[2014] 1 F.C.R. D-8
Practice
Judgments and Orders
Summary Judgment
Appeal from Federal Court decision (2011 FC 1054) granting respondent’s motion for summary dismissal in action for damages relating to request for proposals for contract with respondent for engineering, technical support services (1, 5)—Appellant claiming Federal Court misapplying test for summary judgment —Summary judgment governed by Federal Courts Rules, SOR/98-106, rr. 213-215—Constituting tool for balancing two competing considerations in management of court resources in resolving civil disputes (3)—Burden on plaintiff responding to motion for summary dismissal of claim constituting evidentiary burden only—Proposed contract herein intended to replace existing contract, held by appellant, after expiry thereof but appellant’s competitor awarded contract—Appellant commencing action mainly for damages for breach of contract wherein complaining bids not fairly evaluated—Federal Court misapplying summary judgment rule—Although respondent adducing considerable evidence to establish integrity of evaluation process, evidence not squarely answering all questions about fairness of bid evaluations—Applying correct legal test for summary judgment, only reasonable conclusion being that sufficient evidence existing to establish genuine issue for trial on allegation of unfair bid evaluation—Federal Court concluding that appellant’s claim for breach of contract barred to extent breach of contract based on events occurring during transition from appellant to appellant’s competitor—That conclusion based on misapprehension of appellant’s claim—Contractual documents pertaining to request for proposals in which bidder’s obligation defined ambiguous; therefore, merits of appellant’s proposed interpretation of relevant provisions in request for proposals could not be determined in absence of full evidentiary record—Thus, sufficient to establish existence of trial issue on fundamental aspect of appellant’s claim—Fact some evidence upon which appellant relying to prove breach of contract relating to event that occurred during transition phase not making any difference herein—Appellant relying on competitor’s post-award recruitment of incumbent resources to establish that competitor’s bid not compliant when submitted—Leading case not necessarily barring claim for breach of completed contract merely because breach proved in part by evidence of events occurring after contract awarded—Therefore, respondent’s summary judgment motion should have been dismissed in relation to appellant’s claim for breach of completed contract—As for appellant’s claims in tort, while substantially weaker, based on same factual allegations, inextricably linked to claims in contract—Appeal allowed.
TPG Technology Consulting Ltd. v. Canada (A-373-11, 2013 FCA 183, Sharlow J.A., judgment dated July 15, 2013, 11 pp.)