factum lansdowne park conservancy
DESCRIPTION
Factum of the Lansdwone Park Conservancy.TRANSCRIPT
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Courts of Justice Act 11 – DC - 1758
Between
Lansdowne Park Conservancy
Applicant
-and-
The City of Ottawa
Respondent
APPLICANTS FACTUM
Schedule A – List of Authorities
Schedule B - Statutes, Regulations and By-Laws
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Courts of Justice Act 11 – DC - 1758
Between
Lansdowne Park Conservancy
Applicant
-and-
The City of Ottawa
Respondent
FACTUM
• INTRODUCTION AND OVEVIEW Page 3
• SUMMARY OF FACTS Page 10
• ISSUES AND THE LAW Page 28
• ORDER REQUESTED Page 33
Schedule A – List of Authorities Page 34
Schedule B - Statutes, Regulations and By-Laws
City of Ottawa Procurement By-Law 50 Tab 1
Ottawa Option Plan 2002 Tab 2
Failed Ottawa Option Policy 2009 Tab 3
Passed Ottawa Option Plan 2009 Tab 4
City of Ottawa – Bidder Litigation exclusion Tab 5
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l. INTRODUCTION AND OVEVIEW
1. The applicant Lansdowne Park Conservancy brings a matter before this court of
great public interest concerning a well known, historic and public meeting place
known as Lansdowne Park ( the “park” ).
2. At issue is the abandonment ( not cancellation ) in 2008 of a thoughtful, open and
underway competitive procurement process for the park's renovation and to
ultimately move to a non-competitive sole source negotiation.
3. Within Lansdowne Park is the Frank Clair Stadium, a multi use sports and
recreation facility and a municipal structure.
4. In the spring of 2008 a developer group, now known as OSEG, entered into a
contract with the Canadian Football League to secure a franchise for Ottawa
conditional upon securing a stadium location to play at.
5. CFL football has been a part of Lansdowne Park since 1958 ( when the CFL was
formed ). Many ownership groups have come and gone over the years, the last one
in 2006.
6. The precedent at the park has been that CFL franchisee's are tenants at the City
owned stadium facility.
7. The park was maintained successfully at no taxpayer cost from 1888 to 1973 by a
non profit group called the Central Canada Exhibition Association (CCEA).
8. Fully 8 of 9 Grey Cup wins by the Ottawa football club were won when the park
was managed by the CCEA.
9. The CCEA provided annual dividends to the city, ran and maintained the park and
the city also received taxation income from the modest amounts of retail located in
public buildings on the site.
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10. The City took over ownership of the park in 1973, the CFL football team stopped
operations in 1996 due to falling attendance, was resurrected in 2002, and ceased
operations again in 2006.
11. The delivery of a CFL football team was the basis by which the developer group
were provided a sole source exemption for the renovation of Lansdowne Park.
12. Policy on how the park is to be renovated has been established.
13. The park is to include:
1. A Stadium ( to the required specifications)
2. A Green Space,
3. A retail Model, and
4. A Management Model.
14. A section of the park for the Green Space was tendered through a competitive
process but with no guarantee of a contract.
15. The balance of the park was sole sourced to the OSEG developer group who will
also manage the entire park in partnership with the City.
16. The respondent's ( “the City” ) entire argument for sole sourcing the park
development is based on an incorrect interpretation of a very short exception
clause within the governing Procurement By-law 50:para 22 (1) (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,”
17. The City submits that it can rely on the sole source exception of para 22-1-d
because only the developer group, OSEG, has tentative franchise rights to bring a
CFL football team ( the goods, services ) to the site, and accordingly there is no
alternative supplier of this football team “goods, services”,
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( See confirmation of claim for sole source, Exhibit Book l, Tab
25, letter from City of Ottawa solicitor Geoff Cantello )
18. The City's submission contains two errors.
19. Firstly, there is no argument that the OSEG group will be the sole owners and
managers of the CFL franchise.
20. The error of application of 22-1-d is that the team is contractually bound to play at
any City of Ottawa stadium, regardless of stadium supplier or facility management
group as is historical precedent at the park.
