Date: 19990120
Docket: T-1-95
BETWEEN:
BOURQUE, PIERRE & FILS LTÉE
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Defendant
REASONS FOR ORDERS
MacKAY J.
[1] These reasons concern primarily the disposition of a motion for summary judgment1 on behalf of the defendant in this action. They deal also with preliminary matters raised when the motion for summary judgment came on for hearing on June 19, 1998, and with matters raised subsequent to the hearing, in writing, on the latest occasion in September 1998.
[2] The plaintiff is a company incorporated under the laws of Canada with its head office in Ottawa, Ontario. On January 3, 1995 the plaintiff filed a statement of claim, seeking damages against the defendant for alleged breach of contract or of collateral warranty, or alleged torts by Her Majesty's servants, arising from interrelations between the parties in December 1988 to April 1989, and following the plaintiff's submission of a tender in response to a request for tenders for leased premises. That request was subsequently cancelled, and the defendant renegotiated a lease with its existing landlord, steps which ultimately led to the plaintiff's action.
Preliminary issues
[3] When the defendant's motion came on for hearing, I dismissed a preliminary motion by the plaintiff that the matter be adjourned pending disposition of the plaintiff's appeal from an order, dated June 17, 1998, by Mr. Justice Hugessen, which denied leave to the plaintiff to file an affidavit in relation to the defendant's motion. It was the second such application by the plaintiff that was dismissed.
[4] Then in the course of the hearing counsel for the defendant objected to the reference to and introduction in these proceedings, by the plaintiff, of a document which originated with the defendant, but which had been objected to by the defendant when earlier introduced in cross-examination of the defendant's affiant. The objection was based on a claim to privilege under s. 39 of the Canada Evidence Act, R.S.C. 1985, c. C-5, as amended.
[5] Both of these issues warrant brief reference, since their disposition, at least in part, sets the context for the decision on the defendant's motion for summary judgment. Written submissions made following the hearing were considered in completion of these reasons. These submissions were by the defendant and responded to by the plaintiff in relation to the objection under s. 39, and subsequently two submissions on behalf of the plaintiff, and responses for the defendant, in relation to judicial decisions, rendered while this matter was under reserve, which are said to be relevant to the issues before the Court.
[6] I dismissed the plaintiff's motion to adjourn hearing of the defendant's application for summary judgment in the following circumstances. The motion, filed October 7,1997, was originally scheduled to be heard on January 29, 1998, but that hearing was adjourned on consent following a change in solicitors by the plaintiff shortly before the scheduled hearing. The hearing was rescheduled for March 30, 1998, and again adjourned, at the plaintiff's request, to May 1, 1998. When the motion came on for hearing on the latter day the plaintiff moved for a further adjournment on the ground that it was not prepared to proceed. Despite the defendant's objection, I adjourned proceedings on that day, and rescheduled the hearing for June 19, 1998, a date agreed upon by both parties, for the matter to be heard on a preemptory basis.
[7] Then, on June 17, 1998, a motion by the plaintiff for leave to file an affidavit sworn May 21, 1998, in response to the defendant's motion for summary judgment, was heard and was dismissed by my colleague, Mr. Justice Hugessen. As earlier noted this was the second such application by the plaintiff that was dismissed. Leave was required pursuant to Rule 84(2) since the plaintiff had commenced cross-examination of the affiant of the defendant, commencing in November 1997, whose affidavit in support of the defendant's motion for summary judgment was filed in October 1997. On June 18, 1998 the plaintiff filed an appeal from the decision of Hugessen J. Then at the hearing of this matter on the following day the plaintiff's motion to adjourn sought delay of the hearing pending disposition of that appeal. It was urged that adjournment would be in the interests of justice, while there was outstanding the issue of the plaintiff's opportunity to file affidavit evidence in response to the summary judgment motion. Without an opportunity to file an affidavit there was no evidence on behalf of the plaintiff to be considered with regard to the defendant's motion.
