Opron Construction Co. v. Alberta, (1994) 151 A.R. 241 (QB)

• Judge: Feehan, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 17, 1994
• Citations: (1994), 151 A.R. 241 (QB)

Opron Constr. Co. v. Alta. (1994), 151 A.R. 241 (QB)

MLB headnote and full text

Opron Construction Co. Ltd. (plaintiff) v. Her Majesty The Queen in Right of Alberta (defendant)

(Action No. 8403-37500)

Indexed As: Opron Construction Co. v. Alberta

Alberta Court of Queen's Bench

Judicial District of Edmonton

Feehan, J.

March 17, 1994.

Summary:

The plaintiff was the successful bidder on a contract for certain work on a provincial dam project. The information relied on by the plaintiff, provided by the province in the tender documents, was incorrect and resulted in cost overruns by the plaintiff. The plain­tiff sued the province for damages for breach of contract and for deceit and negligent misrepresentation. The province pleaded exclusionary clauses as precluding the claims.

The Alberta Court of Queen's Bench allowed the action. The court found the province liable in contract and tort. The court stated that, inter alia, the province had relevant information that would have had an impact on the plaintiff's bid. The province withheld other relevant information and even concealed some information, permitting the plaintiff and other bidders to believe soil conditions were otherwise than the province knew they were. The court held that the exclusionary claims did not exclude liability. The court assessed $875,000 damages.

Agency - Topic 4102

Relations between principal and third parties - Principal's liability for contracts by agent - Disclosed principal - [See second Agency - Topic 5030 ].

Agency - Topic 5030

Relations between agent and third parties - Contracts - Where agent contracts in his own name - Opron commenced an action for breach of contract and misrepresenta­tion against the defendant - The defendant claimed that the parent company, which suffered the loss, was the proper plaintiff - The agreement between Opron and its parent company created an agency rela­tionship - Opron sued on its own behalf, since it owned the rights in dispute - Opron was the sole party capable of re­leasing the defendant and the contracting party liable for proper execution of the contract - The Alberta Court of Queen's Bench held that Opron had a right to sue in its own name and recover damages - See paragraphs 770 to 790.

Agency - Topic 5030

Relations between agent and third parties - Contracts - Where agent contracts in his own name - The Alberta Court of Queen's Bench stated that "an agent who signs in his own name is deemed to have con­tracted personally unless a contrary inten­tion appears from the documents. ... When an agent, having authority to contract on behalf of another, makes a contract in his own name, the fact that he is a mere representative undisclosed brings the doc­trine of the undisclosed principal into play. By this doctrine either the agent, or the principal, when disclosed, may be sued; and either the agent or the principal may sue the other party to the contract" - See paragraphs 775 to 776.

Building Contracts - Topic 557

The contract - Terms - Soil conditions - The plaintiff was the successful bidder on a contract requiring it to, inter alia, exca­vate gravel and use it for a dam - The defendant's tender documents provided the required technical information relied on by the plaintiff - It warranted a certain quan­tity and distribution of gravel that proved to be incorrect - The defendant possessed and withheld information that contradicted the represented facts in the tender docu­ments - The defendant also withheld known information respecting the existence of buried waste and the extent of an earth slide - The Alberta Court of Queen's Bench held that the defendant breached express terms of the contract - The defen­dant also breached implied terms to act fairly and in good faith by failing to dis­close material information in its possession and the implied term that it had no knowl­edge of and possessed no information which was inconsistent with or contra­dicted the contractual representations of fact made in the tender documents - See paragraphs 618 to 622.

Building Contracts - Topic 582

The contract - Implied terms - Duty of owner to provide accurate information - [See Building Contracts - Topic 557 ].

Building Contracts - Topic 1302

Tender calls - Duty of care - The Alberta Court of Queen's Bench stated that the relationship of proximity between an owner and tenderer gave rise to a duty of care to exercise reasonable care in the preparation and presentation of tender documents and in the disclosure of infor­mation respecting the work performed by others, the nature of the work required to be performed and the nature and avail­ability of construction materials - The owner must not be negligent in deciding what information to withhold or in not properly inquiring into the existence and relevance of other information affecting the work - The court stated that the extent of the duty owed by an owner to a ten­derer was the standard of care expected from a reasonable owner - See paragraphs 690 to 693.

Building Contracts - Topic 1302.1

Tender calls - Inspection and investigation clauses - An "investigation clause" in a tender document required that the tenderer make its own inspections, investigations and conclusions as to the work to be per­formed and the labour and material to be provided - The Alberta Court of Queen's Bench stated that such clauses did not necessarily preclude tenderers from suing for misrepresentations in the tender docu­ments - Liability was excluded only where investigation was practically feasible with­in the time allotted and investigation could disclose that the representations were false - An owner was free to exclude liability with an express clause forbidding reliance by the tenderer on any information con­veyed in the tender package - See para­graphs 719 to 742.

