Red light for bid-rigging charge
On May 25, 2010, the Quebec Superior Court acquitted Electromega Limited (Electromega), a traffic lights manufacturer, of a bid-rigging charge relating to the supply of LED traffic lights in Quebec.
Prior to the trial, Electromega had brought an application for a stay of proceedings on the basis that the death of its president in September 2009 deprived it of an essential witness and therefore a right to a fair and public hearing pursuant to paragraph 11(d) of the Canadian Charter of Rights and Freedoms. The court concluded that Electromega had not proven that the missing evidence created a prejudice of such magnitude that it amounted to a deprivation of the opportunity to make full answer and defence. Consequently, Electromega’s application was dismissed. However, at trial, the case was dismissed on the basis that the Crown had failed to prove an agreement.
The facts in issue arose in July 2004, when the city of Quebec solicited bids for the supply of LED traffic signals sourced by Gelcore (distributed in Quebec by Electromega), or Dialight (distributed by Tassimco Technologies Inc. (Tassimco)).
The bid-rigging charge against Electromega rested on the following evidence:
- Comments allegedly made by the deceased president of Electromega to various individuals relating to communications with Tassimco for the purpose of ensuring that Electromega would obtain the Quebec City contract;
- A Gelcore price list addressed to its distributor Electromega for various items required in the Quebec call for bids, which was allegedly found in the briefcase of Tassimco’s president during a search by the Competition Bureau;
- The bids submitted by the two competitors on certain items and more particularly, the prices submitted for these items which, according to the Crown, indicated an arrangement between the two competitors.
The court found that since Electromega and Tassimco were involved in projects other than the contract in Quebec City, it could not be said, beyond a reasonable doubt, that any price communications they may have had related specifically to the Quebec City contract.
With respect to the comments allegedly made by the deceased president of Electromega, the court found that given the passage of time, the witness testimonies presented by both the Crown and the defendant were often imprecise, fragmented, confusing, even contradictory in certain aspects, and as a result, affected in a substantial manner the reliability and the weight that could be attached to each version of facts.
As for the allegedly incriminating documents found during a search by the Competition Bureau, the court found that there was considerable uncertainty as to how these documents came into Tassimco’s possession.
Finally, although the court observed that Tassimco and Electromega were the lowest bidders on certain items and that they submitted identical bids for three items, this evidence was ambiguous and insufficient to prove an illegal agreement.
The court found that the Crown had not proven beyond a reasonable doubt that Electromega was guilty of conspiring to rig bids in Quebec, and consequently rendered an acquittal.
