LPC Factum for Court of Appeal

Divisional Court File Nos. 55/12 Court of Appeal File No. M41291

COURT OF APPEAL FOR ONTARIO B E T W E E N:

LANSDOWNE PARK CONSERVANCY Moving Party (Applicant) - and THE CITY OF OTTAWA Responding Party (Respondent) Factum of the Moving Party On a Motion in Writing for Leave to Appeal PART I – THE DECISION APPEALED FROM 1.

Lansdowne Park Conservancy (“LPC”) brings this motion for leave to

appeal from the decision of the Divisional Court, dated April 3, 2012, dismissing an application for judicial review brought against the City of Ottawa (the “City”).

Prior to this motion, LPC was represented by its principal, John E. Martin. Mr. Martin is not a lawyer.

PART II – FACTS Overview 2.

The proposed appeal concerns the City’s decision to sole source the

redevelopment of an historic and public commons in the City of Ottawa, known

2 as Lansdowne Park. It easily satisfies the well-settled test from Sault Dock Ltd. v.

City of Sault Ste. Marie (“Sault Dock”).1 3.

Instead of deciding the case on its merits, the Divisional Court dismissed

LPC’s application as an abuse of process. It did so for three reasons, none of which can withstand scrutiny.

4.

First, the Divisional Court held that LPC was attempting to relitigate issues

raised in a prior application brought by another party (Friends of Lansdowne Park Inc. v. Ottawa (City)),2 which was ultimately appealed to this Court.3 However, the factual and legal matrix at issue in the Friends Application was very different.

The critical event in the present case (an unsolicited proposal from LPC) and the legal consequences flowing from it (competition for the redevelopment) were not at issue in the Friends Application.

5.

Second, the Divisional Court dismissed the present judicial review for

delay. However, the panel failed to consider two critical issues: LPC was pursuing internal remedies during the period of alleged delay and the City had established an “anti-litigation by-law” that permitted it to reject bids from litigants who asserted their rights against the City. The City should not be able to benefit from a Catch-22 whereby it can assert delay against a litigant who pursues the processes it created, or risks having its bid rejected if it litigates its claim. The Divisional Court was wrong to allow the City to do so.

1

[1973] O.R. 479 (C.A.) (“Sault Dock”).

Friends of Lansdowne Inc. v. Ottawa (City), 2011 ONSC 4402 (“Friends Application”).

3 Friends of Lansdowne Park Inc. v. Ottawa (City), 2012 ONCA 273 (“Friends Appeal”).

2

3 6.

Third, the Divisional Court compounded both errors when it concluded that

the judicial review was an abuse because LPC had not intervened in the Friends Application. Not only was this a novel application of the doctrine of abuse of process, but such participation would almost certainly have permitted the City to reject LPC’s bid under its anti-litigation by-law.

7.

The Divisional Court’s decision raises issues of significant public

importance respecting, among other things, discretionary bars to judicial review.

For instance, the proposed appeal raises: (a)

The issue of whether dismissal for abuse of process can ever be available in a case in which the issues being litigated are fundamentally different from those raised in a prior proceeding concerning related subject matter;

(b)

The impact on the doctrine of delay where a municipality or other legislative body establishes an “anti-litigation” provision which permits the City to reject a tender by any party engaged in litigation against it; and

(c)

The impact (if any) that a party’s decision not to intervene in a tangentially related, but distinct proceeding may have on a subsequent application for judicial review.

8.

The underlying substance of the proposed appeal is also of significant

public importance. Municipal procurement decisions (especially those respecting

4 substantial projects such as the one at issue) are decisions that concern the use of public funds and the direction of public priorities. The City in its purchasing bylaw (the “Purchasing By-law”) has established a general rule that procurement decisions should be made through a competitive process. A competitive process will generally ensure the best value for the expenditure of public funds, while at the same time ensuring fairness and transparency for all stakeholders.

Procurement decisions should only be made in a non-competitive manner where such a process will enhance the goals underlying the Purchasing By-law or a competitive process is not suitable for some other compelling reason.

9.

LPC has an arguable case. LPC’s application for judicial review has never

been decided on its merits. The Divisional Court was exercising its original jurisdiction when it dismissed LPC’s application, which militates in favour of granting leave. The Purchasing By-law prohibits sole source procurement where there is “competition”. In the present case (and contrary to Justice Swinton’s erroneous finding),4 there were two compliant proposals before the City when it voted to approve the single source contract. The City has never properly explained its decision. Whether the City was entitled to ignore the LPC bid under its Purchasing By-law is a legal question of significant public importance.

The parties 10.

LPC is a non-profit, public interest proposal established and organized by

volunteers in response to community concerns respecting the development of an 4

Reasons for Decision of the Divisional Court, dated April 3, 2012 (“Reasons for Decision”) at para. 28.

5 historic and public commons in the City of Ottawa.5 The site is commonly known as Lansdowne Park. No member of LPC may receive any financial benefit or benefit of any kind from their participation. The proposal is a gift to their city and the nation’s capital.6 11.

Mr. Martin is LPC’s registered business owner. He registered the business

name on May 6, 2010.7 Prior to this motion, Mr. Martin has personally represented LPC in these proceedings. He is not a lawyer.8 The sole source redevelopment process and the LPP Agreement 12.

Lansdowne Park has been a public area in Ottawa for more than 150

years.9 From 1888 to 1973, Lansdowne Park was managed by the non-profit Central Canada Exhibition Association (the “CCEA”).10 In 1973, the City assumed management from the CCEA.11 The Park has housed a football stadium for many years that was home to CFL teams.12 Lansdowne Park also provides a home for many important heritage buildings and a farmers’ market. The site borders the Rideau Canal, a UNESCO World Heritage Site.13

5

Affidavit of John E. Martin, sworn October 4, 2011 (the “Martin Affidavit”) at para. 247. Reply Affidavit of John E. Martin, sworn November 28, 2011 (the “Martin Reply Affidavit”) at para. 36.

6 Martin Affidavit at para. 247.

7 Martin Affidavit, Exhibit 17.

8 Reasons for Decision at para. 3.

9 Martin Affidavit at para. 15.

10 Martin Affidavit at para. 80.

11 Martin Affidavit at para. 82.

12 Martin Affidavit at paras. 80-81.

13 Martin Affidavit, Exhibit 18.

6 13.

In or around 2007, the City determined that Lansdowne Park required

redevelopment.14 The City also decided at around the same time that it wanted a CFL franchise to return to Ottawa.15 However, there was no consensus respecting the location of the CFL stadium. For this reason, the City commissioned a report which indicated that another location, at a City-owned transit hub in Bayview, was the preferred site.16 In other words, the City did not initially treat the location of the stadium at Lansdowne Park as an essential component of any redevelopment proposal.

14.

Having decided to redevelop Lansdowne Park, the City proposed a design

competition for the site.17 The City further identified ten “Guiding Principles” for the redevelopment process.18 The competitive process was well underway with significant public input.19 However, in or around March 2008, the City received an unsolicited proposal from a business consortium now known as the Ottawa Sports and Entertainment Group (“OSEG”).20 The City halted the competitive process to examine OSEG’s unsolicited proposal.

15.