[8] There was before me no evidence by affidavit to explain delay of the plaintiff in seeking leave to file an affidavit. It is clear that on a motion for summary judgment the responding party has an obligation to put its best foot forward by providing evidence in support of its position.2 Hearing of the defendant's motion had been adjourned on three previous occasions at the request of the plaintiff, and the parties were cognizant that the hearing on June 19, 1998 was set on a preemptory basis. An outstanding appeal is not a basis in the ordinary case of considering a motion for an adjournment or stay of proceedings pending determination of the appeal. The plaintiff's handicap, if such it be, of having no evidence before the Court in relation to its claim, is one of its own making. On balance, the interests of justice in the circumstances of this case support the hearing and determination of the defendant's motion for summary judgment, a motion filed more than eight months before the hearing, and already adjourned on the plaintiff's request on three prior occasions. For these reasons, I dismissed the plaintiff's motion for a further adjournment, and the Court proceeded to hear the defendant's motion for summary judgment.
[9] In the course of the ensuing hearing on June 19, 1998, counsel for the plaintiff referred to a document that was marked as "Exhibit 5" to the cross-examination of the representative of the defendant. Objection to that reference and to introduction of the document in question in relation to the defendant's motion for summary judgment, was raised at the hearing by counsel for the defendant, who had similarly objected to its introduction in cross-examination and had instructed that questions concerning the document not be answered. The principal objection to reference to or admission of the document was that it is a document originating with the defendant that is privileged as a cabinet confidence, pursuant to s. 39 of the Canada Evidence Act.
[10] Since this matter arose at the hearing on June 19 without prior notice, opportunity was then provided for counsel for the defendant to make written submissions following the hearing and for counsel for the plaintiff to respond. After the hearing, by submissions dated June 29, 1998 the defendant made supplementary written submissions, including a Certificate signed by the Clerk of the Privy Council, dated June 24, 1998, certifying the document in question as one containing information constituting a confidence of the Queen's Privy Council for Canada pursuant to s. 39 of the Canada Evidence Act and that the document is a confidence of that Council. That Certificate, filed in the Court on June 30, 1998 meets requirements under s. 39 of the Canada Evidence Act.
[11] The plaintiff argues that ruling that the document is inadmissible will preclude it from serving a request to admit the document pursuant to Rule 255 of the Federal Court Rules, 19983 and launching a challenge pursuant to the Canadian Charter of Rights and Freedoms, which it claims should be done at the examination for discovery stage of the proceedings. It argues that refusing to admit the document would violate the principles of fundamental justice. For the plaintiff it is also urged that the circumstances here are comparable to those in Best Cleaners and Contractors Ltd. v. The Queen in Right of Canada4 where the Court of Appeal refused to accept that a certificate under s. 39 precluded disclosure of information from a Treasury Board document to which the certificate there related. But I am not persuaded this case is analogous, for in Best the document in question had been introduced in discovery by the defendant, the Crown itself, without objection and without a claim to privilege. Here, the document, though it originated with the Crown, was not produced by the defendant, and objection to its introduction by the plaintiff was consistent, both in cross-examination and when the matter arose at the hearing of this motion.
[12] The fact that the certificate was filed after the matter arose at the hearing, in my opinion, does not undercut the claim to privilege here. That claim is certified in accord with s-s. 39(1) of the Canada Evidence Act before decision was made to admit or consider the document in question, after the hearing but before determination of this matter while it was under reserve. In accord with s-s. 39(1), the Court is precluded from examining the document or hearing the information contained within it. That subsection provides:
| 39. (1) Where a minister of the Crown or the Clerk of the Privy Council objects to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying in writing that the information constitutes a confidence of the Queen's Privy Council for Canada, disclosure of the information shall be refused without examination or hearing of the information by the court, person or body. |
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39. (1) Le tribunal, l'organisme ou la personne qui ont le pouvoir de contraindre à la production de renseignements sont, dans les cas où un ministre ou le greffier du Conseil privé s'opposent à la divulgation d'un renseignement, tenus d'en refuser la divulgation, sans l'examiner ni tenir d'audition à son sujet, si le ministre ou le greffier attestent par écrit que le renseignement constitue un renseignement confidentiel du Conseil privé de la Reine pour le Canada.
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The document in question is simply not admissible in this proceeding.
[13] I turn to the defendant's motion for summary judgment, after brief review of the factual background.
The background
[14] In the fall of 1988, the Department of Public Works ("DPW"), a Department of the defendant, instituted a call for tenders for the lease of building accommodation within the Ottawa-Hull metropolitan area. The building was to accommodate the Department of Transport headquarters, which at the time was mainly located at Place de Ville, Tower "C", in Ottawa, but also had offices in a number of other buildings. The defendant advertised for tenders in various newspapers in December of 1988, and distributed Lease Proposal Documents ("LPD") to parties expressing interest in the project, including the plaintiff.
