Elan Construction Ltd. v. South Fish Creek Recreational Association, 2016 ABCA 215
| Judge | Fraser, C.J.A., Martin and Watson, JJ.A. |
| Court | Court of Appeal (Alberta) |
| Case Date | June 16, 2016 |
| Citations | 2016 ABCA 215;[2016] A.R. TBEd. JL.043 |
Elan Constr. v. South Fish Creek, [2016] A.R. TBEd. JL.043
MLB being edited
Currently being edited for A.R. - judgment temporarily in rough form.
Temp. Cite: [2016] A.R. TBEd. JL.043
Elan Construction Limited (appellant/cross-respondent) (plaintiff/applicant) v. South Fish Creek Recreational Association (respondent/cross-appellant) (defendant/respondent)
(1501-0159-AC; 2016 ABCA 215)
Indexed As: Elan Construction Ltd. v. South Fish Creek Recreational Association
Alberta Court of Appeal
Fraser, C.J.A., Martin and Watson, JJ.A.
July 11, 2016.
Summary:
The South Fish Creek Recreational Association (SFCRA) wished to expand its recreational facilities by adding two more ice surfaces to its existing complex. SFCRA solicited tenders for the general contract for the project. Elan Construction Ltd. submitted a bid in response to the SFCRA's tender. Therefore, a Contract A as described in Ron Engineering (SCC) was formed. The bids were evaluated using an evaluation matrix that provided for a maximum of 100 points based on four criteria. Eleven bids were received and the contract was awarded to Chandos Construction. Elan commenced an action against SFCRA, alleging a breach of Contract A. A dispute arose over the admissibility of a certain document (i.e., a letter from one of SFCRA's consultants). A voir dire was held.
The Alberta Court of Queen's Bench, in a decision reported (2015), 613 A.R. 135, ruled that the letter was relevant and could be used in questioning the witnesses of the defendant (i.e., SFCRA). The matter proceeded.
The Alberta Court of Queen's Bench, in a decision reported (2015), 613 A.R. 140, held that the SFCRA breached the bid contract with Elan in its evaluation of the bid under the evaluation matrix. The court held that it was a virtual certainty that Elan would have been awarded the general contract had the evaluation been carried out properly. However, the court concluded that Elan's damages were nil because it would have suffered a substantial loss had it been awarded the contract, as evidenced by Chandos' experience. However, in recognition of the fact that SFCRA did breach Contract A, the court awarded nominal damages of $1,000. Elan appealed the award of damages. SFCRA cross-appealed against the trial judge's decision that it breached Contract A with Elan when it awarded the Contract B to Chandos.
The Alberta Court of Appeal allowed Elan's appeal and dismissed SFCRA's cross-appeal.
Building Contracts - Topic 1385
Tender calls - Breach of tender - Action for breach - General - The South Fish Creek Recreational Association (SFCRA) solicited tenders for a building project - Elan Construction submitted a bid and therefore a Contract A was formed - The bids were evaluated using an evaluation matrix that provided for a maximum of 100 points based on four criteria - Eleven bids were received and the contract was awarded to Chandos Construction - Elan sued SFCRA, alleging a breach of Contract A - The trial judge held that SFCRA breached the bid contract with Elan in its evaluation of the bid under the evaluation matrix - The court held that it was a virtual certainty that Elan would have been awarded the general contract had the evaluation been carried out properly - However, only nominal damages were awarded - SFCRA appealed against the trial judge's decision that it breached Contract A with Elan when it awarded the Contract B to Chandos - The Alberta Court of Appeal dismissed SFCRA's appeal - See paragraphs 10 to 19.
Building Contracts - Topic 1389
Tender calls - Breach of tender - Damages - The South Fish Creek Recreational Association (SFCRA) solicited tenders for a building project - Elan Construction submitted a bid and therefore a Contract A was formed - The bids were evaluated using an evaluation matrix that provided for a maximum of 100 points based on four criteria - Eleven bids were received and the contract was awarded to Chandos Construction - Elan sued SFCRA, alleging a breach of Contract A - The trial judge held that SFCRA breached the bid contract with Elan in its evaluation of the bid under the evaluation matrix - The court held that it was a virtual certainty that Elan would have been awarded the general contract had the evaluation been carried out properly - However, the court concluded that Elan's damages were nil because it would have suffered a substantial loss had it been awarded the contract, as evidenced by Chandos' experience - In recognition of the fact that SFCRA did breach Contract A, the court awarded nominal damages of $1,000 - Elan appealed the damage award - The Alberta Court of Appeal allowed Elan's appeal and awarded damages of $572,868 - See paragraphs 20 to 59.
Counsel:
T.W. Kathol and J. Robertshaw, for the appellant/cross-respondent;
P.A. Carson and S. Bagg, for the respondent/cross-appellant.
This appeal was heard on June 16, 2016, before Fraser, C.J.A., Martin and Watson, JJ.A., of the Alberta Court of Appeal. The following memorandum was filed in Calgary, Alberta, by the court, on July 11, 2016.
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