OSEG “owns” a conditional right to a CFL franchise.21 The paragraph in

the franchise agreement respecting the required stadium provides only that the proposed franchisee must “secur[e] an agreement with the City of Ottawa relating to the use of stadium facilities on terms satisfactory to [the conditional owners] 14

Martin Affidavit at para. 26 and para 27.

Reasons for Decision at para. 4.

16 Martin Affidavit at para. 58 and Exhibit 13.

17 Martin Affidavit at para. 27 and Exhibit 6.

18 Martin Affidavit, Exhibit 5.

19 Martin Affidavit paras. 28-30.

20 Reasons for Decision at para. 4.

21 Reasons for Decision at para. 4.

15

7 and the CFL acting reasonably.” The franchise agreement does not mandate a site at Lansdowne Park,22 which Justice Swinton in her reasons appeared to consider essential to any redevelopment proposal.23 16.

As provided in the City’s Purchasing By-law 50 (the “Purchasing by-law”),

City procurement decisions should normally be made through a competitive process. The City considers that such a process will better fulfil the City’s objective, which is “to obtain best value when purchasing goods, construction and services for the City while treating all suppliers equitably.” As the Purchasing By-law also provides, “[t]he guiding procurement principle is that purchases be made using a competitive process that is open, transparent and fair to all suppliers.”24 17.

However, following receipt of OSEG’s unsolicited proposal, the City

abandoned the competitive design process that was already well underway. On April 22, 2009, City Council (via Motion 65/9 as amended by Motion 65/10 (the “Motions”)) directed City staff to study OSEG’s proposal as well as another unsolicited proposal the City had received from a group called Senators Sports and Entertainment who were proposing a stadium in Kanata, a suburb of Ottawa (the “SSE Proposal”).25 Consideration of the SSE Proposal further demonstrates that the City did not view a CFL stadium at Lansdowne Park as an essential component of any redevelopment proposal.

22

Martin Affidavit at para. 32 and Exhibit 7.

Reasons for Decision at para. 28.

24 City of Ottawa, by-law, No. 50-2000, A By-law of the City of Ottawa Respecting Purchasing of Goods, Services and Construction (“Purchasing By-law”), s. 2.

25 Reasons for Decision at para. 4.

23

8 18.

However, negotiations were to be guided by a number of principles.

Importantly, any plan with OSEG was to “respect the scale and character of the neighbourhood and the public nature of the site” Moreover, the Motions (later established as By-law 2009-128) directed, among other things, that: i. There be no housing component; ii. There be no large format commercial; iii. Commercial uses be limited to uses that support the main uses on the site, and/or that are compatible with the neighbouring business district; …

19.

26

On September 2, 2009, OSEG submitted to the City for consideration a

draft partnership plan and memorandum of understanding related to the proposed redevelopment.27 20.

Shortly after OSEG’s submission to the City, Mr. Martin (in his personal

capacity) commenced judicial review proceedings (the “Martin Judicial Review”).

The principal relief Mr. Martin sought was the cancellation of the single source negotiation process between the City and OSEG. Mr. Martin was also selfrepresented in the Martin Judicial Review.28 21.

On November 16, 2009, the City directed its staff to negotiate a

comprehensive framework with OSEG.29 Following these negotiations, on June 9, 2010, the City Manager submitted a report to City Council for debate and approval. The report included an agreement known as the Lansdowne

26

By-law 2009-128.

Reasons for Decision at para. 5.

28 Reasons for Decision at para. 13.

29 Reasons for Decision at para. 10.

27

9 Partnership Plan (“LPP”) Project Agreement Framework (the “LPP Agreement”).

LPP is a public-private partnership between the City and OSEG.30 22.

Specifically, the LPP Agreement provides for: (a)

A City-owned stadium;

(b)

An annual lease rate of $300,000; and

(c)

A profit-sharing arrangement between the OSEG, the CFL franchise and the City, in which the City would recoup a small fraction of its output.31

23.

Although the proposed stadium was to be located at Lansdowne Park,

neither the City nor OSEG considered this to be essential to the LPP Agreement.

OSEG had itself considered an alternative location for the stadium at Carleton University,32 which (like Bayview) the report commissioned by the City had earlier ranked above Lansdowne Park as a site for the stadium.33 However, Carleton University rejected OSEG’s request.34 24.

The LPP Agreement also included a substantial housing component, as

well as large format commercial and office tower development.35 This despite the fact that the Motions had directed the City to negotiate a deal that included

30

Reasons for Decision at para. 11.

Martin Affidavit at paras. 73-74.

32 Martin Affidavit at para. 37 and Exhibits 9 and 10.

33 Martin Affidavit, Exhibit 13.

34 Martin Affidavit at para. 38.

35 Martin Affidavit at para. 16.

31

10 neither of these elements.36 Clearly, the success of the proposed CFL franchise is not tied to development at Lansdowne Park, as OSEG had already considered locating the stadium elsewhere.

25.

On June 21, 2010, prior to City Council’s vote on the LPP Agreement,

LPC submitted its own unsolicited proposal for the development of Lansdowne Park,37 which met or exceeded the specifications set by the City (the “LPC Proposal”). Among other things, the LPC Proposal included a suitable football stadium located instead at Bayview.38 26.

Specifically, the LPC Proposal provides for: (a)

A City owned stadium;

(b)

An annual lease rate of $300,000; and

(c)

The CFL franchise is entitled to keep all profits from its use of the stadium. However, the City would incur no costs for the development of Lansdowne Park and instead receive dividends from the use of the redeveloped property as it would be managed

by LPC, a non-profit organization, together with taxation revenue.39

36

By-law 2009-128.

Martin Affidavit at para. 74.

38 Martin Affidavit, Exhibit 22.

39 Martin Affidavit at paras. 75-77.

37

11 27.

Unlike the LPP Agreement, the LPC Proposal also complied with the

Motions. It did not include a housing component or large format commercial development of the park.40 28.

On June 28, 2010, City Council voted and approved continued sole source

negotiations through the LPP Agreement. The decision was confirmed By-law 2010-225.41 Although the City had received the LPC Proposal prior to the vote (contrary to Justice Swinton’s finding at paragraph 28 of her reasons), the City did not respond to the LPC Proposal prior to voting on and approving the LPP Agreement.42 The Anti-Litigation By-Law 29.

The LPP Agreement prompted considerable public debate and concern.

As such, the City entered into a series of public promotions related to the proposed LPP Agreement prior to voting on and approving continued negotiations.43 30.

At or around the same time, however, the City was also considering an

“anti-litigation” amendment to its Purchasing By-law. Consideration of this amendment began in the spring of 2010. In essence, the City’s Purchasing Bylaw would be amended to permit the City to reject any tender or proposal submitted by a person who is engaged directly or indirectly in litigation with the

40

Martin Affidavit, Exhibit 22.

Reasons for Decision at para. 11.

42 Martin Affidavit at para. 175.

43 Reasons for Decision at para. 11.

41

12 City respecting a contract related to the tender or proposal or who is engaged in litigation respecting the City’s exercise of its powers and functions.

31.

The City ultimately approved the anti-litigation amendment on November

10, 2010 (the “Anti-Litigation By-law”). The Anti-Litigation By-law (now s. 47 of the Purchasing By-law) provides: 47.(1) The City, acting through the City Treasurer in consultation with the City Clerk and Solicitor, may in its absolute discretion after considering the criteria outlined in subsection (2), reject a quotation, tender or proposal submitted by a bidder if the bidder, or any officer or director of the bidder is engaged, either directly or indirectly through a corporation or personally, in a legal action against the City, its elected representatives or appointed officers and employees in relation to: a. any other related contract or services; or b. any matter arising from the City’s exercise of its powers, duties or functions.