[15] Included within the LPD was an invitation to the interested parties to meet with DPW officials on December 19, 1988 to discuss the tender process that would be employed and to ask questions. The plaintiff alleges that the applicant, at that meeting, through its agent, represented that it would definitely enter into a lease for accommodation with a company that submitted a proposal meeting the Standards for Leased Accommodation included within the LPD, and it represented that the invitation for tenders was bona fide and not simply to enhance its bargaining position with its landlord at Place de Ville. The defendant points to specific statements in the advertisement and in the LPD disavowing any obligation to conclude a contract and it claims that it reminded those in attendance at the meeting that any bid recommended by DPW would be subject to Treasury Board approval. The following exchange allegedly occurred during a question period at the meeting, between a representative of one of the interested companies and Mr. Louis Plante, who was the DPW Chief of Leasing for the National Capital Region:
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Company Representative: Is it definite that Public Works will be awarding this tender to somebody? |
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Mr. Plante: We do need space, yes. |
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Company Representative: So it is definite that this proposal will be awarded to somebody. |
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Mr. Plante: Yes, ultimately (not audible). |
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[16] In cross-examination on his affidavit in support of the defendant's motion, Mr. Plante explained that, at the time of the meeting, he believed the project would be contracted and he had no idea that it would not proceed. Furthermore, he noted that part of the exchange noted above is inaudible on the taped recording of the meeting because others were talking over his voice, and he disputed using the word "ultimately" in his answer.
[17] DPW revised its LPD by distributing three addenda in January, 1989 to the interested parties. The plaintiff submitted its tender on February 2, 1989. The defendant concluded that fourteen of the twenty-one proposals submitted, including that of the plaintiff, met the required criteria. One proposal that the defendant disqualified was that of its existing landlord, Campeau Corporation, which offered to renegotiate the lease for the Place de Ville location as accommodation for the Department of Transport.
[18] The plaintiff alleges that its proposal was the winning proposal because it met the requirements of the Standards for Leased Accommodation at the lowest overall cost. The defendant claims that DPW did not reach the conclusion that any of the offers were superior to others or that the plaintiff's tender was the winning proposal or provided the lowest overall cost. In cross-examination on his affidavit, however, Mr. Plante for the defendant admitted that he was quoted in a newspaper article as saying that DPW was making a decision based on the information that it had in March of 1989, a decision that was subject to Treasury Board approval.
[19] The defendant decided to cancel the tender project on April 17, 1989, prior to entering into negotiations to extend the lease for its existing premises at Place de Ville. The defendant and Campeau reached a tentative agreement to extend that lease on April 18, 1989. Mr. Plante acknowledged in his cross-examination that the cost of space for the Campeau lease exceeded that for the Bourque proposal. On April 27, 1989 DPW was instructed to formally cancel the tender project and that decision was announced in Budget papers introduced that day.
[20] The decision to cancel the tender project led to the plaintiff's action, commenced when the statement of claim was filed on January 3, 1995, to which the defendant responded by statement of defence filed on February 3, 1995. The statement of claim was amended in August 1996.
[21] On October 30, 1997 my colleague, Mr. Justice Campbell, dismissed a motion on behalf of the defendant to strike the statement of claim. An appeal from that decision was dismissed in May 1997. Thereafter, on October 7, 1997, the defendant filed an amended statement of defence and at the same time filed the motion for summary judgment herein.
[22] Of course, the issue before the Court in a motion to strike a pleading is a different issue than that facing the Court in a motion for summary judgment. In the former, the Court considers the pleading at issue and, assuming that its allegations can be established by evidence, the Court determines whether a genuine issue for trial is raised by the pleading. In the latter, a motion for summary judgment, the Court is asked to assess, on the basis of the evidence the parties may put forth by affidavit, whether all or any of the claims set out by the pleadings in question, either the plaintiff's statement of claim, or the defendant's statement of defence, raise or raises a genuine issue for trial. Under this Court's Rule 216 that assessment includes the responsibility, in assessing whether there is a genuine issue, to determine issues of fact or of law so far as those can reasonably be determined on the evidence before the Court. Of course, if the evidence raises issues of credibility those issues must be left to be heard at trial.
