



COURT OF APPEAL FOR ONTARIO

CITATION: Gulf Developments Inc. v. Essex (Town), 2018 ONCA
    465

DATE: 20180517

DOCKET: C63244

Lauwers, Benotto and Nordheimer JJ.A.

BETWEEN

Gulf Developments Inc.

Plaintiff

(Respondent)

and

The Corporation of the Town of Essex

Defendant

(Appellant)

James K. Ball, for the appellant

Rodney M. Godard and Ioana Vacaru, for the respondents

Heard and released orally: May 16, 2018

On appeal from the judgment of Justice Scott K. Campbell of
    the Superior Court of Justice, dated December 16, 2016.

REASONS FOR DECISION

[1]

We agree with the trial judges finding, at paragraph 114 of his reasons,
    that the appellant used the post-tender addendum process as a form of
    impermissible re-tendering process, or what might be described as bid
    shopping, after the respondents bid was accepted.

[2]

The trial judge accurately recited the law related to the tender process
    prescribed by the Supreme Court of Canada in
R. (Ont.) v. Ron Engineering
,
[1981] 1 S.C.R. 111, and later cases.  He
    properly invoked the principle in
Martel Building Ltd. v. Canada
, 2000
    SCC 60, [2000] 2 S.C.R. 860, that all bidders are to be treated fairly. The trial
    judge also properly applied the law.

[3]

The trial judge said, at paragraphs 127 and 128:

I find the plaintiffs bid was accepted.  As previously stated,
    Town Council resolved to award the contract to Gulf.  This is apparent from the
    wording of the resolution, which stated the amount for which the contract was
    to be awarded.  As such, Contract B came into existence prior to the
    re-tendering process and the ultimate awarding of the contract to PCR, which
    amounted to a breach of Essexs contractual obligations to Gulf under Contract
    B.

If there were material issues that required re-tendering in
    some form, the municipality ought not to have awarded the contract to the
    plaintiff for a publicized amount.  I conclude that once the municipality
    issued the resolution they were required to issue a purchase order to the
    plaintiff.  The terms of the purchase order were to incorporate the CCDC 2
    contract.  That contract contains procedures to deal with changes in work or
    other disputes.  That is the procedure that ought to have been followed.

[4]

We agree.

[5]

On this basis, we dismiss the appeal.

[6]

As agreed by the parties, the costs are fixed in the amount of $12,500
    all inclusive, payable by the appellant to the respondent.

P. Lauwers J.A.

M.L. Benotto J.A.

I.V.B. Nordheimer J.A.


