Gauvin Enterprises Ltd. v. Canada, (1993) 67 F.T.R. 161 (TD)

• Judge: Denault, J.
• Court: Federal Court (Canada)
• Case Date: February 23, 1993
• Jurisdiction: Canada (Federal)
• Citations: (1993), 67 F.T.R. 161 (TD)

Gauvin Ent. Ltd. v. Can. (1993), 67 F.T.R. 161 (TD)

MLB headnote and full text

Gauvin Enterprises Ltd. (plaintiff) v. Her Majesty the Queen (defendant)

(T-2050-90)

Indexed As: Gauvin Enterprises Ltd. v. Canada

Federal Court of Canada

Trial Division

Denault, J.

September 17, 1993.

Summary:

Gauvin Enterprises Ltd. (Gauvin) was awarded a contract to provide catering services to Canadian Forces personnel at Base Jericho. The defendant government of Canada subsequently terminated the contract. Gauvin sued for damages for wrongful repudiation of the contract and for the return of its bid security deposit.

The Federal Court of Canada, Trial Division, dismissed the claim for wrongful repudiation, but allowed the action with respect to the return of the bid security deposit.

Contracts - Topic 3523

Performance or breach - What constitutes a breach - A contract between the defendant federal government and Gauvin Enterprises required Gauvin to deposit security of $60,265.15 within 10 days of the contract date or forfeit its bid security deposit - The defendant subsequently terminated the contract because, inter alia, Gauvin failed to provide the security - The Federal Court of Canada, Trial Division, held that the security requirement was met where Gauvin had advised the defendant that it anticipated that its $29,631 bid security deposit and a security deposit of approximately $38,000, which it had submitted under a prior contract and which remained on deposit with Supply and Services, would be applied to its security obligation - See paragraphs 41 to 48.

Contracts - Topic 7466

Interpretation - Interpretation of words - General - The defendant federal government awarded Gauvin Enterprises a catering contract at Base Jericho - The defendant subsequently terminated the contract because of Gauvin's failure to, inter alia, comply with specifications setting out minimum staffing requirements - Gauvin sued for damages for wrongful repudiation, arguing, inter alia, that the staffing specifications only had to be met in "continuous feeding situations" and that Base Jericho was not a "continuous feeding situation" because of a significant number of missed meals - The Federal Court of Canada, Trial Division, dismissed Gauvin's action, holding that the specifications defined a continuous feeding situation as occurring where three meals were provided seven days a week, which was the situation at Base Jericho - See paragraphs 24 to 29.

Estoppel - Topic 3

When available - In 1989, the defendant federal government awarded Gauvin Enterprises a catering contract at Base Jericho to end in 1990 - In 1990 Gauvin was awarded another catering contract at the base - The defendant subsequently terminated the 1990 contract because of Gauvin's failure to, inter alia, comply with staffing specifications - Gauvin argued that the defendant was estopped from terminating the contract, because it had acquiesced in Gauvin's staffing practices during the 1989 contract and had represented prior to the 1989 contract that it would not insist on full performance of staffing obligations - The Federal Court of Canada, Trial Division, rejected the argument, where the words and conduct occurred prior to the 1990 contract and Gauvin did not establish that the defendant clearly intended to waive its rights - See paragraphs 30 to 39.

Estoppel - Topic 9

Estoppel as shield, not sword - The defendant federal government awarded Gauvin Enterprises a catering contract - The defendant subsequently terminated the contract because of Gauvin's failure to, inter alia, comply with minimum staffing specifications - Gauvin sued for damages for wrongful repudiation, arguing, inter alia, that the defendant was estopped from terminating the contract because it had condoned or acquiesced in Gauvin's staffing practices - The defendant argued that estoppel could not be used as a sword - The Federal Court of Canada, Trial Division, held that the defendant had the onus of justifying the termination and that Gauvin could invoke estoppel in defence of the defendant's claim that the termination was justified - See paragraph 34.

Estoppel - Topic 25

Intention of representor - [See Estoppel - Topic 3 ].

Estoppel - Topic 1104

Estoppel in pais (by conduct) - Representation, by statement - Representations which do not found estoppel - [See Estoppel - Topic 3 ].

Estoppel - Topic 1161

Estoppel in pais (by conduct) - Representation by conduct - Acquiescence - [See Estoppel - Topic 3 ].

Estoppel - Topic 1328

Estoppel in pais (by conduct) - Acquiescence - Contract terms - [See Estoppel - Topic 3 ].

Words and Phrases

Continuous feeding situation - The Federal Court of Canada, Trial Division, discussed the meaning of this phrase as it appeared in the staffing specifications for a contract to provide catering services - See paragraph 28.

Cases Noticed:

Abenstein v. Canada (1990), 34 F.T.R. 116 (T.D.), refd to. [para. 22].

Mitchell & Jewell Ltd. v. Canadian Pacific Express Co. (1974), 44 D.L.R.(3d) 603 (Alta. C.A.), refd to. [para. 30].

Ogilvy v. Hope-Davies, [1976] 1 All E.R. 683, refd to. [para. 30].

Hughes v. Metropolitan Railway Co. (1877), 2 App. Cas. 439, refd to. [para. 31].

Conwest Exploration Co. v. Letain, [1964] S.C.R. 20, refd to. [para. 32].

Burrows (John) Ltd. v. Subsurface Surveys Ltd. et al., [1968] S.C.R. 607, refd to. [para. 32].

Canadian Superior Oil Ltd. v. Paddon-Hughes Development Co., [1970] S.C.R. 932, refd to. [para. 32].

Canadian Superior Oil v. Hambly - see Canadian Superior Oil Ltd. v. Paddon-Hughes Development Co.

Secretary of State for Employment v. Globe Elastic Thread Co., [1980] A.C. 506; [1979] 2 All E.R. 1077 (H.L.), refd to. [para. 35].

Scandinavian Trading Tanker Co. A.B. v. Flota Perolera Ecuatoriana (The Scaptrade), [1981] 2 Lloyd's Rep. 425, refd to. [para. 36, footnote 3].

Federal Business Development Bank v. Steinbock Development Corp. (1983), 42 A.R. 231 (C.A.), refd to. [para. 36, footnote 3].

Roclar Leasing Ltd. v. MacMillan Bloedel Ltd. (1988), 63 O.R.(2d) 669 (H.C.), refd to. [para. 36, footnote 3].

Counsel:

William E. Knutson, for the plaintiff;

Alan D. Louis and Daniel L. Kiselbach, for the defendant.

Solicitors of Record:

Shapiro Hankinson & Knutson, Vancouver, British Columbia, for the plaintiff;

John C. Tait, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the defendant.

This case was heard at Vancouver, British Columbia, on February 23, 1993, before Denault, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on September 17, 1993.