The defendant's motion for summary judgment
[23] Under Rule 215 the respondent to a motion for summary judgment has the evidentiary responsibility to set out facts, by affidavit, to show there is a genuine issue for trial. Rule 216 then sets out the authority and responsibility of the Court in dealing with a motion for summary judgment, as follows:
| 216. (1) Where on a motion for summary judgment the Court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the Court shall grant summary judgment accordingly.
(2) Where on a motion for summary judgment the Court is satisfied that the only genuine issue is
(a) the amount to which the moving party is entitled, the Court may order a trial of that issue or grant summary judgment with a reference under rule 153 to determine the amount; or
(b) a question of law, the Court may determine the question and grant summary judgment accordingly.
(3) Where on a motion for summary judgment the Court decides that there is a genuine issue with respect to a claim or defence, the Court may nevertheless grant summary judgment in favour of any party, either on an issue or generally, if the Court is able on the whole of the evidence to find the facts necessary to decide the questions of fact and law.
(4) Where a motion for summary judgment is dismissed in whole or in part, the Court may order the action, or the issues in the action not disposed of by summary judgment, to proceed to trial in the usual way or order that the action be conducted as a specially managed proceeding.
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216. (1) Lorsque, par suite d'une requête en jugement sommaire, la Cour est convaincue qu'il n'existe pas de véritable question litigieuse quant à une déclaration ou à une défense, elle rend un jugement sommaire en conséquence.
(2) Lorsque, par suite d'une requête en jugement sommaire, la Cour est convaincue que la seule véritable question litigieuse est :
a) le montant auquel le requérant a droit, elle peut ordonner l'instruction de la question ou rendre un jugement sommaire assorti d'un renvoi pour détermination du montant conformément à la règle 153;
b) un point de droit, elle peut statuer sur celui-ci et rendre un jugement sommaire en conséquence.
(3) Lorsque, par suite d'une requête en jugement sommaire, la Cour conclut qu'il existe une véritable question litigieuse à l'égard d'une déclaration ou d'une défense, elle peut néanmoins rendre un jugement sommaire en faveur d'une partie, soit sur une question particulière, soit de façon générale, si elle parvient à partir de l'ensemble de la preuve à dégager les faits nécessaires pour trancher les questions de fait et de droit.
(4) Lorsque la requête en jugement sommaire est rejetée en tout ou en partie, la Cour peut ordonner que l'action ou les questions litigieuses qui ne sont pas tranchées par le jugement sommaire soient instruites de la manière habituelle ou elle peut ordonner la tenue d'une instance à gestion spéciale.
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[24] The principles applicable in considering a motion for summary judgment are set out in the decision of Madam Justice Tremblay-Lamer in Granville Shipping Co. v. Pegasus Lines Ltd.5 Key among these is that, absent any issue of credibility, under the Court's Rule 216(3) the Court is to consider and to determine facts necessary to decide questions of fact and law if that can be done on the whole of the evidence presented. This responsibility distinguishes the role of the Federal Court judge in dealing with a motion for summary judgment from the role of his or her counterpart in considering a similar motion under Rule 20 of the Ontario Rules of Civil Procedure. The latter role is dealt with by Mr. Justice Borins J.A. in Dawson et al. v. Rexcraft Storage and Warehouse Inc.,6 a decision dated August 13, 1998 upon which the plaintiff relied in further written submissions following trial. That case is helpful in considering the approach of a motions judge in a summary judgment application, but the responsibility under the Ontario Rule, as I understand it, does not extend to determine "if the Court is able on the whole of the evidence to find the facts necessary to decide the questions of fact and law".
[25] In this case, no evidence having been brought by the plaintiff in support of its case, and no question of credibility arising from cross-examination of Mr. Plante, there can be no issue of credibility concerning the evidence adduced by his affidavit in support of the defendant's motion. Despite the absence of evidence on behalf of the plaintiff the Court must still assess the plaintiff's claims, in light of the evidence adduced by the defendant, in considering the defendant's motion. That consideration requires that the plaintiff's claims be considered individually.
[26] The claims sound in contract, for alleged breach of contract to enter into a formal agreement for the project, and for alleged breach of a collateral warranty on which the plaintiff claims to have relied, and also in tort for negligent misrepresentation on which the plaintiff claims to have relied to its detriment, and for the defendant's allegedly acting in "bad faith" in describing reasons for the decision to cancel the call for proposals. I deal with these claims in turn and then briefly with particular defences raised by the defendant against any claim in tort.
