



COURT OF APPEAL FOR ONTARIO

CITATION: 1634584 Ontario Inc. v. Canada (Attorney General),
    2014 ONCA 465 DATE: 20140613

DOCKET: C58058

MacPherson, Simmons and Gillese JJ.A.

BETWEEN

1634584 Ontario Inc.

Plaintiff (Appellant)

and

Attorney General of Canada

Defendant (Respondent)

Glen W. Ackerley and  Faren Bogach, for the appellant

Jacqueline Dais-Visca, for the respondent

Heard and released orally: June 12, 2014

On appeal from the judgment of Justice Stephen E.
    Firestone of the Superior Court of Justice, dated November 13, 2013.

ENDORSEMENT

[1]

The appellant 1634584 Ontario Inc. appeals from the judgment of
    Firestone J. of the Superior Court of Justice dated November 13, 2013.  In that
    judgment, the motion judge granted summary judgment to the respondent Attorney
    General of Canada and dismissed the appellants action against the respondent
    grounded in an allegation that the respondent, through the Department of Public
    Works and Government Services Canada, conducted an unfair tender process
    relating to the lease of premises in Peterborough.

[2]

There were four bidders in the first tender process.  PWGSC decided that
    all four bids were non-compliant with the Invitation to Tender.  The appellants
    bid was the second highest.  PWGSC ordered a second round of bidding.  The
    appellant, for business reasons, chose not to participate and was not awarded
    the contract.

[3]

The appellant appeals on two grounds.

[4]

First, the appellant contends that this was not an appropriate case for
    summary judgment; a trial was required.

[5]

We disagree.  The standard of review with respect to a motion judges
    exercise of fact finding powers under Rule 20 is palpable and overriding error:
    see
Hryniak v. Mauldin
, 2014 SCC 7.  We see no basis for interfering
    with the motion judges conclusion that, applying the new test in
Combined
    Air Mechanical Services Inc. v. Flesch
, 2014 SCC 7, this was an
    appropriate case to be dealt with by way of summary judgment.  In particular,
    we agree with paragraphs 41 and 42 of the motion judges reasons on this
    point.

[6]

Second, the appellant submits that the motion judge erred in his
    fairness and good faith analysis.

[7]

Again, we are not persuaded by this submission.  On the basis of the
    record, it was entirely within PWGSCs discretion to determine that the first
    tender produced four non-compliant bids and to order a second tender process. 
    Nor are we persuaded that, given the wording of the Invitation to Offer
    document, PWGSC had an obligation to seek clarification of possible weaknesses
    in the offers received from various bidders, including the appellant.  In our
    view, the first process was fair and the appellant chose not to participate in
    the second process and cannot, therefore, complain about the ultimate result
    flowing from that process.

[8]

The appeal is dismissed.  The respondent is entitled to its costs of the
    appeal fixed at $2,500, inclusive of disbursements and HST.

J.C. MacPherson
    J.A.

Janet Simmons
    J.A.

E.E. Gillese
    J.A.


