Date: 20110120
Docket: T-1049-95
Citation: 2011 FC 70
Ottawa, Ontario, January 20,
2011
PRESENT: The Honourable Mr. Justice Crampton
BETWEEN:
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TREVOR NICHOLAS
CONSTRUCTION CO. LIMITED
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Plaintiff
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and
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HER MAJESTY THE QUEEN AS REPRESENTED BY
THE MINISTER FOR PUBLIC WORKS CANADA
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Defendant
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REASONS FOR ORDER AND ORDER
[1]
The
defendant brought this motion for summary judgment on the issue of whether it
breached its implied obligation to treat the plaintiff fairly in respect of
tenders that the plaintiff submitted in response to four separate invitations
to tender issued by the defendant.
[2]
For
the reasons that follow, I find that the defendant has satisfied the test for
summary judgment on this issue. This motion will therefore be granted.
I. Background
[3]
The
plaintiff, Trevor Nicholas Construction Co. Limited, is a small contractor. It
has been represented in this proceeding by its President, Mr. John Susin.
[4]
Between
1989 and 1993, the plaintiff submitted the lowest bids in response to five
invitations to tender that were advertised by the Department of Public Works
Canada (“PWC”). The first of the tenders concerned a 1989 contract to dredge a
part of the St. Clair River for the Canadian Coast Guard. The second tender
concerned a contract to dredge the Lower Livingston Channel at Amherstburg,
Ontario.
[5]
On
October 15, 1990, Mr. B.J. Vienot, on behalf of the defendant, informed the
plaintiff in writing that it had been by-passed in favour of the second-lowest bidder
on each of the two above-mentioned tenders based on: (i) its previous
unsatisfactory work; and (ii) the apparent incapacity of the plaintiff to
perform the work tendered upon. In that letter (the “By-Pass Letter”), the
defendant also advised the plaintiff that “it is the intention of the
Department to continue to recommend by-pass of tenders from your company until
such time as you can demonstrate competence to perform the work.”
[6]
Notwithstanding
the By-Pass Letter, the plaintiff submitted bids in response to three further
invitations to tender. In each case, those bids were by-passed even though they
were the lowest bids submitted. Specifically, in August 1993, the plaintiff
submitted a bid for certain repair work in Cobourg, Ontario, and, in October
1993, it submitted a bid for harbour dredging work at Collingwood, Ontario. A fifth
bid, submitted on October 18, 1990 in connection with a dredging project at
Meaford, Ontario, was the subject of a separate proceeding (the “Meaford
Proceeding”) that will be referenced at various points in these reasons.
[7]
In
1995, the plaintiff filed a Statement of Claim in respect of the first four
tenders alleging, among other things, that: (i) it had been treated unfairly by
the defendant; (ii) the defendant had breached an implied term of each contract
that it would be awarded to the lowest qualified bidder; and (iii) it had
suffered damages in the sum of $1,171,000.00.
[8]
In
2001, Justice MacKay issued an Order granting summary judgment in favour of the
defendant on the plaintiff’s breach of contract claim and permitting the matter
to proceed to trial on the following issues:
i.
Was
there an implied obligation on the part of the defendant to treat the plaintiff
fairly?
ii.
If
so, was that obligation breached?
iii.
If
that obligation was breached, what, if any, damages are recoverable as a result
of the breach? (Trevor Nicholas Construction Company Limited v. Her Majesty
the Queen as Represented by the Minister for Public Works Canada, Docket:
T-1049-95, Order dated May 16, 2001.)
[9]
The
defendant has conceded that it had an implied obligation to treat the plaintiff
fairly.
[10]
Justice
MacKay’s Order followed a similar Order granted in May 2000 by Justice
Pelletier, as he then was, in the Meaford Proceeding (Trevor Nicholas
Construction Company Limited v. Her Majesty the Queen as Represented by the
Minister for Public Works Canada, Docket T-2034-91,
Reasons for Order and Order (“TNCCL 1”)).
[11]
In
November 2001, after a two day trial, Justice Simpson granted judgment in
favour of the defendant in the Meaford Proceeding, on the sole issue that then
remained, namely, whether the defendant had breached its implied obligation to
treat the plaintiff fairly (Trevor Nicholas Construction Co. Limited v.
Canada (Minister for Public Works), 2001 FCT 1282 (“TNCCL 2”)).
[12]
In
June 2001, the defendant brought a motion in this proceeding for summary
judgment on that same issue, as it relates to the four tenders (the “Tenders”)
that are the subject of this proceeding. In September 2001, that motion was adjourned
sine die by Justice Blais, as he then was.
[13]
In
January 2005, after the completion of discoveries, the defendant brought the
present motion for summary judgment on the fairness issue.
II. Preliminary
Issues
A.
Jurisdiction
to bring this motion
[14]
Relying
on Rule 213(2) of the Federal Courts Rules, SOR/98-106 (the “Rules”),
the plaintiff submitted that the defendant is precluded from bringing this
motion because it did not seek and obtain leave of the Court to bring the
motion.
[15]
Rule
213(2) states:
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Further motion
213. (2) If a party brings a motion for summary
judgment or summary trial, the party may not bring a further motion for
either summary judgment or summary trial except with leave of the Court.
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Nouvelle requête
213. (2) Si une partie présente l’une de ces
requêtes en jugement sommaire ou en procès sommaire, elle ne peut présenter
de nouveau l’une ou l’autre de ces requêtes à moins d’obtenir l’autorisation
de la Cour.
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[16]
Rule
213(2) came into force in December 2009. Prior to that time, there was no
requirement to seek and obtain leave of the Court to bring a further motion for
summary judgment after having brought a previous motion for summary judgment in
the same matter. Accordingly,
given
that the present motion was filed no later than January 5, 2005, well before
Rule 213(2) came into force, the defendant did not require leave of the Court
to bring this motion.
[17]
The
plaintiff further submitted that, in the absence of explicit authority in the
Rules permitting a party to bring a second motion for summary judgment in the
same proceeding, the Court had no jurisdiction to permit such a motion to be
filed.
[18]
I
disagree, for three separate reasons.
[19]
First,
this motion was filed approximately six years ago, at the very latest. In the
interim, the plaintiff has been actively and extensively engaged with the
defendant and the Court with respect to this motion. It is too late, at this
stage, to raise and rely upon the argument that the Court has no jurisdiction
to entertain this motion. Although the plaintiff now claims to have “alerted”
the defendant to this issue in February 2010, it did so by way of: (i) a
cross-motion in response to this motion, which was rejected by the case
management judge; and (ii) a Notice of Motion seeking an order for partial
summary judgment, which the case management judge directed could not be heard
until after this motion was heard. Quite apart from whether this was an
acceptable manner in which to raise this issue, these communications were too
late, as they came many years after this motion was brought, and after the
plaintiff’s active and extensive involvement in various matters relating to
this motion.
