



COURT OF APPEAL FOR ONTARIO

CITATION: Kaymar Rehabilitation Inc. v. Champlain Community
    Care Access Centre, 2018 ONCA 76

DATE: 20180130

DOCKET: C63678

Pepall, Hourigan and Brown JJ.A.

BETWEEN

Kaymar Rehabilitation Inc.

Plaintiff

(Appellant)

and

Champlain Community Care Access Centre
,

Cota
    Comprehensive Rehabilitation and Mental Health

Services and Carefor
    Health & Community Services

Defendant

(Respondent in Appeal)

Monica Song and Scott McLean, for the appellant

Joel Richler, Robin Linley and Brittiny Rabinovitch, for
    the respondent

Heard: January 23, 2018

On appeal from the judgment of Justice Julianne A.
    Parfett of the Superior Court of Justice, dated March 22, 2017, with reasons
    reported at 2017 ONSC 1843, and the cost judgment dated June 6, 2017, with
    reasons reported at 2017 ONSC 3504.

REASONS FOR DECISION

A.

OVERVIEW

[1]

In late 2003, the respondent, Champlain
    Community Care Access Centre (Champlain), issued a request for proposals
    (RFP) for the provision of physiotherapy, occupational therapy, and social
    work services (the Therapy Services). Champlain intended to split the work
    between two service providers.

[2]

The RFP attracted four bidders, including the
    appellant, Kaymar Rehabilitation Inc. (Kaymar). In the result, Kaymar was not
    one of the two successful bidders.

[3]

In 2005, Kaymar commenced this action against
    Champlain and the two successful bidders, Cota Comprehensive Rehabilitation and
    Mental Health Services (COTA) and Carefor Health and Community Services
    (Carefor), formerly the Victorian Order of Nurses, Ottawa-Carleton Branch.

[4]

In December 2010, Polowin J. dismissed Kaymars
    action as against COTA and Carefor, following an eight-day summary judgment
    motion.

[5]

Kaymars action against Champlain proceeded to
    trial, which lasted 34 days, spread over 18 months (March, 2015 to September,
    2016). By judgment dated March 22, 2017, Parfett J. dismissed Kaymars action.
    By further judgment dated June 6, 2017, the trial judge awarded Champlain costs
    of $1,864,000.00, some of which were calculated on a substantial indemnity
    basis.

[6]

Kaymar appeals the dismissal of its action
    against Champlain and seeks leave to appeal the cost award.

B.

APPEAL OF THE DISMISSAL OF THE ACTION

The issue stated

[7]

At trial, Kaymar put in issue the entire 2003
    RFP process: the validity of the RFP documents; their interpretation; the
    manner in which Champlain conducted the process; and the qualifications of
    Carefor to submit a bid. The essence of Kaymars claim was that Champlain designed
    and administered the RFP process to unfairly favour Carefor.

[8]

The scope of Kaymars appeal is much narrower.
    Kaymar submits the trial judge made two reversible errors, which require setting
    aside her judgment: (i) the trial judge erred in interpreting the RFP documents
    in a way that entitled Champlain to expand the scope of a bidders qualifying
    experience to include those who lacked experience in providing Therapy
    Services; and (ii) she erred in holding that Carefor submitted a compliant bid.

The RFP documents

[9]

Assessing Kaymars grounds of appeal requires a
    brief description of the RFP documents and their terms.

[10]

The RFP tender package consisted of the main RFP
    document, together with a set of schedules. Schedule A was called the Data
    Sheet. The RFP documents used by Champlain were taken from templates prepared
    by the Ministry of Health (MOH), which were then modified by Champlain.

[11]

The RFP called for bids to provide Therapy
    Services. There was no dispute that at the time Carefor had no previous
    experience in providing Therapy Services.

