T-2272-82
Quasar Helicopters Ltd. (Plaintiff)
v.
The Queen and the Minister of Supply and Ser
vices (Defendants)
Trial Division, Cattanach J.—Vancouver, May 6;
Ottawa, May 12 and June 7, 1982.
Crown — Contracts — Invitation to tender — Time for
submission of bids — Policy of DSS concerning bids received
late — Canada Post postage meter imprints as evidence of
time of mailing — Plaintiff using such meter in mailing bid —
DSS misinformed that meter privately owned — Plaintiff's bid
not considered and contract awarded to another — Action for
declarations that award void and that plaintiff's bid be con
sidered — Claim for damages for breach of natural justice —
Action dismissed — Minister not breaching any duty of fair
ness as reasonable procedures followed — Reopening con
sideration of bidding unjust to other bidders — Damages
claim tortious in nature — No bad faith established —
Discussion of whether Minister or The Queen properly to be
named defendant — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, ss. 2(g), 18 — Federal Court Rules 480, 500
Department of Supply and Services Act, R.S.C. 1970, c. S-18,
ss. 5, II — Financial Administration Act, R.S.C. 1970, c.
F-10, s. 8 — Government Contract Regulations, C.R.C., c.
701, ss. 8, 9.
The Department of Supply and Services (DSS) invited ten
ders from suppliers including the plaintiff. The conditions of
tender served upon the plaintiff stipulated that: the bidder has
sole responsibility for ensuring that its bid is received on time;
that a bid which is received after the closing time but before the
award of contract will be considered on the condition that it
was mailed at least 48 hours prior to the closing time and that
postage meter imprints were not acceptable as proof of timely
mailing. In fact, DSS did accept postage meter imprints as
satisfactory evidence if they were owned by Canada Post. This
practice was not communicated to bidders but became known
in the industry.
The president of the plaintiff company assumed this to be the
case from his prior dealings and general knowledge of the
industry. He caused his bid, bearing a Canada Post postage
meter imprint, to be mailed more than 48 hours prior to closing
time. The bid was received after closing time and prior to the
award of contract. Upon inquiring of officials at Canada Post,
who had been told of the critical importance of supplying
accurate information, DSS was misinformed that the postage
meter was privately owned. The bid was not acceptable pursu
ant to the usual practice and was returned without being
considered; had the true facts been known, the proposal would
have been considered. The plaintiff advised that it had used a
Canada Post meter and this fact was established upon further
verification. DSS refused to reconsider the matter, as it had
entered into a contract with another company.
The plaintiff sued for declarations that the Department's
decision to award a contract without considering its proposal is
void, and that it is entitled to have its proposal considered prior
to the award of a contract, and, for general damages for breach
of the rules of natural justice in the Department's failure to
comply with the authorized procedure.
Held, the action is dismissed. In refusing to consider the
plaintiff's proposal, the Department followed its written proce
dures to the letter and in checking the origin of the postal meter
imprint, it followed its procedure with exactitude. That proce
dure was the most reasonable and most accurate one that could
be devised. That the procedure proved fallible does not detract
from its fairness. Accordingly, there was no breach of the duty
of fairness by the Minister even assuming there was such duty.
By parity of reasoning, the second declaration sought was
also denied: the Department having followed a fair procedure,
it determined that the bid was late and refused to consider it. It
only discovered the true facts at a date subsequent to the
making of a valid and subsisting contract with another com
pany. To reopen consideration of the bidding to include the
plaintiff's bid, which had not been opened, would work a
manifest injustice to those whose bids had been opened and
particularly to the successful bidder, the amount of whose bid
had become known and it having also been disclosed that the
plaintiff's bid was lower. The same reasoning would apply to
beginning the whole process over again with greater force
added to which further time would be consumed and it was
urgent to get the survey under way.
Though negligence was not pleaded, a claim for damages
founded upon a breach of the rules of natural justice, namely
the failure of the Department to comply with its own estab
lished and authorized procedure, was considered and dismissed.
Such a claim is tortious in nature and is based upon the
infliction of damage by the deliberate abuse of public authority.
No element of bad faith had been established in the instant
case.
The Trial Judge substituted the Minister of Supply and
Services for the named defendant, Her Majesty the Queen, on
the ground that section 18 of the Federal Court Act does not
apply to the Crown. The judgment proceeds on the basis that
the Minister was acting in an administrative capacity and that
damages were recoverable if it could be established that the
defendant had breached the duty of procedural fairness or that
the plaintiff's legal right to have his proposal considered by the
defendant had been denied. However, on reflection, it was felt
that the Minister was the proper defendant with respect to the
claim for declaratory relief while the Crown was the defendant
as to the claim for damages.
CASES JUDICIALLY CONSIDERED
APPLIED:
Minister of National Revenue et al. v. Creative Shoes
Ltd., et al., [1972] F.C. 993 (C.A.); Bates v. Lord
Hailsham, [1972] 1 W.L.R. 1373 (Ch.D.).
REFERRED TO:
Martineau v. Matsqui Institution Disciplinary Board
(No. 2), [1980] 1 S.C.R. 602; Zamulinski v. The Queen,
[1956-60] Ex.C.R. 175; Greenway, Executor of the
Estate of Mancuso v. The Queen, [1980] 1 F.C. 269
(T.D.).
COUNSEL:
G. K. Martin for plaintiff.
Mary Humphries for defendants.
SOLICITORS:
G. K. Martin, Vancouver, for plaintiff.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: The defendant first named in
the style of cause in this action was Her Majesty
the Queen but the relief sought, amongst other
things, was declaratory.
In Minister of National Revenue et al. v. Crea
tive Shoes Ltd., et al., [1972] F.C. 993 (C.A.),
Thurlow J. (as he then was) speaking for the
Appeal Division said at pages 998-999:
I am further of the opinion that Mr. Justice Walsh correctly
treated the proceeding as an application under Rule 603(b) for
the exercise by the Court of its jurisdiction under section 18 of
the Federal Court Act but the consequence of this appears to
me to be that claims for relief obtainable only by an action
commenced by a statement of claim cannot be entertained in
such a proceeding and that the Crown could not in any event
properly be made a respondent in such a proceeding since
section 18 confers the jurisdiction only in respect of the conduct
of a "federal board, commission or tribunal" which as defined
in section 2(g), does not include the Crown. On these matters
being pointed out during the course of argument counsel for the
respondents abandoned paragraphs B(4), B(6) and B(7) of the
claims for relief. The Crown must accordingly be struck out as
a party in any event and paragraphs B(4), B(6) and B(7) of the
claims for relief need not be further considered.