[20]
Second,
the “motion” filed on January 5, 2005 is better viewed as a return of the
motion initially brought in June 2001, and adjourned sine die in
September 2001, rather than as a second and separate motion for summary
judgment.
[21]
Third,
former Rule 213(2), which is the applicable Rule that was in force at the time
this motion was brought, allowed a defendant to bring a motion for summary
judgment at any time after serving and filing its defence. That Rule did not
limit the number of such motions that could be brought by a defendant. The Regulatory
Impact Analysis Statement that accompanied the 2009 amendments to the Rules
explained the change to rule Rule 213(2) as follows: “Rule 213(2) is replaced
by a provision which limits a party to bringing one motion for summary judgment
or summary trial. Subsequent motions pursuant to rule 213(1) may only be
brought with leave of the Court.” In my view, this statement implicitly
recognizes that, under the Rules as they stood prior to the amendments in
December 2009, it was possible to bring more than one motion for summary
judgment in a proceeding, without obtaining leave of the Court. This
distinguishes the case at bar from the cases relied upon by the plaintiff.
[22]
In
response to my direction for further submissions “regarding this Court’s
jurisdiction under the Federal Courts Rules to accept and hear a filing
of a second motion for summary judgment in these proceedings,” the plaintiff
raised, for the first time in this proceeding, three new arguments. In my view,
it was too late for the plaintiff to raise these arguments. Therefore, they
fail on that ground alone.
[23]
In
addition, the three new arguments fail on their merits.
[24]
First,
the plaintiff claimed that there was a lack of jurisdiction to proceed with
this motion because of the defendant’s failure “to comply with the requirement
to include the Plaintiff’s Reply as part of the proceedings.” The defendant was
not bound by any such requirement. Moreover, the plaintiff was not prejudiced
by the fact that the defendant failed to include the plaintiff’s Reply in its
motion record. Having reviewed that Reply, which the plaintiff submitted with
its response to my direction, I am satisfied that there was no information in
that document that was of potential relevance to this motion and that was not already
before the Court on this motion.
[25]
Second,
the plaintiff claimed that the defendant is estopped from bringing the present
motion by Justice Pelletier’s ruling, in the Meaford Proceeding, that the issue
of fairness which was raised in that proceeding should proceed to trial (TNCCL
1, above, at para. 33). However, as the plaintiff vigorously argued for another
purpose in this motion, there were significant differences between the facts at
issue in the Meaford Proceeding and those that are at issue in this motion.
[26]
Third,
the plaintiff claimed that the defendant was precluded from bringing this
motion because the plaintiff had already been directed “to set this Action down
for trial.” However, former Rule 213(2), like current Rule 213(1), only
precluded the defendant from bringing this motion “before the time and place
for trial are fixed.” That has not yet occurred in this proceeding.
B.
Disclosure
of terms of settlement
[27]
During
oral argument, the plaintiff requested leave to disclose the terms of
settlement that it was precluded from raising in these proceedings, pursuant to
an Order previously issued by Justice von Finckenstein (Trevor Nicholas
Construction Co. Limited v. Her Majesty the Queen as represented by the
Minister for Public Works, 2005 FC 1301). Those terms of settlement
involved litigation between the parties with respect to another matter (the
“Treasure Island Proceeding”).
[28]
When
the defendant made its decisions to by-pass the plaintiff’s bids in connection
with the Tenders (the “By-Pass Decisions”), it based those decisions in part on
a report that it received from the Project Manager on the Treasure Island
project. The terms of settlement were reached several years after the defendant
made the By-Pass Decisions, and after new facts came to light which may have
suggested that the plaintiff’s performance on the Treasure Island project was
not quite as unsatisfactory as the defendant believed at the time the By-Pass
Decisions were made, during the period from 1989 to 1993. Notwithstanding
Justice von Finckenstein’s Order, the terms of settlement appear to be reflected
in the very short Minutes of Settlement, dated February 24, 2000, that were
attached at pages 86 and 87 of the Responding Motion Record filed by the
plaintiff in this motion.
[29]
In
any event, the plaintiff submitted that the terms of settlement vindicated it
in respect of its performance on the Treasure Island project. The plaintiff also
asserted that the terms of settlement demonstrate that the defendant relied on
facts that it knew were false, when it made the By-Pass Decisions.
[30]
There
is nothing in the aforementioned Minutes of Settlement or elsewhere in the
plaintiff’s Responding Motion Record that would indicate or suggest in any way
that the defendant knew, at the time when it made the By-Pass Decisions, that
any of the facts upon which it relied in making those decisions were false,
erroneous or misleading. Despite my repeated requests during the oral hearing,
the plaintiff was not able to identify any basis for this claim, other than its
mere belief that the defendant knew that some of those facts were false.
[31]
As
Associate Chief Justice Lutfy, as he then was, observed during the defendant’s
motion to strike a paragraph from the plaintiff’s Reply and to remove the
settlement document concerning the Treasure Island Proceeding, one cannot have
a trial on a settlement (Responding Motion Record, at p. 70). This is because
it is typically difficult to know why a party has settled litigation. The
plaintiff has not given me any reason whatsoever to believe that there is
anything in the terms of settlement that may indicate that the defendant was
aware, or ought to have been aware, at the time the By-Pass Decisions were
made, that some of the facts upon which it relied when it made those decisions
were inaccurate.
[32]
Accordingly,
the plaintiff’s request to disclose the terms of settlement relating to the Treasure
Island Proceeding is rejected.
C.
The
exhibits to Joseph Grossi’s affidavit
[33]
The
plaintiff submitted that many of the exhibits included with the affidavit of
Joseph Grossi, sworn on December 23, 2004 (the “Grossi Affidavit”), constitute
hearsay evidence that should be disregarded because Mr. Grossi was not in a
position to swear to the truth of the contents of those documents and he did
not in fact swear to the truth of the contents of those documents.
[34]
This
submission confuses the issue of the defendant’s use of the exhibits with the
truth of the contents of those exhibits. Mr. Grossi did not swear to the truth
of the contents of the exhibits in question. He simply swore to the truth of
the fact that the defendant took the contents of the exhibits into account when
it made the By-Pass Decisions.
[35]
The
plaintiff further submitted that Mr. Grossi was not part of the defendant’s
decision-making process in relation to the By-Pass Decisions. In support of
this, he noted that Mr. Grossi conceded, in cross-examination, that he was not
present in the room when the final decision was made in respect of any of the
four Tenders. He further asserted that Mr. Grossi had a relatively junior
position with the defendant.
[36]
With
respect to the latter assertion, I note that Mr. Grossi was sufficiently senior
to sign the aforementioned Minutes of Settlement in the Treasury Island
Proceeding on behalf of the defendant, although it is not clear whether he had
been promoted to a more senior position by that time.