[27] To support its claim for breach of contract the plaintiff must allege, and provide evidence to support, a contractual obligation of the defendant to award a contract to the plaintiff in response to its tender. That is not clearly alleged in the statement of claim. At best the statement implies an obligation on the basis that the plaintiff had submitted the lowest bid, which the defendant was bound to accept.
[28] There is no evidence to support the plaintiff's claim. In its memorandum of fact and law it is urged that the plaintiff's tender, meeting all specifications as required by the LPD at the lowest price, created a binding lease agreement as in Canada Square Corp. v. Versafood Services Ltd.7 That case, in my view, is distinguishable because it did not involve a call for tenders to enter a lease but rather an agreement to lease identified space. The plaintiff urges further that its tender was "by a qualified developer and was for the best price", implying that the defendant was bound to accept the lowest bid which the plaintiff claims its bid was.
[29] The evidence is otherwise. In his affidavit, Mr. Plante, for the defendant, avers that DPW did not, at any time, conclude the plaintiff's tender was "the winning proposal" as alleged in the statement of claim, or that the plaintiff's price was the lowest. Rather, he avers that at the time the project was cancelled in April 1989, the evaluation of lease tenders submitted by qualified developers had not been completed. His evidence was not undermined by cross-examination, although he did acknowledge that at the time the project was cancelled the plaintiff's tender was among the three or four lowest bids.
[30] Aside from the lack of evidence that the plaintiff's tender was for the lowest price, the advertisement concerning the project and inviting interested parties to the December 1988 meeting specifically stated "The lowest or any tender not necessarily accepted" and the DPW included in Instructions to Offerors at page 4 the specific provision:
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(6) The lowest or any rate per square metre at which any accommodation is offered will not necessarily be accepted. |
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Moreover, Mr. Plante's evidence by affidavit is that he and others had reminded participants at the December meeting, which the plaintiff attended, that any bid recommended for acceptance by DPW would be subject to approval of Treasury Board.
[31] In written submissions for the plaintiff following trial, it is urged that its position is bolstered by the decision of the Federal Court of Appeal in Martel Building Ltd. v. Canada,8 dated July 16, 1998. I am not persuaded that the facts here are analogous to those in Martel for here there is no conflicting evidence that would support the plaintiff's claim that its tender was the lowest bid. The only evidence is that of Mr. Plante, that DPW had not determined the lowest bid or the winning tender when the decision to cancel the project was made. But even if the plaintiff's bid were the lowest, in this case no obligation to conclude a contract is established in light of the specific disavowal of such an obligation in communications to prospective offerors.
[32] In M.J.B. Enterprises v. Defence Construction (1951) Ltd.,9 it was held that a clause permitting the defendant to accept a tender other than that from the lowest bidder in response to a call for tenders was a complete defence to an action by one claiming to have submitted the lowest bid. In this case the specific clause in the instructions to offerors is sufficient, in my view, to negate any obligation upon the defendant to accept the plaintiff's bid and conclude a contract, even if it were established to be the lowest bid. The basis for the plaintiff's claim for breach of contract is simply not established.
| (b) Breach of collateral warranty |
[33] The plaintiff claims that it relied, to its detriment, upon a collateral warranty, that "the defendant would definitely enter into a lease for the new accommodation with one of the companies submitting a proposal meeting the standards for Leased Accommodation", which warranty was breached by the defendant's decision not to proceed with the project. As alleged in the statement of claim, "the Plaintiff accepted in good faith the invitation to tender a proposal for the leased accommodation upon the representation that the Defendant would enter into a lease with the successful tenderer".
[34] The alleged warranty is based on the positive oral response of Mr. Plante at the December meeting when asked if "this proposal will be awarded to somebody". However, the law seems clear that the necessary intent to have a party take seriously what is said to be a promise, a collateral warranty, is undermined if the alleged warranty contradicts the express terms of a contract or of an offer. Here any statement of Plante at the December 1988 meeting that contradicts the express words included in the LPD cannot constitute a collateral warranty, particularly in circumstances where the advertisement of the call for tenders and the comments at the December meeting emphasized that acceptance of any tender ultimately required approval of the Treasury Board. There is thus no basis for the plaintiff's claim of breach of any collateral warranty.
