Date: 20040316
Docket: A-90-04
Citation: 2004 FCA 108
Present: The Honourable Mr. Justice Décary
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
MONIT INTERNATIONAL INC.
Respondent
Hearing held at Montréal, Quebec, on March 15, 2004.
Order delivered at Montréal, Quebec, on March 15, 2004.
REASONS FOR ORDER: Décary J.A.
Date: 20040316
Docket: A-90-04
Citation: 2004 FCA 108
Present: The Honourable Mr. Justice Décary
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
MONIT INTERNATIONAL INC.
Respondent
REASONS FOR ORDER
Décary J.A.
[1] In a judgment delivered on January 20, 2004, Beaudry J. allowed the action for damages brought by the respondent against Her Majesty the Queen (the Appellant) for failing to give consideration to the proposal submitted by the respondent, in the context of a call for tenders. As the issue of liability was addressed at a preliminary hearing, Beaudry J. orders, in his judgment, that:
". . . the parties will have until April 19, 2004, to attempt to settle the questions of costs and damages. After that date, if no settlement has been reached, the case will proceed by way of a reference to a judge or to another person designated by the Chief Justice."
[2] The appellant filed a notice of appeal on February 19, 2004. She has applied to the Federal Court of Appeal, by motion under rule 398, to have the effect Beaudry J.'s judgment stayed pending the appeal and to have the appeal heard at the earliest opportunity.
[3] It is common ground that, failing an agreement between the parties about the quantum of damages, the reference ordered by Beaudry J. would require a hearing of several weeks before a judge of the Federal Court of Canada.
[4] I am persuaded that the appeal raises some serious issues, including that of the application of the loss of chance theory and that of the barring of a claim attacking a first call for tenders by a tenderer who agreed, without protest, to participate in a second call for tenders.
[5] I am also persuaded that there would be irreparable harm if the reference on the damages took place and if the Federal Court of Appeal were later to find that the appellant was not liable. The word "irreparable" is, in this case, used in the broad sense and includes both the pecuniary loss and the waste of considerable legal resources that the two parties would sustain.
[6] It is true, as the respondent's counsel claims that, in theory, there is hope that negotiations carried out in good faith will lead, sometime between now and April 19, 2004, to an agreement that will put an end to the process, but I believe that it is an impossible dream because the stakes are high for the appellant, both legally and financially. In any event, there is nothing to stop the parties from negotiating pending the appeal.
[7] The balance of convenience clearly favours a stay. The Federal Court of Appeal is prepared to hear this matter before the end of June, so that, in terms of time, we are talking about only a few weeks. When the Federal Court of Canada agrees, as it did here, to split a trial into two parts - one on liability, and then, if applicable, one on the assessment of damages - it seems to me that the interests of justice will generally be better served if the second part is stayed while the Federal Court of Appeal deals with the appeal on a priority basis.
[8] The motion is granted, the execution of the trial judgment of first instance is stayed until the Federal Court of Appeal has delivered its judgment and the appeal will be heard on a priority basis in June 2004 or, at the very latest, in September 2004, on a date that counsel will agree upon with the judicial administrator. The hearing of the appeal should not take more than a day and a half.
[9] Costs in the cause.
"Robert Décary"
J.A.
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-90-04
STYLE OF CAUSE:
HER MAJESTY THE QUEEN
Appellant
and
MONIT INTERNATIONAL INC.
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 15, 2004
REASONS FOR ORDER: Décary J.A.
DELIVERED FROM THE BENCH (BY): Décary J.A.
APPEARANCES:
|
Guy Sarault
|
FOR THE APPELLANT
|
|
Marc Laurin
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Heenan Blaikie LLP
Montréal, Quebec
|
FOR THE APPELLANT
|
|
Stikeman Elliott LLP
Montréal, Quebec
|
FOR THE RESPONDENT
|
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