[12]

The RFP required a bidder to submit its financial
    and experience information in accordance with the RFP Data Sheet and Schedule C
    of this RFP to demonstrate that it has the required experience and financial
    position. Section 1.3 of Schedule C described the General Experience
    requirements for bidders:

1.3(1) On the applicable form set
    out in this Schedule, the Respondent shall provide evidence that the Respondent
    itself has been actively engaged in the services as described in the Data Sheet
    [in] a community setting
or, if
    set out in the Data Sheet the required equivalent experience
, for not less than the amount of time and during the period set out
    in the RFP Data Sheet.

(2) For the purpose of assessing
    experience for this RFP Process only, services in a community setting means
    services provided in such locations as homes, schools, the workplace and CCAC
    clinics but excludes services provided in an institutional setting such as
    hospitals and long-term care facilities.

(3) If the CCAC intends, for the
    purpose of this RFP Process, to consider services provided in hospitals,
    long-term care facilities or similar institutional settings as equivalent
    experience to services in a community setting, this will be set out in the
    RFP Data Sheet. [Emphasis added]

[13]

Champlain customized the General Experience
    portion of the Data Sheet to describe experience equivalents as follows:

4.  Experience Equivalents

Three years delivering
professional
    services
in a community setting within the five years
    immediately prior to the Deadline for Submissions of Proposals. [Emphasis
    added]

[14]

The RFP and its Schedules did not define
    professional services. However, during the RFP process Champlain was asked by
    a bidder to define the term. Champlain responded:

Under the general experience
    requirement in the RFP Data Sheet, professional experience refers to experience
    providing health care services, in a community setting, through any of the
    recognized regulated health professionals in Ontario, other than
    physiotherapists, occupational therapists and social workers. For example,
    professional experience includes the provision of nursing or speech language
    pathology services in a community setting.

[15]

There was no dispute that at the time it
    submitted its bid, Carefor was providing professional services.

First ground of appeal

[16]

The trial judge found that it was appropriate
    for Champlain to use, as experience equivalents, experience in providing
    professional services.  As a result, she found that organizations, such as
    Carefor, with no prior experience providing Therapy Services were qualified
    under the terms of the RFP to submit bids. To the extent there were internal
    inconsistencies amongst some of the RFPs schedules because they referred only
    to Therapy Services and not to professional services, the trial judge interpreted
    s. 2.2 of the RFP  which established the priority amongst the RFP documents 
    to give priority to information contained on the Data Sheet over that in the
    RFP and its other schedules.  Consequently, any conflicting language in the
    other schedules was to be read in light of, and modified to conform to, the Data
    Sheets stipulation that experience in professional services constituted
    experience equivalents qualifying a bidder to apply.

[17]

Kaymar submits the trial judges interpretation
    was unreasonable. It contends that s. 1.3(3) of Schedule C operated in priority
    to the Data Sheet, thereby restricting Champlain to only considering bids from
    applicants with experience in providing Therapy Services.

[18]

We see no merit in this submission. The trial
    judges interpretation was reasonable. Indeed, we agree with it. Section 2.2 of
    the RFP clearly gave priority to information contained in the Data Sheet over that
    in any other schedule. By its terms, s. 1.3(1) of Schedule C recognized that
    priority. It stated an applicant shall provide evidence that it had been
    actively engaged in the services as described in the Data Sheet [in] a
    community setting
or, if set out in the Data Sheet the required equivalent
    experience
The experience equivalents
    section of the Data Sheet opened the door to bids from applicants that had experience
    in providing professional services, even though they did not have experience
    in providing Therapy Services.

[19]

Moreover, the tendering relationship is one
    defined by contract, what the Supreme Court of Canada described as Contract A
    in
Martel Building Ltd. v. Canada
, 2000 SCC 60, [2000] 2 S.C.R. 806,
    at para. 76. As the trial judge properly concluded, at para. 109 of her
    reasons:

[T]he provision for experience equivalents was
    an express term of the 2003 therapies RFP.  Kaymar  and other bidders 
    could have chosen not to bid if they were not prepared to accept the terms of
    the RFP.  By bidding, Kaymar effectively accepted that experience
    equivalents were a term of the RFP.

