CROWN |
Contracts |
Trevor Nicholas Construction Co. v. Canada (Minister of Public Works)
T-2034-91
Pelletier J.
12/5/00
18 pp.
Motion for summary judgment seeking to dismiss plaintiff's action against Crown for not awarding it contract for dredging and construction of marine service dock at Meaford, Ontario for which plaintiff submitted lowest tender--Plaintiff launched action, relying upon analysis contained in Ontario v. Ron Engineering and Construction (Eastern) Ltd., [1981] 1 S.C.R. 111 and M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd., [1999] 1 S.C.R. 619--Crown decided not to award bid to plaintiff because found barge to be used in poor condition and possibly not able to do job; dredging method not consistent with that contemplated by Crown; plaintiff had little dredging experience--Question of construction whether submission of tender in response to invitation to tender creating contractual obligations between parties--If it does, nature of obligations defined by terms of tender documents--Effect of privilege clause (lowest tender not necessarily accepted) to be determined by reference to same documents--Summary judgment means of disposing of claims having no reasonable prospect of success without necessity of trial--Motions judge must subject evidence to "hard look" in order to determine whether factual issues really do require kind of assessment and weighing of evidence properly done by trier of fact--Herein, facts necessary to decide question of contractual effect of tender documents and privilege clause not contentious and consist primarily of documents themselves--Here, Crown invited tenders, plaintiff filed forms, incurred costs to meet bid security requirement--Therefore, finding contract arose between Crown and plaintiff upon submission of tender by latter in response to former's invitation to tender--Plaintiff arguing implied term of contract Crown would award contract to lowest bidder--However, express term of contract by which Crown not obligated to award contract to lowest qualified bidder--Trite law one cannot imply term to contradict express term of contract--Therefore, action cannot succeed on this ground--However, Crown's attempt to enforce uniformity on tenderers carrying with it implicit promise it will deal with all of them on same basis--This term may extend to obligation to treat all tenderers fairly--If so, plaintiff's plea it was not treated fairly not matter which can be decided on material before Court as not fully canvassed in argument--In conclusion, summary judgment with respect to issue of awarding contract to lowest bidder and decision matter must be sent to trial on issue of whether implied term as to fair treatment, whether it was breached and if so, quantum of damages if any.