At the outset of the trial upon this matter being
pointed out by counsel for the defendant the style
of cause was amended to substitute the Minister of
Supply and Services with the consent of counsel
for both parties and upon oral motion by counsel
for the defendant.
At the same time 1 pointed out that the Minister
in the capacity in which he acted in the subject
matter of this suit was not acting in a judicial or
quasi-judicial capacity but merely in an adminis
trative capacity.
In Bates v. Lord Hailsham, [1972] 1 W.L.R.
1373 (Ch.D.), Megarry J. said at page 1378:
... in the sphere of the so called quasi-judicial the rules of
natural justice run, and that in the administrative or executive
field there is a general duty of fairness.
That duty avails the plaintiff herein.
In Martineau v. Matsqui Institution Discipli
nary Board (No. 2), [1980] 1 S.C.R. 602, Dickson
J. reviewed the decisions leading to the emergence
of the doctrine of procedural fairness in the
making of administrative decisions and concluded
by saying [at page 622]: "... elementary justice
requires some procedural protection".
In paragraphs 14 and 15 of the statement of
claim it is alleged:
14. The Department of Supply and Services is a statutory body
established under the laws of Canada and, as such, is bound to
observe the rules of natural justice.
15. In making the decision to award the contract without
considering the proposal of the Plaintiff, the Department of
Supply and Services and its agents have breached the rules of
natural justice and have thereby caused the Plaintiff loss,
damage and expense. Particulars of the breach of the rules of
natural justice include:
a. Acting in excess of its jurisdiction or without jurisdictions;
b. Excluding relevant matters from consideration;
c. Exercising its discretion in a capricious manner;
d. Failing to comply with its own established and authorized
procedure;
e. Proceeding on the wrong principles.
Because the Minister, responsible for the func
tion of the Department he heads in the circum
stances of the subject of this action, acted in an
administrative capacity 1 granted leave to the
plaintiff to amend these paragraphs by substitut
ing the words "procedural fairness" for the words
"natural justice" in the three occasions those
words appeared. This was done with the consent of
counsel for the defendants.
I entertain substantial reservations as to whether
what are stated to be "particulars" are in fact
truly particulars rather than conclusions of law
unsupported and not flowing from pleaded facts
with the possible exception of paragraph l5d to
the effect that the defendant failed "to comply
with its own established and authorized proce
dure".
But no one was misled. The matter was heard
and evidence adduced directed to the issue that the
defendant had acted unfairly to the detriment of
the plaintiff.
This matter was one of considerable urgency
and represented as such. It involved the support by
helicopter of an aerial survey by the Geodetic
Division of the Department of Energy, Mines and
Resources to begin May 1, 1982, a date now well
passed.
My brother Walsh, in granting an interim man
datory injunction against Her Majesty on April 8,
1982 to remain in effect until judgment on the
plaintiff's action for the declaratory relief it seeks
stated that the defendant's defence to the state
ment of claim had not been filed and as the time
within which to do so had not expired the Court
could not order that the action be set down for
immediate trial, but he added that it was in the
interests of both parties that the matter be set
down for trial at the earliest possible date, prefer
ably before May 1, 1982, no doubt assuming that
all conditions precedent to trial had been
completed.
There was no delay in appealing the grant of the
injunction by Walsh J. That was done within three
clear days.
A statement of defence dated April 28, 1982
was filed on April 29, 1982.
A joint application to fix the date and place for
trial dated April 30, 1982 was filed in the Vancou-
ver Registry on May 3, 1982 and received by the
Associate Chief Justice on May 5, 1982.
Each party proposed to call one witness and
produce five documents. The estimated duration of
the trial was one day. A more realistic estimate
would have been three days.
There was a judge available in Vancouver on
May 5 and May 6, 1982. The defendant was
unable to have her sole witness in Vancouver until
Thursday, May 6, 1982 and I accordingly fixed
the trial for Vancouver on that date. The trial was
not completed during the extended hours on May
6, 1982 and since the parties were to be present in
Ottawa, Ontario on May 11, 1982 to argue the
appeal from the order of Walsh J., the matter was
adjourned to May 12, 1982 in Ottawa.
The prayer for relief sought by the plaintiff was
a declaration that a contract awarded without
consideration of the plaintiff's response to a
request for proposals is void and of no effect, a
declaration that the plaintiff is entitled to have its
proposal considered before a contract is awarded
(which would be tantamount to a new call for
tenders), an interlocutory injunction (granted by
Walsh J. and of course not a matter for the Trial
Judge in any event) and special damages and
general damages.
Special damages are those which are definitely
ascertained and special damages unless pleaded
are not recoverable. There were no facts pleaded
with respect to special damages and counsel for
the plaintiff announced that he abandoned his
claim for special damages.
There remained however a claim for general
damages.
I was inclined to the belief that there were
sufficient allegations in paragraph 15 of the state
ment of claim to support a claim for general
damages, i.e., that having failed to comply with its
own established and authorized procedure and
awarding the contract without considering the
plaintiff's proposal the defendant breached the
duty of procedural fairness whereby the plaintiff
was caused loss, damage and expense.
Upon more mature consideration I may have
been precipitous in substituting the Minister of
Supply and Services as defendant in place of Her
Majesty. It would have been more proper to add
the Minister as a defendant limited to the declara-
tory relief sought and to retain Her Majesty as
defendant to the claim for general damages only.
The entire hearing was conducted on that basis as
were representations made on behalf of the parties.
I therefore revise the order I made to that extent,
secure in the knowledge that no prejudice whatso
ever is occasioned to either party.
It became abundantly clear during the presenta
tion of evidence by the parties that evidence as to
general damages could not possibly be heard
during the time available in Vancouver.
There had been no application ten days before
trial by the plaintiff to proceed to trial without
adducing evidence as to damages under Rule 480
and that such issue of fact might be the subject of
a reference after trial if it then appears that such
issue requires to be decided.
However by virtue of subsection (2) of Rule 480
an order of this kind may be made during trial by
the Court on its own motion and I so ordered that,
if as a result of the decision made the issue of
general damages still required to be decided, there
should be a reference to decide the quantum.
There is no pleading of negligence by a servant
of the Crown acting in the course of his employ
ment to support an award of damages for negli
gence by the Crown. As previously mentioned the
only allegation which would give rise to general
damages would have been the breach of the duty
on the defendant to act fairly with respect to the
plaintiff's tender or proposal.
If the plaintiff had the legal right to have its
proposal considered by the responsible Department
and it was denied that right it is a fundamental
principle that the violation of a right gives rise to a
cause of action in damages for that denial of a
right (see Zamulinski v. The Queen, [1956-60]
Ex.C.R. 175 and Greenway, Executor of the
Estate of Mancuso v. The Queen, [ 1980] 1 F.C.
