Pomerleau Inc. v. Newfoundland and Labrador (Minister of Transportation and Works), (2014) 348 Nfld. & P.E.I.R. 83 (NLTD(G))

• Judge: Adams, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: February 18, 2014
• Jurisdiction: Newfoundland and Labrador
• Citations: (2014), 348 Nfld. & P.E.I.R. 83 (NLTD(G))

Pomerleau v. Nfld. (2014), 348 Nfld. & P.E.I.R. 83 (NLTD(G));

    1082 A.P.R. 83

MLB headnote and full text

Temp. Cite: [2014] Nfld. & P.E.I.R. TBEd. FE.021

Pomerleau Inc. (plaintiff) v. Her Majesty in Right of Newfoundland and Labrador, as Represented by the Minister of the Department of Transportation and Works (defendant)

(201101G3283; 2014 NLTD(G) 19)

Indexed As: Pomerleau Inc. v. Newfoundland and Labrador (Minister of Transportation and Works)

Newfoundland and Labrador Supreme Court

Trial Division (General)

Adams, J.

February 18, 2014.

Summary:

Pomerleau Inc., a construction company, sued the Minister of Transportation and Works (N.L.) when it was not awarded the contract to construct the Royal Newfoundland Constabulary campus building. The Minister applied under rule 17A of the Rules of Court to have the action dismissed.

The Newfoundland and Labrador Supreme Court, Trial Division (General), allowed the application and dismissed the action.

Building Contracts - Topic 1302.3

Tender calls - General - Discretion clause - Two construction companies (Pomerleau and Olympic) tendered for construction of a provincial government building - Pomerleau's tender, which was lower than Olympic's, was rejected as being noncompliant because an appendix was not completed - Pomerleau sued the province (i.e., N.L.) - The province applied to have the action dismissed (Rule 17A) - The Newfoundland and Labrador Supreme Court, Trial Division (General), allowed the application - The bid was noncompliant - In the absence of a discretion clause permitting the province to waive Pomerleau's failure to submit a complete bid, the province was required to reject it and award the contract to Olympic - To have done otherwise would have breached the province's duty of fairness to Olympic.

Building Contracts - Topic 1314

Tender calls - General - Missing pages - [See Building Contracts - Topic 1302.3 ].

Crown - Topic 1109

Contracts with Crown - Building contracts - Tenders - [See Building Contracts - Topic 1302.3 ].

Cases Noticed:

Marco Ltd. v. Newfoundland Processing Ltd. et al. (1995), 130 Nfld. & P.E.I.R. 317; 405 A.P.R. 317 (Nfld. T.D.), refd to. [para. 3].

Ron Engineering & Construction (Eastern) Ltd. v. Ontario and Water Resources Commission, [1981] 1 S.C.R. 111; 35 N.R. 40, refd to. [para. 29].

M.J.B. Enterprises Ltd. v. Defence Construction (1951) Co. et al., [1999] 1 S.C.R. 619; 237 N.R. 334; 232 A.R. 360; 195 W.A.C. 360, refd to. [para. 29].

Martel Building Ltd. v. Canada, [2000] 2 S.C.R. 860; 262 N.R. 285; 2000 SCC 60, refd to. [para. 29].

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. 29].

North America Construction (1993) Ltd. v. York (Regional Municipality) et al., [2009] O.T.C. Uned. K74; 84 C.L.R.(3d) 89, 2009 CarswellOnt 511 (Sup. Ct..), refd to. [para. 30].

Health Care Developers Inc. v. Newfoundland (1996), 141 Nfld. & P.E.I.R. 34; 443 A.P.R. 34; 136 D.L.R.(4th) 609 (Nfld. C.A.), refd to. [para. 31].

Johnson's Construction Ltd. v. Newfoundland et al. (2000), 185 Nfld. & P.E.I.R. 106; 562 A.P.R. 106; 2000 CarswellNfld 19 (T.D.), refd to. [para. 39].

Counsel:

John V. O'Dea, for the plaintiff;

Daniel W. Simmons, Q.C., for the defendant.

This case was heard on October 29 and 30, 2013, in St. John's, N.L., before Adams, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following decision on February 18, 2014.