(c) Negligent misrepresentation
[35] In The Queen v. Cognos Inc.10 the Supreme Court of Canada set out the elements required to establish a claim for negligent representation. Without examining all of those elements, the evidence before me in the affidavit of Mr. Plante establishes that the representation said to be relied upon by the plaintiff, i.e., Mr. Plante's alleged representation that a contract would be completed with a successful tenderer, made at the December 1988 meeting, was made at a time when DPW was pursuing its project to find new accommodation for Transport Canada. Indeed, it did so until some four months later when the project was cancelled. When Mr. Plante's comments were made they were not untrue, inaccurate or misleading nor were they made negligently or without due care for their accuracy. The evidence simply does not support the essential elements for a claim for loss said to arise from negligent misrepresentation, that is, that the representation be untrue or misleading and that it be negligently made at the time it was stated.
[36] The plaintiff's final claim appears to be one based on damages arising by reason of the defendant's acting in bad faith. The actions alleged concern the reasons given for cancellation of the contract, reasons concerning government's perception of the need for restraint in public expenditures and anticipated savings arising from cancellation of the project and renegotiation of its then existing lease. It is alleged by the statement of claim and in the plaintiff's memorandum of fact and law that the reasons alleged for the action taken are untrue, and were given in bad faith as, implicitly, was the decision to renegotiate a lease with the existing landlord whose proposal for the project had been disqualified.
[37] There is no factual evidence before the Court of bad faith in any of the respects claimed, in relation to the actions of government complained of here. Moreover, it is clear that a particular claim in tort for negotiating in bad faith is not yet established as one recognized in law, at least in this Court,11 and the basis for establishing it as a wrong in this case is not made out by the plaintiff.
| (e) General defences to any claim in tort |
[38] So far as the plaintiff's claims sound in tort, whether on the basis of an alleged negligent representation, or upon bad faith of the defendant in the course of negotiations or in cancellation of the project, or even on the basis of general negligence by the defendant in the process of negotiations, I agree with the defendant's submissions that such claim does not give rise to an action under the Crown Liability Act12 against Her Majesty, and further that any such claim in tort would be barred by application of s-s. 7(1) of the Ontario Public Authorities Protection Act13.
[39] A tort action cannot be maintained against the Crown when it arises as a result of a policy decision by government. In Just v. British Columbia, Mr. Justice Cory, for the Supreme Court of Canada, distinguished policy decisions from operational decisions, and he commented,14
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...True policy decisions should be exempt from tortious claims so that governments are not restricted in making decisions based upon social, political or economic factors ... |
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As a general rule, decisions concerning budgetary allotments for departments or governmental agencies will be classified as policy decisions. |
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[40] In this case, there is no doubt that the plaintiff's claim arises as a result of the decision to cancel the project for which tenders had been called. In its memorandum of fact and law the plaintiff urges that the decision was not really one to cancel the project but rather the decision was to prefer one tenderer, earlier disqualified, over others who had complied with the invitation to tender. But the only evidence before the Court is that provided by Mr. Plante's affidavit which states the decision was made to cancel the project, a decision confirmed by Budget papers tabled in the House of Commons, followed by a decision to renegotiate a lease of premises then occupied. While the plaintiff argues that it does not agree with the government's description of the decision as one made for reasons of restraint, there is no basis in evidence here on which the Court can seriously question the decision. Cancellation of the plan to lease new accommodation for the Department of Transport for budgetary reasons was clearly a policy decision, which gives rise to no claim in tort against Her Majesty under the Crown Liability and Proceedings Act.
[41] If I err in precluding a claim in tort on grounds that the claim arises from a policy decision of government, the plaintiff's claims in tort are precluded in any event by reason of the application of s-s. 7(1) of the Ontario Public Authorities Protection Act which provides:
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7. (1) No action, prosecution or other proceeding lies or shall be instituted against any person for an act done in pursuance or execution or intended execution of any statutory or other public duty or authority, or in respect of any alleged neglect or default in the execution of any such duty or authority, unless it is commenced within six months next after the cause of action arose, or, in the case of continuance of injury or damage, within six months after the ceasing thereof. |
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[42] In argument for the plaintiff it is urged that the limitation period has not commenced to run in this case because the claim is, in the main, for continuing damage in the loss of income from rental of leased premises over a 20-year term. I am not persuaded that the concluding words of the Ontario Act's limitation period apply to this case for the cause of the loss claimed was the cancellation of the project for which tenders had been called, a decision made in April 1989. It would defeat the purpose of the statutory limitation period if it were not to apply in any case where a claim is made that loss or damages, in income or wages or anticipated medical or other expenses, said to arise from an act or negligence of a public officer, is related to a time extending beyond six months after the act or negligence alleged which gives rise to the claim.