269 (T.D.)).
In the event that there should be an order for a
reference as to damages, which would follow from
a decision that plaintiff has been denied a right to
which it was legally entitled, then that reference
shall be on the basis of the pleadings as they now
read without further amendment prior to the
reference.
The reason therefor is that the matter went to
trial on the basis of the issues settled by the
pleadings (excepting for the amendments of a
housekeeping nature made with the consent of and
without prejudice to the parties) as they presently
read. To do otherwise would be grossly unfair to
the defendant who, at trial, met the issues settled
by the pleadings and should not be called upon to
meet another and different case at the reference.
While it might be proper in certain circum
stances to permit an amendment to the pleadings
after the trial as to the question of liability of a
defendant and before the hearing of the reference
by the referee appointed to hear and decide the
quantum of damages (Rule 500(5) provides that
the referee shall be furnished with a certified copy
of the pleadings) this is not such a case, the claim
for damages being predicated upon the allegations
of fact in the pleadings.
This action arose from the duty, power and
function of the Minister, as outlined in section 5 of
the Department of Supply and Services Act,
R.S.C. 1970, c. S-18, to acquire and provide to the
Department of Energy, Mines and Resources,
another department of the Government of Canada,
air charter services required by that Department.
By virtue of section 11 of the statute, subject to
applicable regulations made by the Governor in
Council or Treasury Board, the Minister may
enter into contracts for those matters which fall
within his competence.
The Government Contract Regulations, C.R.C.,
c. 701, made by the Governor in Council pursuant
to the authority in the Financial Administration
Act, R.S.C. 1970, c. F-10, requires in section 8
that before any contract is entered into, the con
tracting authority, in this instance the Minister of
Supply and Services, should invite tenders except
in the circumstances provided for, none of which
are here applicable.
Section 9 provides with respect to a service
contract, which this contract is as defined in the
interpretation section of the Regulations, the con
tracting authority shall invite tenders from sup
pliers in a list that is, in the opinion of the con
tracting authority, representative of the suppliers
of the required services.
This was done.
Invitations to tender dated February 24, 1982
were sent to thirty-eight representative suppliers of
helicopter services of which the plaintiff was one.
The document was entitled, "Request for
Proposal" but in the language of the instrument
there is an explanatory notation that whenever the
word "tender" appears the word "proposal" should
be substituted therefor.
The instrument is in fact an invitation to tender
and when completed by a tenderer it is a bid but
there is a departure from the usual construction
tender in that it is not an invitation to treat. The
tender, bid or proposal, is an "offer" which when
accepted by the requester of the proposal consti
tutes the contract.
This is made abundantly clear from paragraph
11 ranged under title "Conditions of Tender" in
the request for proposal which reads:
1f required the tenderer will enter into a formal contract with
Her Majesty containing such terms and conditions (not incon
sistent with the terms and conditions of this tender) as may be
required by Her Majesty. Unless and until such a formal
contract is entered into, this tender and any acceptance of
tender by Her Majesty shall together be the complete and only
contract.
Mr. Dunn, the President of the plaintiff, testi
fied that he had received the request for proposal
dated February 24, 1982 from the Department
shortly after the date of the request.
In cross-examination Mr. Dunn acknowledged
that he also received a "Notice to Suppliers"
enclosed with the request for proposal.
The notice to suppliers was received in evidence
as Exhibit D-1, which notice reads:
NOTICE TO SUPPLIERS
The policy and practice of the Department of Supply and
Services is to return a bid to the sender if it was received by DSS
after the designated closing time and date, unless the envelope
containing the bid bears a Post Office Cancellation Time
Stamp confirming that the bid was posted at least 48 hours
prior to the closing time and date (outside Canada 96 hours).
1. If you use a postage meter machine, you should consider
sending your bid by Registered Mail, Certified Mail or Special
Delivery for proof that it was mailed at least 48 hours prior to
the closing time and date (outside Canada 96 hours).
NOTE:
Postage meter imprints are not normally cancelled by the
Canada Post Corporation and therefore, are not acceptable as
proof of timely mailing.
2. If the bid was mailed less than 48 hours prior to the date and
time set for closing (outside Canada 96 hours), you should
consider submitting your bid by telegraphic means, unless
otherwise instructed in the request for bid.
Only mistaken handling in DSS will excuse the delay of a
telegraphic bid. Mistaken handling by others, misrouting,
volume traffic, weather disturbances or any other causes for
delay of delivery of telegraphic responses attributable to the
telegraphic company will not excuse the lateness of a telegraph
ic bid.
The bidder has the sole responsibility for ensuring that its bid is
received on time. The bidder cannot transfer such responsibility
to the government. For example, when transmitting a bid which
requires obtaining customs clearance before DSS takes posses
sion of the bid, it is the responsibility of the bidder to allow
sufficient time to obtain such clearance before the scheduled
bid closing date and time. Such instances cannot be construed
as "undue delay in the mail".
For further information please write to or phone:
The Executive Secretary
Supply Administration
Department of Supply & Services
Ottawa, Canada
KIA 0S5
Telephone: (819) 997-2686
or
The Project Officer identified
on the bid form.
The proposal was required to be completed on
the form supplied and returned in a special
envelope provided to the Secretary, Supply
Administration of the Department at a specified
address in Hull, Quebec.
The closing date and time was, as dictated in the
form, March 18, 1982 at 10 a.m. Eastern standard
time [E.S.T.].
Coincidentally the date and time for opening
tenders is also March 18, 1982 at 10 o'clock in the
forenoon.
Mr. Dunn was well aware from his previous
experience in dealing with the Department and
from paragraph 1 of the conditions of tender
(Exhibit P-2) and the notice to suppliers (Exhibit
D-1) that an "offer" (that is the word used in
Exhibit P-2) mailed at least forty-eight hours prior
to the closing time and date if mailed in Canada
(96 hours outside Canada) will be considered as
timely mailing subject to proof acceptable to the
Department of the mailing date and time. It was
specifically noted that "Postage meter imprints ...
are not acceptable as proof of ... mailing".
The reason for that is implicit from the notice to
suppliers.
Private individuals own and utilize postage
meter machines. A postage meter sticker or stamp
may be attached to an envelope at the mailer's
premises within time but the envelope may not be
deposited in a post office until well after the expiry
date or time. Since postage meter imprints are not
normally cancelled by Canada Post the imprints
are not acceptable by the Department as proof of
timely mailing. Different considerations must
therefore apply if, at the request of the sender, a
postal clerk cancelled the meter print with a leg
ible cancellation stamp showing the time and date
of the receipt and cancellation which would coin
cide. The same would apply to postage stamps
purchased and affixed.