[37]
In
any event,
it is readily apparent from the Grossi Affidavit, and from the various excerpts
of the transcripts of Mr. Grossi’s cross-examination that were included in the
plaintiff’s Responding Motion Record, that Mr. Grossi: (i) had primary
responsibility for reviewing the plaintiff’s bids on three of the four Tenders;
(ii) was intimately involved with the defendant’s review of the Tenders; and
(iii) has personal knowledge of the principal factors upon which the defendant
relied in making each of the By-Pass Decisions. The plaintiff was not able to
demonstrate the contrary and did not establish that Mr. Grossi had not in fact
appropriately informed himself of the basis upon which the By-Pass Decisions
were made by the defendant. Accordingly, the plaintiff’s submission that the
exhibits in question should be disregarded is rejected.
[38]
The
cases relied upon by the plaintiff on this issue are distinguishable. In Expressvu
Inc. v. NII Norsat International Inc., [1997] F.C.J. No. 276, at paras. 5-7
(T.D.), Associate Chief Justice Jerome struck certain parts of affidavits filed
by the plaintiffs on the basis that they constituted “expressions of opinion on
the very questions of law which the Court is being called upon to decide,” and contained
“conjecture, speculation about hypothetical events or what is in the mind of
other persons, [and] statements which are irrelevant or immaterial to the
issues in this litigation, or which are based on information and belief without
stating the source of the information.” In Inhesion Industrial Co. v. Anglo
Canadian Mercantile Co. (2000), 6 C.P.R. (4th) 362, at paras.
21-24 (F.C.T.D.), Justice O’Keefe declined to accept affidavit evidence
regarding the assignment of a copyright, which was a vital issue in the case,
because the affiant did not speak with the author of the pattern in question
and had little personal knowledge of the transfer of the copyright in the
pattern to the plaintiff. By contrast, as noted above, Mr. Grossi was
intimately involved with the defendant’s review of the Tenders and had personal
knowledge that the exhibits in question were considered by the defendant in
making the By-Pass Decisions. His affidavit therefore complied with Rule 81(1)
of the Rules. In Green v. Canada (Minister of National Defence) (1997),
138 F.T.R. 226, and in Canada (Minister of Citizenship & Immigration) v.
Dueck (1998), 156 F.T.R. 150, the issue was whether hearsay evidence met
the criteria of “necessity” and “reliability.” It was found that the test of “necessity”
was not met in the former case and the test of “reliability” was not met in the
latter case. In Canadian Tire Corp. v. P.S. Partsource Inc., 2001 FCA 8,
the evidence in question did not concern facts of which the affiant had
firsthand knowledge.
D.
Res judicata
[39]
The
defendant submitted that it has been established, as a matter of res
judicata, that the plaintiff was treated fairly when the defendant made the
By-Pass Decisions. The defendant based this position on the fact that Justice
Simpson granted judgment in favour of the defendant on this issue in the
Meaford Proceeding (TNCCL 2, above). The defendant asserted that: (i) the
Statements of Claim filed by the plaintiff in that case and in the case at bar
are virtually identical; (ii) the Meaford Proceeding was identical to the
present case in all important respects; (iii) the tenders, evaluations and the
parties in the two cases are virtually identical; (iv) Justice MacKay
considered the facts of the two cases sufficiently similar to recommend that
the two cases be tried together; and (v) based on the findings made by Justice
Simpson, there is no longer any dispute between the parties with respect to the
central facts of the evaluations that were conducted in making the By-Pass
Decisions.
[40]
The
plaintiff disagreed. It submitted that: (i) important new evidence which has a
bearing on the fairness issue in the case at bar has come to light since
Justice Simpson’s decision; (ii) the facts relating to the By-Pass Decisions
are not identical to those that formed the basis for Justice Simpson’s
decision; and (iii) the defendant has relied on key allegations of fact that
were not addressed by Justice Simpson, including the reports produced by Mr.
Grossi in respect of three of the four Tenders, certain allegations relating to
the plaintiff’s lack of adequate equipment on the Treasure Island project, and
the allegation that the plaintiff’s performance on the Belle River project was
not entirely satisfactory.
[41]
I
am inclined to agree with the plaintiff. In my view, there are sufficient
differences between the facts and allegations in the case at bar and those that
were addressed by Justice Simpson to preclude the application of the doctrine
of res judicata and to distinguish the case at bar from the situation that
arose in Grandview v. Doering, [1976] 2 S.C.R. 621, at 639. In contrast
to the situation in the case at bar, all conditions in Grandview, except
for the years in which the damage was alleged to have occurred, were found to
have been “exactly the same” as those at issue in the prior litigation.
[42]
Notwithstanding
the foregoing, as I have noted at certain points in the reasons below, I agree
with some of the conclusions reached by Justice Simpson in the Meaford
Proceeding.
III.
Analysis
A.
The
general legal principles applicable to this motion
[43]
Pursuant
to Rule 215(1), summary judgment may be granted if the Court is satisfied that
there is no genuine issue for trial. This is the same test that was set forth
under former Rule 216(1). Pursuant to Rule 214, a response to a motion for
summary judgment shall not rely on what might be adduced as evidence at a later
stage in the proceedings, but rather must set out specific facts and adduce the
evidence showing that there is a genuine issue for trial. Former Rule 215
contained a similar provision.
[44]
In
short, under the current and former Rules: (i) to succeed in its motion for
summary judgment dismissing the plaintiff’s statement of claim, the defendant
has the burden of establishing that all the relevant issues can properly be
decided on the evidence before the Court; and (ii) the plaintiff must show that
there is a genuine issue for trial. In this regard, the plaintiff is not
required to prove all the facts in its case, but also cannot simply rely on bare
“allegations or denials of the pleadings.” Each party is required to “put its
best foot forward,” to enable the Court to determine whether there is an issue
that should go to trial (Canada (Attorney General) v.
Lameman,
[2008] 1 S.C.R. 372, at para. 11; F. Von Langsdorff Licensing Ltd. v. S.F.
Concrete Technology Inc. (1999), 165 F.T.R. 74, at paras. 9-12; AMR
Technology, Inc. v. Novopharm Ltd., 2008 FC 970, at paras. 6-8; MacNeil
Estate v. Canada (Department of Indian and Northern
Affairs),
2004 FCA 50, at para. 25). However, “the test is not whether the plaintiff
cannot succeed at trial; rather, it is whether the court reaches the conclusion
that the case is so doubtful that it does not deserve consideration by the
trier of fact at a future trial. Claims clearly without foundation should not
take up the time and incur the costs of a trial” (AMR Technology, above,
at para. 7). In addition, “each case must be interpreted in its own
context and if the necessary facts cannot be found, or if there are serious
issues of credibility, the matter should go to trial” (Suntec Environmental
Inc. v. Trojan Technologies Inc., 2004 FCA 140, at para. 4; Emu Polishes
Inc. v. Spenco Medical Corp., 2005 FCA 130, at para. 2). Finally, “a
motions judge must subject the evidence to a ‘hard look’ in order to determine
whether there are factual issues that really do require the kind of assessment
and weighing of evidence that should properly be done by the trier of fact” (Von
Langsdorff, above, at para. 13).