(2) In determining whether or not to reject a quotation, tender or proposal under this clause, the City Treasurer and the City Clerk and Solicitor will consider; a. whether the litigation is likely to adversely affect the bidder’s ability to work with the City, its consultants and representatives; or, b. whether the City’s experience with the bidder indicates that the City is likely to incur increased staff and legal costs in the administration of the contract if it is awarded to the bidder; or, c. whether the bidder has been convicted of a criminal act against the City or one of its local boards or corporations; or, d. whether the bidder has failed to satisfy an outstanding debt to the City or one of its local boards or corporations; or, e. there are reasonable grounds to believe it would not be in the best interests of the City to enter into a contract with the bidder.

(3) Supply Management is to advise Council by way of a memorandum and or Information Previously Distributed where time permits, when they are 44 contemplating the application of the Litigation Exclusion Provision.

32.

The City’s decision to establish the Anti-Litigation By-law meant that LPC

could not assert its rights against the City in court. That is, unless it was prepared to accept the risk that the City could, “in its absolute discretion after considering

44

Purchasing By-law, s. 47.

13 the criteria outlined in subsection (2), reject [LPC’s] quotation, tender or proposal” outright.

The Friends Application 33.

In or around September 9, 2010, a citizens’ group known as Friends of

Lansdowne Park Inc. (“Friends”) commenced an application pursuant to s. 273(1) of the Municipal Act, 2001 (the “Municipal Act”),45 to quash the by-law related to the City’s June 28, 2010 approval of the LPP Agreement (i.e. the Friends Application).46 As described more fully below, the Friends Application challenged: the bona fides of the City’s conduct; whether the LPP Agreement unlawfully “bonused” OSEG; and whether it was lawful for the City to negotiate with OSEG in light of the design competition that the City had been outstanding at the time negotiations with OSEG began.47 34.

Shortly after Friends commenced its application, Mr. Martin abandoned

the Martin Judicial Review. Mr. Martin thought his time was better spent developing the LPC Proposal.48 He had also been advised (correctly) that the Martin Judicial Review was premature.49 Further, the City had proposed the AntiLitigation By-law, which, if approved, would permit the City to reject the LPC Proposal.50 Obviously, for LPC, as a bidder on the Lansdowne Park

45

S.O. 2001, c. 25 (“Municipal Act”).

Reasons for Decision at para. 13.

47 Friends Application, supra note 2 at para. 2.

48 Martin Affidavit at paras. 182-185.

49 Martin Affidavit at para. 146.

50 Purchasing By-law, s. 47.

46

14 redevelopment, running afoul of this by-law would be an unacceptable consequence of continuing with litigation against the City.

35.

On July 27, 2011, Regional Senior Justice Hackland dismissed the

Friends Application. He held that the City had not acted in bad faith; had not illegally “bonused” OSEG; and had not acted unlawfully by negotiating with OSEG despite the design competition.51 36.

The Court of Appeal heard the Friends Application on November 28, 2011.

It rendered its decision on April 30, 2012, dismissing the appeal for substantially the same reasons as the court below.52 LPC pursues internal remedies 37.

The City’s procurement rules establish an internal dispute resolution

mechanism for use in disputes respecting tendering processes. A bidder (such as LPC) on a large project (such as the redevelopment of Lansdowne Park) may “object” to a City decision. These objections are called “Substantive Objections”.

The parties may then appoint an impartial “Fairness Commissioner” to mediate the dispute. The goal of this alternative dispute resolution process is to avoid litigation, where possible.53 In light of the City’s adoption of the Anti-Litigation Bylaw,54 this was the only mechanism available to LPC which would not prejudice consideration of its proposal.

51

Friends Application, supra note 2 at para. 97.

Friends Appeal, supra note 3.

53 Martin Affidavit at paras. 189-193.

54 Purchasing By-law, s. 47.

52

15 38.

As noted above, LPC submitted its proposal on June 21, 2010, prior to the

City approving the LPP Agreement. However, the City did not respond until August 23, 2010, when its solicitors wrote to LPC and advised that the City would not consider any applications for the redevelopment of Lansdowne Park other than the LPP Agreement because the LPC Proposal was allegedly not timely.55 39.

Importantly, the City has not taken the position in its communications with

LPC or Mr. Martin that the LPC Proposal is non-compliant, only that it will not consider any other proposals aside from the LPP Agreement. Moreover, the City has never explained to LPC in its communications why the LPC Proposal does not qualify as “competition” within the meaning of the Purchasing By-law, the absence of which competition is a pre-condition to sole source contracting.56 The most the City has said is that the LPC Proposal was “not timely” despite the fact that the City had received it prior to approving continued negotiations through the LPP Agreement.57 40.

On November 15, 2010, LPC submitted a modified proposal. This

proposal included the original proposal with a stadium located at Bayview and a revised proposal with a stadium at Lansdowne Park. LPC made the latter proposal in part in response to the LPP Agreement, even though the Lansdowne Park location had previously not been identified as the preferred site.58

55

Martin Affidavit at para. 179.

Purchasing By-law, s. 22(1)(d).

57 Martin Affidavit, Exhibits 19, 20 and 23.

58 Martin Affidavit, Exhibit 13.

56

16 41.

On November 18, 2010, the City wrote to LPC again advising it that the

City would not consider any other proposals.59 42.

On November 19, 2010, LPC registered a Substantive Objection pursuant

to the City’s policy.60 On December 2, 2010, the City wrote to LPC and took the position that this internal process was not available in the circumstances.61 43.

In April 2011 and again in July 2011, LPC submitted further modifications.

The City again did not respond to either.62 44.

On or around August 18, 2011, LPC commenced the underlying

application for judicial review (the “Judicial Review”).63 45.

On or around August 28, 2011, LPC asked the City once again to

reconsider whether it would review LPC’s proposal so as to avoid unnecessary litigation.64 On or around September 8, 2011, the City responded again that it would not consider any other proposals.65 46.

On or around September 13, 2011, LPC again registered a Substantive

Objection in a final effort to avoid litigation. The City never responded.66 The decision under appeal

59

Martin Affidavit, Exhibit 19.

Martin Affidavit at para. 194.

61 Martin Affidavit, Exhibit 20.

62 Martin Affidavit at paras. 200, 202 and 208.

63 Martin Affidavit at para. 223.

64 Martin Affidavit at para. 224.

65 Martin Affidavit, Exhibit 23.

66 Martin Affidavit at paras. 227-228 and Exhibit 24.

60

17 47.

The Divisional Court (Then R.S.J. and Swinton and Bryant JJ.) heard the

Judicial Review on March 23, 2012 and rendered its decision on April 3, 2011.67 48.

Justice Swinton (for the panel) dismissed the Judicial Review as an abuse

of process. She did so for three reasons: (a)

She held that the Judicial Review is “[r]elitigation of a claim that has already been determined by a court” and that relitigation in this case would not enhance the integrity of the adjudicative process;

(b)

She held that the Judicial Review should be dismissed because of delay; and

(c)

She held that LPC had notice of the Friends Application and LPC should have sought to intervene in that proceeding.68 PART III – QUESTIONS RAISED

49.

