M.G. Logging & Sons Ltd. v. British Columbia et al., (2015) 381 B.C.A.C. 164 (CA)

• Judge: Bennett, Harris and Fenlon, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: October 19, 2015
• Jurisdiction: British Columbia
• Citations: (2015), 381 B.C.A.C. 164 (CA);2015 BCCA 526

MG Logging & Sons v. B.C. (2015), 381 B.C.A.C. 164 (CA);

    659 W.A.C. 164

MLB headnote and full text

Temp. Cite: [2016] B.C.A.C. TBEd. JA.024

M.G. Logging & Sons Ltd. (respondent/appellant on cross-appeal/plaintiff) v. Her Majesty the Queen in Right of the Province of British Columbia and The Ministry of Forests, Lands and Natural Resource Operations (appellant/respondent on cross-appeal/defendants)

(CA42372; 2015 BCCA 526)

Indexed As: M.G. Logging & Sons Ltd. v. British Columbia et al.

British Columbia Court of Appeal

Bennett, Harris and Fenlon, JJ.A.

December 30, 2015.

Summary:

The principal of M.G. Logging & Sons Ltd. ("Sons") bid on a timber licence auctioned by the Province of British Columbia's Ministry of Forests, Lands and Natural Resource Operations. He put Sons' BC Timber Sales Enterprise (BCTSE) number, but used a different corporate name, on the application. When the bids were opened, Sons was initially identified as the successful bidder by virtue of the BCTSE. The next day the Ministry informed Sons that the contract would be awarded to the next highest bidder because Sons' tender was ineligible , having used a different corporate name on the application. Sons sued for damages for breach of contract. The Ministry and Sons agreed to a summary trial under Rule 9-7; the Ministry also applied for summary judgment under Rule 9-6. Each sought final judgment on the issue of liability, with the issue of damages, if any, to be addressed in a later hearing.

The British Columbia Supreme Court, in a decision reported at [2014] B.C.T.C. Uned. 1995, held that the dispute was not suitable for resolution by summary trial. The Ministry appealed. Sons cross-appealed.

The British Columbia Court of Appeal dismissed Sons' appeal, and allowed the Ministry's appeal with costs. The trial judge found that the application was ambiguous as to the identity of the bidder and did not include an incorporation number. Applying the analytical framework for tenders in this strict compliance regime, Sons submitted a non-compliant bid and no Contract A was formed. In the absence of Contract A, Sons could not succeed on any of its claims.

Contracts - Topic 1265

Formation of contract - Tender calls - Discretion clause - See paragraphs 22 to 26.

Contracts - Topic 1272

Formation of contract - Tender calls - Evaluation of bids - See paragraphs 1 to 55.

Cases Noticed:

Tercon Contractors Ltd. v. British Columbia (Minister of Transportation and Highways), [2010] 1 S.C.R. 69; 397 N.R. 331; 281 B.C.A.C. 245; 457 W.A.C. 245; 2010 SCC 4, refd to. [para. 9].

Ron Engineering & Construction (Eastern) Ltd. v. Ontario and Water Resources Commission, [1981] 1 S.C.R. 111; 35 N.R. 40, refd to. [para. 16].

Graham Industrial Services Ltd. v. Greater Vancouver Water District et al. (2004), 194 B.C.A.C. 1; 317 W.A.C. 1; 2004 BCCA 5, refd to. [para. 16].

Coco Paving (1990) Inc. v. Ontario (Minister of Transportation) et al. (2009), 252 O.A.C. 47; 2009 ONCA 503, refd to. [para. 18].

Silex Restorations Ltd. v. Leasehold Strata Plan VR 2096, Owners et al. (2004), 201 B.C.A.C. 244; 328 W.A.C. 244; 35 B.C.L.R.(4th) 387; 2004 BCCA 376, refd to. [para. 19].

Double N Earthmovers Ltd. v. Edmonton (City) et al., [2007] 1 S.C.R. 116; 356 N.R. 211; 401 A.R. 329; 391 W.A.C. 329; 2007 SCC 3, refd to. [para. 39].

Vachon Construction Ltd. v. Cariboo Regional District et al. (1996), 78 B.C.A.C. 43; 128 W.A.C. 43; 24 B.C.L.R.(3d) 379 (C.A.), refd to. [para. 40].

Cambridge Plumbing Systems Ltd. v. Strata Plan VR 1632, Owners, [2009] B.C.T.C. Uned. 605; 2009 BCSC 605, refd to. [para. 43].

Maple Reinders Inc. v. Cerco Developments Ltd. et al., [2011] B.C.T.C. Uned. 924; 2011 BCSC 924, refd to. [para. 47].

Bryan's Transfer Ltd. v. Trail (City) et al. (2010), 296 B.C.A.C. 207; 503 W.A.C. 207; 2010 BCCA 531, refd to. [para. 54].

Statutes Noticed:

Forest Act, R.S.B.C. 1996, c. 157, sect. 20(4), sect. 20(6) [para. 52]; sect. 78 [para. 24].

Counsel:

J. Eades and J. Van Camp, for the appellant;

R.J. Stewart, Q.C., for the respondent.

This appeal and cross-appeal were heard at Vancouver, B.C., on October 19, 2015, by Bennett, Harris and Fenlon, JJ.A., of the British Columbia Court of Appeal. Fenlon, J.A., delivered the following decision for the court on December 30, 2015.