ONTARIO
COURT OF APPEAL
RE-AFFIRMS THAT THE INTEGRITY OF THE TENDER PROCESS IS
ESSENTIAL TO FOSTER FAIR
AND
ORDERLY BIDDING
In a decision released September 24, 2009, on an appeal
heard March 24, 2009, the Ontario Court of Appeal
unanimously dismissed the Town of Newmarket’s appeal
from the decision of Justice Laurence Pattillo dated May
6, 2008 [reported in L.U.C. #75]. The application
judge found the Town to be in breach of contract with
Maystar for accepting the non-compliant bid of Bondfield
Construction Company Inc. for the construction of a
recreation centre.
The central issues on this appeal were:
1.
Did the application judge err in law by failing
to apply the principles in the Ontario Court of Appeal’s
decision in
Bradscot (MCL) Ltd. v. Hamilton-Wentworth Catholic
District School Board (1999), 42 O.R. (3d) 723
(C.A.) and by distinguishing the case on the facts?
2.
Did the Town’s tender documents allow it to
accept Bondfield’s bid?
3.
Did the application judge err by finding that a
discrepancy in price necessarily rendered Bondfield’s
bid non-compliant?
4.
Was the Town entitled to accept a non-compliant
bid and did the Town’s Instructions to Bidders prevent
Maystar from suing the Town?
Issue
1: The applicability of the Bradscot decision
Madam Justice Feldman, writing for the Court of Appeal,
agreed with the application judge that the Bradscot
case was distinguishable on its facts from the
circumstances in this case.
...
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