[45]
On this motion, the issue is whether I am satisfied that the
evidence discloses no genuine issue for trial with respect to whether the
defendant breached its implied obligation to treat the plaintiff fairly when it
made the By-Pass Decisions.
[46]
The
defendant’s implied obligation to treat the plaintiff fairly flows from its
“obligation to treat all bidders fairly in the sense of not giving any of them
an unfair advantage over the others” and not unfairly preferring one bidder
over another (Northeast Marine Services Limited v. Atlantic Pilotage
Authority, [1993] 1 F.C. 371, at 411-412 (T.D.), reversed on other grounds,
[1995] 2 F.C. 132 (C.A.)). In assessing whether this obligation was breached,
it must therefore be determined whether the plaintiff was treated unfairly, relative
to other bidders. This assessment should include a determination as to
whether the By-Pass Decisions were made on the basis of considerations that
were extraneous to those set forth or implied in the tender documentation (M.J.B.
Enterprises Ltd. v. Defence Construction (1951) Ltd., [1999] 1 S.C.R. 619,
at paras. 45-48; Best Cleaners and Contractors Ltd. v. The Queen in right of
Canada, [1985] 2 F.C. 293, at 306-307 (C.A.); Direct
Underground Inc. v. Pickering (City) (2000), 6 B.L.R.
(4th) 147, at paras. 17-18 (Ont. S.C.J.)). In my view, the
assessment should also include a determination as to whether the defendant was
biased against the plaintiff or made one or more of the By-Pass Decisions in
bad faith, for example, by basing any of the By-Pass Decisions on facts that
the defendant knew or ought to have known were untrue at the time those
decisions were made.
B.
General
allegations
[47]
The
plaintiff alleged that it was not treated fairly or equally, relative to other
bidders on the Tenders, mainly because:
i.
Mr.
Grossi misrepresented numerous facts in support of his recommendations to his
superiors to by-pass the plaintiff’s bids;
ii.
Mr.
Grossi and other representatives of the defendant relied on information
regarding the plaintiff’s performance on other contracts that they knew or
ought to have known was improper and inaccurate;
iii.
Mr.
Grossi and possibly other representatives of the defendant failed to give the
plaintiff an opportunity to prove itself, engaged in fraudulent conduct and
lied regarding certain matters, including some matters relating to the
plaintiff’s performance on the Treasure Island project;
iv.
Mr.
Grossi and Mr. Colin Fairn, the principal of a consultant firm, C.B. Fairn
& Associates Ltd., that was retained to assist with the defendant’s
assessment of some of the Tenders, did not have the requisite experience, did
not take the appropriate steps to assess the plaintiff’s equipment and
abilities, made important errors in their assessments, and generally conducted
their assessments of the plaintiff’s bids in an incompetent manner;
v.
the
defendant relied on the inaccurate information and incompetent reports prepared
by Mr. Grossi and Mr. Fairn, and provided by others, in making the By-Pass
Decisions; and
vi.
Mr.
Fairn was retained to find fault with the plaintiff’s equipment and was for
many years the President of a competitor.
[48]
In
response, the defendant denied the plaintiff’s allegations and stated that, for
each project, it reviewed the Tenders in exactly the same fashion. For each
Tender, it contacted the two lowest bidders, assessed their proposed
methodology for completing the work, requested further information from each of
them as to their equipment, personnel, strategy and other details required to
evaluate the tenders, and reviewed the bidders’ past performances on government
projects. In addition, on the first two Tenders, the defendant retained Mr. Fairn
to perform an independent evaluation of the plaintiff’s equipment and
methodology. After conducting its assessment, the defendant decided that the
plaintiff did not appear to be able to perform the work tendered upon. The
defendant also took into account information that it received which suggested
that the plaintiff’s performance on other government projects had been unsatisfactory.
In this latter regard, the defendant noted that the tender documents for each
Tender made it clear that past performance would be considered. Specifically,
those documents requested that each bidder identify past work which was similar
to the work contemplated by the Tender.
[49]
For
the reasons that follow, I am satisfied that the defendant has established that:
(i) all the relevant issues can properly be decided on the basis of the
evidence before the Court on this motion; (ii) there is no genuine issue for trial with respect to the issue
of whether the defendant breached its implied obligation to treat the plaintiff
fairly when it made the By-Pass Decisions; and (iii) the defendant did not in
fact breach that implied obligation.
[50]
The
plaintiff’s general allegations, and the more specific allegations made by the
plaintiff with respect to each of the Tenders at issue in this proceeding, will
be addressed below.
C.
The St.
Clair River Tender
[51]
Mr.
Grossi stated in his affidavit that, after receiving the plaintiff’s tender
documentation, he contacted the plaintiff for further information, reviewed its
proposed workplan and made a visit to inspect and evaluate its equipment.
[52]
In
a report dated August 14, 1989, he expressed concern over: (i) the plaintiff’s
ability to perform the work contemplated by the tender documentation; (ii) the
adequacy of the plaintiff’s equipment for the project; and (iii) the run-down
condition of the plaintiff’s barge, the Seneca. That report also reviewed the
plaintiff’s unsatisfactory performance on past projects, including the Treasure
Island project at Kingston, Ontario, in 1988-1989.
[53]
More
specifically, among other things, Mr. Grossi’s report noted that:
i.
the
Seneca was unfit to complete the project within the specifications;
ii.
the
plaintiff is a small company with only one full time employee (Mr. John Susin)
and had not finalized any of the hiring required for the project;
iii.
the
plaintiff proposed to dredge the shoal by dragline methods, rather than by the
cut methods specified in the tender documentation;
iv.
the
proposed type of dredging activity was not recommended at the location in
question;
v.
the
plaintiff’s production estimate of 70 cubic meters per hour for a 12 hour shift
over 83 working days, and its estimated loss of time of two to three days per
month for breakdowns and other unforeseen circumstances, was overly optimistic;
vi.
the
plaintiff’s only other completed contract with the defendant, involving a
floating plant at Belle River in 1984-1985, had been poorly executed with many
contractual problems;
vii.
the
plaintiff “had succeeded in causing unnecessary hardship in project
implementation by not following environmental requirements requested by various
agencies” in relation to the Treasure Island project, which he had not
completed to date;
viii.
the
projects upon which the plaintiff had worked in the past were relatively small
($350,000.00 in value), such that its financial ability to handle a contract
valued at $623,000.00 was unknown; and
ix.
the
plaintiff had a poor reputation in the industry.