[43] Here the action commenced in 1995, almost six years after the decision and action which is said to give rise to the claim, long after the limitation period set by the Ontario statute. No action, in tort at least, then lay against any public servant pursuant to the Ontario Act. If no public servant is liable, there is no liability of the Crown, pursuant to s. 10 of the Crown Liability and Proceedings Act which provides that no proceedings in tort lie against the Crown in respect of any act or omission of a servant of the Crown unless the act or omission would have given rise to a cause of action against that servant. Section 32 of the same Act provides that, aside from express exceptions, laws relating to prescription and limitation of actions in force in a province between subject and subject apply to proceedings against the Crown federal in respect of a cause of action arising in that province. It is now settled that the defendant is not liable in tort for any act or omission of her public servants committed in Ontario unless an action in respect to the alleged tort is commenced within the six months following the time when the cause of action arose, in accord with the provisions of the Ontario Public Authorities Protection Act.15 In my opinion that Act and the relevant provisions of the Crown Liability and Proceedings Act effectively preclude the plaintiff's claims in tort since the proceedings were not commenced within the limitation period.
Conclusions
[44] I sum up my conclusions. In my opinion, each of the plaintiff's claims, in contract or in tort, fails to disclose a genuine issue of fact for trial. No issues of credibility arise and no evidence is before the Court in support of the plaintiff's claims. Any issues of law have been determined on the basis of the record as it is before me, and in light of submissions at the hearing of the defendant's motion, and subsequently made in writing.
[45] Moreover, it is my opinion that any claim of the plaintiff in tort, for negligent misrepresentation, for acting in bad faith, or for general negligence in negotiations, even if there were evidence to support such a claim, would here be precluded since the claim arises on the basis of a policy decision of government, and since the action is prescribed by limitation applicable under the Crown Liability and Proceedings Act and the Ontario Public Authorities Protection Act.
[46] An order goes, allowing the defendant's motion, and granting summary judgment by dismissing the plaintiff's action, as set out in its amended statement of claim, in its entirety.
W. Andrew MacKay
Judge
OTTAWA, Ontario
January 20, 1999.
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1 The motion was filed pursuant to then Rules 432.1 and 432.3, now replaced by Rules 213 and 216 of the Federal Court Rules, 1998 which became effective April 25,1998, before this motion was heard.
2 Feoso Oil Ltd. v. Ship Sarla (1995), 184 N.R. 307 (F.C.A.), per Stone J.A. at 315 with reference to former Rule 432.2(1), now Rule 215.
3 SOR/98-106.
4 [1985] 2 F.C. 293 (F.C.A.).
5 [1996] 2 F.C. 853 (F.C.T.D.).
6 [1998] O.J. No. 3240 (Ont. C.A.), online: QL (OJ).
7 (1981), 34 O.R. (2d) 250 (Ont. C.A.).
8 [1998] 4 F.C. 300, 163 D.L.R. (4th) 504, 229 N.R. 187 (F.C.A.).
9 (1997), 196 A.R. 124, 141 W.A.C. 124 (Alta. C.A.).
10 [1993] 1 S.C.R. 87 at 110.
11 See Reed J. in Martel Building Ltd. v. Canada, (1997), 129 F.T.R. 249 at 266, a position not faulted by the Court of Appeal in allowing an appeal on other grounds, Martel Building Ltd. v. Canada [1988] 4 F.C. 300 at 314, 163 D.L.R. (4th) 504 at 512-13, 229 N.R. 187 at 194 (F.C.A.).
12 R.S.C. 1985, c. C-50, as amended.
13 R.S.O. 1990, c. P-38.
14 [1989] 2 S.C.R. 1228 at 1240 and 1245.
15 Al's Steakhouse and Tavern Inc. v. Deloitte & Touche, (1997) 13 C.P.C. (4th) 90 (Ont. C.A.); Olympia Interiors Ltd. v. The Queen (1993), 66 F.T.R. 81 (T.D.) aff'd. (1994), 170 N.R. 281 (F.C.A.).
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