The proposed appeal raises the following questions of public importance: (a)

Did Justice Swinton err when she held that the Judicial Review was an abuse of process? Specifically, did she err in holding that: (i)

The Judicial Review was an attempt to relitigate issues that had already been decided in the Friends Application;

(ii)

67 68

The Judicial Review should be dismissed for delay; or

See generally the Reasons for Decision.

Reasons for Decision at paras. 30-34.

18 (iii)

LPC should have sought to intervene in the Friends Application?

(b)

Was the City’s June 28, 2010 decision unlawful because it did not comply with s. 22(1)(d) of the Purchasing By-law?

PART IV – ISSUES AND THE LAW

The test for leave to appeal 50.

This Court’s jurisdiction to hear the appeal is conferred by s. 6(1)(a) of the

Courts of Justice Act (the “CJA”). Section 6(1)(a) provides that: 6.(1) An appeal lies to the Court of Appeal from, (a) an order of the Divisional Court, on a question that is not a question of fact 69 alone, with leave of the Court of Appeal as provided in the rules of court[.]

51.

The test for granting leave to appeal is the well-settled test from Sault

Dock. In essence, the criteria for granting leave to appeal from an order of the Divisional Court is that there must be an arguable case and the issue should be of public importance.70 52.

Justice LaForme recently summarized the considerations relevant to

granting leave to appeal in Ontario (Minister of Transportation) v. 1520658 Ontario Inc. In that decision, he held that: Matters considered in granting leave include: (a) whether the Divisional Court exercised appellate jurisdiction (in which case the applicant for leave is seeking a second appeal) or whether the Divisional Court was sitting as a court of original jurisdiction; 69 70

R.S.O. 1990, c. C.43 (“CJA”).

Supra note 1.

19 (b) whether the appeal involves the interpretation of a statute or regulation, including its constitutionality; (c) the interpretation, clarification or propounding of some general rule or principle of law; and (d) whether the interpretation of the law or agreement in issue is of significance only to the parties or whether a question of general interest to the public or a broad segment of the public would be settled for the future: Re United Glass and Ceramic Workers of North America, [1973] 2 O.R. 763 (C.A.); Re Sault Dock Co. 71 Ltd. and City of Sault Ste. Marie, [1973] 2 O.R. 479 (C.A.).

53.

Each of these factors militates in favour of granting leave. Specifically: (a)

The Divisional Court exercised its original jurisdiction pursuant to s.

6(1) of the Judicial Review Procedure Act72 when it dismissed the Judicial Review, and not its appellate jurisdiction pursuant to s. 19 of the CJA;73

(b)

The proposed appeal involves the interpretation of s. 22(1)(d) of the Purchasing By-law, which is akin to a statute or regulation;

(c)

The proposed appeal concerns general legal principles, such as the doctrine of abuse of process, the exercise of discretion to dismiss an application for judicial review for delay and, generally, the rule of law; and

(d)

The interpretation of s. 22(1)(d) of the Purchasing By-law is a matter of broad general interest, especially in the National Capital Region. The redevelopment of Lansdowne Park has generated significant public interest and debate given the City’s decision to co-

71

2010 ONCA 32 at para. 12.

R.S.O. 1990, c. J.1, s. 6.

73 CJA, supra note 69.

72

20 opt an historic public commons for private residences and substantial

retail

and

office

tower

development.74

More

fundamentally, the interpretation of s. 22(1)(d) of the Purchasing By-law is of general significance since it creates an exception to the general rule governing procurement decisions in Ottawa. Everyone has an interest in ensuring that tendering processes are competitive, fair and transparent. The relevant exception was created in recognition that, in some limited circumstances, competitive processes may not produce the best results. If interpreted too broadly, then the salutary effects of the general rule against sole source contracting may well be undermined.

The Judicial Review is not an abuse of process 54.

Justice Swinton was correct when she held that the criteria for issue

estoppel were not met in the present case.75 55.

However, she erred in holding that the Judicial Review was an abuse of

process. The doctrine of abuse of process may be invoked where the more technical requirements of other forms of res judicata are not satisfied.76 A court’s residual power to dismiss a proceeding as an abuse of process is a function of the court’s role in protecting the integrity of the adjudicative process.77 There are several policy reasons underlying the doctrine, including preventing waste of 74 75 76 77

Martin Affidavit paras. 28-30.

Reasons for Decision at para. 22.

Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at para 38 (“CUPE”).

CUPE at para. 35.

21 judicial resources, the danger to the administration of justice of inconsistent conclusions and the importance of finality to our legal system.78 56.

In her reasons, Justice Swinton fundamentally misunderstood the issues

before her as submitted by Mr. Martin. As explained below, when exercising her discretion, she considered irrelevant factors and failed to consider relevant ones when she dismissed the Judicial Review.79 (a) The Judicial Review did not relitigate issues 57.

The principle policy rationale underlying the doctrine of abuse of process

is judicial concern over the relitigation of issues that have already been finally decided.80 However, contrary to Justice Swinton’s conclusion, the Judicial Review is not an attempt to relitigate any of the issues that were finally decided in the Friends Application. Rather, the Judicial Review is based on a different factual and legal matrix and raises issues that ought to be heard and decided.

58.

There were three issues in the Friends Application; namely, as set out by

Regional Senior Justice Hackland, whether: (a) The City of Ottawa (the City) has acted in bad faith; (b) The City has illegally bonused Ottawa Sports and Entertainment Group (“OSEG�), the intervener in this application, contrary to s. 106 of the Municipal Act, 2001, S.O. 2001, c.25; and

78

79

CUPE at para. 37-38.

See, e.g., Reza v. Canada, [1994] 2 S.C.R. 394 at 404-405 and Named Person v. Vancouver Sun, [2007] 3 S.C.R. 253 at para. 123.

80

CUPE, supra note 76 at para. 38.

22 (c) The City has violated its procurement by-laws and rules, and in so doing has acted illegally and in disregard of the requirements of s. 270 of the Municipal 81 Act.

59.

Justice Lang, for this Court, set out the issues raised by the Friends

Application this way: [W]hether the by-law was passed without jurisdiction because: (a) the development Plan provided an illegal bonus for the purpose of assisting OSEG contrary to the Municipal Act; (b) the development Plan failed to conform with the City’s procurement requirements; and (c) the City acted in bad faith in passing the by-law.

60.

82

For her part, Justice Swinton described the issue in the present Judicial

Review this way: At the heart of this application is a challenge to the sole source negotiation adopted by the City, based on the fact that [LPC] has an alternative proposal for 83 the redevelopment of the Park.

61.

As should have been clear to Justice Swinton based on her

characterization of the issue, the Judicial Review turns on the LPC Proposal.

Unlike the Friends Application, LPC challenges the lawfulness of the LPP Agreement based on whether it complies with s. 22(1)(d) of the Procurement Bylaw in light of the fact that the City received a second compliant bid (the LPC Proposal). The exception from the requirement to hold a competitive process created by s. 22(1)(d) applies only where there is “an absence of competition”.84 In the present case, there was competition – LPC’s proposal – and so the LPP

81

Friends Application, supra note 2 at para. 2.

Friends Appeal, supra note 3 at para. 11.

