The Ontario Superior Court of Justice (Divisional Court) (“Court”) recently quashed two decisions by Ontario’s Ministry of Transportation (“MTO”) in Thales DIS Canada Inc v Ontario (“Thales”)[1]. The Court found that the request for bids (“RFB”) in dispute did not comply with the Government of Ontario’s obligations under the Canada-European Union Comprehensive Economic Trade Agreement (“CETA”)[2]. The Court of Appeal for Ontario granted leave to appeal on November 9, 2022.[3]
Municipalities will be interested in whether the Court of Appeal lends any credence to the concurring opinion of D.L. Corbett J, who agreed with the majority decision of Nishikawa J (Wilton-Siegel J. concurring) but arrived at the decision for different reasons. Specifically, if the Court of Appeal agrees with D.L. Corbett J’s reasoning with respect to the lack of a CETA-compliant bid dispute mechanism, Ontario municipalities will be left in limbo because municipalities are not a party to the trade agreement, constitutionally lack such power, and therefore cannot implement a CETA-compliant bid dispute mechanism.
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