simply look at whether there's a nexus between some belief by the government that there's a national security interest at play and the limits to the national security exception.

These are two very different things. In one instance they'd be diving into the details to find out whether there's a legitimate threat. In the other, they're simply looking to see if there's a justification in linking them, leaving that discretion to the government to decide for itself what national security is. Is there a link to that subjective belief by the government that there's a national security interest at play and a link to the scope of the national security exception that's invoked?

[Erin Weir, NDP, Regina—Lewvan, SK]

The Canada-European Union free trade agreement will apply to subnational procurement for the first time. I wonder, given this expansive definition of national security, whether provincial or municipal governments would be able to invoke the national security exception.

[Christopher McLeod]

They would. It's been a while since I've looked at the CETA language, but I don't recall seeing anything that would limit municipalities or provinces from employing a national security exception when required. It makes sense. There can be purchases by provinces and municipalities that can have legitimate national security concerns triggered.

[James Cox]

It's a very interesting question. I would approach it from the angle of our talking about issues of security that impact the country as a whole. The spirit of what we have seen and the interpretation of national security, I think, is that it has an impact on the country as a whole. At the same time, all the provinces have the right and the mechanism to request help of the federal government in times of need.

In my mind, the question is, how far up the road is it required that we are going to have anything in print or again allow interpretation of the situation at the time? It's only my humble experience. I just haven't seen the kind of issue where I could see a province heading out on its own on an issue of importance that is not having impact on the country as a whole.

[Erin Weir, NDP, Regina—Lewvan, SK]

Okay.

We've talked a lot about procurement within Canada, and bidders looking to have access to tenders. I'm wondering if you could speak at all to the experience of Canadian companies trying to bid on public procurement in other countries and being faced with their national security provisions.

[The Vice-Chair, Liberal, Yasmin Ratansi]

You have 30 seconds to answer, whoever takes it.

[Prof. Sébastien Grammond]

My answer is that I don't know.

[James Cox]

I don't know.

[Christopher McLeod]

I have never represented a client in that situation, so I have nothing to add on that point.

[Erin Weir, NDP, Regina—Lewvan, SK]

Okay. No problem.

It sounds like we're out of time.

[The Vice-Chair, Liberal, Yasmin Ratansi]

No, you have 30 seconds to ask a question, and then they can think about responding....

Oh, now you don't.

[Erin Weir, NDP, Regina—Lewvan, SK]

I just tried to do that.

[Voices]

Oh, oh!

[The Vice-Chair, Liberal, Yasmin Ratansi]

You could have asked a quick one, if you'd wanted.

Mr. Ayoub, you have seven minutes.

[Ramez Ayoub, Liberal, Thérèse-De Blainville, QC]

Thank you, Madam Chair.

Gentlemen, thank you for being here today.

I would say that it's basically a matter of trust in the processes. We spoke about defining and trying to frame what seem to be problematic calls for tender. It's important to have a definition. Mr. Cox wants some flexibility in the definition, and I agree with him. We can't categorize everything. However, the verification and integrity assurance processes could be improved.

I come from the municipal world, and I don't think there are national security issues at that level. Of course, there may be emergencies involving national security, such as the floods that are occurring right now. These are emergencies, but they are unplanned, while a call for tenders is. So when you put out a call for tenders, you may have certain companies in mind.

Could you tell me what solutions or methods could be used to prevent cases from reaching the courts? Cases that go to court take time and money. In addition, there are countless delays, so bidders become discouraged. They may not bid anymore, leaving room for bidders who might not have been chosen otherwise. Then we end up not having any quality bidders.

I know this question has been asked, but I'd like you to expand on how we could improve the situation.

Mr. McLeod, I see you would like to respond.

[Christopher McLeod]

I think we're moving in the right direction with the recent change in position by the CITT. Now we'll have a body that's willing to provide some level of scrutiny to national security exceptions and hold the government more accountable in the scope of the national security exception.

That leads back to your trust issue. If there is no scrutiny at the end of the day, if the rules go out the window, if it's the wild west, then it's easy to go down a bad path in the procurement world. We've seen it many times before. Where there is scrutiny, where there is someone watching over the process, and where the bidders impacted by any impropriety have an ability to go to an independent body and say, “Something went wrong here, take a look at this”, that's what drives trust through the process, in my opinion.

[Ramez Ayoub, Liberal, Thérèse-De Blainville, QC]

Who would you foresee having that oversight? In terms of the people who would be outside the scope, outside of the regular basis, who are you thinking of?

[Christopher McLeod]

Well, the CITT; I mean, procurement is its field of expertise. In a normal procurement challenge, that's where it goes. There are other remedies that you can take to the Federal Court, to the superior court, but they have the expertise. They also have a very good process with respect to confidentiality. The CITT also handles our trade disputes, dumping and subsidy cases where highly confidential data from around the world comes in. They have a robust and confidential undertaking, and a confidential process. I think they are well positioned to do it.

We'll see whether or not the CITT wants to, or will, go so far as to step in to see whether there's a legitimate national security interest at play. That may be a different question. If they stay on the perimeter and just say that they'll look to see whether you've described an interest that seems to make sense with the NSE, then I could see some opportunity with this, yes.

[Ramez Ayoub, Liberal, Thérèse-De Blainville, QC]

Thank you.

I want to give Mr. Grammond—

[Prof. Sébastien Grammond]

Yes, if I may.

I would like to defend the courts.

[Ramez Ayoub, Liberal, Thérèse-De Blainville, QC]

Ha, ha! My remarks were sort of directed at you.

[Prof. Sébastien Grammond]

I appreciate your concerns, which our clients at the time shared as well. They were telling us that if they sued for damages, they would have to wait four years for a settlement. They preferred obtaining the contract rather than being compensated four years later. However, I note that the Canadian International Trade Tribunal has been specifically designed to resolve bid disputes quickly, and it appears that the system is working.

[Ramez Ayoub, Liberal, Thérèse-De Blainville, QC]

I would say it's our last resort.