Bourque (Pierre) & Fils ltée v. Canada, (1999) 162 F.T.R. 98 (TD)

• Judge: MacKay, J.
• Court: Federal Court (Canada)
• Case Date: June 19, 1998
• Jurisdiction: Canada (Federal)
• Citations: (1999), 162 F.T.R. 98 (TD)

Bourque & Fils ltée v. Can. (1999), 162 F.T.R. 98 (TD)

MLB headnote and full text

Temp. Cite: [1999] F.T.R. TBEd. FE.012

Bourque, Pierre & Fils ltée (plaintiff) v. Her Majesty the Queen in right of Canada (defendant)

(T-1-95)

Indexed As: Bourque (Pierre) & Fils ltée v. Canada

Federal Court of Canada

Trial Division

MacKay, J.

January 20, 1999.

Summary:

The federal government issued a tender for leased premises. The plaintiff submitted a bid. The government cancelled the tender and renegotiated a lease with its former landlord. The company sued the government for breach of contract, collateral warranty and torts regarding the tender's cancellation. The defendant moved for summary judg­ment.

The Federal Court of Canada, Trial Divi­sion, allowed the motion for summary judg­ment.

Contracts - Topic 1276

Formation of contract - Tender calls - Breach of tender - General - The federal government issued a tender for leased premises - There was a specific clause in the instructions that the lowest price would not necessarily be accepted - The Lease Proposal Documents disavowed any obliga­tion by the government to conclude a contract - The plaintiff submitted a bid - The government cancelled the tender and renegotiated its lease with its former land­lord - The plaintiff sued the government for, inter alia, breach of contract - The Federal Court of Canada, Trial Division, held that the government did not breach its contract - The specific clause in the in­structions to offerors was sufficient to negate any obligation upon the government to accept the plaintiff's bid and conclude a contract, even it if were established to be the lowest bid - See paragraphs 27 to 32.

Contracts - Topic 3528

Performance or breach - Breach - Breach of a warranty - The federal government issued a tender for leased premises - The Lease Proposal Documents ("documents") disavowed any obligation by the govern­ment to conclude a contract - The plaintiff submitted a bid - The government cancelled the tender - The plaintiff sued the government for, inter alia, breach of collateral warranty, alleging that the gov­ernment said that it "would definitely enter into a lease for the new accommodation with one of the companies submitting a proposal meeting the standards for Leased Accommodation" - The Federal Court of Canada, Trial Division, held that the gov­ernment did not breach a collateral war­ranty - The express term in the govern­ment's document regarding no obligation to conclude a contract undermined any collateral warranty.

Crown - Topic 1645

Torts by and against Crown - Actions against Crown - Defences - Bars or exclu­sions - Policies or "policy" decisions - The federal government issued a tender for leased premises - The plaintiff submitted a bid - The government cancelled the tender and renegotiated its lease with its former landlord - The plaintiff sued the govern­ment for, inter alia, tortious conduct - The Federal Court of Canada, Trial Division, held that any claim of the plaintiff in tort, whether based on negligent misrepresenta­tion, acting in bad faith during negotiations or for general negligence in negotiations was precluded by the Crown Liability and Proceedings Act because the tender cancel­lation was a policy decision of government - See paragraphs 38 to 45.

Crown - Topic 2243

Crown privilege or prerogative - Produc­tion of documents - Certificate of Crown minister or privy council clerk (Evidence Act (Can.), s. 39(1)) - [See Evidence - Topic 4143 ].

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets (incl. national security), state or public documents - The plaintiff sued the federal government - The govern­ment objected to the plaintiff's counsel's reference to and introduction of a docu­ment, arguing that the document was privi­leged as a cabinet confidence pursuant to s. 39 of the Canada Evidence Act - The Federal Court of Canada, Trial Division, held that the docu­ment was not admissible - The claim was certified in accordance with s. 39(1) of the Act after the hearing, but before determi­nation of this matter - The fact that the certificate was not filed until after the matter arose at the hearing did not under­cut the privilege claim - See para­graphs 3 to 13.

Torts - Topic 9110

Duty of care - Particular relationships - Economic interests - Duty to negotiate in good faith - The federal government issued a tender for leased premises - The plaintiff submitted a bid - The government cancelled the tender and renegotiated its lease with its former landlord - The plain­tiff sued the government for, inter alia, acting in bad faith - The Federal Court of Canada, Trial Division, held that the gov­ernment did not act in bad faith - A claim in tort for negotiating in bad faith was not yet recognized in law - The basis for esta­blishing it as a wrong in this case was not made out by the plaintiff - See paragraphs 36 to 37.

Cases Noticed:

Feoso Oil Ltd. v. Ship Saria (1995), 184 N.R. 307 (F.C.A.), refd to. [para. 8, footnote 2].

Best Cleaners and Contractors Ltd. v. Canada, [1985] 2 F.C. 293; 58 N.R. 295 (F.C.A.), dist. [para. 11, footnote 4].

Granville Shipping Co. v. Pegasus Lines Ltd. S.A. et al., [1996] 2 F.C. 853; 111 F.T.R. 189 (T.D.), refd to. [para. 24, footnote 5].

Dawson et al. v. Rexcraft Storage and Warehouse Inc. et al. (1998), 111 O.A.C. 201 (C.A.), refd to. [para. 24, footnote 6].

Canada Square Corp. v. Versafood Ser­vices Ltd. (1981), 34 O.R.(2d) 250 (C.A.), dist. [para. 28, footnote 7].

Martel Building Ltd. v. Canada, [1998] 4 F.C. 300; 229 N.R. 187; 163 D.L.R.(4th) 504 (F.C.A.), refd to. [para. 31, footnote 8].

M.J.B. Enterprises Ltd. v. Defence Con­struction (1951) Ltd. et al. (1997), 196 A.R. 124; 141 W.A.C. 124 (C.A.), refd to. [para. 32, footnote 9].

Queen (D.J.) v. Cognos Inc., [1993] 1 S.C.R. 87; 147 N.R. 169; 60 O.A.C. 1; 99 D.L.R.(4th) 626, refd to. [para. 35, footnote 10].

Martel Building Ltd. v. Canada (1997), 129 F.T.R. 249 (T.D.), revd. on other grounds [1998] 4 F.C. 300; 229 N.R. 187; 163 D.L.R.(4th) 504 (F.C.A.), refd to. [para. 37, footnote 11].

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1; [1990] 1 W.W.R. 385; 41 B.C.L.R.(2d) 350; 18 M.V.R.(2d) 1; 64 D.L.R.(4th) 689, refd to. [para. 39, footnote 14].

Al's Steakhouse and Tavern Inc. et al. v. Deloitte & Touche et al. (1997), 102 O.A.C. 144; 13 C.P.C.(4th) 90 (C.A.), refd to. [para. 43, footnote 15].

Olympia Interiors Ltd. et al. v. Minister of National Revenue (1993), 66 F.T.R. 81 (T.D.), affd. (1994), 170 N.R. 281 (F.C.A.), refd to. [para. 43, footnote 15].

Counsel:

Morris Kertzer, for the plaintiff;

Jan Brongers, for the defendant.

Solicitors of Record:

Lang Michener, Ottawa, Ontario, for the plaintiff;

Morris Rosenberg, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the defendant.

This motion was heard in Ottawa, Ontario, on June 19, 1998, before MacKay, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on January 20, 1999.