Building Contracts - Topic 1308

Tender calls - Duty of disclosure of per­son calling tender - The Alberta Court of Queen's Bench stated that "business effi­cacy and economic efficiency in the bid­ding of this type of construction project dictate that bidders be given critical infor­mation on the basis of which they can prepare their tenders in the short time usually afforded them. For this reason there is a general legal principle that, in the absence of a clause forbidding reliance, a bidder is entitled and expected to rely on the tender documents as conveying the best information the owner or its engineer can give. An implied term that the owner does not possess any information contra­dicting the information provided in the tender documents lies within the bound­aries of this principle." - See paragraphs 585 to 586.

Building Contracts - Topic 1308

Tender calls - Duty of disclosure of per­son calling tender - Fairness and good faith in exchanging information - The plaintiff bid on a government contract in reliance on information provided by the government - The Alberta Court of Queen's Bench stated that "in the circum­stances of this case there is a covenant implied by law that the parties will deal fairly and in good faith with one another in the exchange of information. It is rea­sonable, where the owner or its agents impart critical information in the tender documents which form part of the contract, that there is an implied covenant that such information has been furnished in good faith, in the honest and reasonable belief that it is complete and accurate, with all material information provided, in the sense that there is no inconsistent information within the owner's knowledge bearing upon the tender or the performance of the contract." - See paragraph 616.

Building Contracts - Topic 1308

Tender calls - Duty of disclosure of per­son calling tender - The Alberta Court of Queen's Bench stated that "common law construction authorities recognize that in most tender processes, those preparing the tender package possess much greater knowledge about the circumstances of the project than do the bidders. This differen­tial in the relative knowledge of the parties favours the imposition of a duty of care on those preparing the tender documents to ensure they are accurate. ... only if the informa­tion required is not specified, or the docu­ments raise some question as to the correct interpretation of the information necessary to the bid, or the engineer clear­ly warns the bidder that certain informa­tion was not verified and that he or she does not vouch for its accuracy, is the contractor required to conduct further investigation; otherwise, the contractor is entitled to rely on the engineers' and owner's duty to ensure that the information in the tender documents is reasonably correct and complete." - The court stated that "a duty of care may lie concurrently on the owner and its engi­neers in respect of representations included in a tender package, absent effectively worded dis­claimer clauses" - See para­graphs 543 to 551.

Building Contracts - Topic 1308

Tender calls - Duty of disclosure of per­son calling tender - The Alberta Court of Queen's Bench stated that "tender docu­ments must be prepared having in mind the average tenderer, not one who is usually cautious, conservative or has special knowledge or experience. ... A bidder is entitled and expected to rely on the tender documents as conveying the best information the owner can give. It is not good enough to provide information that is misleading, incomplete or inaccurate with the intention that the more ex­perienced or knowledgeable bidders will ferret out the problems from clues. ... Where an owner has special knowledge gained through years of investigation and then invites bids within a relatively short tender period, where it knows that reliance will necessarily be placed on the tender documents and independent verification of information is impractical, the owner must disclose all reasonably material facts which may have a bearing on the tenderer's bid" - See paragraph 695.

Building Contracts - Topic 1308

Tender calls - Duty of disclosure of per­son calling tender - The Alberta Court of Queen's Bench stated that "if the owner has not verified information in the tender documents, it has a legal duty to inform tenderers in clear terms that they should not rely on this information, putting the tenderers on notice to undertake their own investigations and inquiries ... For this to be practical, adequate time for independent investigations is required. The shorter the bid period, the stronger the inference that greater reliance will be placed on the contract documents, in the absence of a clearly worded 'nonreliance' clause. ... If, after the tender documents are prepared and delivered, the owner learns they are inaccurate, it owes a legal duty to the tenderers to inform them of the true facts" - See paragraph 695.

Building Contracts - Topic 1316

Tender calls - Negligent misrepresentation - The plaintiff was awarded the contract for excavation work on a provincial dam project - The plaintiff was to excavate gravel at selected sites, transport it to the dam site and place it there - The tender documents purportedly contained all the technical information on gravel quantity and location - The plaintiff relied on the information in making its bid - The infor­mation was not accurate - The province knew the information was inaccurate and failed to disclose other relevant informa­tion that contradicted the disclosed infor­mation - The Alberta Court of Queen's Bench found the province liable in damages for negligent misrepresentation - See paragraphs 690 to 708.

Building Contracts - Topic 1316.1

Tender calls - Fraudulent misrepresenta­tion - [See first Fraud and Misrepresen­tation - Topic 6 ].