83 Reasons for Decision at para. 19.

84 Purchasing By-law, s. 22(1)(d).

82

23 Agreement no longer fell within the exception and should not have been approved by the City.

62.

For this reason, Justice Swinton was wrong and her conclusion far too

sweeping when she held that: To succeed in the present application for judicial review, the applicant would have to establish that the decisions in April 2009 and June 2010 were made without lawful authority. Those are the same issues that were decided by Hackland R.S.J. and are now under reserve at the Court of Appeal. It makes no sense for this Court to examine the same legal issues that the Court of Appeal will determine. Indeed, were this Court ot proceed with a new hearing of the issues, there is a risk of inconsistency in the conclusions of this Court, those already made in the Superior Court and those to be made by the Court of 85 Appeal.

63.

The LPC Proposal and its impact on whether the City had complied with s.

22(1)(d) was not an issue in the Friends Application. In essence, Justice Swinton erred by framing the issue in the Friends Application too broadly. Although it is true that Friends challenged the lawfulness of the relevant by-law, the challenge was based on a different factual and legal matrix: factual as to whether there was a qualifying competing bid; and legal as to whether the bid rendered sole sourcing illegal. This was not at issue in the Friends Application. As Justice Lang described Friends’ position before this Court: On appeal, the appellant argues that the City was precluded from receiving OSEG’s proposal when the earlier proposal for a design competition was outstanding.

This argument is based on the 2002 Option Policy in place in 2008 that the appellant argues did not allow for the receipt of an unsolicited bid when a competitive procurement process had been “initiated or is planned to be initiated.” The appellant takes the position that, since the City could not receive

85

Reasons for Decision at para. 30.

24 the OSEG proposal, all future approvals of the development by the City were 86 void or illegal.

64.

In other words, Friends argued that, having commenced a competitive

design process, the Procurement By-law (and the Ottawa Option Policy incorporated into it) precluded the City from accepting an unsolicited proposal.

65.

This is not an issue in the present Judicial Review. The fact that another

court has held that the process was valid in light of a challenge on different grounds does not mean that the by-law complied with s.22(1)(d) or that it is immune from challenge on that ground in a different factual setting. The Judicial Review raises a new challenge to the City’s compliance and does so in a timely way by a proper proceeding. It is in no way an abuse of process. Quite the reverse: it requires hearing and decision. (b) The Judicial Review should not have been dismissed for delay 66.

The Divisional Court further erred by dismissing the Judicial Review for

delay. Justice Swinton was correct that the City made the decision under review in June 2010 and that the Judicial Review was not commenced until August 2011.87 However, she failed entirely to consider the fact that the City did not notify LPC of any concern it had with the LPC Proposal until August 201088 or that LPC was pursuing relief through the City’s own internal processes during the intervening period. LPC registered Substantive Objections to the City’s decision not to consider the LPC Proposal twice. Both times, the City refused to proceed 86

Friends Appeal, supra note 3 at paras. 66-67.

Reasons for Decision at para. 32.

88 Martin Affidavit at para. 179.

87

25 with mediation as contemplated by the City’s alternative dispute resolution policy.89 67.

To determine whether an application should be dismissed on the basis of

undue delay, courts will typically consider three factors: (a)

the length of the delay;

(b)

any reasonable explanation for the delay; and

(c)

any presumed or actual prejudice suffered by the respondent as a result of the delay.90

68.

In the present case, the most important of these factors is LPC’s

explanation for the delay, which Justice Swinton did not consider at all. There are two explanations for LPC’s delay.

69.

First, LPC was exhausting an alternative administrative process prior to

commencing the Judicial Review as administrative law required it to do. It is wellsettled that an applicant’s failure to pursue an alternative remedy will usually bar relief in judicial review proceedings.91 Had LPC not pursued the City’s alternative dispute resolution process, the Judicial Review would have been premature.

70.

At a minimum, it was reasonable for a self-represented organization such

as LPC to wait until the City had refused its first Substantive Objection in

89

Martin Affidavit at paras. 194, 227-228 and Exhibits 20 and Exhibit 24.

See, e.g., Gigliotti v. Conseil d'administration du Collège des Grands Lacs (2005), 76 O.R. (3d) 561 at para. 28 (Div. Ct.).

91 See, e.g., Harelkin v. University of Regina, [1979] 2 S.C.R. 561.

90

26 December 2010 before contemplating judicial review proceedings. This places the Judicial Review (which LPC commenced in August 2011) well within the one year limitation period provided in the Municipal Act,92 which, in any event, as Justice Swinton correctly held, does not apply to applications for judicial review.93 71.

Second, and more fundamentally, LPC could not both bring the Judicial

Review and still ensure that the City would review the LPC Proposal. Having passed the Anti-Litigation By-law in an effort to halt suppliers (such as LPC) from asserting their rights, it does not lie in the mouth of the City to complain that the Judicial Review was not commenced sooner.

72.

As a bidder on the Lansdowne Park redevelopment, there was no way for

LPC to pursue judicial review without prejudicing the LPC Proposal. In essence, the City placed LPC (a self-represented organization) in a Catch-22: either proceed with litigation and risk the City rejecting the LPC Proposal out of hand or wait and exhaust internal remedies and face an argument from the City based on undue delay. LPC should not be held responsible for the City’s decision to prejudice bidders who assert their rights. (c) There was no reason for LPC to intervene in the Friends Application 73.

Justice Swinton also erred when she held that: This application is also an abuse of process because the applicant had notice of the earlier Friends application. He chose to abandon his own application for judicial review, but he could have sought to intervene in the Friends application if

92 93

Municipal Act, supra note 45, s. 273(5) Reasons for Decision at para. 31.

27 he felt that there was a different perspective he could provide. He chose not to do 94 so.

74.

Considering the fact that LPC did not intervene in the Friends Application

was an error for at least two reasons: (a)

First, given the broad language of the Anti-Litigation By-law, for the same reasons given above, LPC could not intervene in the Friends Application without risking prejudice to the LPC Proposal; and

(b)

Second, also for the reasons given above, the Friends Application did not address the same issues as the Judicial Review, even if it raised similar issues to the Martin Judicial Review.

75.

In any event, Justice Swinton’s application of the doctrine of abuse of

process is a novel one. She cited no case to support her conclusion. Intervening in a proceeding (even one that were more on all fours with the present case) is not the same as prosecuting the case. Interveners have no control over the litigation and are often admonished for raising distinct issues or expanding the record.

76.

Respecting the Martin Judicial Review referenced in the passage quoted

from Justice Swinton’s reasons, the impact of Mr. Martin’s decision to abandon that proceeding is, respectfully, a red herring. The Martin Judicial Review did not address the LPC Proposal and its impact on the City’s decision to adopt the LPP Agreement. It did not do so for a simple reason: the LPC Proposal had not been

94

Reasons for Decision at para. 34.

28 made to the City and the City had not approved continued negotiations through the LPP Agreement.95 In other words, the issues underlying the Judicial Review had not even arisen at the time the Martin Judicial Review was commenced.

The proposed appeal raises an arguable case and issues of importance 77.

