On April 27, 2015, Peter Mantas and Pat McCann secured a victory in a major criminal bid-rigging trial. This communique will provide you with some further information about the trial including why it is important for companies that engage in any procurements and why it is precedent setting.
In a dramatic conclusion to an eight month trial, eleven jurors delivered 60 “not guilty” verdicts on April 27, 2015 in the Ontario Superior Court of Justice before Justice Bonnie Warkentin. Peter and Pat represented TPG Technology Consulting Ltd. and Philip McDonald.
The case broke new ground in areas of competition, procurement and white collar criminal law. The trial involved over a million pages of documents and was held in a specially designed electronic courtroom in Ottawa.
The accused were six individuals and three corporations. One other individual was acquitted earlier when the trial judge directed a verdict of not guilty at the conclusion of the case for the Crown. With the exception of one individual accused, the other defendants were self-represented. The defendants were charged with bid-rigging under section 47(2) of the Competition Act, conspiracy to bid-rig under section 465(1)(c) of the Criminal Code, and counselling an individual to bid-rig under section 464(a) of the Criminal Code.
The allegations concerned responses to ten Request for Proposals (RFPs) for the Canada Border Services Agency (CBSA), Public Works and Government Services Canada (PWGSC), and Transport Canada (TC) by several small and medium-sized companies in the Ottawa information technology consulting industry in the Summer and Fall of 2005.
The Competition Bureau had conducted the investigation that lasted over three years before charges were laid in February, 2009. A guilty verdict could have resulted in major fines, imprisonment of up to five years, and the “debarment” of the companies and individuals preventing them from doing any business with the federal government for up to 10 years.
From a precedent standpoint, the rulings by the trial judge on how the jury should be instructed on the issues are significant. She was required to define “bids or tenders”, then decide whether the defence of mistake of fact applied, what types of arrangements or agreements were forbidden by the Competition Act, and how and to whom the accused should “make known” any arrangement or agreement. These rulings shed light on the uncertainty inherent in the wording of section 47 of the Competition Act.
Peter and Pat had earlier won a constitutional challenge to section 69 of the Competition Act before Justice Warkentin, on the basis that the section created a reverse onus on the defendants in violation of the Charter. This strategic win was also interesting in that the judge found that in today’s world, people cannot be assumed to have read all the emails in their inbox.
The decision in this matter demonstrates that bid-rigging charges can be successfully defended. Given the broader adverse consequences of a guilty plea, such as reputational damage or being barred from doing business with the federal government, businesses should not assume that they must pursue a plea bargain with the Competition Bureau.
Peter Mantas and Patrick McCann have extensive experience in litigating procurement and competition law cases. Pat, who recently joined the firm, is a veteran of the criminal bar. They are both members of Fasken Martineau’s newly-created White Collar Crime, Investigations and Compliance group who represent clients from the moment the authorities commence investigations through representations in court or before the relevant tribunal, in multi-jurisdictional white collar crime cases and investigations. Peter and Pat are also members of our Litigation and Dispute Resolution Group as well as our Antitrust/Competition & Marketing group.