The same thing applies to postage meter
imprints affixed by Canada Post. They are not
cancelled either. However if the meter imprint is
affixed by Canada Post that should overcome the
difficulty in the use of private meters but the
difficulty remaining is in how to establish whether
the postage meter machine is owned by a private
person or Canada Post.
That is possible to do.
Each postage meter machine bears a registra
tion number and the postage meter stamp ejected
by that machine bears that registration number.
Canada Post has a record of the registration num
bers of postage meter machines and if the registra
tion number is legible on the imprint then owner
ship of the machine can be readily ascertained.
But Canada Post zealously guards the secrecy of
the ownership of those machines.
Mr. G. M. Lafrenière, the Executive Secretary,
Supply Administration, conscious of his duty as a
public servant to serve the public convenience,
worked out a procedure between his Branch and
the Canada Post whereby an employee of his
Branch would telephone an employee of Canada
Post giving the registration number on a postage
meter imprint and receive advice from the records
of Canada Post whether or not a postage meter
machine bearing that registration number was
owned by Canada Post.
Mr. Lafrenière impressed upon Canada Post the
vital necessity of the transmission of accurate
information. It is needless to add that drastic
consequences could flow from inaccurate informa
tion.
He also indicated the co-operation he was able
to achieve from Canada Post in giving high priori
ty to the expedition of mail in the special yellow
envelopes supplied with the requests for proposals
in which to return bids or for use as an address
label.
Mr. Dunn was aware, or had reason to assume,
that postage meter imprints affixed by Canada
Post were acceptable as proof of the date of mail
ing and this despite the written admonishments not
to rely on this method of proof in such instruments
as the conditions of tender, and notice to suppliers.
This was a facility that Mr. Lafrenière had
undertaken to provide and did provide as a conve
nience to bidders.
So on March 15, 1982 Mr. Dunn instructed his
secretary to mail the plaintiff's response to the
request for proposal on that day. He specifically
instructed her not to use the plaintiff's postage
meter machine but to take the envelope enclosing
the bid with the special envelope supplied by the
Department affixed as an address label and depos
it that envelope in the office of Canada Post at
Richmond, British Columbia. The secretary did
precisely that. She was not directed to request that
the postage meter imprint be cancelled nor to buy
and affix postage stamps which would be cancelled
as a matter of course.
Mr. Dunn testified that it was advantageous to a
bidder to delay until the last possible moment,
within a margin of safety, in depositing his bid.
That is why he gave the instructions to mail the
bid on March 15, 1982 at the Post Office in
Richmond, B.C. He did that secure in the knowl
edge a bid mailed in Canada forty-eight hours
prior to 10 a.m. E.S.T. on March 18, 1982 would
be within time and considered as such. A bid
posted in Richmond, B.C. at 7 a.m. Pacific time on
March 16, 1982 would have been posted forty-
eight hours prior to 10 a.m. E.S.T. on March 18,
1982.
It is clear from the postage meter imprint that
the envelope was mailed in Vancouver, B.C. on
"15 III '82" which must mean March 15, 1982
and the imprint came from "METER XX
COMPTEUR XX 576299". The two symbols after
each of the English word METER and the French
word COMPTEUR are completely undecipherable
even to an hieroglyphist but the figures 576299 are
crystal clear.
On the reverse side of the envelope, still uno
pened, is what may be a postal stamp indicative of
the receipt in Ottawa, Canada are the letters MR
followed by very faint traces of what might be
figures which could possibly be 18 followed by
readable figures 82. Perhaps that stamp means the
envelope was received by Canada Post at one of its
terminals on March 18, 1982 but the figures which
I think might be 18 cannot be so identified with
any degree of certainty.
In any event there is a further stamp which is
legible indicating that the parcel was received in
the Mail Room DSS, which in response to a
question I was informed meant the Department of
Supply and Services, on "Mar 19 1982" and an
arrow on a twenty-four hour clock points to the
envelope having been there received at 9 a.m. on
that day.
That was after the closing time.
Therefore the procedure instigated by Mr.
Lafrenière was put in motion.
On March 19, 1982 an employee of the Depart
ment of Supply and Services charged with that
responsibility telephoned an employee of Canada
Post charged with a reciprocal responsibility to
ascertain from the records of Canada Post whether
postal meter machine registered number 576299
was a Canada Post machine. (I assume the
employee would check the registered number of
machines utilized by Canada Post and if number
576299 was not recorded as such then it must be a
private postage meter machine.)
Canada Post advised that meter machine
number 576299 was not operated by Canada Post.
Accordingly the employee of the Department of
Supply and Services so recorded in a log book kept
for recording such information.
Exhibit D-3 is a sheet from that log book the
first entry of which is dated "19-3-82". The meter
number recorded is "576299", the "City" of mail
ing is given "VOR" which likely means Vancouver,
the "Co. Name" is entered as "QUASAR", the
column headed "POST OFFICE METER" is blank
but the concluding entry and column "COMPANY
M" (the letters "ETER" most likely were not repro
duced in the photostatic copy) with an appropriate
tick mark indicating number 576299 is a private
postal meter machine.
On receipt of this information R. G. Miller
despatched a notice, Exhibit P-4, the titles to
which were reversed in filming and before a mirror
would read: "NOTICE TO SUPPLIERS" and "AVIS
AUX FOURNISSEURS", dated March 19, 1982
addressed to the plaintiff the body of which reads:
YOUR BID IN RESPONSE TO THE ABOVE NOTED SOLICITATION
WAS RECEIVED LATE. THEREFORE, YOUR BID IS RETURNED TO
YOU.
IT IS THE POLICY OF THE DEPARTMENT NOT TO ACCEPT BIDS
RECEIVED AFTER THE HOUR AND DATE SET FOR CLOSING.
THIS POLICY IS RIGIDLY APPLIED AND IN FAIRNESS TO ALL
CONCERNED, IS NOT ALTERED FOR ANY REASON.
IT IS THE BIDDER'S RESPONSIBILITY TO ENSURE THAT HIS
QUOTATION IS RECEIVED, BY THE OFFICE OF THE EXECUTIVE
SECRETARY, BID RECEIVING SECTION, ON TIME. PLEASE SEE
"NOTICE TO SUPPLIERS" ON REVERSE SIDE FOR MORE
INFORMATION.
I think Exhibit P-3 is the reverse side of and
referred to in Exhibit P-4 as is also indicated by
the reverse of the titles showing through.