Contracts - Topic 1541

Formation of contract - Duty to disclose - General - The Alberta Court of Queen's Bench referred to a general theory of the duty to inform in a contractual context, as a secondary obligation arising from a primary obligation of good faith between contracting parties - The main elements of the obligation to inform, as per the Supreme Court of Canada, were "(1) knowledge of the information, whether actual or presumed, by the party which owes the obligation to inform; (2) the fact that the information in question is of deci­sive importance; and (3) the fact that it is impossible for the party to whom the duty to inform is owed to inform itself, the party to whom the obligation is owed is legitimately relying on the party who is obliged to disclose." - See paragraph 534.

Contracts - Topic 1541

Formation of contract - Duty to disclose - General - [See Fraud and Misrepresen­tation - Topic 2516 ].

Contracts - Topic 2065

Terms - Implied terms - To achieve busi­ness efficacy - [See Contracts - Topic 2081 ].

Contracts - Topic 2081

Terms - Implied terms - Trade custom - General - The Alberta Court of Queen's Bench stated that "implication of terms into a contract entails a two-step analysis: (1) Is the term sought to be implied incon­sistent with or in conflict with any express term or disclaimer clause in the contract ... (2) If there is no such conflict, then is the term properly implied into the contract under one of the following ... (a) es­tablished custom or usage which amounts to implication on the basis of presumed intention; (b) necessity, to give business efficacy to a contract ... or (c) necessity, as legal incidents of a particular class and kind of contract, the nature of which have to be largely determined by implication." - See paragraph 576.

Contracts - Topic 2122

Terms - Express terms - Exclusionary clauses - Bars - Fraud - The Alberta Court of Queen's Bench stated that a con­tractual exculpatory or limitation of liabili­ty clause could not excuse fraudulent misrepresentation - See paragraphs 712 to 717.

Contracts - Topic 2126

Terms - Express terms - Exclusionary clauses - Interpretation - [See Fraud and Misrepresentation - Topic 2824 ].

Contracts - Topic 4005

Remedies for breach - Negligent breach - Availability of tort action - [See Fraud and Misrepresentation - Topic 2515 ].

Contracts - Topic 7526

Interpretation - Surrounding circumstances - Commercial setting - The Alberta Court of Queen's Bench stated that a contract was to be interpreted with reference to the whole of the contract and the context in which it was created - The commercial setting in which the contract was made was to be considered to assist in ascertain­ing the intention of the parties from their language - This consideration was differ­ent from parol evidence of the intention of the parties - See paragraphs 570 to 571.

Damages - Topic 3625

Deceit and misrepresentation - Fraudulent misrepresentation - The Alberta Court of Queen's Bench stated that "the tortious measure of damages does not include loss of bargain or profit. Further, the tortious measure of damages is used when calcu­lating damages based on fraudulent mis­representation or the tort of deceit or fraud." - See paragraph 815.

Damages - Topic 5701

Contracts - Breach of contract - Primary rule - The Alberta Court of Queen's Bench stated that damages for breach of contract were to put the plaintiff in the same posi­tion as if the contract had been performed as agreed - The plaintiff was entitled to recover his loss of bargain or profit - See paragraphs 813 to 815.

Damages - Topic 6528

Contracts - Building contracts - Breach by owner - Measure of damages - The plaintiff was the successful bidder on a contract for certain work on a provincial dam project - The information relied on by the plaintiff, provided by the province in the tender documents, was incorrect and resulted in cost overruns by the plaintiff - The plaintiff sued the province for damages for breach of contract and for deceit and negligent misrepresentation - The Alberta Court of Queen's Bench found the province liable in contract and tort - The court stated that, inter alia, the prov­ince had relevant information that would have had an impact on the plaintiff's bid - The province withheld other relevant in­formation and even concealed some in­formation, permitting the plaintiff and other bidders to believe soil conditions were otherwise than the province knew they were - The court set out the ap­propriate manner of calculating damages (modified total cost approach proposed by the defendant) and assessed $875,000 damages - See paragraphs 791 to 927.

Evidence - Topic 2401

Presumptions - Specific presumptions - Inference from failure to call available evidence - The plaintiff claimed that adverse inferences should be drawn from the failure of the defendant to call various witnesses - The Alberta Court of Queen's Bench declined to draw adverse inferences - The doctrine was narrow, arising most often when a party had an evidentiary burden to establish an issue and failed to call evidence on that issue - Such circum­stances did not exist in this case - See paragraphs 768 to 769.

