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1 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


2 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

Page

34

Schedule A – List of Authorities 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


3 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.


4 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”,


5 ( 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.


6 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.


7 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.


8 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


9 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.”


10 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.


11 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.


12 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;


13 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


14 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).


15 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 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.


16 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.


17 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


18 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).


19 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 7 th.

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.


20 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. Unsolicited 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:


21 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


22 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.


23 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.


24 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


25 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.


26 114. 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:


27 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 bylaw. 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.


28 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 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.

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.


29 131. 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”.


30 136. 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


31 140. 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”.


32 Whitechapel Estates Ltd. v. British Columbia (Ministry of Transportation and Highways) [1998] B.C.J. No 1931 164 D.L.R. (4 th) 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


33 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.


34

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. (4 th) 311 at 320 (C.A.)

Krause v. Canada, [1999] F.C.J. No. 179, [1999] 2.F.C. 476 (C.A).


Factum Lansdowne Park Conservancy