( See CFL contract, Exhibit Book 1, Tab 7, page 4, para b )
21. The CFL contract with the OSEG group stipulates that they will play at any City of
Ottawa stadium under terms agreeable to the franchisee and the CFL acting
reasonably.
22. The current agreeable terms for the tentative OSEG franchisee and the CFL are a
$300,000.00 per year lease at a City of Ottawa stadium, Frank Clair.
23. It has been established that Frank Clair stadium at Lansdowne Park is to be the
City of Ottawa stadium.
24. The developer group OSEG is not paying for the stadium renovation, the taxpayer
is.
25. The question then becomes:
“Can any supplier of a renovated Frank Clair stadium for the City of
Ottawa who also undertakes to renovate and manage the park be eligible
to receive the CFL franchise “goods/service”?
26. The answer is “yes”.
27. As outlined under the CFL contract, any supplier of a City of Ottawa stadium that
provides the CFL franchisee with a $300,000.00 per year lease receives the
football team as a tenant.
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28. The applicant Lansdowne Park Conservancy ( the LPC) is a non-profit public
interest proposal that meets all City of Ottawa policy direction for the development
and management of Lansdowne Park, including a renovated stadium.
(Exhibit Book l, Tab 22)
29. The LPC was formed by a private citizen, John E. Martin, with the support of other
private citizens to demonstrate to the city that alternatives exist to answer the
policy direction for Lansdowne Park, including a home for the CFL franchisee, but
in a way that is substantially more viable and cost effective manner.
30. As part of its proposal a leading architectural firm with stadium and park design
experience was sought out.
31. The LPC proposal brings with it the vast experience of the design firm NBBJ
( NBBJ Architecture Canada Inc. ) who have successfully completed stadiums for
football teams of the Philadelphia Eagles and Cincinnati Bengals and have among
their completed projects the Bill and Melinda Gates Foundation in Seattle, WA.
32. All of this has been paid for out of personal funds with no financial advantage
allowed.
33. This is our gift to our city and done out of a personal concern over the renovation of
our much loved and treasured meeting place, Lansdowne Park.
34. The purpose of the LPC is to establish a competitive procurement process for
Lansdowne Park, and to deliver a world class development following the proven
and established urban planning model of “cultural economics”.
35. “Cultural Economics” demonstrates that people make the place and is typified by
the promotion of arts and culture, local small business, local agriculture, sports and
recreation and places of greenery.
36. Cultural economics becomes a city's best friend by demonstrating viability, fiscal
benefit, increasing quality of life and increasing tourism.
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37. Granville Island Market in Vancouver is an example of the success of “cultural
economics”.
38. The Central Canada Exhibition Association also demonstrated the successful use
of “cultural economics”.
39. The LPC provides a City of Ottawa owned stadium for the CFL franchisee also at
the agreeable terms of a $300,000 per year lease.
40. There is no basis to sole source the park development since more than one
supplier can deliver the CFL franchise “service”.
41. Secondly, according to 22-1-d, a second condition must also be met, “..and no
alternative exists”.
42. If “no alternative” is to mean there is no alternative for delivery of the particular CFL
football team service other than OSEG, then that statement is incorrect as any
supplier, including the LPC proposal, who can provide a City of Ottawa owned
stadium (now established as Frank Clair Stadium) and at the agreeable terms will
receive the CFL team as a tenant.
43. If “no alternative” is to mean that there is no alternative reason for refurbishing the
municipal city stadium, then that statement is also incorrect since a refurbished City
of Ottawa stadium is also needed as a municipal structure for a world event.
44. The City has committed $400,000.00 to securing a position as a host City to the
FIFA Women's World Cup of Soccer. The designated site for the event is the Frank
Clair Stadium demonstrating that stadiums are municipal structures needed for
more than just one specific “service” and that an “alternative” clearly exists.
45. The City has incorrectly applied para 22-1-d and must return to an open and
competitive process.
46. The process to renovate Lansdowne Park has been interrupted for more than three
years by the non-competitive sole source negotiations.
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47. Any number of proposal groups, including the LPC, can supply the aforementioned
policy criteria including the delivery of the CFL tenant once a competitive tender is
re-opened.
48. An open and competitive process takes only 90 days, will accelerate the renovation
at the park, legitimize any winner, will assure best value for the taxpayer and most
importantly will unite our city and nation's capital.