Evidence - Topic 2401.3

Presumptions - Specific presumptions - Inference of knowledge from possession of documents - The Alberta Court of Queen's Bench stated that "the documents in pos­session doctrine holds that documents which are, or have been, in the possession of a party will generally be admissible against him or her as original evidence to show knowledge of their contents, a con­nection with or complicity in the transac­tions to which they relate, or a state of mind with reference thereto ... Mere pos­session creates a presumption that the possessor had knowledge of the contents, no matter how weak or tenuous the con­nection between the origin of the docu­ment and its possessor, such as un­answered letters - this goes to weight, not admissibility ... For possession to consti­tute knowledge of a corporation, some responsible official, such as an officer or an employee acting in the course of em­ployment, must be aware of the document's presence on the corporate premises" - See paragraphs 632 to 634.

Fraud and Misrepresentation - Topic 6

Fraudulent misrepresentation (deceit) - What constitutes - The plaintiff was awarded the contract for excavation work on a provincial dam project - The plaintiff was to excavate gravel at selected sites, transport it to the dam site and place it there - The tender documents purportedly contained all the technical information on gravel quantity and location - The plaintiff relied on the information in making its bid - The information was not accurate - The province knew the information was inac­curate and failed to disclose other relevant information that contradicted the disclosed information - The Alberta Court of Queen's Bench found the province liable in damages for fraudulent misrepresentation (deceit) - The plaintiff established the requisite intent to induce the plaintiff to believe the contract documents contained all the information to permit it to make its bid - See paragraphs 686 to 689.

Fraud and Misrepresentation - Topic 6

Fraudulent misrepresentation (deceit) - What constitutes - The Alberta Court of Queen's Bench stated that "for an express misstatement to be actionable in deceit, something more is required beyond the mere representation of fact which turned out to be false, and which was relied upon by the representee. For deceit, dishonesty is required. For it to sound in negligence, it must have been made in the context of a special relationship giving rise to a duty of care." - See paragraph 498.

Fraud and Misrepresentation - Topic 6

Fraudulent misrepresentation (deceit) - What constitutes - The Alberta Court of Queen's Bench stated that where a defen­dant made statements honestly believing them to be true, but subsequently dis­covered their falsity, "that supervening discovery or events can render a statement retroactively fraudulent if the falsifying information is not then disclosed" - See paragraph 524.

Fraud and Misrepresentation - Topic 6

Fraudulent misrepresentation (deceit) - What constitutes - The Alberta Court of Queen's Bench stated that "the tort of deceit is proved when it is shown that (1) a false representation has been made; (2) dishonestly, that is, (a) knowingly, (b) without belief in its truth, or (c) recklessly, careless whether it be true or false; (3) with the intention that the representee will rely on the representation; and (4) the representee has in fact been induced to act upon the representation. In order to sustain an action in deceit, it is not enough to establish a misrepresentation; there must be proof of fraud ... The standard of proof for fraud is the civil burden of proof on a balance of probabilities." - See paragraphs 628 to 629.

Fraud and Misrepresentation - Topic 6

Fraudulent misrepresentation (deceit) - What constitutes - The Alberta Court of Queen's Bench stated that "intention to deceive is the inevitable conclusion where the representor knows the statement he or she is making is false, and expects the representee to rely on it." - Where the representation is made recklessly, without caring whether it was true or false, the requisite intent is to induce reliance - The court disagreed that recent dicta suggested that an intention to deceive must also be established - Wilful blindness to the truth, the basis for deceit by recklessly made representations, was inconsistent with an intent to deceive - If the representor had no honest belief or was careless as to whether the statement was true or not, he could not have an ascertainable intention to deceive the representee - Fraudulent recklessness did not require proof of in­tention to deceive - See paragraphs 645 to 663.

Fraud and Misrepresentation - Topic 305

Fraudulent misrepresentation (deceit) - Actions - Defences - Exclusionary clauses - [See Contracts - Topic 2122 ].

Fraud and Misrepresentation - Topic 2501

Misrepresentation - Representation defined - The Alberta Court of Queen's Bench stated that "express representations of fact can be found in plans and drawings ... A statement as to the actual contents of a document is a statement of fact. ... a misdescription, misreading or mistransla­tion of such contents to the representee is an actionable misstatement of fact." - See paragraphs 499 to 500.

Fraud and Misrepresentation - Topic 2508

Misrepresentation - Negligent misrepre­sentation - The Alberta Court of Queen's Bench listed five requirements to establish negligent misrepresentation: "(a) there must be a duty of care based on a 'special relationship' between the representor and the representee; (b) the representation in question must be untrue, inaccurate or misleading; (c) the representor must have acted negligently in making the misrepre­sentation; (d) the representee must have relied, in a reasonable manner, on the negligent misrepresentation; and (e) the reliance must have been detrimental to the representee in the sense that damages resulted." - See paragraph 528.