[20]

Accordingly, the trial judge reasonably
    interpreted the RFP, the Data Sheet, and the other Schedules when she concluded
    they permitted bids by applicants who had experience in providing professional
    services, but not Therapy Services. We therefore see no basis for appellate
    interference with her interpretation:
Sattva Capital Corp. v. Creston Moly
    Corp.
, 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 50 to 52.

Second ground of appeal

[21]

Kaymar submits the trial judge erred in failing
    to find that Carefors bid was non-compliant because it did not provide actual
    data on its experience providing Therapy Services. Kaymar argues that it was a
    fundamental requirement of the RFP documents that bidders be experienced
    providers of Therapy Services.

[22]

Champlain responds that Kaymars submission must
    stand or fall with its position on the RFPs use of professional services as
    permissible experience equivalents. If such use was permissible, then bidders
    were not limited to those with Therapy Services experience.

[23]

We accept Champlains submission. It follows
    logically from our earlier conclusion that the trial judge did not err in
    finding Champlain could broaden the experience equivalents in the RFP to
    encompass professional services. Accordingly, we see no error in the trial
    judges conclusion that organizations with no specific experience providing
    Therapy Services could apply.

Summary

[24]

For the reasons set out above, we dismiss
    Kaymars appeal from the trial judges judgment dismissing its action against
    Champlain.

C.

COSTS APPEAL

The issue stated

[25]

Kaymar commenced this action in April 2005. The
    trial started in March 2015, following a decade of pre-trial litigation. The
    trial continued for 34 days over a period of 18 months, ending in September
    2016.

[26]

Champlain sought costs of $2,834,880.91 on a
    substantial indemnity basis. Kaymar argued that nothing in its litigation
    conduct merited an award of substantial indemnity costs. It contended that the
    partial indemnity costs of $1,547,313.00 shown on Champlains bill of costs
    should be reduced for several reasons. The trial judge agreed with certain of
    the deductions proposed by Kaymar, but awarded Champlain all-in costs of
    $1,864,000.00, calculated on a partial indemnity basis up until the date of a May
    2014 offer to settle by Champlain, and thereafter on a substantial indemnity
    basis.

[27]

Kaymar seeks leave to appeal the cost award and,
    if leave is granted, a reduction of the award to $1,461,077.58.

Analysis

[28]

At the hearing, Champlains counsel candidly
    conceded that the trial judges award of substantial indemnity costs was not
    supportable by the reasons she gave. In light of that concession, it is open to
    us to approach afresh what would constitute a fair and reasonable award of
    costs.

[29]

Determining a fair and reasonable amount for the
    costs of an action following a trial requires a holistic consideration of the
    factors set out in rule 57.01(1), together with the history of the action.
    Kaymars action spanned almost a decade. The trial lasted 34 days. It was
    hard-fought litigation, with Kaymar challenging the fairness of numerous
    aspects of the RFP process. In its Amended Statement of Claim, Kaymar levelled
    a very serious allegation that Champlain had rigged the process for
    evaluation of responses to the 2003 RFP to ensure Kaymar would be wholly
    unsuccessful. The trial judge rejected all of Kaymars allegations that the RFP
    process was unfair.

[30]

Given the length of the proceeding, the serious
    nature of the allegations, the complexity of the issues, the length of the
    trial, and Champlains unqualified success at trial, we conclude that a fair and
    reasonable award of partial indemnity costs of the action to Champlain is
    $1,675,000.00, inclusive of disbursements and all applicable taxes.

D.

DISPOSITION

[31]

For the reasons set out above, we dismiss
    Kaymars appeal from the judgment dismissing its action. We grant Kaymar leave
    to appeal costs, set aside para. 1 of the costs judgment dated June 6, 2017,
    and substitute an order that Kaymar pay Champlain its costs of the action fixed
    at $1,675,000.00, inclusive of disbursements and all applicable taxes.

[32]

Kaymar shall pay Champlain its costs of this
    appeal fixed at $35,000.00, inclusive of disbursements and all applicable
    taxes.

S.E.
    Pepall J.A.
C.W. Hourigan J.A.
David Brown J.A.