49. The LPC bid is but one example of an “alternative” available under an open and
competitive process.
50. The LPC bid provides for a 100% public park, provides the City with a renovated
asset, answers all the policy direction for the development and management of the
park, has verifiable financials, and as a proposal that includes a non-profit
incorporation structure, is eligible for 100% financing from Infrastructure Ontario.
51. The LPC bid financials demonstrate that the park will run an annual surplus after all
debt financing and expenses thereby providing the City of Ottawa taxpayer a zero
cost zero risk answer to the policy direction of the Lansdowne Park renovation that
is available under an open and competitive process.
52. Since June of 2010 the City has blocked four re-submissions and examination of
the LPC bid,.and prevented an available and mandatory internal dispute resolution
mechanism to avoid this litigation.
53. As outlined by Madame Justice MacLachlan ( Shell Canada and The City of
Vancouver):
“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
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business, and the promotion and maintenance of community values 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…”
“On balance, it is my view that the doctrine of immunity from judicial review of
procurement powers should not apply to municipalities. If a municipality’s power to
spend public money is exercised for improper purposes or in an improper manner,
the conduct of the municipality should be subject to judicial review.”
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ll. SUMMARY OF FACTS
45. Lansdowne Park has been a public site and “meeting place” for over 150 years.
46. The park was managed by the Central Canada Exhibition Association (CCEA), a
non-profit group, from 1888 to 1973.
47. The City received from the CCEA a well managed and maintained site, no taxpayer
cost, annual dividends from the park surplus, and property taxation from the modest
amounts of retail located on the site.
48. In 1973 the City of Ottawa ended the contract with the CCEA.
49. The City of Ottawa took over management of the site in 1973.
50. The site fell into disrepair and has been losing money.
51. In May of 2007, the City of Ottawa Auditor General produced a report that
concluded that Lansdowne Park, a civic property located at 1015 Bank Street in the
City of Ottawa, was in need of a development plan.
(Exhibit Book 1, Tab 1).
52. In conjunction with the Auditor General’s report, the Real Property Asset
Management (RPAM) division of the City of Ottawa had budgeted and
commissioned a structural adequacy report for the lower south stands of the Frank
Clair Stadium at Lansdowne Park.
53. On September 20, 2007 the structural adequacy report was completed and made
several recommendations for the lower south stands, among them was demolition
of the lower stands.
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54. On October 2, 2007 the Corporate Services and Economic Committee (CSEC) of
the City of Ottawa, Tabled the engineering report and agreed to the demolition of
the lower south stands of Frank Clair Stadium.
(Exhibit Book 1, Tab 2).
55. The motion to approve the demolition of the south stands was carried by City of
Ottawa council on October 10, 2007.
(Exhibit Book 1, Tab 3)
56. On November 1, 2007, the Planning and Environment Committee of the City of
Ottawa made recommendation to the City Council of Ottawa to approve a design
competition for Lansdowne Park based upon a “Rights to Develop”
(Exhibit Book 1, Tab 4)
and provided ten guiding principles, among them was a provision to “retain and
enhance” the Frank Clair Stadium and arena at Lansdowne Park.
(Exhibit Book 1, Tab 5 para 4)
57. On November 28, 2007, the committee recommendation to proceed with the
competition for Lansdowne Park was passed was passed by City of Ottawa council.
(Exhibit Book 1, Tab 6).
58. Public consultations commenced in December of 2007 and continued until March of
2008.
59. The public consultations were concluded in March of 2008.
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60. On March 18, 2008, a group of Ottawa businessmen, known as the “Ottawa Group”
secured a conditional CFL football franchise for the city of Ottawa.
(Exhibit Book 1, Tab 7).
61. The main conditions of the prospective franchise as they related to obligations with
the City of Ottawa are outlined in paragraph (b) of the conditions in the CFL
contract:
where: (b) on or before March 18, 2009, the Ottawa Group securing an
agreement with the City of Ottawa relating to the use of stadium facilities on
terms satisfactory to the Ottawa Group and the CFL acting reasonably;
(Exhibit Book 1, Tab 7 page 5, para b)
62. The “Ottawa Group” was led by Mr. John Ruddy, principal at Trinity Development,
Mr. Roger Greenberg, principal at Minto Development, Mr. Bill Shenkman, principal
of Shenkman Corporation and Mr. Jeff Hunt, owner of the Ottawa 67’s junior hockey
team.