Fraud and Misrepresentation - Topic 2508

Misrepresentation - Negligent misrepre­sentation - The Alberta Court of Queen's Bench stated that "there is no compelling reason in principle, authority or policy for the proposition that an implied representa­tion cannot under any circumstance give rise to actionable negligence. ... It is thus open to me to find actionable implied misrepresentations, if the evidence shows that a reasonable person in the same cir­cumstances would have drawn the same inference as the plaintiff." - See para­graphs 504 to 506.

Fraud and Misrepresentation - Topic 2515

Misrepresentation - Concurrent liability in contract and tort - The Alberta Court of Queen's Bench discussed the availability of a tort action where the duty relied upon was also a contractual duty by virtue of an express term of the contract - See para­graphs 623 to 627.

Fraud and Misrepresentation - Topic 2516

Misrepresentation - Contracts - The Alberta Court of Queen's Bench stated that duties of disclosure may arise in the course of negotiations "first, where a contracting party says or does something, or something happens which, having regard to that party's previous declarations or acts, requires that party to correct or remove a delusion in the mind of the other party for which he or she is responsible for creating. Secondly, where one party is asked a question by the other in respect of any matter, whereupon a duty is incumbent on the first party, if he or she answers the question at all, to answer it truthfully and fully. A duty of full disclosure may arise in the course of performance of the con­tract, where there are fresh acts of reliance upon the original nondisclosure or mis­representation which the defendant has discovered were untrue. ... deceit is com­plete where this occurs." - See paragraphs 515 to 517.

Fraud and Misrepresentation - Topic 2563

Misrepresentation - Representations - Particular statements - Opinions and esti­mates - The Alberta Court of Queen's Bench discussed whether "interpretations and opinions given in the tender docu­ments as to the expected common thick­ness of gravel, its distribution and esti­mates of the quantity to be expected" could be prima facie actionable as state­ments of fact - The court stated that "there is in principle no impediment to an esti­mate being actionable as a misrepresenta­tion of fact" - See paragraphs 507 to 512.

Fraud and Misrepresentation - Topic 2701

Misrepresentation - What constitutes - General - The Alberta Court of Queen's Bench stated that "where, in the course of negotiation, one party asks a direct ques­tion of the other as to some fact or matter which that other had no obligation to answer yet chooses to do so, the law imposes a duty to answer truthfully, honestly and fully. Any violation of this duty results in a misrepresentation, as an active misstatement" - See paragraph 523.

Fraud and Misrepresentation - Topic 2705

Misrepresentation - What constitutes - Falsity by omission - The Alberta Court of Queen's Bench stated that "a true state­ment may also be considered in law a false representation" - The court agreed with the statement that "where a representation, by reason of the omission therefrom of all reference to qualifying conditions, subject to which alone it would be true, or by reason of the representor's suppression of facts which in the circumstances of the individual case it was his duty to disclose, is rendered a partial, fragmentary, in­complete, or misleading representation of the entirety of the facts to which it relates, it is deemed false, notwithstanding that the statement, or each of the statements, if more than one, made by the representor may be, when taken by itself, literally accurate." - See paragraph 495.

Fraud and Misrepresentation - Topic 2707

Misrepresentation - What constitutes - Falsity by silence - The Alberta Court of Queen's Bench referred to the statement that "active concealment of fact is equiva­lent to a positive statement that the fact does not exist. By active concealment is meant any act done with intent to prevent a fact from being discovered; for example, to cover over the defects of an article sold with intent that they shall not be dis­covered by the buyer has the same effect in law as a statement in words that those defects do not exist." - The court stated that silence in these circumstances may actually amount to a positive misstatement, rather than a nondisclosure - See para­graph 521.

Fraud and Misrepresentation - Topic 2824

Misrepresentation - Defences - Agreement excluding liability - The Alberta Court of Queen's Bench stated that "the wording of any clause purporting to limit or exclude liability for actionable misrepresentation or breach of contract must be carefully scru­tinized. Such clauses, to be effective, must be drafted with complete clarity. ... Exculpatory clauses are thus subject to the contra proferentum canon of construction, being construed against the maker, as that party could have used whatever words he or she wished for protection." - See para­graphs 710 to 711.

Fraud and Misrepresentation - Topic 2825

Misrepresentation - Defences - Lack of reliance - The Alberta Court of Queen's Bench stated that actionable misrepresen­tation required proof of actual reliance by the plaintiff - "Knowledge of the untruth of a representation is a complete bar to relief, since in such cases the plaintiff cannot assert that he has been misled by the statement. However, relief will not be withheld on this ground except upon clear proof that the plaintiff possessed actual and complete knowledge of the true facts -- actual not constructive, complete not fragmentary. The onus is on the defendant to prove that the plaintiff had unequivocal knowledge of the truth. ... the common law does not place any onus upon the plaintiff to investigate independently the truth of the representations, as prima facie the plaintiff is entitled to rely upon them. ... Once it is proved as a fact that the alleged misrepresentation was an inducing cause of the plaintiff entering the contract, the co-existence of other inducing causes - even the plaintiff's own mistake - is irrelevant. ... Reliance upon the misrepresentation is therefore inferred from the very fact that it was made and by its nature was material to the representee's consideration of the contract; the onus then shifts to the representor to prove that there was no such reliance" - See paragraphs 552 to 562.