Municipal procurement decisions are very important to the public and

engage many competing concerns: they are not simply private business decisions. As Justice McLachlin (as she then was) held (in dissent, though not on this point): As Arrowsmith states, supra, at p. 14, “there are many considerations applicable to public bodies and not to private which may justify different treatment of the two, even when engaged in similar activity�. The most important difference is the fact that municipalities undertake their commercial and contractual activities with the use of public funds. Another consideration justifying different treatment of public contracting is the fact that a municipality's exercise of its contracting power may have consequences for other interests not taken into account by the purely consensual relationship between the council and the contractor. For example, public concerns such as equality of access to government markets, integrity in the conduct of government business, and the promotion and maintenance of community values require that the public procurement function be viewed as distinct from the purely private realm of contract law. Finally, it must be remembered that municipalities, unlike private individuals, are statutory creations, and must always act within the legal bounds of the powers conferred upon them by statute. In particular, council members cannot act in pursuit of their own private interests, but must exercise their contractual powers in the 96 public interest.

78.

The public importance of municipal procurement decisions is also

reflected in the Municipal Act, which requires municipalities to establish by-laws respecting procurement decisions.97 This requirement advances transparency and fairness in the procurement process - both for potential suppliers and the

95

Martin Affidavit at para. 179.

Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231 at para. 11.

97 Municipal Act, supra note 45, s. 270.

96

29 public generally - by requiring municipalities to establish written processes for reaching procurement decisions.

79.

In Ottawa, the City has established the Purchasing By-law. The

overarching policy objective underlying procurement decisions in Ottawa is to obtain the best value for goods and services, generally through a competitive process that is open, transparent and fair to all suppliers. Section 2 of the Purchasing By-law puts the by-law’s purposes this way: 2.(1) The objective of this By-law respecting procurement is to obtain best value when purchasing goods, construction and services for the City while treating all suppliers equitably.

(2) The guiding procurement principle is that purchases be made using a competitive process that is open, transparent and fair to all suppliers.

(3) These objectives and principles are reflected in this By-law.

80.

98

However, in certain limited circumstances, the City is permitted to procure

goods and services through a non-competitive process. Non-competitive processes are governed by ss. 22 and 25 of the Purchasing By-law and the Ottawa Option Policy (incorporated into the Purchasing By-law by reference).

When the City receives an unsolicited proposal, the process begins under s. 25 of the Purchasing By-law. In the normal course, unsolicited proposals are considered and subjected to a competitive request for proposals. This process advances the principles underlying the Purchasing By-law because it permits the City to obtain the best value through a fair and transparent process.

81.

The City can only engage in sole source procurement where certain

preconditions have been met. In this case, the critical precondition is that there 98

Purchasing By-law, s. 2.

30 must be “an absence of competition” before the City can sole source a contract.

The relevant sections of the Purchasing By-law provide: 22(1) The requirement for competitive bids solicitation for goods, services and construction may be waived under joint authority of the appropriate Director and Supply Management and replaced with negotiations by the Director and Supply Management under the following circumstances: ... (d) Where there is an absence of competition for technical or other reason and the goods, services or a construction can only be supplied by a particular supplier and no alternative exists, ...

(8) Any non-competitive contract that does not satisfy the provisions of subsection 22(1) is subject to the City Manager’s approval. ...

25(2) Any procurement activity resulting from the receipt of an unsolicited proposal shall comply with the provisions of this by-law and the separate Ottawa Option Policy for unsolicited proposals as approved by City Council on October 23, 2002.

(3) A contract resulting from an unsolicited proposal shall be awarded on a noncompetitive basis only when the procurement complies with the requirements of a non-competitive procurement.

82.

The precondition in s. 22(1)(d) has not been met in the present case. This

is because there is competition with the LPP Agreement for the redevelopment of Lansdowne Park – the LPC Proposal. Contrary to Justice Swinton’s erroneous finding at paragraph 28 of her reasons, the City had received the LPC Proposal prior to its approval of continued negotiations through the LPP Agreement.

83.

Moreover, the LPC Proposal is compliant with the City’s objectives for the

redevelopment of the area as set out in the Motions, whereas the LPP Agreement is not. The City has never disputed this fundamental point.

84.

In these circumstances, the City was not entitled to rely on the exception

in s. 22(1)(d) of the Purchasing By-law.

31 85.

Justice Swinton appears to have placed weight on the fact that the LPC

Proposal initially did not include a stadium at Lansdowne Park,99 but one in Bayview instead. However, this fact is not material and was an improper consideration. Neither the City nor OSEG initially considered the location of the stadium to be an essential component. Indeed, the City’s own report identified Bayview as a preferable location100 and OSEG explored other locations for the stadium, including a site on Carleton University.101 86.

Moreover, the fact that the OSEG is also a conditional owner of a CFL

franchise is not relevant. The LPP Agreement is not the only proposal that can deliver a franchise. The CFL franchise and the proposed redevelopment are independent of one another. The CFL franchise agreement only requires a City owned stadium leased on terms that are acceptable to the CFL and the putative franchisee acting reasonably.102 It does not require that the franchisee also be the developer of the stadium. There is no reason that the CFL franchise should be impacted by the City’s decision to accept the LPC Proposal and not the LPP Agreement given that its terms with respect to the lease of the stadium are substantially similar.

87.

In any event, the City has never provided LPC with reasons explaining

why it is that the LPC Proposal (in its view) is not a competitive bid. The most the City has ever said is that the LPC Proposal was not timely and that the City was

99

Reasons for Decision at para. 29.

Martin Affidavit at para. 58 and Exhibit 13.

101 Martin Affidavit at para. 37 and Exhibits 9 and 10.

102 Martin Affidavit at para. 32 and Exhibit 7.

100

32 no longer considering other proposals.103 The City never published a deadline for unsolicited proposals. However, the City was to vote on the LPP Agreement on June 28, 2010. The City received the LPC Proposal on June 21, 2010. It is entirely unclear what the City meant by “untimely” since the City received the proposal in advance of its vote.

88.

The City owed LPC a duty of fairness, which included a duty to give

reasons. As the Supreme Court of Canada has held, five factors are relevant to determining the content of the duty of fairness generally, including the duty to give reasons; namely: The content of the duty of fairness on a public body varies according to five factors: (1) the nature of the decision and the decision-making process employed by the public organ; (2) the nature of the statutory scheme and the precise statutory provisions pursuant to which the public body operates; (3) the importance of the decision to the individuals affected; (4) the legitimate expectations of the party challenging the decision; and (5) the nature of the deference accorded to the body: Baker v. Canada (Minister of Citizenship and 104 Immigration), [1999] 2 S.C.R. 817.

89.

The nature of the decision at issue is a major redevelopment project of an

historic public commons. The decision will have a significant impact on the people of Ottawa and the interests LPC represents. Moreover, the decision involves both administrative and a political component. The City is charged with acting in the public interest.105 While a court may not lightly interfere with a municipality’s decision as to what is in the public interest,106 the requirement to give reasons in the present case is critical because the absence of reasons will 103

Martin Affidavit at para. 179.

Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48 at para. 5.

105 Ibid. at para. 6.

106 Ibid. at para. 6.

104

33 leave the public bereft of confidence that the City has acted in the public interest when making its procurement decisions.107 90.

The importance of giving reasons is even more critical when one

considers the purposes of the Purchasing By-law. The objectives of the Purchasing By-law (as identified by the City itself) are transparency and fairness.