63. On May 16, 2008 Deputy City Manager Nancy Schepers issued a memorandum to
city council with the findings of the public consultations and indicated through her
memo that discussions had taken place with the “Ottawa Group” concerning
Lansdowne Park and the conditional CFL franchise.
(Exhibit Book 1, Tab 8)
64. The findings of the public consultations were outlined as follows:
i. Public ownership and control of the entire site needs to be maintained;
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ii. The amateur sports, arts and culture uses at a city-wide level currently
offered at Lansdowne are important;
iii. The Aberdeen Pavilion is a key feature and its protection is essential;
iv. The UNESCO World Heritage Status of the Rideau Canal and the public
functions of the National Capital Commission’s canal-side pathways are
important, and redevelopment should enhance these features;
v. All elements of the site should achieve the highest levels of sustainability;
vi. The 67s and community uses of the Civic Centre are important community
assets;
vii.Redevelopment of the site should not be contingent on professional
sports
viii.The time frame established for the competition process is too rushed;
ix. There is very strong apprehension about the 'rights to develop model;
x. Fixing the stadium in exchange for development rights to the site is
unnaceptable; and
xi. A slight majority of participants favour retention of the stadium.
65. The Schepers memo continued with comments indicating that talks had taken place
with the “Ottawa Group” with the following observations:
“Next Steps
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The timing of the competition has been delayed as issues surrounding
the future of Frank Clair Stadium and the Civic Centre are being further
investigated. In particular, the introduction of a CFL conditional franchise
has raised a number of questions. To understand how the conditional
franchise might impact the Lansdowne site and the competition, staff
will be requesting details from the franchise consortium regarding:
� The size and “quality” of a stadium needed for a CFL team;
� Whether or not the conditional franchise is tied to Lansdowne Park,
and if not, whether the 67s and the trade show industry would be willing
to relocate as well;
� Whether the CFL proponents require only Frank Clair Stadium and the
Civic Centre, or if they expect additional lands for development, parking
or other uses; and
� Whether the proponents expect or require any form of financial contribution
from the City.
The Department will bring a more detailed report to Planning and
Environment Committee at its meeting on July 8th, which will be based on
the above memorandum. At this time, therefore, no date has been set for
bringing the Design Brief to Committee.”
66. In apparent answer to the question of whether or not the franchise was tied to
Lansdowne Park, Mr. John Ruddy, a partner in the “Ottawa Group”, met with Mr.
Duncan Watt, Vice President of Finance and Administration of Carleton University
in June of 2008, to discuss a City owned stadium at the University.
(Exhibit Book 1, Tab’s 9 and10).
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67. Carleton University turned down the request.
68. On June 27, 2008 Deputy City Manager Nancy Schepers issued another
memorandum to city council outlining that the design competition was being put on
hold pending completion of a structural analysis of Frank Clair Stadium and to
examine the “Shenkman Bid”, the new name for the “Ottawa Group”.
(Exhibit Book 1, Tab 11)
69. The postponement of the design competition order was to examine an unsolicited
proposal during an ongoing process was the start of the matter now before the
court.
70. On matters of procurement the corporation of the City of Ottawa received statutory
and substantive direction from the Municipal Act:
Adoption of policies270. (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.
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6. The delegation of its powers and duties. 2006, c. 32, Sched. A, s. 113.
65. On matters of procurement the City of Ottawa followed Procurement By-Law 50.
(Schedule B, Tab 1)
66. The overall guiding principles in Procurement By-Law 50 are:
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.
67. The Shenkman Bid was an unsolicited proposal.
68. Within By-Law 50, paragraph 25 directs matters as they relate to “Unsolicited
Proposals”.
25. UNSOLICITED PROPOSALS
i). Unsolicited Proposals received by the City shall be reviewed by the
Director and Supply Management.
ii). 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.
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iii). A contract resulting from an Unsolicited Proposal shall be awarded on a
non-competitive basis only when the procurement complies with the
requirements of a non-competitive procurement.