[54]
With
respect to the latter point, Mr. Grossi’s report noted that many contractors
would not deal with Mr. Susin, due to his business practices. There was also a
handwritten addition immediately following that paragraph of his report, in
which it was noted that “at this time there remains a minimum of $55,000 in
unpaid accounts to sub-contractors and suppliers for the Treasure
Island
project.”
[55]
Based
on the foregoing, Mr. Grossi recommended that the plaintiff not be awarded the
contract to dredge the St. Clair River.
[56]
On
cross-examination, Mr. Grossi also noted that the plaintiff’s responses to
certain information that he had requested from the plaintiff were “very vague.”
[57]
In
his affidavit, Mr. Grossi stated that the defendant also relied upon: (i)
correspondence from the Canadian Coast Guard (“CCG”), dated August 16, 1989, to
Mr. Grossi’s superior, Mr. E.G. Wurts, in which the CCG concurred with the
defendant’s recommendation to by-pass the plaintiff’s bid, based on the CCG’s
experience with the plaintiff on two prior contracts; and (ii) a report from
Mr. J.J. Finerty, Project Manager of the Treasure Island project, which
recommended that the plaintiff not be allowed to continue work on that project
due to Mr. Susin’s “lack of sensitivity for the requirements of the
environmental authorities.” Mr. Finerty’s report also identified various
deficiencies and incomplete work on that project.
[58]
In
addition, Mr. Grossi stated in his affidavit that the defendant relied upon a
report prepared by Mr. Fairn, who concluded that the plaintiff was unable to
perform the work described in the tender documentation. Specifically, Mr. Fairn
concluded, among other things, that:
i.
the
Seneca and deck-mounted Lima crane were both old and in need of
substantial repairs to bring them up to an acceptable operating condition;
ii.
the selection
of a dragline to perform the required dredging on the project was highly
questionable and, to Mr. Fairn’s knowledge, had never been used to perform
maintenance dredging in similar conditions;
iii.
there was a
serious question as to whether the Seneca was qualified to work on contracts
for the defendant, given that it is a U.S.-built vessel registered in Canada;
and
iv.
if the
contract were awarded to the plaintiff, the work would not be completed within
the specified time.
[59]
The
plaintiff asserted that it was treated unfairly because Mr. Grossi was not
qualified to make some of the statements that he made in his report regarding
the condition of the plaintiff’s equipment, and that, as an engineer, Mr.
Grossi should have known better than to make some of those statements. The
plaintiff maintained that Mr. Grossi knew, or should have known, that some of
those statements were inaccurate. The plaintiff added that Mr. Grossi admitted
in cross-examination that he was not an expert on assessing the condition of
heavy equipment and had never supervised the operation or repair of heavy
equipment or barges. The plaintiff further noted that Mr. Grossi’s appraisal of
the condition of its equipment conflicted in a substantial and material way
with how the equipment was described in a survey, dated November 16, 1990, that
was prepared for insurance purposes, by an accredited marine surveyor.
[60]
The
plaintiff further alleged that its estimate was so far under Mr. Grossi’s own
estimate of the amount that the defendant would have to pay for the work
contemplated by this contract, that Mr. Grossi recommended a by-pass of the
plaintiff’s bid to avoid “losing face.” The plaintiff asserted that Mr. Grossi
identified and misrepresented shortcomings with the plaintiff’s equipment as a
pretence, to prevent the plaintiff from being awarded the contract.
[61]
As
to the Treasure Island project, the plaintiff insisted that Mr. Grossi had
access to financial records and other information, apart from Mr. Finerty’s
above-mentioned report, which demonstrated that the plaintiff’s performance on
that project was not in fact unsatisfactory. It was at this point during the
oral hearing that the plaintiff alleged that the defendant’s reliance on Mr.
Finerty’s report was fraudulent. The plaintiff maintained that the financial
records would have confirmed that the quantity of dredging work for which the
defendant ultimately paid the plaintiff, was greater than what was reflected in
Mr. Finerty’s above-mentioned report, upon which Mr. Grossi and the defendant
purported to rely in making their decision to by-pass the plaintiff on this
contract. The plaintiff alleged that Mr. Grossi and perhaps other
representatives of the defendant knew or ought to have known that the
information in Mr. Finerty’s report was false. He also alleged that they lied
about the quantity of dredging work for which they paid the plaintiff, in an
effort to conceal that the plaintiff had performed substantially more, rather
than substantially less, dredging than contemplated by the contract in question.
[62]
The
plaintiff further noted that Dean Construction Company Limited (“Dean
Construction”) completed the subsequent contract in Amherstburg, Ontario at a
production rate which worked out to 120 cubic metres per hour, such that it was
erroneous for Mr. Grossi to have questioned the plaintiff’s estimated rate of
production of 70 cubic metres per hour.
[63]
Moreover,
the plaintiff insisted that it was ultimately exonerated with respect to the
alleged $55,000 in unpaid accounts with sub-contractors and suppliers, because
it succeeded in: (i) having the major claim in question set aside; (ii) obtaining
judgment on a counter-claim in the amount of $50,615.50; and (iii) having the
smaller claims dismissed.
[64]
In
addition, the plaintiff asserted that it could easily have completed the work
that was outstanding on the Treasure Island Project when the defendant invited
another contractor to complete that work, despite the plaintiff’s request for a
short extension. The plaintiff added that other correspondence disclosed by the
defendant indicated that the identified deficiencies were not as serious as
reflected in Mr. Finerty’s report, and that there were weather-related reasons
why it might take some time before the work in question could be completed.
[65]
As
to the Belle River contract,
the plaintiff noted that Mr. Grossi relied on a memorandum authored by one of
his superiors, Mr. Corkum, and that he had no personal knowledge of the
information provided to him. The plaintiff insisted that its workmanship on
that project was “second to none,” that an inspection by it in 2000 revealed no
signs of deterioration, and that all claims that it initiated on behalf of the
general contractor were settled with the defendant in an amicable manner. In
addition, the plaintiff noted that its downtime on that project was less than 6
days during a period of over three months, and that this demonstrated that its
estimate of 2-3 days per month of downtime on the St. Clair River project was
not unrealistic, as Mr. Grossi had claimed.
[66]
With
respect to the Fairn report, the plaintiff asserted that it was unfair for the
defendant to have failed to check Mr. Fairn’s background and experience to
perform the independent assessment of the plaintiff’s equipment and abilities.
The plaintiff stated that, as the former President of Canadian Dredge &
Dock Company, Mr. Fairn would not have gained that particular type of experience,
because the work in question would have been performed by more junior people in
his organization. As a result, the plaintiff maintained that Mr. Fairn was not
competent to perform the assessment of the plaintiff’s equipment and proposed
methodology. Moreover, the plaintiff claimed that Mr. Fairn and Mr. Grossi
conspired to find fault with the plaintiff’s equipment and overall bid.
