Wind Power Inc. et al. v. Saskatchewan Power Corp., (1999) 179 Sask.R. 95 (QB)

• Judge: Gunn, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: April 08, 1999
• Jurisdiction: Saskatchewan
• Citations: (1999), 179 Sask.R. 95 (QB)

Wind Power Inc. v. Sask. Power (1999), 179 Sask.R. 95 (QB)

MLB headnote and full text

Temp. Cite: [1999] Sask.R. TBEd. AP.017

Wind Power Inc. and Dove Industries Inc. (plaintiffs) v. Saskatchewan Power Corporation (defendant)

(1996 Q.B.G. No. 1012)

Indexed As: Wind Power Inc. et al. v. Saskatchewan Power Corp.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Gunn, J.

April 8, 1999.

Summary:

The plaintiffs were the successful bidder on a wind power demonstration project by SaskPower, but no contract was awarded because the project was cancelled. The plaintiffs sued SaskPower for breach of contract, breach of collateral contract, negli­gence or breach of duty and negligent mis­representation. Alternatively, the plaintiffs claimed on the basis of quantum meruit or unjust enrichment.

The Saskatchewan Court of Queen's Bench dismissed the action.

Building Contracts - Topic 1302

Tender calls - Duty of care - [See Build­ing Contracts - Topic 1308 ].

Building Contracts - Topic 1302.2

Tender calls - Privilege clause - Sask­Power issued a request for proposals (RFP) for a wind demonstration project - The RFP con­­tained "primacy of privilege" clauses which stated that SaskPower had "the right to reject any or all proposals" - The plain­tiffs were the successful bidder but no contract was awarded because the project was cancelled - The plaintiffs sued Sask­Power for, inter alia, breach of con­tract - The Saskatchewan Court of Queen's Bench

dis­missed the action - The primacy of priv­i­lege clauses were clear and were operative in the absence of a cogent reason which would disentitle SaskPower to rely on them - See paragraphs 13 to 44.

Building Contracts - Topic 1308

Tender calls - Duty of disclosure of per­son calling tender - SaskPower issued a request for proposals (RFP) for a wind demonstra­tion project - The RFP con­tained "primacy of privilege" clauses which stated that SaskPower had "the right to reject any or all proposals" - The plain­tiffs were the successful bidder but no contract was awarded because the project was cancelled - The plaintiffs sued Sask­Power for, inter alia, breach of contract - The plaintiffs submitted that the involve­ment of Cabinet in the decision making process was some­thing which was not disclosed by Sask­Power and which nega­tively affected the fairness of the entire process - The Saskatchewan Court of Queen's Bench dismissed the action - There was nothing in the process which would disentitle SaskPower to rely on the RFP clauses entitling them to reject all proposals - See paragraphs 45 to 73.

Building Contracts - Topic 1316

Tender calls - Negligent misrepresentation - SaskPower issued a request for proposals (RFP) for a wind demonstration project - The plaintiffs were the successful bidder but no contract was awarded because the project was cancelled - The plaintiffs sued SaskPower for, inter alia, negligent mis­representation - The plaintiffs alleged that in preparing the necessary proposals, they relied upon assurances given by the Min­ister responsible for SaskPower and the president and other officials of SaskPower that SaskPower was committed to the project and would proceed with it - The Saskatchewan Court of Queen's Bench held that there was no evidence that the plain­tiffs relied in a reasonable manner on the representations made - With respect to statements made by the Minister during a speech, there was no proximity of rela­tionship between the Minister and the plaintiffs and the plaintiffs could not rea­sonably rely on the Minister's statements to effectively negative the clear wording of the RFP which was subsequently issued - See paragraphs 74 to 119.

Building Contracts - Topic 4003

Quantum meruit claims - Circumstances where doctrine not applied - SaskPower issued a request for proposals (RFP) for a wind demonstration project - The RFP contained a clause which stated that Sask­Power had "the right to reject any or all proposals" - The plaintiffs were the suc­cessful bidder but no contract was awarded because the project was cancelled - The plaintiffs sued SaskPower for, inter alia, breach of contract - Alternatively, the plaintiffs claimed on a quantum meruit basis for the value of information, specifi­cation and data produced by the plaintiffs and delivered to SaskPower - The Saskatchewan Court of Queen's Bench held that the plaintiffs failed to establish a claim for quantum meruit - See para­graphs 132 to 142.