However, in this case, the City’s decision not to provide reasons has resulted in obfuscation towards a self-represented litigant. The appearance that LPC has not been treated fairly is exacerbated by the lengthy delay between the City’s receipt of the LPC Proposal, the City’s approval of the LPP Agreement and its letter to LPC informing it that the City would not consider its proposal because LPC had not made it in a timely way.108 91.

Although the duty in the present circumstances likely does not impose

upon the City an obligation to provide “archival” or judicial reasons,109 certainly the City was obligated to provide more than a bald conclusion for LPC to understand the reasons why the City rejected the LPC Proposal and to ensure public confidence in the procurement process.

Conclusion

107

See, e.g., New Brunswick (Attorney General) v. Dominion of Canada General Insurance Co. th (2010), 327 D.L.R. (4 ) 728 at para. 35 (NBCA). The case concerned an administrative decision to set “just and reasonable rates”. In that case, the absence of reasons was held to leave the public with no confidence that the rates were just and reasonable. Similarly, in the present case, the Purchasing By-law requires a fair and transparent process. The inadequate reasons leaves the public bereft of confidence that the City undertook such a process.

108 Martin Affidavit at para. 179.

109 Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 40.

34 92.

LPC requests an order granting it leave to appeal the decision of the

Divisional Court, dated March 23, 2012, dismissing its application for judicial review. LPC also requests costs of this motion on a partial indemnity basis.

ALL OF WHICH IS RESPECTFULLY SUBMITTED June 1, 2012

Joseph E. Magnet

Andrew K. Lokan Michael Fenrick Counsel for the Moving Party

35 SCHEDULE A

Jurisprudence Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.

Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48.

Friends of Lansdowne Inc. v. Ottawa (City), 2011 ONSC 4402 (“Friends Application”).

Friends of Lansdowne Park Inc. v. Ottawa (City), 2012 ONCA 273 (“Friends Appeal”).

Gigliotti v. Conseil d'administration du Collège des Grands Lacs (2005), 76 O.R. (3d) 561 at para. 28 (Div. Ct.).

Harelkin v. University of Regina, [1979] 2 S.C.R. 561.

New Brunswick (Attorney General) v. Dominion of Canada General Insurance Co. (2010), 327 D.L.R. (4th) 728.

Ontario (Minister of Transportation) v. 1520658 Ontario Inc., 2010 ONCA 32.

Sault Dock Ltd. v. City of Sault Ste. Marie [1973] O.R. 479 (C.A.).

Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231.

Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63.

36 SCHEDULE B Courts of Justice Act, R.S.O. 1990, c. C.43.

Court of Appeal jurisdiction 6. (1)An appeal lies to the Court of Appeal from, (a) an order of the Divisional Court, on a question that is not a question of fact alone, with leave of the Court of Appeal as provided in the rules of court; Divisional Court jurisdiction 19. (1) An appeal lies to the Divisional Court from, (a) a final order of a judge of the Superior Court of Justice, as described in subsections (1.1) and (1.2); (b) an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court; (c) a final order of a master or case management master. 2006, c. 21, Sched. A, s. 3.

Judicial Review Procedure Act, R.S.O. 1990, c. J.1.

Application to Divisional Court 6. (1) Subject to subsection (2), an application for judicial review shall be made to the Divisional Court. R.S.O. 1990, c. J.1, s. 6 (1).

Application to judge of Superior Court of Justice (2) An application for judicial review may be made to the Superior Court of Justice with leave of a judge thereof, which may be granted at the hearing of the application, where it is made to appear to the judge that the case is one of urgency and that the delay required for an application to the Divisional Court is likely to involve a failure of justice. R.S.O. 1990, c. J.1, s. 6 (2); 2006, c. 19, Sched. C, s. 1 (1).

Transfer to Divisional Court (3) Where a judge refuses leave for an application under subsection (2), he or she may order that the application be transferred to the Divisional Court.

R.S.O. 1990, c. J.1, s. 6 (3).

37

Appeal to Court of Appeal (4) An appeal lies to the Court of Appeal, with leave of the Court of Appeal, from a final order of the Superior Court of Justice disposing of an application for judicial review pursuant to leave granted under subsection (2). R.S.O. 1990, c. J.1, s. 6 (4); 2006, c. 19, Sched. C, s. 1 (1).

Municipal Act, S.O. 2001, c. 25 Adoption of policies 270. (1) A municipality shall adopt and maintain policies with respect to the following matters: 1. Its sale and other disposition of land.

2. Its hiring of employees.

3. Its procurement of goods and services.

4. The circumstances in which the municipality shall provide notice to the public and, if notice is to be provided, the form, manner and times notice shall be given.

5. The manner in which the municipality will try to ensure that it is accountable to the public for its actions, and the manner in which the municipality will try to ensure that its actions are transparent to the public.

6. The delegation of its powers and duties. 2006, c. 32, Sched. A, s. 113.

Application to quash by-law 273. (1) Upon the application of any person, the Superior Court of Justice may quash a by-law of a municipality in whole or in part for illegality. 2001, c. 25, s. 273 (1).

Definition (2) In this section, “by-law� includes an order or resolution. 2001, c. 25, s. 273 (2).

Inquiry (3) If an application to quash alleges a contravention of subsection 90 (3) of the Municipal Elections Act, 1996, the Superior Court of Justice may direct an inquiry into the alleged contravention to be held before an official examiner or a judge of the court, and the evidence of the witnesses in the inquiry shall be given under oath and shall form part of the evidence in the application to quash. 2001, c. 25, s. 273 (3).

38 Other cases (4) The court may direct that nothing shall be done under the by-law until the application is disposed of. 2001, c. 25, s. 273 (4).

Timing (5) An application to quash a by-law in whole or in part, subject to section 415, shall be made within one year after the passing of the by-law. 2001, c. 25, s. 273 (5).

City of Ottawa, by-law, No. 50-2000, A By-law of the City of Ottawa Respecting Purchasing of Goods, Services and Construction (September 2000).

PURPOSE 2. (1)

(2) (3)

The objective of this By-law respecting procurement is to obtain best value when purchasing goods, construction and services for the City while treating all suppliers equitably.

The guiding procurement principle is that purchases be made using a competitive process that is open, transparent and fair to all suppliers.

These objectives and principles are reflected in this By-law.

NON-COMPETITIVE PURCHASES 22. (1) The requirement for competitive bid solicitation for goods, services and construction may be waived under joint authority of the appropriate Director and Supply Management and replaced with negotiations by the Director and Supply Management under the following circumstances: a. where competition is precluded due to the application of any Act or legislation or because of the existence of patent rights, copyrights, technical secrets or controls of raw material, b. where due to abnormal market conditions, the goods, services or construction required are in short supply, c. where only one source of supply would be acceptable and cost effective, d. where there is an absence of competition for technical or other reasons and the goods, services or construction can only be supplied by a particular supplier and no alternative exists, e. where the nature of the requirement is such that it would not be in

39 the public interest to solicit competitive bids as in the case of security or confidentiality matters,, f. where in the event of a “Special Circumstance” as defined by this By-law, a requirement exists, or g. where the possibility of a follow-on contract was identified in the original bid solicitation. h. where the total estimated project cost for professional services does not exceed $50,000. i. Where the requirement is for a utility for which there exists a monopoly.