68. As outlined under 25 (ii), there is a separate document incorporated into the
regulation called the Ottawa Option Policy, outlining the framework for Unsolicited
Proposals.
69. The effective Ottawa Option Policy document at the time of the postponement of
the competitive process for Lansdowne Park (Schedule B, Tab 2) and the
Shenkman Bid stated the following:
Ottawa Option Policy 2002
A Private Sector Participant submits an Unsolicited Proposal for a project which
is innovative and, which was not initiated or is not planned to be initiated by
the City of Ottawa. The submission must include:
a. Details of the technical, commercial, managerial and financial capability
of the participant;
b. Technical, financial and commercial details of the proposal;
c. Draft contract principles for undertaking the project.
70. The direction to develop Lansdowne Park had already “initiated” and on the books
since 2006 with initial recommendations from RPAM or Real Property Asset
Management within the City.
71. The RPAM recommendations were included in the above mentioned Auditor
General’s report in May of 2007, culminating in a follow up recommendation from
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RPAM for the preliminary order to perform safety measures on the south stands at
Lansdowne Park.
72. In November 2007 the internal process was further “initiated” by a council motion
approving the competitive process.
73. The actions by the administrative (City Manager’s Office) to sideline a competitive
process in order to examine an unsolicited proposal were in direct conflict with the
directions of the existing by-law and in contravention to the directions from the
executive branch of the municipal corporation of the City of Ottawa.
74. In addition to the Administrative arm of the City of Ottawa acting contrary to the
Ottawa Option Policy 2002 regulation by even considering the unsolicited proposal
on an “initiated” project”, to my knowledge, other than having secured a conditional
CFL franchise and financial capability of the group, the Shenkman Bid ( as it was
then known ), would also have been in contravention for not providing technical,
financial or commercial details of the project as outlined in Ottawa Option Policy
2002 item (2) nor did they provide draft contract principles for undertaking the
project as outlined in item (3).
75. On October 20, 2008 the Shenkman Bid, now renamed to the Ottawa Sports and
Entertainment Bid (OSEG), was re-introduced to the City of Ottawa again as an
unsolicited proposal.
“The City received an initial proposal from OSEG for the redevelopment of
Lansdowne Park on 20 October 2008. Additional information has been
submitted in the interim and in accordance with the Assessment Framework, a
final proposal was received by the City on 18 March 2009.”
(Exhibit Book 1, Tab 12, 3rd page, last paragraph highlighted).
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76. The governing regulation on unsolicited proposals at the time was the Ottawa
Option Policy and the “initiated” design competition was still on the record though
on hold.
77. Unaware of the breach, city council continued with their examination of the
unsolicited proposal with a plan to restart the design competition in January of 2009
if the proposal was rejected.
78. Ongoing in the discussion was a realization that the CFL franchise was not
contingent upon a location at Lansdowne Park and the City of Ottawa requested a
study to determine the best location for a new stadium facility.
79. In December of 2008 the City of Ottawa released the findings of a consultants
report for the best stadium location for the City of Ottawa.
(Exhibit Book 1, Tab 13)
80. The stadium location report was conducted for the City of Ottawa by the consulting
firm CRG.
(Exhibit Book 1, Tab 13)
81. The CRG findings found that the best stadium location in the City of Ottawa was
either at the City owned property at the rapid transit intersection at the Bayview
Yards site or at a site at Carleton University. Lansdowne Park ranked 6 th in the
study and a stadium location in Kanata ranked 7th.
82. At some point leading up to the decision to either accept or reject the unsolicited
proposal by the OSEG group, the City of Ottawa made a decision to review the
Ottawa Option Policy.
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83. In February of 2009 an amended Ottawa Option Policy was introduced that
included the following: (Schedule B, Tab 3)
1. all unsolicited proposals received by the City from private sector parties, and
2. all City of Ottawa employees and elected officials
84. The major difference between the Ottawa Option Policy 2002 and the new Ottawa
Option Policy 2009 is that where the original Ottawa Option Policy precluded the
examination of unsolicited proposals on an “initiated or planned to be initiated
project” the new Ottawa Option Policy circumvented that caveat with the following:
1. U nsolicited proposals shall not circumvent the City’s purchasing by-law , and
shall not qualify under the Ottawa Options Policy if in the opinion of the
Manager, Supply Management Division the proposal is similar in scope to a
current or upcoming competitive procurement that has been issued, or is
planned to be issued. However, if the proposal suggests a different scope, style or approach, that may improve the City position in any way, the procurement process may be suspended in order to allow the proposal suggestions to be considered.