[67]
In
my view, the plaintiff’s claims with respect to the St. Clair River Tender are
clearly without any foundation. The defendant has met its burden of
establishing that all the relevant issues can properly be decided on the
evidence before the Court. The plaintiff has not identified specific facts or
adduced evidence showing that there is a genuine issue for trial in respect of
its claim that the defendant breached its implied obligation to treat the
plaintiff fairly when it made the By-Pass Decision in relation to this project.
[68]
The
plaintiff’s claims with respect to the St. Clair River Tender are largely bald
assertions or based on information that came to light many years after the
defendant made its decision to by-pass the plaintiff’s bid on this project.
Even if the plaintiff could establish that the defendant based its decision on
information that may have been erroneous, that alone does not raise a genuine
issue as to whether the defendant breached its obligation to treat the
plaintiff fairly.
[69]
To
raise such a genuine issue in respect of that particular claim, the plaintiff
would have to set out specific facts or adduce evidence showing that: (i) Mr.
Grossi or other representatives of the defendant knew or ought to have known at
the time the By-Pass Decision was made that some of the information relied upon
in recommending or making that decision was erroneous or inaccurate; or (ii)
the plaintiff may have been otherwise treated unfairly, relative to other
bidders. I am satisfied that the plaintiff has not set out such facts or
adduced such evidence.
[70]
Similarly,
the plaintiff has not shown that there is a genuine issue for trial arising
from any of the other claims made in respect of the St. Clair River project.
For example, the plaintiff has not set out any specific facts or adduced any
evidence to substantiate its bald and unwarranted allegations that Mr. Grossi
and possibly other representatives of the defendant knowingly misrepresented
any facts, engaged in fraudulent conduct, lied, or made incompetent or
otherwise unfair assessments of its equipment or its tender.
[71]
The
same is true with respect to Mr. Fairn and the possibility that the defendant
retained his firm in bad faith. Given the size of the St. Clair River contract
and the information that was available to the defendant with respect to the
plaintiff’s performance on other projects, the fact that the defendant retained
Mr. Fairn does not raise a genuine issue for trial with respect to whether the
plaintiff was treated unfairly, relative to other bidders. Moreover, I agree
with Justice Simpson’s conclusion that, in the absence of any evidence to
suggest that Mr. Fairn may have conducted his assessment in bad faith, it was
not unfair of the defendant to have relied on that assessment (TNCCL 2, above,
at para. 25).
[72]
As
it turned out, the assessments prepared by Mr. Fairn and Mr. Grossi were not
only consistent with each other, they were also consistent with the reports
that the defendant received from the CCG and from Mr. Finerty regarding the
plaintiff’s performance on other contracts.
[73]
Given
that it was made abundantly clear in the tender documentation that the
plaintiff’s experience with other contracts would be considered in reviewing the
tendered bids, the defendant was entitled to consider the information that it
received from other sources with respect to that prior experience. As Justice
Simpson concluded in the Meaford Proceeding, there was “no reason [for the
Plaintiff] to expect that its tender would receive an evaluation which was
isolated from its reputation” (TNCCL2, above, at para. 18). Based on the
specific facts set out and the evidence adduced by the parties on this motion,
I agree with the conclusion reached by Justice Simpson that even if the
defendant may have “exaggerated some of the Plaintiff’s failings … its
conclusion about the Plaintiff’s poor performance on the Treasure Island
Project was nonetheless fair” (TNCCL 2, above, at para. 21). I reach the same
conclusion with respect to the reliance that the defendant placed on the
information that it received regarding the plaintiff’s performance on the Belle River
contract.
[74]
In
summary, in my view, none of the facts set out and none of the evidence adduced
by the plaintiff raises a genuine issue as to whether: (i) the defendant knew
or ought to have known that any of the information that it relied upon in
recommending or making the By-Pass Decision on this project was erroneous or
inaccurate; (ii) there was any bad faith on the defendant’s part when it made
the By-Pass Decision; (iii) the By-Pass Decision was made on the basis of
considerations that were extraneous to those set forth or implied in the tender
documentation; or (iv) the plaintiff was otherwise treated unfairly, relative
to other bidders.
D.
The
Amherstburg Tender
[75]
The
facts with respect to this Tender, which occurred in mid 1990, are very similar
to those discussed above with respect to the St. Clair River Tender.
[76]
Once
again, assessments were prepared by Mr. Grossi and Mr. Fairn, although this
time they each also conducted an assessment of the second-lowest, and
ultimately successful, bidder, Dean Construction. According to Mr. Grossi’s
affidavit, the defendant relied on those assessments and took into account the
plaintiff’s poor performance on other government contracts in deciding to
by-pass the plaintiff’s bid in favour of Dean Construction’s bid.
[77]
The
assessments of the plaintiff’s tender that were prepared by Mr. Grossi and Mr. Fairn
were consistent with the assessments that they prepared in connection with the
plaintiff’s tender on the St. Clair River project. Mr. Fairn’s assessment also
noted that the shallow water dredging experience that the plaintiff obtained on
the Belle
River project was
very different from the experience that would be required to dredge the deeper
water that would be involved in the Amherstburg project. By contrast, both Mr.
Grossi’s and Mr. Fairn’s assessments of Dean Construction’s tender were
favourable and included positive references to the experience of, and prior
work performed by, that company.
[78]
In
addition, the defendant relied upon an internal memorandum, dated June 26,
1990, that discussed the reports prepared by Mr. Grossi and Mr. Fairn as well
as the plaintiff’s unsatisfactory performance on other contracts. That
memorandum was prepared by one of Mr. Grossi’s superiors, Mr. Owen Corkum,
Regional Director - Ontario, Architectural & Engineering Services,
Public Works Canada. Among other things, Mr. Corkum noted that due to “previous
experience and concerns regarding the low bidder, it was decided that an expert
opinion should be sought from another P.W.C. dredging expert, Mr. V. White, of
the Atlantic Region, who has not had any previous association with this firm.”
Mr. Corkum proceeded to note that Mr. White’s report was consistent with those
prepared by Mr. Grossi and Mr. Fairn. He therefore strongly recommended
awarding the contract to Dean Construction and excluding the plaintiff from
bidding on the defendant’s projects for a minimum of 2 years.
[79]
The
plaintiff’s claims and allegations of unfairness regarding the defendant’s
By-Pass Decision on this project were essentially the same as they were with
respect to the By-Pass Decision on the St. Clair River project.
[80]
For
the same reasons provided in Section III.C. above, I am satisfied that the
plaintiff’s claims are clearly without any foundation. Once again, the
defendant has met its burden of establishing that all the relevant issues can
properly be decided on the evidence before the Court. The plaintiff has not
identified specific facts or adduced evidence showing that there is a genuine
issue for trial in respect of its claim that the defendant breached its implied
obligation to treat the plaintiff fairly when it made the By-Pass Decision in
relation to this project. On the contrary, the evidence before the Court
demonstrates that the defendant went to great lengths and incurred considerable
expense to treat the plaintiff fairly.