That being so this "Notice to Suppliers" (Exhib-
it P-3) is supplementary and possibly in further
explanation of the classification of the plaintiff's
bid as late as appears from the opposite side
(Exhibit P-4).
In any event Exhibit P-3 would have been
received by the plaintiff after the event and this
document cannot be considered as prior notice of
mailing requirements.
The plaintiff's envelope enclosing its bid was
returned to the plaintiff unopened.
In a manual entitled "Supply Policy Manual"
designed to serve as instructions or directions to
employees of the Department the policy to be
followed with respect to late bids is outlined in
section 6 ranged under the subject "Policy" and
reads:
6. Late bids are not to be accepted. They are to be returned
unopened as soon as possible following their receipt, unless it is
necessary to open the envelope to determine the content and/or
name and address of the sender.
This policy is substantially repeated in the
notice to the plaintiff rejecting its bid as late.
The responsibility for the delivery of bids is that
of the bidder and this is outlined in section 14 of
the Supply Policy Manual which reads:
14. The bidder has the sole responsibility for ensuring that its
bid is received on time. The bidder cannot transfer such
responsibility to the government. For example, when transmit
ting a bid which requires obtaining customs clearance before
DSS takes possession of the bid, it is the responsibility of the
bidder to allow sufficient time to obtain such clearance before
the scheduled bid closing date and time. Such instances cannot
be construed as "undue delay in the mail" so as to allow a late
bid thus received to fall within the terms of these guidelines.
The substance of this responsibility is repeated
in the third paragraph of the rejection slip sent to
the plaintiff after the event.
There is yet another category of bid other than a
late bid which is called a "delayed" bid.
Late bids are categorically rejected.
Delayed bids received prior to the award of a
contract will be deemed to have been received in
time even if received after the closing time.
The policy with respect to delayed bids is
outlined in section 7 of the Manual and reads:
7. A delayed bid received prior to contract award will be
considered to have been received on time provided one of the
following two conditions is met:
a) the delay can be substantiated as having been due solely to
an abnormal delay in the mail;
or
b) it can be substantiated that the bid was received by DSS in
sufficient time to be delivered to the specific location desig
nated for the receipt of bids and, in the course of normal
internal delivery procedure, would have been received at such
location before the closing date and time except for delay due
to mistaken handling in DSS.
Sections 8 and 9 of the Manual provide guide
lines to acceptable delays. They read:
8. The date and time of mailing and the normal delivery time
are important in determining if the delay was caused solely by
an abnormal delay in the mail. As a general rule, 48 hours is
considered sufficient time for mail to be deposited in the postal
system in Canada and delivered on time. For the purpose of this
policy it must be evident that a bid was mailed 48 hours before
the closing date and time to be considered as having been
mailed in sufficient time. Therefore, mail showing less than 48
hours available delivery time remaining cannot be considered to
have been mailed in sufficient time and cannot be accepted
except where it was received in DSS on time but was delayed
due to mistaken handling in DSS.
9. For bids mailed outside of Canada, the above principles
apply except that it must be evident that such bids were mailed
a minimum of 96 hours before the closing date and time for
them to be considered to have been mailed in sufficient time.
As to what is considered as acceptable evidence
is contained in section 10 which reads:
10. The following is the only acceptable evidence to substanti
ate that a bid was mailed "on time" per Guidelines 8 and 9 but
receipt was abnormally delayed in the mail:
A Post Office stamp (postmark) or a Receipt for Registered
Mail, Certified Mail, or Special Delivery applicable to that
specific item of mail which show the date and time of
registration. Postmarks or Receipts which show only the date
and not both date and time shall be assessed as having been
mailed on the date shown at the same time of day and time
zone as that designated for the closing of bids for that
solicitation. Postmarks or receipts showing only a time but no
date will not constitute acceptable evidence.
Metered mail is the subject of specific mention
in section 12 which reads:
12. Where the only date on the envelope in which a bid was
mailed is that imprinted by a postage meter held by the
supplier, this shall not constitute acceptable evidence of timely
mailing per Guidelines 8 and 9.
This Manual is merely a directive to the
employees of the Department with respect to the
manner in which tenders are to be invited (subject
to the Government Contract Regulations) and
handled.
However this procedural policy is communicated
to the prospective bidders in many respects.
In Exhibit D-1 a notice to suppliers which was
enclosed with the request for proposal addressed to
the plaintiff and has previously been reproduced
herein the practice and policy of the Department
in returning late bids is outlined "... unless the
envelope containing the bid bears a Post Office
Cancellation Time Stamp confirming that the bid
was posted (in Canada) at least 48 hours prior to
closing time and date ...".
It was emphasized that postage meter imprints
are not acceptable as proof of timely mailing. That
is a categorical statement and there is no mention
whatsoever of Mr. Lafrenière's arrangement and
the circumstances under which meter imprints are
acceptable.
There is further emphasis that the sole responsi
bility for ensuring that a bid is received on time is
that of the bidder. The language is a partial repeti
tion of that in section 14 of the Supply Policy
Manual.
Paragraph 1 of the conditions to tender is to the
like effect.
There are admonitions as to bids entrusted to
the mails.
Postage meter imprints are not acceptable as
proof of mailing because those imprints are not
normally cancelled by the Post Office.
If the bidder uses a postage meter machine it is
suggested that the bid be sent by registered mail,
certified mail or special delivery for proof of
timely mailing.
There are matters of significance of which no
specific mention is made. If a delayed bid is
received after the contract is awarded it is not to
be considered even if posted in Canada within the
time frame of forty-eight hours prior posting. (See
section 7 of the Supply Policy Manual by which a
delayed bid must be received prior to the award of
a contract.)
I have not been furnished with evidence that
such condition is specifically brought to the atten
tion of prospective bidders in writing or how bid
ders are otherwise informed of this practical condi
tion dictated by sound common sense.
Mr. Lafrenière testified that throughout his
experience of seven years, during which the
number of contracts awarded in a year has been
50,000 or more, there has never been a delayed bid
received after the award of the contract.
Even in this instance the plaintiff's bid was in
fact received shortly after the closing time but
before the award of the contract.
It was construed as a late bid upon the basis of
the information received from Canada Post which
made the evidence of posting unacceptable and the
bid was not accorded delayed status.
The other hiatus is that despite the repetition
that postage meter imprints are not acceptable as
proof of mailing in time they are acceptable if the
imprint is applied by a machine in a postal office,
added to which is that the registration number of
the machine reproduced on the imprint is legible. I
would assume that the same requirement of legi
bility is applicable to a post office time cancella
tion stamp.