Practice - Topic 227

Persons who can sue and be sued - Indi­viduals and corporations - Status or stand­ing - Agents - [See first Agency - Topic 5030 ].

Cases Noticed:

Pearson (S.) & Son Ltd. v. Dublin Corp., [1987] A.C. 351 (H.L.), refd to. [para. 499].

Cardinal Construction Ltd. v. Brockville (City) (1984), 4 C.L.R. 149 (Ont. H.C.J.), refd to. [para. 499].

Arkwright v. Newbold (1881), 17 Ch.D. 301 (C.A.), refd to. [para. 501].

Queen (D.J.) v. Cognos Inc., [1993] 1 S.C.R. 87; 147 N.R. 169; 60 O.A.C. 1, refd to. [para. 504].

Semkuley and Patterson v. Clay, Bell and Doherty Bros. Realty Ltd. (1982), 39 A.R. 526 (Q.B.), refd to. [para. 507].

Piggott v. Nesbitt, Thompson & Co., [1941] S.C.R. 520, refd to. [para. 509].

Cana Construction Co. v. R., [1974] S.C.R. 1159, refd to. [para. 510].

K.R.M. Construction Ltd. v. British Columbia Railway (1982), 18 C.L.R. 277 (B.C.C.A.), refd to. [para. 511].

Brownlie v. Campbell (1880), 5 App. Cas. 925 (H.L.), refd to. [para. 513].

Loewen v. Hanford Homes Ltd., Robinson, Sivertson, E.P. Cooke Real Estate Ser­vices Ltd. and Kowalchuk (1983), 23 Man.R.(2d)(Q.B.), 131 refd to. [para. 517].

Banque Nationale du Canada v. Soucisse, Groulx and Robitaille, [1981] 2 S.C.R. 339; 43 N.R. 283, refd to. [para. 520].

Leeson v. Darlow, [1926] 4 D.L.R. 415 (Ont. C.A.), refd to. [para. 521].

Davies v. London and Provincial Marine Insurance Co. (1878), 8 Ch.D. 469, refd to. [para. 524].

Hedley Byrne & Co. v. Heller & Partners Ltd., [1963] 2 All E.R. 575 (H.L.), refd to. [para. 528].

Banque de Montreal et autre v. Hydro-Québec et autres, [1992] 2 S.C.R. 554; 138 N.R. 185; 48 Q.A.C. 241, refd to. [para. 531].

Canadian National Railway Co. et al. v. Norsk Pacific Steamship Co. and Tug Jervis Crown et al., [1992] 1 S.C.R. 1021; 137 N.R. 241, refd to. [para. 532].

TWT Enterprises Ltd et al. v. Westgreen Developments (North) Ltd. et al., [1991] 3 W.W.R. 90 (Alta. Q.B.), affd. (1992), 127 A.R. 353 (C.A.), refd to. [para. 542].

Edgeworth Construction Ltd. v. Lea (N.D.) & Associates Ltd. et al. (1993), 157 N.R. 241; 32 B.C.A.C. 221; 53 W.A.C. 221 (S.C.C.), refd to. [para. 545].

Cabott (Walter) Construction Ltd. v. R. (1974), 44 D.L.R.(3d) 82 (F.C.T.D.), refd to. [para. 548].

Brown & Huston Ltd. v. York (Borough) (1986), 17 C.L.R. 192 (Ont. C.A.), refd to. [para. 549].

Redgrave v. Hurd (1880), 20 Ch.D. 1 (C.A.), refd to. [para. 555].

Northern & Central Gas Corp. v. Hillcrest Collieries Ltd. et al., [1976] 1 W.W.R. 481 (Alta. T.D.), refd to. [para. 556].

BG Checo International Ltd. v. British Columbia Hydro & Power Authority, [1990] 3 W.W.R. 690 (B.C.C.A.), refd to. [para. 558].

A.B.S. Contracting Ltd. v. Richmond (1988), 27 C.L.R. 113 (B.C.S.C.), refd to. [para. 558].

Edgington v. Fitzmaurice (1885), 29 Ch.D. 459 (C.A.), refd to. [para. 560].

Arnison v. Smith (1887), 41 Ch.D. 348 (C.A.), refd to. [para. 561].