E.
The Cobourg
Tender
[81]
As
noted at paragraph 5 above, between the Amherstburg Tender and the Cobourg
Tender, the defendant sent the By-Pass Letter to the plaintiff. In that letter,
the plaintiff was advised of the reasons why it had been by-passed on the St.
Clair River and Amherstburg Tenders and was informed that “it is the intention
of the Department to continue to recommend by-pass of tenders from your company
until such time as you can demonstrate competence to perform the work.”
[82]
The
plaintiff claimed that it responded to the By-Pass Letter. However, it did not
adduce that response into evidence and was unable to produce a copy of it or to
provide any other information in respect of it when questioned about it during
the oral hearing on this motion. By contrast, Mr. Grossi stated in his affidavit
that the plaintiff did not provide any information in response to the By-Pass
Letter “which would support a change in the defendant’s assessment of [the
plaintiff’s] incapacity to work on these dredging projects.”
[83]
The
plaintiff further claimed that it was informed by the defendant that the defendant
would be prepared to continue to review its bids on their merits, subject to “certain
conditions.” However, once again the plaintiff was unable to produce any
evidence regarding that alleged understanding or to articulate even the general
parameters of that understanding during the oral hearing on this motion. The
defendant maintained that it never formally acknowledged that it would consider
any tenders made by the plaintiff after the By-Pass letter was sent. In the
absence of any evidence from either party on this point, one is left with the
contents of the By-Pass Letter itself.
[84]
In
addition, the plaintiff claimed that the defendant waived its notice or threat
to ignore the plaintiff’s future bids by continuing to receive and to evaluate
those bids in the normal course.
[85]
In
my view, in the particular circumstances of this case, the mere fact that the
defendant may have continued to review on their merits the tenders subsequently
submitted by the plaintiff was not sufficient to constitute a waiver of the
defendant’s right to rely on the By-Pass Letter as having modified its implied
obligation to treat the plaintiff fairly in respect of any such tenders. This
is particularly so given the absence of any evidence to suggest that the
defendant may have given the plaintiff any basis for believing that any of the
specific concerns previously identified by the defendant had been alleviated in
any way.
[86]
Similarly,
the fact that the By-Pass Letter may not have prevented the plaintiff from
continuing to bid on the defendant’s contracts did not change the fact that the
By-Pass Letter reduced the defendant’s implied obligations toward the plaintiff
going forward. It bears emphasizing that the plaintiff has not set out any
facts or adduced any evidence which might indicate that the defendant expressly
or impliedly gave the plaintiff any reasonable basis whatsoever for believing
that it had succeeded in alleviating any of the concerns that the defendant had
previously identified and that were summarized in the By-Pass Letter.
[87]
I
do not accept the plaintiff’s position that the courtesy letter, dated November
22, 1990, which was sent by the defendant to the plaintiff in respect of a
project in Beaver
Creek,
Ontario, provided
the basis for any such belief. That letter simply expressed the defendant’s
appreciation for the interest shown by the plaintiff in tendering on that
project, and advised the plaintiff that the tender call on that project had
been cancelled. The plaintiff has adduced no evidence whatsoever to
support its contention that “all indications were that the Plaintiff would
receive an award of [that] contract.”
[88]
In
my view, the defendant has adduced persuasive evidence that, at the time it
made the By-Pass Decision on the Cobourg contract, it continued to have the
concerns previously identified to the plaintiff, and it made those concerns
known to the plaintiff.
[89]
In
particular, at Exhibit K of his affidavit, Mr. Grossi attached a letter, dated
October 4, 1993, that clearly explained to the plaintiff that a “major
consideration” which led to the By-Pass Decision on this project was that “we
have experienced unsatisfactory performance by your company on previous
projects.” That letter further noted that a letter sent to the defendant by the
plaintiff, dated September 16, 1993, “did not provide information which would
support a change in our assessment of the capacity of your company.” In
addition, the defendant’s letter stated that the defendant had conveyed these
same views to the plaintiff in a separate letter dated September 21, 1993.
Notwithstanding the foregoing, the letter added that the defendant had
attempted to contact the reference provided by the plaintiff, Mr. Domenic
O’Neill at the Seaway Authority, but were unsuccessful. After noting that the
defendant understood that Mr. O’Neill “is no longer living in Canada,” the letter
stated that the defendant was “not able to locate anyone else with the Seaway
Authority able to confirm the success of your work on the Canal.”
[90]
I
do not accept the plaintiff’s position that the defendant’s failure to make
greater efforts to contact someone else at the Seaway Authority who was
familiar with the plaintiff’s work raises a genuine issue as to whether the
plaintiff was treated unfairly by the defendant in respect of the Cobourg
Tender.
[91]
In
addition, at Exhibit L of his affidavit, Mr. Grossi attached another letter,
dated October 27, 1993, which reiterated and significantly elaborated upon the
concerns that had been identified in prior correspondence to the plaintiff.
That letter concluded by stating:
We do not take the position that your company has never
successfully completed marine projects for PWC or other owners. We are not
aware of very many of these however, considering the length of time that the
company has been in business. As pointed out above, our own experience with
your company has, in general, been less than satisfactory. This, along with
your apparent unwillingness or inability to provide performance or labour and
material bonds, creates further uncertainty.
All of the foregoing raises serious concerns with respect to the
capacity of the company and its present management to reliably undertake
further projects. It is therefore our intention to continue to recommend
by-pass of tenders from your company until improved capacity is demonstrated.
[92]
In
his affidavit, Mr. Grossi confirmed that the decision to by-pass the
plaintiff’s bid on the Cobourg Tender was based on essentially the same
concerns that had previously been identified to the plaintiff.
[93]
The
plaintiff disputed this claim by Mr. Grossi. However, it has not set out any
facts or adduced any evidence that might tend to show that any aspect of the
defendant’s By-Pass Decision on the Cobourg Tender, or any aspect of the manner
in which the defendant reached that decision, may have been unfair to the
plaintiff.
[94]
As
with the By-Pass Decisions that were made in respect of the St. Clair River and
Amherstburg Tenders, the plaintiff’s claims that it was treated unfairly by the
defendant in respect of the Cobourg Tender rest on bald, unsubstantiated
allegations. The plaintiff has not set out any facts or adduced any evidence to
show that there is any genuine issue for trial in respect of its claim that it
was treated unfairly by the defendant when the By-Pass Decision on the Cobourg
Tender was made.
[95]
In
these circumstances, the fact that the defendant was unable to produce further
additional support, during discovery and cross-examination, to substantiate its
position that it did not treat the plaintiff unfairly on the Cobourg Tender
does not raise a genuine issue for trial.