The notice dated March 19, 1982, Exhibit P-4,
rejecting the plaintiff's bid was received by Mr.
Dunn, the President of the plaintiff, on March 24,
1982 more than seventy-two hours after mailing.
Mr. Dunn took immediate action. He tele
phoned the office of the Executive Secretary on
March 24, 1982 protesting that the plaintiff's bid
had been posted on March 15, 1982 more than
forty-eight hours prior to the closing date. Because
of the three-hour time difference the Government
offices in Ottawa were on the verge of the closing
hour. The employee who received the telephone
call took complete notes to bring to the attention
of Mr. Lafrenière the next morning.
On March 25, 1982 Mr. Lafrenière acted with
alacrity. He conducted a hasty but thorough
investigation.
The employee, who had first telephoned her
counterpart in Canada Post and had been
informed that meter number 576299 did not
belong to Canada Post, repeated her request for
information from Canada Post no doubt with more
emphasis on the necessity of accurate information.
This time it was verified to her that meter number
576299 belongs to Canada Post Corporation in an
office in B.C. (the office was in Richmond, B.C.).
The change in status and management of the
Post Office does not appear to have resulted in any
marked improvement in the quality and compe
tence of the personnel.
One of the responsibilities of the Branch of
which Mr. Lafrenière is the head is to receive the
tenders or proposals made in response to the invi
tation or request therefor, keep them in safe cus
tody until the closing time and then ensure their
safe and immediate delivery to the contracts
administration branch, a branch separate and dis-
tinct from that headed by Mr. Lafrenière. The
responsibility of the officers of the contracts
administration is to consider the proposals received
and select and award the contract to the successful
proposer considered to be the most worthy. The
closing time and date for the receipt of tenders is
also the opening time and date for tenders
received.
If Mr. Lafrenière is aware of a delayed bid, as
well he might if he is informed of a bid being in
the mails and is so advised by telegraphic or like
means, then the contracts administration branch is
alerted as it also is to delayed bids actually
received after the closing date and which are
included among the bids sent to that branch.
Because the plaintiff's bid had been considered
to be late it was not included amongst those for
warded to the contracts administration branch.
On March 23, 1982 that branch by telex advised
Viking Helicopters Ltd., Ottawa, Ontario that its
proposal had been accepted and requested an
acknowledgment which was immediate in forth
coming.
I make specific mention of this circumstance in
addition to a recital of the facts for the reason that
in paragraph 9 of the statement of claim the
plaintiff alleges:
... that no contract has been made or completed or signed for
the charter of a helicopter pursuant to the Request for Proposal
(dated February 24, 1982 (Exhibit P-2))
as at March 31, 1982 the date of the statement of
claim.
By paragraph 6 of the statement of defence
paragraph 9 of the statement of claim is denied
and alleges that:
... the said contract was awarded to Viking Helicopters Ltd.
on March 23, 1982.
In my view a valid contract came into being on
March 23, 1982 between Her Majesty the Queen
and Viking Helicopters Ltd.
The simple basic concept is that a contract is
entered into by one party making an offer and
another accepting it.
The request for proposal dated February 24,
1982 is an offer when completed by the tenderer.
The language in the block on the first page
reads:
TENDER To: Department of Supply and Services
We hereby offer to ... supply to Her Majesty the Queen in the
Right of Canada, upon the terms and conditions set out herein
and on any reverse sides hereof, the ... services listed herein
and any attached sheets at the price(s) set out therefor.
That is clearly an offer and not merely an offer
to treat.
Paragraph 11 of the conditions of tender on
page 2 of the request for proposal (Exhibit P-2)
reads:
11. If required the tenderer will enter into a formal contract
with Her Majesty containing such terms and conditions (not
inconsistent with the terms and conditions of this tender) as
may be required by Her Majesty. Unless and until such a
formal contract is entered into, this tender and any acceptance
of tender by Her Majesty shall together be the complete and
only contract.
The tender is the offer and the acceptance of the
offer is the telex from the Department of Supply
and Services. Accordingly there was an offer by
Viking Helicopters Ltd. and an acceptance of that
offer by Her Majesty on March 23, 1982 from
which it follows that a contract between these
parties came into being on March 23, 1982.
On learning, in response to his direction, that
Canada Post had been in error in advising the
Department of Supply and Services on March 19,
1982 that postal meter number 576299 was not
owned by Canada Post whereas it was in fact so
owned and a more accurate search by Canada Post
on March 25, 1982 so confirmed Mr. Lafrenière
convened a meeting of responsible officers in his
own Branch and those of the contracts administra
tion to consider what options were open to them.
Predicated upon the information available to the
employees of his Branch on March 19, 1982 the
plaintiff's bid was a late bid. The proof of the time
of mailing was a postage meter imprint. The policy
of the Department made clear to tenderers was
that this was not acceptable proof of mailing.
Superimposed upon this was the service made
available to tenderers by reason of Mr.
Lafrenière's arrangement with Canada Post that
postage meter imprints would be acceptable proof
of mailing in time if Canada Post confirmed that
the postage meter was owned by it. While this
service was never the express subject for inclusion
in the Policy Manual nor was mention ever made
of the interdepartmental, and later interdepart-
ment and Crown agency, arrangement in the
requests for proposals or supporting material such
as notices to suppliers nevertheless the fact that
Canada Post meter imprints were acceptable proof
became known to prospective bidders no doubt
based upon experience.
Mr. Dunn, without being expressly informed by
any written instructions emanating from the
Department "assumed" this to be the case from
his past experience.
But the stark fact remains that on March 19,
1982 the Department was informed that postal
meter number 576299 was not a Canada Post
meter and so unacceptable as proof of timely
mailing. From this it followed that the plaintiffs
bid was a late bid and treated as such.
On March 25, 1982 it was ascertained that the
plaintiffs bid was not in fact a late bid having
been posted on March 15, 1982 in Canada more
than 48 hours prior to the closing time and had
been received on March 19, 1982 in the mailing
room of the Department and, but for the inaccu
rate information, qualified as a delayed bid and
entitled to consideration as such on that date had
the true facts been known at that time.
The options were:
(1) to cancel the contract awarded to Viking
Helicopters Ltd. with possible resultant dam
ages in an action for breach of contract, and
(a) give consideration to the plaintiffs pro
posal together with the other proposals,
(b) to start the whole matter afresh with new
requests for proposals and consider the pro
posals received, or
(2) refuse to consider the plaintiff's tender and
let the matters stand as they were.
After mature consideration the meeting resolved
to adopt the second course and there were several
reasons which influenced the decision to do so.
