Bourque, Pierre & Fils Ltée v. Canada
T-1-95
MacKay J.
20/1/99
23 pp.
Statement of claim seeking damages against defendant for alleged breach of contract or of collateral warranty, or alleged torts by Her Majesty's servants following plaintiff's submission of tender in response to request for tenders for leased premises-Defendant moving for summary judgment-In 1988 Department of Public Works (DPW) calling for tenders for lease of building accommodation within Ottawa-Hull metropolitan area-Plaintiff alleging applicant, through agent, represented would definitely enter into lease for accommodation with company submitting proposal meeting Standards for Leased Accommodation, invitation for tenders bona fide-Alleging its proposal was winning proposal because met requirements of Standards for Leased Accommodation at lowest overall cost-Defendant cancelling tender project prior to entering negotiations to extend lease for existing premises-Preliminary issue as to admissibility of document originating with defendant, but objected to by defendant when earlier introduced in cross-examination of defendant's affiant, based on claim to privilege under Canada Evidence Act, s. 39-Plaintiff arguing ruling document inadmissible will preclude it from serving request to admit document pursuant to Federal Court Rules, 1998, r. 255, and launching challenge pursuant to Canadian Charter of Rights and Freedoms which it claims should be done at examination for discovery stage of proceedings-Circumstances here not analogous to those in Best Cleaners and Contractors Ltd. v. The Queen, [1985] 2 F.C. 293 where Court of Appeal refusing to accept that certificate under s. 39 precluding disclosure of information from Treasury Board document to which certificate therein related-In Best document introduced in discovery by defendant, Crown, without objection, claim to privilege-Here document, though originated with Crown, not produced by defendant, and objection to introduction by plaintiff consistent, but in cross-examination and when matter arose at hearing of motion-That certificate filed after matter arose at hearing not undercutting claim to privilege-Claim certified in accord with Canada Evidence Act, s. 39 before decision made to admit or consider document in question, after hearing but before determination of matter while under reserve-In accord with s. 39(1), Court precluded from examining document or hearing information contained therein-Document not admissible-(2) Whether genuine issue for trial-Under Federal Court Rules, 1998, r. 215 respondent to motion for summary judgment having evidentiary responsibility to set out facts, by affidavit, to show genuine issue for trial-Principles applicable in considering motion for summary judgment set out in Granville Shipping Co. v. Pegasus Lines Ltd., [1996] 2 F.C. 853 (T.D.): absent any issue of credibility, under r. 216(3) Court to consider, determine facts necessary to decide questions of fact, law if can be done on whole of evidence-This responsibility distinguishing role of Federal Court Judge in dealing with motion for summary judgment from role of counterpart in considering similar motion under Ontario Rules of Civil Procedure, R. 20-Responsibility under Ontario Rule not extending 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"-(i) No evidence supporting claim for breach of contract-In memorandum of fact and law, plaintiff urging tender, meeting all specifications as required by lease proposal documents (LPD) at lowest price, created binding lease agreement as in Canada Square Corp. v. Versafood Services Ltd. (1981), 34 O.R. (2d) 250 (C.A.)-That case distinguishable because not involving call for tenders to enter lease but rather agreement to lease identified space-Defendant averring DPW not at any time concluding plaintiff's tender "winning proposal" as alleged in statement of claim, or that plaintiff's price lowest-Instead alleging at time project cancelled, evaluation of lease tenders submitted by qualified developers not completed-Acknowledging at time project cancelled plaintiff's tender among three or four lowest bids-Advertisement inviting interested parties to December 1988 meeting specifically stating "The lowest or any tender not necessarily accepted", and instructions to offerors incuding "The lowest or any rate per square metre at which any accommodation is offered will not necessarily be accepted"-Martel Building Ltd. v. Canada, [1998] 4 F.C. 300 (C.A.) distinguished as here no conflicting evidence supporting plaintiff's claim that its tender was lowest bid-Even if plaintiff's bid lowest, no obligation to conclude contract established in light of specific disavowal of such obligation in communications to prospective offerors-(ii) Alleged collateral warranty based on positive oral response of Crown's representative when asked if proposal would be awarded to somebody-Necessary intent to have party take seriously what is said to be a promise undermined if alleged warranty contradicts express terms of contract or of offer-Any statement contradicting express words included in LPD not constituting collateral warranty, particularly where advertisement of call for tenders, comments at December meeting emphasized acceptance of any tender ultimately requiring approval of Treasury Board-(iii) Claim in tort for negotiating in bad faith not yet established as one recognized in law-(iv) Tort action not maintainable against Crown when arising as result of policy decision by government-(v) In Just v. British Columbia, [1989] 2 S.C.R. 1228, S.C.C. distinguishing policy decisions from operational decisions; commenting true policy decisions should be exempt from tortious claims so that governments not restricted in making decisions based upon social, political or economic factors; stating as general rule decisions concerning budgetary allotments for departments or governmental agencies will be classified as policy decisions-Only evidence before Court that provided by affidavit stating decision made to cancel project, confirmed by Budget papers tabled in House of Commons, followed by decision to renegotiate lease of premises then occupied-While plaintiff not agreeing with government's description of decision as one made for reasons of restraint, no evidence on which Court can seriously question decision-Cancellation of plan to lease new accommodation for Department of Transport clearly policy decision, giving rise to no claim in tort against Crown under Crown Liability and Proceedings Act-Plaintiff's claims in tort also precluded by reason of application of Public Authorities Protection Act, s. 7(1), prohibiting commencement of actions after six months after cause of action arose-Action commenced six years after decision, action said to give rise to claim-Each of plaintiff's claims failing to disclose genuine issue of fact for trial-Motion allowed-Public Authorities Protection Act, R.S.O. 1990, c. P. 38 s. 7(1)-Canada Evidence Act, R.S.C., 1985, c. C-5, s. 39-Federal Court Rules, 1998, SOR/98-106, rr. 215, 216, 255-Rules of Civil Procedure, R.R.O. 1990, Reg. 194, R. 20.