Fischbach & Moore of Canada Ltd. v. Noranda Mines Ltd. (1978), 84 D.L.R.(3d) 465 (Sask. C.A.), refd to. [para. 568].

Qualico Developments Ltd. v. Calgary (City) (1987), 81 A.R. 161; 53 Alta. L.R.(2d) 129 (Q.B.), refd to. [para. 570].

Bank of British Columbia v. Turbo Resources Ltd. (1983), 46 A.R. 22; 27 Alta. L.R.(2d) 17 (C.A.), refd to. [para. 571].

Reardon Smith Line Ltd. v. Yngvar Hansen-Tangen, [1976] 1 W.L.R. 989 (H.L.), refd to. [para. 571].

Amerada Minerals Corp. of Canada Ltd. v. Mesa Petroleum (N.A.) Co. et al., [1987] 1 W.W.R. 107; 73 A.R. 172 (C.A.), refd to. [para. 572].

Carman Construction Ltd. v Canadian Pacific Railway Co. and C.P. Rail (1982), 42 N.R. 147; 136 D.L.R.(2d) 193 (S.C.C.), refd to. [para. 576].

Canadian Pacific Hotels Ltd. v. Bank of Montreal (1987), 77 N.R. 161 (S.C.C.), refd to. [para. 576].

Houle v. Banque Nationale du Canada, [1990] 3 S.C.R. 122; 114 N.R. 161; 35 Q.A.C. 161, refd to. [para. 596].

International Corona Resources Ltd. v. LAC Minerals Ltd. (1989), 101 N.R. 239; 36 O.A.C. 57; 61 D.L.R.(4th) 14 (S.C.C.), refd to. [para. 599].

LeMesurier v. Andrus (1986), 12 O.A.C. 299; 54 O.R.(2d) 1 (C.A.), refd to. [para. 599].

Gateway Realty Ltd. v. Arton Holdings Ltd. and LaHave Developments Ltd. (No. 3) (1991), 106 N.S.R.(2d) 180; 288 A.P.R. 180 (T.D.), refd to. [para. 599].

Mesa Operating Ltd. Partnership v. Amoco Canada Resources Ltd. (1992), 129 A.R. 177 (Q.B.), refd to. [para. 607].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109; 37 C.C.L.T. 117; 42 R.P.R. 161; 31 D.L.R.(4th) 481; 34 B.L.R. 187, refd to. [para. 624].

BG Checo International Ltd. v. British Columbia Hydro and Power Authority, [1993] 1 S.C.R. 12; 147 N.R. 81; 20 B.C.A.C. 241; 35 W.A.C. 241, refd to. [para. 625].

Derry v. Peek (1889), 14 App. Cas. 337 (H.L.), refd to. [para. 629].

Scott v. Creswell, [1975] 3 W.W.R. 193 (Alta. C.A.), refd to. [para. 629].

Akerheim v. De Mare, [1959] 3 All E.R. 485 (P.C.), refd to. [para. 631].

R. v. Ash-Temple Co. (1949), 93 C.C.C. 267 (Ont. C.A.), refd to. [para. 634].

De Vall v. Gorman, Clancey & Grindley Ltd. (1919), 58 S.C.R. 259, refd to. [para. 639].

Davis v. Burt (1910), 3 Sask. L.R. 446 (C.A.), refd to. [para. 642].

Rous v. Mitchell, [1991] 1 All E.R. 676 (C.A.), refd to. [para. 643].

Bradford Third Equitable Benefit Building Society v. Borders, [1941] 2 All E.R. 205 (H.L.), refd to. [para. 647].

United Motor Finance Co. v. Addison & Co., [1937] 1 All E.R. 425 (P.C.), refd to. [para. 647].

Whitney v. MacLean, [1932] 1 W.W.R. 417, refd to. [para. 654].

Conway v. O'Brien (1940), 111 F.2d 611 (2nd Cir.), refd to. [para. 697].

Mueller (Karl) Construction Ltd. v. North­west Territories Commissioner, [1991] N.W.T.R. 1 (C.A.), refd to. [para. 706].

Bauer v. Bank of Montreal (1980), 32 N.R. 191; 110 D.L.R.(3d) 424 (S.C.C.), refd to. [para. 710].

Morrison-Knudsen v. Commonwealth of Australia (1972), 46 A.L.J.R. 265 (H.C.), refd to. [para. 723].

Hollerbach v. United States (1914), 233 U.S. 165 (U.S.S.C.), refd to. [para. 728].

Bernard McMenamy Contractors Inc. v. Missouri State Highway Commission (1979), 582 S.W.2d 305 (Miss. A.C.), refd to. [para. 730].