First and paramount was that a contract had
been entered into between Her Majesty and
Viking Helicopters Ltd. on March 23, 1982,
which, for the reasons I have expressed, was a
valid and subsisting contract.
To reopen consideration of the bidding to
include the plaintiff's bid which had not been
opened would work a manifest injustice to those
whose bids had been opened and particularly that
of the successful bidder the amount of whose bid
had become known and it had also been disclosed
that the plaintiff's bid was lower. Thus the dice
would be loaded in favour of the plaintiff and the
secret bidding process would come to naught.
That same reasoning would apply to beginning
the whole process over again with greater force
added to which further time would be consumed
and it was urgent to get the survey under way.
The course was therefore adopted to reject the
plaintiff's bid for the twofold reasons:
(1) as at March 19, 1982 when the plaintiff's
bid was received, there was no acceptable proof
that the plaintiff's bid had been mailed in time,
and
(2) when it was established that the bid had in
fact been mailed in time, a contract had been
concluded.
When that decision had been reached by Mr.
Lafrenière and his colleagues he telephoned Mr.
Dunn and advised him the plaintiff's bid could not
be considered. He confirmed that conversation by
telex dated March 26, 1982 (Exhibit P-6) which
reads:
Following our telephone conversation of March 25/82, 1 am
confirming that your bid on the Department of Supply and
Services request for proposal 03G W.23244-2-4006 was received
here after closing date and time. A thorough review of the
situation revealed that the bid was returned to you as late based
on the information received at the time.
A verification initiated after your representations yesterday
revealed that the postage meter imprint was that of a Canada
Post Corporation and not that of your company as previously
ascertained by Canada Post Corporation. However, the con
tract had already been awarded by telex on March 23/82 to
Viking Helicopters Ltd. at a rate of Dlrs 250.00 per hour.
Regret to inform you that your bid cannot be considered.
Following on the refusal to consider the plain
tiff's bid Mr. Dunn placed a telephone call to the
Minister of Supply and Services on March 25,
1982 and reached the Minister's Executive
Secretary.
The Secretary took notes of Mr. Dunn's com
plaint and undertook to bring the matter to the
Minister's attention so that it might be looked into
and assured Mr. Dunn that he would be further
advised.
Mr. Dunn confirmed the substance of that con
versation by telex also dated March 25, 1982
which appears to be directed to the Department
generally and not to the Minister particularly. He
testified that he sent the telex as a matter of
record.
No response was received by Mr. Dunn from the
Minister or the Minister's Executive Secretary. He
also made representations to the Member from his
constituency.
No results satisfactory to Mr. Dunn were forth
coming, hence this action.
The plaintiff seeks two forms of declaratory
relief the first of which reads:
a. A Declaration that the decision of the Department of Supply
and Services, and its agents, to close its Request for Proposals
No. 03GW.23244-2-4006 and to award a contract for the
supply of helicopter service as set out in the Request for
Proposal, without considering the proposal submitted by the
Plaintiff, is void and of no effect.
Implicit in this, in order to declare the contract
entered into by Her Majesty with Viking Helicopt
ers Ltd. void; must be the contention that there
must have been such a breach of the general duty
of fairness as to preclude Her Majesty from
accepting the offer of Viking Helicopters Ltd. or
as counsel for the plaintiff put it, Her Majesty was
acting beyond her jurisdiction in doing so.
Sections 8 and 9 of the Government Contracts
Regulations require that before a contract is
entered into there shall be a call for tenders if not
within an exception outlined in section 8 which
this contract is not.
Section 9 provides that when an invitation is
obligatory for a service contract it shall be done
either by newspaper advertising or from a repre
sentative list of suppliers.
Other than that there is no further statutory
provision explicit with respect to the tendering
procedure to be adopted. That is left to the con
tracting authority to prescribe subject only to an
implicit general duty of fairness.
That is what the Department has done.
Foremost in inviting tenders a closing time on a
closing date at a specified place is fixed. That
practice is so logical, well known and universally
accepted that no specific provision need be includ
ed in a procedural scheme.
All that need be done is to specify the closing
time and date and the place where the tenders are
to be received prior thereto.
This has been done in the request for proposal.
The Department outlined the procedure to be
followed by its employees in the conduct of the
tendering process in the Supply Policy Manual of
which, while directed to internal management, the
salient features have been made known to bidders
by repetition and inclusion in conditions to tender
in the request for proposal (Exhibit P-2), in the
notice to suppliers (Exhibit D-1) enclosed with the
request for proposal and in the explanatory notice
sent to suppliers on the rejection of a late bid
(Exhibits P-3 and P-4).
The paramount condition is the bidder has the
sole responsibility for ensuring that its bid is
received on time and that onus cannot be shifted.
That is categorically stated.
The sequel to this condition is that late bids
cannot be accepted but are to be returned to the
sender.
If the procedure had ended there it would be
eminently fair and an instance such as the present
action would not arise.
But the Department made concessions to bid
ders. Provision was made for sending tenders by
mail in Canada at least forty-eight hours before
the closing date, provided always that there was
acceptable proof of timely mailing as provided for
in the sections of the Supply Policy Manual quoted
above.
What was acceptable evidence of timely mailing
is also set forth in section 10 of the Supply Policy
Manual.
Section 12 of that Manual states that an imprint
from a postage meter held by a supplier is not
acceptable evidence of timely mailing for the obvi
ous reasons previously mentioned.
The information conveyed to bidders in the con
ditions to tender and the notice to suppliers does
not limit the postage meter imprints to those from
machines owned by the supplier but is to metered
mail generally including imprints from meters
owned by Canada Post although that is not specifi
cally spelled out in the information directed to
suppliers. All that is said is that "Postage meter
imprints ... are not acceptable as proof of timely
mailing".
Thus if the information so conveyed to bidders
were left inviolate then all postage meter imprints
would be unacceptable as proof of timely mailing
even though the Supply Policy Manual makes
reference only to privately-owned postage meters
and this would be sensible bearing in mind the
difficulty in distinguishing between privately-
owned meters and those owned by the Canada
Post and also bearing in mind that section 10 of
the Supply Policy Manual details what would con
stitute acceptable evidence of the date and time of
mailing and excludes postal meter imprints and in
so saying I construe a "postmark" or "Post Office
stamp" as being different from an imprint of a
postal meter owned by Canada Post.
This being so the plaintiff's bid would not
comply with the procedures adopted by the
Department in these respects, which in my view
are reasonable as well as fair, and so would be
properly rejected as not being mailed in time.
