TPG Technology Consulting Ltd v. Canada, 2013 FCA 183 (2013)

Parts:TPG Technology Consulting Ltd v. Canada
Reporting Judge:SHARLOW J.A.
Docket Number:A-373-11
 
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Federal Court of Appeal - TPG Technology Consulting Ltd v. Canada [Anonymoused]

Source: http://decisions.fca-caf.gc.ca/en/2013/2013fca183/2013fca183.html

Date: 20130715

Docket: A-373-11

Citation: 2013 FCA 183

CORAM: SHARLOW J.A.

DAWSON J.A.

TRUDEL J.A.

BETWEEN:

TPG TECHNOLOGY CONSULTING LTD.

Appellant and

HER MAJESTY THE QUEEN

Respondent

Heard at Ottawa, Ontario, on April 23, 2013.

Judgment delivered at Ottawa, Ontario, on July 15, 2013.

REASONS FOR JUDGMENT BY: SHARLOW J.A.

CONCURRED IN BY: DAWSON J.A.

TRUDEL J.A.

Date: 20130715

Docket: A-373-11

Citation: 2013 FCA 183

CORAM: SHARLOW J.A.

DAWSON J.A.

TRUDEL J.A.

BETWEEN:

TPG TECHNOLOGY CONSULTING LTD.

Appellant and

HER MAJESTY THE QUEEN

Respondent

REASONS FOR JUDGMENT

SHARLOW J.A.

[1] In 2008, the appellant TPG Technology Consulting Ltd. commenced an action against the federal government for damages relating to a procurement of engineering and technical support services. In 2010, the Crown moved for summary dismissal of the claim. The Crown’s motion was granted by a judge of the Federal Court (2011 FC 1054). TPG now appeals to this Court, fundamentally on the basis that the judge misapplied the test for summary judgment. For the following reasons, I agree with TPG and I would allow this appeal.

Summary judgment in the Federal Court

[2] In the Federal Court, summary judgment is governed by Rules 213 to 215 of the Federal Courts Rules , SOR/98-106, which are fully set out in the appendix to these reasons.

[3] Summary judgment is a tool for balancing two competing considerations in the management of court resources in the resolution of civil disputes. One consideration is that a trial is expensive in terms of time and money, not only for the litigants but also for the courts which are publicly funded. The competing consideration is that the sound resolution of a legal dispute is more likely to emerge from a trial than a summary proceeding where there are important factual disputes that cannot be resolved without determining questions of credibility and the inferences to be drawn from conflicting evidence. Generally, a judge who hears and observes witnesses giving evidence orally in chief and under cross-examination is in a better position to assess credibility and to draw inferences than a judge who must depend solely on affidavits and documentary evidence. Summary judgment recognizes that the expenditure of the resources required for a trial is warranted only if there is a genuine issue for trial.

[4] The burden on a plaintiff responding to a motion for summary dismissal of a claim is not, and is not intended to be, as onerous as the plaintiff’s burden in a trial. It is an evidentiary burden only. The question for the judge on a summary judgment motion is whether the plaintiff has met the “evidentiary burden to put forward evidence showing that there is a genuine issue for trial” (per Justice Sexton, writing for this Court in MacNeil Estate v. Canada (Department of Indian and Northern Affairs) , [2004] 3 F.C.R. 3, 2004 FCA 50, at paragraph 25, citing what was then Rule 215 and is now Rule 214).

Factual background

[5] TPG’s claim against the Crown for damages relates to a 2006 request for proposals for a contract with the Crown for engineering and technical services. The proposed contract was intended to replace an existing contract expiring in December of 2007. The estimated value of the new contract was approximately $428 million. The contract in place in 2006 was held by TPG which had, since 1999, supplied the required services through numerous subcontractors (referred to as “resources” in the terminology used in the request for proposals). Three bids for the contract were accepted as compliant. One was from TPG. Another was from TPG’s competitor, CGI Information Systems and Management Consultants. In 2007, the contract was awarded to CGI. The TPG bid proposed the lowest price, but the CGI bid was successful because it was awarded more points on the technical evaluation.

[6] In 2008, TPG commenced this action for damages for breach of contract, inducing breach of contract by TPG’s subcontractors, intentional interference with TPG’s economic interests, and negligence. The claims relate primarily to allegations relating to the evaluation of the bids. In March of 2010, the Crown filed a motion for summary judgment dismissing the action. It appears that by the time the motion was heard in March of 2011, the matter had proceeded to the point where examinations for discovery were substantially complete.

[7] After reviewing a large body of documentary evidence and considering submissions made in a lengthy hearing, the judge granted the motion for summary dismissal. I summarize as follows what appear to me to be the three key conclusions that led the judge to decide as he did:

(a) TPG asserts a claim for breach of contract based on an allegation of bias in the bid evaluation process, and an allegation that the evaluations were inexplicably changed at some point to the disadvantage of TPG. Those claims are supported by no evidence that is sufficiently probative to warrant a trial.

(b) TPG’s...

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