(See passed Ottawa Option Policy Schedule B, Tab 4)
85. As noted in the highlighted area above, the City was now provided with the ability to
suspend a competitive procurement process in order to examine unsolicited
proposals, remained. However, “Unsolicited proposals shall not circumvent the
City’s purchasing by-law”.
86. In order to proceed with the OSEG proposal the City would have to determine
BAFO, or Best and Final Offer through a mandatory RFP or competitive bidding
process:
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Following the approval to proceed with the Ottawa Option, staff in the Supply
Management Division in conjunction with the operational unit, will invite
competing counter proposals, in a transparent, fair and equitable manner in
accordance with the principles contained in the Purchasing By-Law by:
1. communicating the opportunity using an Ottawa Option Request for Proposal
(RFP), through an internet based bid distribution network, defining the
Ottawa Option procurement process, and allowing sufficient time for any
interested party to submit a counter proposal;
2. providing interested proponents with the main concepts of the detailed
unsolicited proposal, including the contract principles and risk sharing
framework, while keeping proprietary information contained in the original
proposal confidential to the extent possible; and
3. ensuring that the original evaluation team evaluates all counter proposals
received, with any necessary changes to the team membership requiring
approval by the Manager of Supply, and the fairness commissioner, if
applicable.
(Schedule B, Tab 4, page 9 and 10)
87. The only way to circumvent a public competition on an unsolicited proposal would
be if the unsolicited proposal met the criteria under Procurement By-Law 50 section
22) relating to Non-Competitive Purchases. The criteria to avoid an RFP as
outlined under Section 22 are outlined as follows:
22. NON-COMPETITIVE PURCHASES
1. The requirement for competitive bid solicitation for goods, services and
construction may be waived under joint authority of the appropriate Director and
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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 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.
(Schedule B, Tab 1) Section 22.
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88. The City invoked para 22-1-d citing only the OSEG developer group could supply
the service of a CFL franchise.
89. The City incorrectly applied the provision as the team is contractually bound to play
at the stadium regardless of supplier or park management; any proposal will
receive the service of the OSEG CFL sports franchisee as a tenant. This is
supported by historical precedent, namely that CFL franchisee's are tenants and
are provided no inherent rights for park or stadium development and supported by
the CFL contract that commits the franchisee to play at a City of Ottawa stadium.
90. In December of 2009 seven architects resigned from the City of Ottawa design
review panel.
(Exhibit Book 1, Tab 16)
91. In spring of 2010 the Lansdowne Park Conservancy was created to provide
another option for the City of Ottawa for the development of Lansdowne Park.
92. On June 21, 2010 the LPC officially submitted an unsolicited proposal for the
development and management of the park.
93. On June 28, 2010 the City of Ottawa voted to continue the non-competitive ( sole
source ) negotiations with the OSEG developer group.
94. In August 2010 The Heritage Canada Foundation listed Lansdowne Park as one of
the Top Ten endangered places in Canada.
(Exhibit Book 1, Tab 18)
95. In August of 2010 the City wrote to the LPC that no other unsolicited bids would be
allowed or examined, despite the provisions of the Ottawa Option Plan 2009 to
examine unsolicited bids even while another process was underway.
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96. In November 2010, the LPC bid was resubmitted and immediately returned stating
again that there was no provision by which to examine an unsolicited bid.
97. A letter of Substantive Objection was raised with the City as allowed and provided
for when there is a complaint under the procurement process.
98. Under Substantive Objection a meeting with the City Chief Procurement Officer is
arranged, the nature of the complaint is examined, and under large contracts, which
Lansdowne Park qualified, a mediation process is started and a mediator is
appointed.
99. The purpose of the Substantive Objection process is to prevent litigation.
100. The City blocked the available and reasonable internal dispute resolution
mechanism.