However superimposed upon those internal writ
ten procedures which have been communicated to
bidders in the conditions of tender and notices to
suppliers Mr. Lafrenière instigated a service and
procedure whereby the postal imprint from a
meter owned by Canada Post could be identified
and adopted the practice of accepting meter
imprints so identified as proof of timely mailing.
This procedure, designed as a convenience to
potential bidders, is a departure from what is a
strict exclusion of postal meter imprints and not
acceptable proof of the date and time of mailing
regardless of the ownership of the machine.
This practice is not embodied in any procedural
manual for departmental guidance nor has it been
included in any conditions, instructions or notices
in written form to bidders but from its very imple
mentation it becomes known to frequent bidders as
the plaintiff was.
Therefore such bidders are led to rely and do
rely, as the plaintiff did, on the procedure that by
depositing its bid in a post office in Canada forty-
eight hours before closing of bids its bid will be in
time without further steps being taken by the
sender. That is so, subject to three limitations of
which the sender may not be aware:
(1) the postal imprint is that of a meter owned
by Canada Post;
(2) the registration number is legible to permit
of identification as such and that the date and
hour imprinted is likewise legible, and
(3) the bid is actually received (assuming other
precautions suggested in Notices to Suppliers
are not taken) at the location for opening ten
ders prior to the award of a contract.
The fault of the Department, if it is a fault, has
been not giving formal notice of this practice and
its limitations to prospective bidders.
As against the background of facts recited while
the plaintiff's bid had been posted within the
forty-eight hours, to which was affixed a Canada
Post imprint so showing and was received on the
day after the closing day but before a contract was
awarded the arrangements made with Canada
Post, the sole possessor of the information to iden
tify the postal meter imprint as that of Canada
Post, proved fallible in this particular instance at
the crucial time.
The Department placed reliance upon the wrong
information given to it by Canada Post and
categorized the plaintiff's bid as a late bid.
In my opinion the Department was justified in
doing so.
The plaintiff seeks declaratory relief in two
manners, the first of which has been previously
quoted from the statement of claim which was to
declare a contract entered into as void and of no
effect.
At the time the Department rejected the plain
tiff's bid as late, it followed its written procedures
to the letter and in checking the origin of the
postal meter imprint it followed its procedure for
checking with exactitude. That procedure was the
most reasonable and most accurate one that could
be devised.
The procedure was fair and was followed.
Accordingly there was no breach of the duty of
fairness by the Minister and his servants, assuming
there was such duty which counsel for the defend
ant contended did not exist and which I do not
decide. That the procedure proved fallible does not
detract from its fairness. The fallibility was that of
a third party in furnishing incorrect information
upon which the Department was justified in plac
ing reliance.
Thus the declaration sought by the plaintiff in
paragraph a of its prayer for relief is not
warranted.
The second manner of declaratory relief sought
is that in paragraph c of the prayer. It reads:
c. A Declaration that the Plaintiff is entitled to have the
proposal submitted by the Plaintiff to the Secretary Supply and
Administration, Department of Supply and Services under the
request for Proposal No. 03GW.23244-2-4006, considered by
the Department of Supply and Services before a decision is
made to award the contract for the supply of helicopter service
set out in the Request for Proposal.
In the first instance the declaration so sought is
incompatible with paragraph 9 of the statement of
claim that no contract has been made or com
pleted or signed for the charter of a helicopter as
at March 31, 1982, the date of the statement of
claim.
That allegation is contrary to the proven fact. A
contract was awarded to Viking Helicopters Ltd.
upon the acceptance of its offer on March 23,
1982 by telex (Exhibit D-4) sent on that date and
which contract, for the reasons previously
expressed is valid and subsisting.
The Department's self-imposed procedure is to
the effect that a delayed bid received after a
contract has been awarded cannot be considered
(see Supply Policy Manual, section 7).
While there is no evidence that this circum
stance has been the subject of express communica
tion to bidders the policy is so consistent with the
universally-accepted business practice as to be
self-evident.
That the response by the plaintiff to the request
for proposal could be considered as a delayed bid
was not determined by the recipient until March
25, 1982 at which time a contract had been
awarded.
The category of a delayed bid cannot be made
retroactive from March 25, 1982 until March 19,
1982, when the bid was in actuality received by the
addressee, because on that date it was determined
to have been a late bid and that determination was
one which the Department was entitled to make
for the reasons above expressed.
Accordingly it follows that the plaintiff is not
entitled to the declaration it seeks in paragraph c
of its prayer for relief.
Thus there remains the question of general dam
ages the plaintiff having abandoned its claim for
special damages for the reasons previously
expressed.
The statement of claim does not allege facts
upon which an action in negligence can be
founded.
The plaintiff's claim for damages must be
founded upon the allegations in paragraph 15
which originally read:
15. In making the decision to award the contract without
considering the proposal of the Plaintiff, the Department of
Supply and Services and its agents have breached the rules of
natural justice and have thereby caused the Plaintiff loss,
damage and expense. Particulars of the breach of the rules of
natural justice include:
a. Acting in excess of its jurisdiction or without jurisdictions;
b. Excluding relevant matters from consideration;
c. Exercising its discretion in a capricious manner;
d. Failing to comply with its own established and authorized
procedure;
e. Proceeding on the wrong principles.
At the outset counsel for the plaintiff amended
this paragraph by replacing the words "natural
justice" wherever they appeared with "procedural
fairness". The particulars recited in paragraphs a,
b, c and e are not particularly apt when applied to
a body exercising purely administrative functions
and are more apt when applied to a body obliged
to act judicially or quasi-judicially.
While many rules of natural justice may coin
cide with the duty of fairness the facts found
exclude the four paragraphs mentioned.
But paragraph 15d may contain the basis of a
claim for damages which I should think is tortious
in nature but torts of this nature are imperfectly
defined. Those of which I am aware consist of the
infliction of damage by the deliberate abuse of
public authority. An element of bad faith appears
to be necessary.
In this instance such elements are completely
lacking. The officers of the Department acted both
in good faith and reasonably.
Further there was no denial of any right to
which the plaintiff was entitled to bring the matter
within the concept of Zamulinski v. The Queen
(supra) and Greenway, Executor of the Estate of
Mancuso v. The Queen (supra).
Accordingly a reference to assess the quantum
of damages is not required.
Throughout I have used "defendant" in the
singular. When the context so requires and that is
so with respect to the declaratory relief, the refer
ence to "defendant" is to the Minister of Supply
and Services.
Where the context is with respect to the claim
for damages the use of the word "defendant"
refers to Her Majesty the Queen.
For the foregoing reasons the plaintiff is not
entitled to any of the relief it seeks in the state
ment of claim and the action is dismissed with
costs to the defendants if demanded.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.