[96]
Indeed,
based on the evidence adduced on this motion, I agree with Justice Simpson’s
finding that, having sent the By-Pass Letter, the defendant “was not required
to evaluate the Plaintiff’s Tender, yet it did conduct an evaluation …[which] …
from a procedural point of view, was more than fair” (TNCCL 2, above, at para.
18).
[97]
I
am satisfied that the plaintiff’s claims with respect to the Cobourg Tender are
clearly without foundation.
F.
The
Collingwood Tender
[98]
As
with the other Tenders, the plaintiff claimed that the defendant was unable to
provide any reliable or credible evidence in support of its defence to the
claims in respect of the Collingwood Tender. Once again, I disagree, and find
that it is rather the plaintiff who has failed to set out specific facts and
adduce evidence showing that there is a genuine issue for trial.
[99]
At
Tab M of Mr. Grossi’s affidavit, he attached a memorandum, dated November 3,
1993, that he wrote to Mr. I. Schenkman, Project Manager, Marine, PWC. In that
memorandum, Mr. Grossi began by expressing concern about the low price that was
bid by the plaintiff on this project. That price was less than half of what was
submitted by the second-lowest bidder and was approximately one-third lower
than the department’s internal estimate. Mr. Grossi explained that he spoke
with Mr. Susin concerning his tender. He then summarized the information that
Mr. Susin had provided to him regarding his Tender. Mr. Grossi then explained
in detail the various reasons why he recommended against awarding the contract
to the plaintiff. Finally, Mr. Grossi summarized the information that he had
obtained from the second-lowest bidder, noted that that contractor had
completed the harbour clean-up work for Environment Canada at the same site,
and observed that the contractor was familiar with both the site and the work
required for the project. His memorandum concluded by recommending that there is
no substantial reason why that contractor’s bid should be by-passed, and that
if that contractor were awarded the contract, it should be closely monitored to
ensure the work is completed satisfactorily. Ultimately, the contract was
awarded to that contractor.
[100] In his
affidavit, Mr. Grossi confirmed that he recommended that the plaintiff not be
awarded the contract for this project “because of its extremely low price,
which would cause it financial hardship, and because it was apparent to me that
the plaintiff had little experience in hydraulic dredging work.” Mr. Grossi
also confirmed that, notwithstanding the By-Pass Letter, the plaintiff’s bid on
this project was evaluated on its merits and was not evaluated any differently
than the tender of the contractor who won the contract.
[101] The plaintiff
asserted that, on this project, it was relying on the services of a
well-established public company, Sani-Mobile, which owned its own hydraulic
dredge, to perform the dredging. The plaintiff also noted that Mr. Grossi admitted
during cross-examination that he had mistakenly assumed that an eight-inch
plastic discharge pipe located on the site of the project belonged to the
second-lowest bidder. In fact, that pipe belonged to Sani-Mobile. The plaintiff
adduced no evidence whatsoever which might suggest that the defendant was
aware, or ought to have been aware, that the plastic pipe belonged to
Sani-Mobile, or that the defendant otherwise made the By-Pass decision on this
Tender in bad faith, on the basis of considerations extraneous to the tender
documentation, or in any other manner that might be unfair to the plaintiff.
[102] Accordingly,
I am satisfied that: (i) the defendant has met its burden of establishing that
all the relevant issues relating to the plaintiff’s claim in respect of this
Tender can properly be decided on the basis of the evidence before me; (ii) the
plaintiff’s claims in respect of this tender are clearly without foundation;
and (iii) the plaintiff has not shown that there is a genuine issue for trial.
G.
Credibility
[103] The plaintiff
submitted that the differences between the evidence that it adduced and the
evidence adduced by Mr. Grossi gave rise to a credibility issue that cannot be
determined in a motion for summary judgment, but must be addressed in a trial (Suntec
Environmental, above).
[104] I disagree.
In reaching my conclusions on this motion, I was not required to choose between
contradictory evidence provided by Mr. Grossi and the plaintiff. For the
reasons I have already stated, I concluded that the plaintiff has not set out
any specific facts or adduced any evidence whatsoever that raises a genuine
issue as to whether the defendant breached its implied obligation to treat the
plaintiff fairly in reviewing the Tenders.
H.
Unclean
hands
[105] The plaintiff
baldly asserted that the defendant came to this Court with “unclean hands” and
therefore is not entitled to the relief it seeks.
[106] Given that
the plaintiff has not adduced any credible evidence whatsoever in support of
this assertion, it is rejected.
IV. Conclusion
[107] I am
satisfied that the plaintiff’s claims with respect to each of the Tenders are
clearly without any foundation. The defendant has met its burden of
establishing that all the relevant issues can properly be decided on the
evidence before the Court. The plaintiff has not identified specific facts or
adduced evidence showing that there is a genuine issue for trial in respect of
its claim that the defendant breached its implied obligation to treat the
plaintiff fairly when it made the By-Pass Decisions in respect of the Tenders. Having
submitted the evidence to a “hard look,” I am satisfied that there are no
“factual issues that really do require the kind of assessment and weighing of
evidence that should properly be done by the trier of fact” (Von Langsdorff,
above, at para. 13).
[108] In summary,
none of the facts set out and none of the evidence adduced by the plaintiff
raises a genuine issue as to whether: (i) the defendant knew or ought to have
known that any of the information upon which it relied in recommending or
making the By-Pass Decisions was erroneous or inaccurate; (ii) there was any
bad faith on the defendant’s part when it made the By-Pass Decisions; (iii) the
By-Pass Decisions were made on the basis of considerations that were extraneous
to those set forth or implied in the tender documentation; or (iv) the
plaintiff was otherwise treated unfairly, relative to other bidders.
[109] On the
contrary, the evidence before me on this motion strongly suggests that the
defendant went to great lengths, and incurred substantial time and expense,
which ultimately was borne by the Canadian taxpayers, to treat the plaintiff
fairly. Indeed, that evidence suggests that the defendant went significantly
beyond what was required by its implied obligation to treat the plaintiff
fairly.
[110] This motion
is therefore granted.
ORDER
THIS COURT
ORDERS THAT:
1. This motion is granted. There
is no genuine issue for trial with respect to the plaintiff’s claim that the
defendant breached its implied obligation to treat the plaintiff fairly in
respect of the four tenders that are the subject of this action. Summary
judgment is granted in favour of the defendant.
2. The costs of this motion
and the action are awarded to the Defendant. The parties shall make brief written
submissions, not exceeding five (5) double-spaced pages, excluding their bills
of costs, regarding the quantum of costs to be awarded, including what would be
an appropriate lump sum amount to award to the defendant. The defendant shall
serve and fill its submissions with the plaintiff and the Court within 10 days
of the date of this Order. The plaintiff shall then file its submissions within
10 days of the date of service of the defendant’s submissions. The defendant
shall then have the right to serve a reply within five days of the date of
service of the plaintiff’s submissions.
“Paul
S. Crampton”
_____________________________
Judge
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