Contracts - Topic 1484

Formation of contract - Collateral con­tracts - What constitutes a collateral con­tract - SaskPower issued a request for proposals (RFP) for a wind demonstration project - The plaintiffs were the successful bidder but no contract was awarded because the project was cancelled - The plaintiffs sued SaskPower claiming, inter alia, that there was a breach of a collateral contract between the plaintiffs and repre­sentatives of SaskPower, which collateral contract arose from representations and agreements made after the submission of the plaintiffs' proposal - The Saskatchewan Court of Queen's Bench found that there was no collateral contract - The allegation of a collateral contract directly contradicted the express terms of the RFP, which spe­cifically provided that no interpretation, revision or other com­munication regarding the RFP was valid unless it was received in writing and signed by the contact person - See para­graphs 120 to 126.

Crown - Topic 1012

Contracts with Crown - Tenders - Duty of Crown - [See Building Contracts - Topic 1308 ].

Crown - Topic 1109

Contracts with Crown - Building contracts - Tenders - [See Building Contracts - Topic 1302.2 , Building Contracts - Topic 1308 , Building Contracts - Topic 1316 , Building Contracts - Topic 4003 and Contracts - Topic 1484 ].

Estoppel - Topic 1004

Estoppel in pais (by conduct) - Against Crown - [See Estoppel - Topic 1104 ].

Estoppel - Topic 1104

Estoppel in pais (by conduct) - Represen­tation - By statement - Representations which do not found estoppel - SaskPower issued a request for proposals (RFP) for a wind demonstration project - The RFP contained a clause which stated that Sask­Power had "the right to reject any or all proposals" - The plaintiffs were the suc­cessful bidder but no contract was awarded because the project was cancelled - The plaintiffs sued SaskPower for, inter alia, breach of contract - The plaintiffs alleged that the words and conduct of SaskPower gave rise to an estoppel which prevented SaskPower from relying on its rights under the "reject all proposals" clause - The Saskatchewan Court of Queen's Bench held that SaskPower was not estopped from asserting its right to cancel the pro­ject under the "reject all proposals" clause - See paragraphs 127 to 131.

Fraud and Misrepresentation - Topic 2826.1

Misrepresentation - Defences - Unreason­able reliance - [See Building Contracts - Topic 1316 ].

Restitution - Topic 784

Benefit acquired from the plaintiff - Re­covery based on quantum meruit - Work performed or goods provided - [See Building Contracts - Topic 4003 ].

Restitution - Topic 2505

Benefit acquired at defendant's request - Recovery based on quantum meruit - Work or services performed - General - [See Building Contracts - Topic 4003 ].

Cases Noticed:

Ron Engineering & Construction (Eastern) Ltd. v. Ontario and Water Resources Commission, [1981] 1 S.C.R. 111; 35 N.R. 40; 119 D.L.R.(3d) 267; 13 B.L.R. 72, refd to. [para. 35].

Emery Construction Ltd. v. Board of Edu­cation (Roman Catholic) of St. John's (1993), 107 Nfld. & P.E.I.R. 237; 336 A.P.R. 237; 8 C.L.R.(2d) 41 (Nfld. T.D.), refd to. [para. 40].

M.J.B. Enterprises Ltd. v. Defence Con­struction (1951) Co. et al. (1997), 196 A.R. 124; 141 W.A.C. 124; 33 C.L.R.(2d) 1 (Alta. C.A.), leave to appeal granted (1997), 224 N.R. 398; 216 A.R. 392; 175 W.A.C. 392 (S.C.C.), refd to. [para. 40].

M.S.K. Financial Services Ltd. v. Alberta (Minister of Public Works, Supply and Services) (1987), 77 A.R. 362; 23 C.L.R. 172 (Q.B.), refd to. [para. 41].

Elgin Construction Co. v. Russell (Town­ship) (1987), 24 C.L.R. 253 (Ont. H.C.), refd to. [para. 43].