LITIGATION EXCLUSION PROVISION 47 (1) The City, acting through the City Treasurer in consultation with the City Clerk and Solicitor, may in its absolute discretion after considering the criteria outlined in subsection (2), reject a quotation, tender or proposal submitted by a bidder if the bidder, or any officer or director of the bidder is engaged, either directly or indirectly through a corporation or personally, in a legal action against the City, its elected representatives or appointed officers and employees in relation to: a. any other related contract or services; or b. any matter arising from the City’s exercise of its powers, duties or functions.

(2) In determining whether or not to reject a quotation, tender or proposal under this clause, the City Treasurer and the City Clerk and Solicitor will consider; a. whether the litigation is likely to adversely affect the bidder’s ability to work with the City, its consultants and representatives; or, b. whether the City’s experience with the bidder indicates that the City is likely to incur increased staff and legal costs in the administration of the contract if it is awarded to the bidder; or, c. whether the bidder has been convicted of a criminal act against the City or one of its local boards or corporations; or, d. whether the bidder has failed to satisfy an outstanding debt to the City or one of its local boards or corporations; or, e. there are reasonable grounds to believe it would not be in the best interests of the City to enter into a contract with the bidder.

(3) Supply Management is to advise Council by way of a memorandum and or Information Previously Distributed where time permits, when they are contemplating the application of the Litigation Exclusion Provision.

40 City of Ottawa, by-law, No. 2009-128, A by-law of the City of Ottawa to confirm proceedings of the Council of the City of Ottawa at its meeting held on April 22, 2009, (22 April 2009).

Motions 65/9 as amended by 65/10 (as incorporated by reference in By-law 2009-128) MOTION NO. 65/9 Moved by Councillor R. Chiarelli Seconded by Councillor J. Harder That Motion A be replaced with the following: WHEREAS the City of Ottawa has received an unsolicited proposal from The Ottawa Sports and Entertainment Group (OSEG), called ‘Lansdowne Live’, designed to revitalize Lansdowne Park and return a Canadian Football League team to Ottawa; and WHEREAS the public has said that they would like Lansdowne Park to have more green space, pedestrian linkages to the Rideau Canal, enhanced Trade and Consumer Show space, and public spaces designed to support community initiatives like the Ottawa Farmers Market and festivals; and WHEREAS revitalizing the Civic Centre and Frank Clair stadium are an important part of the ‘Lansdowne Live’ proposal, and an engineering study has identified that the structures at Lansdowne Park will require millions of dollars to maintain and restore; and WHEREAS the City of Ottawa currently spends approximately $3.8 Million in operations and maintenance and we are limited in sources of new revenue to fund the redevelopment or urgent repairs; THEREFORE BE IT RESOLVED that staff be directed to negotiate a partnership agreement with The Ottawa Sports and Entertainment Group (OSEG) to redevelop Lansdowne Park, including revitalizing the Civic Centre and Frank Clair stadium, enhancing Trade and Consumer Show space and protecting the Ottawa Farmers’ Market, based on a revenue- and value-neutral basis, subject to Committee and Council approval and based on the following conditions: 1.

That the City continue to support the Central Canada Exhibition’s move to the Albion Road site; 2.

That the City of Ottawa’s contribution to the revitalization of Lansdowne Park be limited to a dollar amount to be established during the negotiations, based on the principle of not increasing the overall cost to the taxpayer; and 3.

That any revenues generated from the revitalized Lansdowne Park not be used to subsidize any professional sports teams; and

41

BE IT FURTHER RESOLVED that the negotiations take place within a 60-day timetable; and BE IT FURTHER RESOLVED that revitalizing Lansdowne Park be confirmed as our stadium priority project.

MOTION NO. 65/10 Moved by Councillor D. Deans Seconded by Councillor E. El-Chantiry WHEREAS City Council has already approved a series of guidelines for the transformation of Lansdowne Park; AND WHEREAS any development of Lansdowne Park must respect the scale and character of the neighbourhood and the public nature of the site; THEREFORE BE IT RESOLVED that recommendation 1 of Motion A read as follows: 1. That the design principles incorporate the following: a.

That the composition of retail, commercial, and community-benefit public space, including the Farmers’ Market, for the balance of the lands at Lansdowne Park give regard to the criteria established by Council, listed in Document 1 of the Lansdowne Park-Design Competition report, and be determined through a design process as follows i.

That a substantial portion of the existing hard surface area must be reserved as, and designed as, public open spaces that are green and sustainable, suitable for recreational use and complementary to Lansdowne Park’s overall function; ii.

That the Aberdeen Pavilion remain in its current location and plans must preserve and enhance sight lines to this building from the surrounding streets and from the Rideau Canal, and the façade of the Horticulture Building be retained; iii.

That public pedestrian and bicycle access to the Rideau Canal, to the recreational pathways and gardens that abut Lansdowne Park and links to adjacent parks be improved; iv.

That plans recognize Bank Street’s designation as a Traditional Mainstreet in the Official Plan; v.

That the opportunities for use of the site by community stakeholders, such as local sports groups, should be enhanced; vi.

That the plan should provide for the continuation of the seasonal Ottawa Farmers’ Market in a public space; vii.

That the plan should also explore opportunities for outdoor performance and festival areas;

42 viii.

That any proposed buildings should achieve a minimum standard of LEED Silver; ix.

That plans are able to be implemented in a timely fashion, and keep in mind the City’s financial ability to contribute to the redevelopment; and b.

That the plan respect the scale and character of the neighbourhood and the public nature of the site, and that: i.

There be no housing component; ii.

There be no large format commercial; iii.

Commercial uses be limited to uses that support the main uses on the site, and/or that are compatible with the neighbouring business districts; iv.

Public transit options be considered; and v.

That the City approve the design and form of any buildings constructed on the site; vi.

Both members of the partnership must agree on the acceptance of each tenant; and c.

That the design process includes a comprehensive public consultation process prior to a final decision by City Council; and BE IT FURTHER RESOLVED that the existing recommendations 1,2 and 3 be renumbered accordingly; and BE IT FURTHER RESOLVED that the negotiations include consultations with the National Capital Commission and for the final design the Commission’s Advisory Committee on Planning, Design and Realty and an understanding from the Federal and Provincial Governments regarding their level of financial commitment CARRIED on a division of 19 YEAS to 4 NAYS as follows: YEAS (19): Councillors E. El-Chantiry, M. Wilkinson, D. Holmes, R. Chiarelli, P. Hume, S. Desroches, A. Cullen, P. Feltmate, J. Harder, S. Qadri, G. Brooks, R. Bloess, D. Deans, R. Jellett, M. Bellemare, B. Monette, C. Leadman, M. McRae and Mayor O’Brien.

NAYS (4):

826130v1

Councillors C. Doucet, J. Legendre, G. Hunter and G. Bédard.

LANSDOWNE PARK CONSERVANCY Moving Party

- and -

CITY OF OTTAWA Responding Party

Divisional Court File No. 55/12 Court of Appeal File No. M41291

COURT OF APPEAL FOR ONTARIO

FACTUM OF THE MOVING PARTY ON A MOTION IN WRITING FOR LEAVE TO APPEAL

Paliare Roland Rosenberg Rothstein LLP Barristers & Solicitors Suite 501, 250 University Avenue Toronto, ON M5H 3E5 Andrew K. Lokan (LSUC #31629H) Michael Fenrick (LSUC #57675N) (416) 646-4300 (416) 646-4301 Solicitors for the Moving Party, Lansdowne Park Conservancy