(Letter from City Chief Procurement Officer Jeff Byrne, Exhibit Book l, Tab 19)
101. The LPC bid was resubmitted again in April of 2011, again blocked, another
substantive objection was raised and the mediation process was again rejected.
102. In July of 2011 Infrastructure Ontario announced that non-profit incorporations that
promoted sports and recreation would be eligible for 100% low interest financing.
103. The LPC proposal would be eligible for the low interest financing due to its
substantial support of amateur and professional sports as well as community
recreation.
104. As a result of the new financing available the LPC would now be able to offer a
substantially more competitive proposal that would preclude the City from
borrowing and eliminate any taxpayer cost and provide the City with a fully
renovated asset at no charge, deliver an annual dividend to the City, and provide
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taxation revenue to the City from the 110,000 sq/ft of retail that would be located on
the site using existing but beautifully restored infrastructure.
105. The LPC bid was again submitted in July of 2011 and again blocked from
consideration let alone examination.
106. In August of 2011 the OSEG developer group moved to its third architectural team,
107. Additional delays resulted pushing back delivery of final design and costing.
108. The new deadline for commencement of work is tentatively June 2012.
109. A competitive process takes just 90 days and would allow work to commence two
months earlier.
110. In September 2011 the City of Ottawa put out a public tender for preliminary site
work at Lansdowne Park.
(See Exhibit Book 2 – RFP Tender for Upper South Stands take down).
111. The nature of the work involved answering a policy direction passed by City of
Ottawa council to take down the remaining top half of the old South Stands at
Lansdowne Park.
112. Based on the cost from the take down of the lower half of the South Stands at
$1.2M, staff estimated that the upper half would be a minimum of $1.5M.
(See Exhibit Book 2 – Article and City staff estimate for South Stand take down).
113. A request for proposal or RFP was issued to answer the policy directive.
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114. After a 30 day open and competitive process the contract was awarded to a firm
who bid approx $492,000.00.
115. The winning firm was able to achieve such a substantially lower bid than estimated
due to an innovative approach that the City of Ottawa had not yet considered.
116. Two things were demonstrated by that competitive process at Lansdowne Park.
117. The first was that by allowing the open market to compete you assure best value
( in this case a minimum of %70 savings for the taxpayer).
118. Secondly, by using a competitive process, policy decisions are answered creatively
allowing innovative approaches to answer policy directives.
119. There is an overall policy directive is to develop Lansdowne Park.
120. City council has agreed that the site needs a Stadium, Green Space, Retail Model
and Management Model.
121. Any number of proposals can deliver on that policy directive.
122. Any winning bid will receive the CFL franchise as a tenant at a City owned stadium
according to the CFL contract. There is no exclusivity and at least one alternative
( the LPC proposal) exists.
(See Exhibit Book 1 – CFL Contract, Tab 7, Page 4, para (b).)
123. Allowing innovative approaches to solve and answer policy directions through an
open and competitive process takes only 90 days.
124. Having a competitive process satisfies the overall guiding directive of the
substantive procurement By-Law 50 that states:
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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.
125. Signatures to date of people supporting a competitive process are over 1,100 and
growing daily.
(See Copies of the signatures and comments, Exhibits book 2.)
126. A 90 day competitive process for the development and management of Lansdowne
Park will accomplish five (5) things::
1. The city would receive complete information on all available options.
2. The City would be assured of Best Value as required under the procurement by-
law.
3. The process would be accelerated, not slowed down with a winner declared
earlier then the projected start date of June 2012.
4. Will legitimize any winner.
5. Will unite our city.
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lll. ISSUES AND THE LAW
127. Did the City of Ottawa correctly apply the exceptions clause 22-1-d under
Procurement By-Law 50?
128. The matter before the court involves substantive law derived by statutory power
from the Municipal Act of Ontario:
Adoption of policies270. (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.
129. The City of Ottawa is Canada's fourth largest city with an a population of
approximately one million people.
130. The City of Ottawa has an annual budget of approximately $2.25 billion dollars.
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131. Procurement statutes by the City of Ottawa were established in accordance with
the governing statute as set out by the Municipal Act of Ontario.
132. The Procurement By-Law 50 was established in 2000 and set out the guidelines to
protect the public purse and ensure best value would be achieved.
