Trevor Nicholas Construction Co. Ltd. v. Canada (Minister For Public Works)

Trevor Nicholas Construction Co. Ltd. v. Canada (Minister For Public Works)
Court (s) Database
Federal Court Decisions
Date
2001-05-16
Neutral citation
2001 FCT 499
File numbers
T-1049-95
Decision Content
Date: 20010516
Docket: T-1049-95
Neutral citation: 2001 FCT 499
BETWEEN:
TREVOR NICHOLAS CONSTRUCTION COMPANY LIMITED
Plaintiff
- and -
HER MAJESTY THE QUEEN AS REPRESENTED
BY THE MINISTER FOR PUBLIC WORKS CANADA
Defendant
REASONS FOR ORDER
MacKAY J.
[1] These reasons concern the defendant's (the "Crown's") motion for an Order for Summary Judgment on the claim herein for breach of contract, together with an Order that this action go to trial solely on the issue of fairness and an Order that it be tried in conjunction with Court file no. T-2034-91. In that file, my colleague Mr. Justice Pelletier, after hearing the parties in relation to a motion by the same defendant for summary judgment in a similar action, ordered that the allegation in paragraph 13 of the plaintiff's Statement of Claim, similar to that Statement in this action but concerned with a different project, be dismissed and that the matter proceed to trial on the following issues:
1) Does the contract between the defendant and the plaintiff include an implied term that the plaintiff is to be treated fairly?
2) If it does, has that term been breached?
3) If it has, what if any damages are recoverable as a result of the breach?
[2] In this proceeding, as in that heard by Pelletier J., the plaintiff was represented by Mr. John Susin, who though not a lawyer, as an officer and director of the plaintiff corporation represented the plaintiff corporation by leave of the Court.
[3] The key facts of this case are similar, with one exception, to those in T-2034-91, though the bids submitted by the plaintiff in response to the defend's tender calls were in relation to a different construction works than that in the other action.
[4] The one exception is that in this case Mr. Susin submits to the Court his own affidavits reporting on conversations with previous or incumbent officers of Public Works Canada which support his position that the department had a practice, regardless of what its tender documents provide, to award contracts to the lowest qualified tender bid.
[5] That affidavit evidence included in one case an affidavit sworn April 17, 2000, which, following the hearing by Pelletier J. in T-2034-91, Mr. Susin had requested be considered as new evidence in that case, a request refused by Pelletier J.. The affidavit records Mr. Susin's conversations with two former officers of Public Works Canada concerning policy to award contracts to the lowest qualified bidder. In a second affidavit, sworn April 26, 2001, filed in this matter, Mr. Susin inter alia, also refers to comments of the current "head of Public Works Department that receives tenders" that it is still the policy of the Department to award a contract to the lowest qualified bidder. On behalf of the defendant that information is responded to by an affidavit of the identified head of the department, who avers that Mr. Susin's report of a conversation with him is incomplete. I permitted the filing, at the hearing, of a supplementary affidavit of Mr. Susin contesting the facts as set out in that officer's affidavit.
[6] Both parties acknowledge that the underlying facts of this action are the same as those found by Pelletier J. in T-2034-91, except that Mr. Susin urges there is now, by virtue of his affidavits, evidence of the department's policy on which he would rely at trial. I am persuaded that the evidence in the manner here presented is hearsay, and I give it no weight. Even though it is urged that the truth can only be determined by an oral hearing of the persons involved, it seems to me that determination is not relevant for resolving the motion now before the Court.
[7] Perhaps it can be established at trial that the department has a "policy" that would override the specific terms of the instructions to Tenderers issued in this case, to which the plaintiff responded by submitting tender bids. These instructions provided explicitly that "the Department will not necessary [sic] accept the lowest or any of the offers", or alternatively "Her Majesty may accept any tender, whether it is the lowest or not, or may reject any and all tenders".
[8] But even if that is established at trial, Mr. Susin acknowledges that his claim is not in relation to a breach of the construction contract for which he submitted a tender, for that contract was not awarded to him. Thus whether or not the department has a policy to award contracts to the lowest qualified bidder does not assist any claim the plaintiff may have in relation to the contracts to construct or undertake the works. The plaintiff was not a party to those contracts. It is my understanding, by his reasons of May 12, 2000, that Mr. Justice Pelletier's Order of that date stuck out any claim in relation to a contract to construct works for which a tender bid was submitted.
[9] His Order left for trial any claims by the plaintiff arising from alleged unfair treatment by the defendant in regard to the tender submitted by the plaintiff. That is the issue which, as I understand Mr. Susin's submissions, the plaintiff here seeks to pursue.
[10] In these circumstances, I am persuaded that I should follow the lead of Mr. Justice Pelletier in the similar action involving the same parties, in Court file T-2034-91, in disposing of this matter. I so do by a similar order which in effect, dismisses any claim to damages under the construction contracts which were not awarded to the plaintiff, but leaves for trial any claim arising out of alleged unfair treatment of the plaintiff's submissions of tender bids.
"W. Andrew MacKay"
J.F.C.C.
Toronto, Ontario
May 16, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1049-95
STYLE OF CAUSE: TREVOR NICHOLAS CONSTRUCTION
COMPANY LIMITED
Plaintiff
- and -
HER MAJESTY THE QUEEN AS
REPRESENTED BY THE MINISTER FOR
PUBLIC WORKS CANADA
Defendant
DATE OF HEARING: MONDAY, MAY 14, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: MacKAY J.
DATED: WEDNESDAY, MAY 16, 2001
APPEARANCES BY: Mr. John Susin
For the Plaintiff on his own behalf
Mr. P. Christopher Parke
For the Defendant
SOLICITORS OF RECORD: John Susin, President
Trevor Nicholas Construction Company Limited
7139 Justice Drive
Mississauga, Ontario
L4T 1M6
For the Plaintiff
Morris Rosenberg
Deputy Attorney General of Canada
For the Defendant
FEDERAL COURT OF CANADA
Date: 20010516
Docket: T-1049-95
Between:
TREVOR NICHOLAS CONSTRUCTION
COMPANY LIMITED
Plaintiff
- and -
HER MAJESTY THE QUEEN AS
REPRESENTED BY THE MINISTER FOR
PUBLIC WORKS CANADA
Defendant
REASONS FOR ORDER