Bemar Construction Ltd. v. Canada
T-1215-91
Gibson J.
20/10/99
9 pp.
Application for summary judgement-Plaintiff successful bidder for construction of RCMP detachment facility, residence at Faust, Alberta-After construction commenced, determined soil conditions at project site wetter, less stable than indicated in pre-bid information package-On September 21, 1990 plaintiff's solicitor writing to defendant's solicitor proposing settlement, acceptance of which to release Public Works Canada from any and all claims arising at site prior to September 15, 1990-Defendant accepting proposal in manner indicated on September 24, stating change order would be issued formally incorporating agreement into contract-While some form of change order issued, form in dispute-Plaintiff resumed work until late in 1990-Statement of claim alleging Public Works negligent in making representations in pre-bid information package-Not alleging wrongdoing by defendant after September 15-Granville Shipping Co. v. Pegasus Lines Ltd., [1996] 2 F.C. 853 (T.D.) setting out principles underlying determination of application for summary judgment: Court must be convinced no genuine issue to be tried; question not whether party cannot possibly succeed at trial, but whether case so doubtful not deserving consideration by trier of fact at future trial; mere existence of apparent conflict in evidence not precluding summary judgment; Court should take "hard look" at merits, decide if issues of credibility to be resolved-Application granted-Offer of settlement, once accepted on behalf of defendant, constituted binding contract of settlement-In no way contingent on issuance of change order incorporating it into construction contract-Solicitor may bind client by compromise unless client limited authority and opposing side having knowledge of limitation of authority: Scherer v. Paletta (1966), 57 D.L.R. (2d) 532 (Ont. C.A.)-Plaintiff claiming limitation of authority, but defendant unaware of such limitation-Settlement required no Court order to give effect to it; Court merely called upon to give effect to it only when plaintiff refused to be bound by it-No genuine issue to be tried, plaintiff having agreed to release defendant from all claims arising at site prior to September 15, 1990-Plaintiff's case so doubtful as to not deserve consideration by trier of fact at future trial-While issues of credibility on evidence now before Court, credibility issues however determined, would not affect outcome of action.