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.
(Schedule B, Tab 1)
133. Within Procurement By-Law 50 is section 22, that deals with non-competitive or
sole source procurement and is applied under exceptional circumstances.
134. The City of Ottawa has claimed that the procurement required to develop and
manage Lansdowne Park met the definition of paragraph 22-1-d of the exceptions
to allow a sole source or non-competitive procurement.
22 -(1) (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,”
135. The claim by the City is that only one group can supply the “goods/services” of a
CFL franchise and that “no alternative exists”.
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136. The Applicant disputes this claim as the CFL team is contractually committed to
play at a City of Ottawa stadium regardless of what group develops and manages
the park and that the Lansdowne Park Conservancy demonstrates at least one
“alternative”.
137. The test of correctness is being asked of this court.
138. It is an error in law for the City not to follow its own procurement policy.
139. Matters of Public Procurement are serious matters that include the use of Judicial
Review to ensure the public interest is being protected.
Madame Justice McLachlan:
“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 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…”
“On balance, it is my view that the doctrine of immunity from judicial review of
procurement powers should not apply to municipalities. If a municipality’s power
to spend public money is exercised for improper purposes or in an improper
manner, the conduct of the municipality should be subject to judicial review.”
Shell Canada and the City of Vancouver [1994 ] 1 S.C. R 231
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140. With respect to following the law by municipality's and the jurisdiction of the court to
quash, the late Justice Sopinka of the Supreme Court wrote:
“It follows that the exercise of a municipality’s statutory powers, whatever the
classification, is reviewable to the extent of determining whether the actions are
intra vires. Normally this is done by a motion to quash or a declaration of
invalidity with respect to the act of council which is impugned”
141. This application demonstrates a situation of ultra vires by the municipal
incorporation of the City of Ottawa with respect to its failure to act in accordance to
its responsibility to its citizens and the governing substantial procurement laws it is
governed by.
142. This court is being asked to verify whether the decision in this case is consistent
with the statutes and with all applicable regulations.
Gestion Complexe Cousineau vs Canada, [1995] 2 F.C. 694 (C.A.)
143. Although no final contract has been signed for the sole source development the
matter has been an ongoing illegality:
“The matter under review is not necessarily from a specific order or decision, but
rather a continuing failure to act in respect of which there is no specific date, the
prescribed time limit does not apply”.
Krause v. Canada, [1999] F.C.J. No. 179, [1999] 2.F.C. 476 (C.A).
“Likewise, the prescribed time limit does not apply to an application for
prohibition to prevent a future act”.
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Whitechapel Estates Ltd. v. British Columbia (Ministry of Transportation and
Highways) [1998] B.C.J. No 1931 164 D.L.R. (4th) 311 at 320 (C.A.)
144. The intervention of the court for the use of certiorari and mandamus has precedent
in the Province of Ontario on matters of public procurement.
J.P Towing Service and Storage Ltd. v. Toronto (Metropolitan) Police Services Board
[1999] O.J. No.3959
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lV. Order Requested
145. The Applicant respectfully asks that the sole source negotiation be quashed and
that an order of mandamus provide a 90 day competitive process to determine best
value for the taxpayers of the City of Ottawa for the development and management
of Lansdowne Park meeting the outlined policy of a Stadium, Green Space, Retail
Model and Management Model.
146. Such further or other relief as this honourable court seems just.
147. Regarding costs the Applicant recognizes that taxpayers are billed for such awards
and respectfully declines remuneration.
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Schedule A - List of Authorities
• Shell Canada and the City of Vancouver [1994 ] 1 S.C. R 231
• Gestion Complexe Cousineau vs Canada, [1995] 2 F.C. 694 (C.A.)
• J.P. Towing and the City of Toronto Police Board – [1999] O.J. No. 3959
• Shell Canada and the City of Vancouver [1994 ] 1 S.C. R 231
• Whitechapel Estates Ltd. v. British Columbia (Ministry of Transportation and
Highways) [1998] B.C.J. No 1931 164 D.L.R. (4th) 311 at 320 (C.A.)
• Krause v. Canada, [1999] F.C.J. No. 179, [1999] 2.F.C. 476 (C.A).