Megatech Contracting Ltd. v. Carleton (Regional Municipality) (1989), 34 C.L.R. 35 (Ont. H.C.), refd to. [para. 43].

Acme Building & Construction Ltd. v. Newcastle (Town) (1992), 2 C.L.R.(2d) 308 (Ont. C.A.), leave to appeal refused (1993), 151 N.R. 394; 63 O.A.C. 399 (S.C.C.), refd to. [para. 43].

Power Agencies Co. v. Newfoundland Hospital & Nursing Home Association (1991), 90 Nfld. & P.E.I.R. 64; 280 A.P.R. 64; 44 C.L.R. 255 (Nfld. T.D.), refd to. [para. 43].

Pro Star Mechanical Contractors Ltd. v. Sandbar Construction Ltd. (1992), 1 C.L.R.(2d) 310 (B.C.S.C.), refd to. [para. 53].

Chinook Aggregates Ltd. v. Abbotsford (Municipal District), [1990] 1 W.W.R. 624 (B.C.C.A.), refd to. [para. 54].

Kencor Holdings Ltd. v. Saskatchewan, [1991] 6 W.W.R. 717; 96 Sask.R. 171 (Q.B.), refd to. [para. 55].

Welsh (Fred) Ltd. v. B.G.M. Construction Ltd., [1996] 10 W.W.R. 400 (B.C.S.C.), refd to. [para. 56].

Yorkton Flying Services Ltd. v. Saskatchewan (Minister of Natural Resources) (1995), 135 Sask.R. 63 (Q.B.), refd to. [para. 57].

Wimpey (George) Canada Ltd. v. Hamilton-Wentworth (Regional Munici­pality) (1997), 40 O.T.C. 68; 34 C.L.R.(2d) 123 (Gen. Div.), refd to. [para. 59].

Power Agencies Co. and Du Pont Canada Inc. v. Newfoundland Hospital & Nurs­ing Home Association (1991), 90 Nfld. & P.E.I.R. 64; 280 A.P.R. 64; 44 C.L.R. 255 (Nfld. T.D.), refd to. [para. 62].

Alvin's Auto Service Ltd. v. Clew Hold­ings Ltd. et al., [1997] 9 W.W.R. 5; 157 Sask.R. 278 (Q.B.), refd to. [para. 78].

Queen (D.J.) v. Cognos Inc., [1993] 1 S.C.R. 87; 147 N.R. 169; 60 O.A.C. 1; 99 D.L.R.(4th) 626, refd to. [para. 79].

Caparo Industries v. Dickman et al., [1990] 1 All E.R. 568; 108 N.R. 81 (H.L.), refd to. [para. 82].

Carman Construction Ltd. v. Canadian Pacific Railway Co. and C.P. Rail (1982), 42 N.R. 147; 136 D.L.R.(3d) 193 (S.C.C.), refd to. [para. 123].

Magical Waters Fountains Ltd. v. Sarnia (City) and Brenner (1992), 56 O.A.C. 377; 1 C.L.R. 290 (Div. Ct.), refd to. [para. 136].

William Lacey (Hounslow) Ltd. v. Davis, [1957] 1 W.L.R. 932 (Q.B.), refd to. [para. 138].

Building Design 2 Ltd. v. Wascana Re­habilitation Centre, [1992] 6 W.W.R. 343; 104 Sask.R. 49 (Q.B.), refd to. [para. 141].

Authors and Works Noticed:

Goldsmith, I., and Heintzman, T.G., Cana­dian Building Contracts (4th Ed. 1988) (1998 Looseleaf Update, Release 1), pp. 1-4, 1-5, §1(a)(i)(A) [para. 68]; 4-21 §4 [para. 134].

Klar, Lewis N., Tort Law (1991), p. 160 [para. 83].

Maddaugh, Peter D., and McCamus, John D., The Law of Restitution (1990), p. 74 [para. 133].

Counsel:

Patrick N. McDonald and W. Timothy Stodalka, for the plaintiffs;

Gordon J. Kuski, Q.C., and Murray R. Sawatsky, for the defendant.

This action was heard before Gunn, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on April 8, 1999.