Public Constructors Inc. v. State of New York (1977), 390 N.Y.2d 481 (S.C.A.D.), refd to. [para. 733].

Thomsen-Abott Construction Co. v. Wausau (City), 100 N.W.2d 921 (Wis. A.C.), refd to. [para. 735].

London Drugs Ltd. v. Brassart and Van­winkel Ltd., [1992] 3 S.C.R. 299; 143 N.R. 1; 18 B.C.A.C. 1; 31 W.A.C. 1, refd to. [para. 763].

Alberta Alarm Division v. Rescom De­velopment Group Ltd. (1985), 15 C.L.R. 284 (Alta. Master), refd to. [para. 775].

Pople v. Evans, [1968] 2 All E.R. 743 (Ch. D.), refd to. [para. 776].

Owl Construction Co. v. McKee & Finne­gan's Ltd. (1987), 62 Nfld. & P.E.I.R. 162; 190 A.P.R. 162 (Nfld. C.A.), refd to. [para. 778].

Smith v. Lasko et al., [1986] 5 W.W.R. 716; 41 Man.R.(2d) 86 (Q.B.), refd to. [para. 781].

Allen v. F. O'Hearn and Co., [1966] All E.R. 828 (P.C.), refd to. [para. 785].

Vancouver Equipment Corp. v. Sun Valley Contracting Ltd. (1979), 16 B.C.L.R. 362 (S.C.), refd to. [para. 787].

Morley v. Moore, [1936] 2 All E.R. 79 (C.A.), refd to. [para. 788].

Penvidic Contracting Co. v. International Nickel Co. of Canada Ltd. (1975), 4 N.R. 1; 53 D.L.R.(3d) 748 (S.C.C.), refd to. [para. 812].

Morrison-Knudsen Co. Inc. et al. v. British Columbia Hydro and Power Authority (1978), 85 D.L.R.(3d) 186 (B.C.C.A.), refd to. [para. 816].

Fredrickson v. Insurance Corp. of British Columbia (1986), 3 B.C.L.R.(2d) 145 (C.A.), refd to. [para. 899].

Statutes Noticed:

Judgment Interest Act, S.A. 1984, c. J-0.5, generally [para. 927].

Public Works Act, R.S.A. 1980, c. P-38, generally [para. 378].

Authors and Works Noticed:

Anson, Law of Contracts (24th Ed. 1975), p. 229 [para. 507].

Bowstead on Agency (15th Ed. 1985), pp. 431 [para. 783]; 432 [para. 784].

Cheshire and Fifoot, Law of Contract (11th Ed. 1986), pp. 264, 265 [para. 553]; 473 to 476 [para. 776].

Chitty on Contracts (25th Ed. 1983), vol. 1, p. 227 [para. 637]; vol. 2, pp. 53, 54 [para. 776].

Ewart, Lomer and Casey, Documentary Evidence in Canada (1984), p. 233 [para. 633].

Fridman, Law of Agency (6th Ed.), pp. 207 to 218, 224 [para. 777]; 228 to 241 [para. 776]; 346 to 351 [para. 782].

Fridman, Recent Developments in Ca­nadian Law: Commercial Law, generally [para. 778].

Halsbury's Laws of England (2nd Ed.), vol. 23, paras. 85, 86 [para. 557]; 181 [para. 780].

Halsbury's Laws of England (4th Ed.), vol. 1(2), generally [para. 779].

Hawkins, LAC and the Emerging Obliga­tion to Bargain in Good Faith, [1990] Queen's L.J. 65, p. 88 [para. 601].

Klar, Tort Law (1991), p. 160 [para. 694].

McGregor on Damages (15th Ed. 1988), p. 469, para. 727 [para. 813].

Phipson on Evidence (13th Ed. 1982), para. 21-09 [para. 632].

Spencer-Bower, The Law of Actionable Misrepresentation (2nd Ed.), p. 6 [para. 655].

Spencer-Bower and Turner, The Law of Actionable Misrepresentation (3rd Ed. 1974), pp. 3 [para. 493]; 5 [para. 494]; 6 [para. 495]; 63, 64 [para. 500]; 94 [para. 522]; 118 [para. 648]; 209 [para. 519]; 215 to 217 [para. 523].

Spencer-Bower, Turner and Sutton, The Law Relating to Actionable Non-Dis­closure (2nd Ed. 1990), pp. 205, 206 [para. 515].

Waddams, S.M., The Law of Damages (2nd Ed. 1992), pp. 5 to 19 [para. 815].

Counsel:

W.J. Kenny, Q.C., A.J. Beames and G.G. Ortt, for the plaintiff;

A.P. Hnatiuk, Q.C., D.H. Lewis and C.A. Graham, for the defendant.

This action was heard before Feehan, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on March 17, 1994.