J. Edward Gouge

The Province of British Columbia issued a request for proposals (RFP) for the construction of a highway, restricting eligible bidders to six proponents.

The Province accepted a bid from an ineligible joint venture involving one of the eligible proponents and an ineligible third party.

The unsuccessful eligible bidder, the appellant, sued for breach of contract.

The Province relied on an exclusion clause in the RFP that barred claims for compensation as a result of participating in the RFP.

The Supreme Court of Canada held that the Province breached the tendering contract by accepting an ineligible bid.

The Court laid to rest the doctrine of fundamental breach and established a three-part test for exclusion clauses.

Applying the test, the majority found that the exclusion clause did not apply to the Province's conduct, as the appellant's claim arose from the Province's dealings with an ineligible bidder, not from the appellant's participation in the RFP process.

The appellant, a childcare worker, was sued in negligence after a child suffered a brain injury in her care.

During the civil proceedings, the police investigated the appellant criminally.

The appellant sought to prevent the disclosure of her civil discovery evidence to the police, relying on the implied undertaking rule.

The Supreme Court of Canada held that the implied undertaking rule applies to discovery evidence that may disclose criminal conduct, and that parties cannot generally disclose such evidence to the police without a court order.

The Court allowed the appeal, preventing the disclosure of the discovery transcripts to the police without a proper search warrant.