True Construction Ltd. v. Kamloops (City), (2016) 386 B.C.A.C. 82 (CA)

• Judge: D. Smith, Harris and Goepel, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: April 21, 2016
• Jurisdiction: British Columbia
• Citations: (2016), 386 B.C.A.C. 82 (CA);2016 BCCA 173

True Constr. Ltd. v. Kamloops (2016), 386 B.C.A.C. 82 (CA);

    667 W.A.C. 82

MLB headnote and full text

Temp. Cite: [2016] B.C.A.C. TBEd. AP.051

True Construction Ltd. (appellant/plaintiff) v. City of Kamloops (respondent/defendant)

(CA42925; 2016 BCCA 173)

Indexed As: True Construction Ltd. v. Kamloops (City)

British Columbia Court of Appeal

D. Smith, Harris and Goepel, JJ.A.

April 21, 2016.

Summary:

True Construction submitted the lowest bid in a tender to construct a city's new fire hall. However, the bid was disqualified as non-compliant as failing to comply with the instructions to bidders. Appendix A of the bid did not include the required list of the subcontractors it intended to use. Although the missing information was faxed to the city prior to the closing of bids, the city held that the bid remained disqualified. Following a summary trial, the judge ruled that the incomplete bid was non-compliant and the subsequent faxing of the missing information did not render the bid substantially compliant. True Construction appealed.

The British Columbia Court of Appeal dismissed the appeal. The trial judge did not err in finding that the bid was non-compliant. Appendix A was part of the Bid Form required to be submitted as part of the sealed bid. Although a bid could be revised by Appendix F, Appendix A was part of the Bid Form. Appendix F could be used to revise a compliant bid, but not to complete an incomplete sealed bid. The subsequent faxing of the missing information did not render the bid substantially compliant. True Construction, by failing to provide the subcontractor information, objectively obtained a potential commercial advantage over others whose bids were complete and capable of acceptance. Treating an incomplete bid as a mere irregularity that the city could have waived could have undermined the integrity and fairness of the bidding process.

Building Contracts - Topic 1311

Tender calls - Invitation to tender - Conditions of - What constitute - See paragraphs 34 to 77.

Building Contracts - Topic 1314

Tender calls - General - Missing pages or appendices - See paragraphs 34 to 77.

Building Contracts - Topic 1319

Tender calls - General - Acceptance of tender - See paragraphs 34 to 77.

Crown - Topic 1109

Contracts with Crown - Building contracts - Tenders - See paragraphs 34 to 77.

Cases Noticed:

Ron Engineering & Construction (Eastern) Ltd. v. Ontario and Water Resources Commission, [1981] 1 S.C.R. 111; 35 N.R. 40, refd to. [para. 3].

M.G. Logging & Sons Ltd. v. British Columbia et al. (2015), 381 B.C.A.C. 164; 659 W.A.C. 164; 2015 BCCA 526, refd to. [para. 19].

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. 20].

Silex Restorations Ltd. v. Leasehold Strata Plan VR 2096, Owners et al. (2004), 201 B.C.A.C. 244; 328 W.A.C. 244; 2004 BCCA 376, refd to. [para. 20].

Coco Paving (1990) Inc. v. Ontario (Minister of Transportation) et al. (2009), 252 O.A.C. 47; 2009 ONCA 503, refd to. [para. 23].

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. 23].

Creston Moly Corp. v. Sattva Capital Corp. (2014), 461 N.R. 335; 358 B.C.A.C. 1; 614 W.A.C. 1; 2014 SCC 53, refd to. [para. 34].

Precision Plating Ltd. et al. v. AXA Pacific Insurance Co. et al. (2015), 374 B.C.A.C. 37; 642 W.A.C. 37; 2015 BCCA 277, leave to appeal denied [2015] S.C.C.A. No. 317, refd to. [para. 34].

Vallieres et al. v. Vozniak (2014), 580 A.R. 326; 620 W.A.C. 326; 2014 ABCA 290, refd to. [para. 34].

MacDonald v. Chicago Title Insurance Co. of Canada (2015), 341 O.A.C. 299; 2015 ONCA 842, refd to. [para. 34].

North America Construction (1993) Ltd. v. York (Regional Municipality) et al., [2009] O.T.C. Uned. Q39 (Sup. Ct.), refd to. [para. 63].

Oviatt (J.) Contracting Ltd. v. Kitimat General Hospital Society, [2000] B.C.T.C. 395; 2000 BCSC 911, refd to. [para. 65].

Foundation Building West Inc. v. Vancouver (City) (1995), 55 A.C.W.S.(3d) 296 (B.C.S.C.), refd to. [para. 68].

Counsel:

D. Hughes, for the appellant;

J.W. Locke and D.E. McCabe, for the respondent.

This appeal was heard on March 21, 2016, at Kamloops, B.C., before D. Smith, Harris and Goepel, JJ.A., of the British Columbia Court of Appeal.

On April 21, 2016, Harris, J.A., delivered the following judgment for the Court of Appeal.