Joel Richler

Kaymar Rehabilitation Inc. appealed the dismissal of its action against Champlain Community Care Access Centre regarding a 2003 request for proposals for therapy services.

Kaymar challenged the trial judge's interpretation of the RFP documents, arguing that Champlain improperly allowed bidders without therapy services experience to qualify by accepting "professional services" as equivalent experience.

The Court of Appeal upheld the trial judge's interpretation, finding that the RFP documents clearly permitted such equivalents and that Kaymar had accepted these terms by bidding.

The court also addressed the costs award, reducing it from $1,864,000 to $1,675,000 on a partial indemnity basis.

This costs endorsement followed a twelve-year litigation where the plaintiff's case, alleging an unfair bidding process, was dismissed in its entirety.

The defendant sought substantial indemnity costs of over $2.8 million, citing the plaintiff's unfounded allegations of dishonesty and collusion and persistence despite prior judicial warnings.

The plaintiff argued for partial indemnity costs, disputing the quantum and the basis for substantial indemnity.

The court awarded the defendant substantial indemnity costs from the date of its offer to settle in May 2014, finding the plaintiff's continued litigation of weak claims warranted such an award.

The final costs awarded to the defendant were $1,864,000, inclusive of disbursements and HST, after reductions for travel and excessive e-discovery costs.

The plaintiff, an incumbent service provider, sued the defendant community care access centre for damages arising from a 2003 Request for Proposals (RFP) process.

The plaintiff alleged the procurement process was unfair, claiming the defendant was motivated by a desire to avoid severance costs, used undisclosed criteria, permitted a conflict of interest, unfairly customized the RFP, accepted a non-compliant bid, and conducted a flawed evaluation.

The Superior Court of Justice dismissed the action, finding that while there were minor procedural irregularities, the defendant did not breach its duty of fairness.

The court concluded the defendant had no financial motive to disfavour the plaintiff, the evaluation criteria were transparent, and the plaintiff was not prejudiced by the evaluation process.

The court addressed a motion and cross‑motion seeking directions concerning the forensic review and discovery of electronic information stored on an external hard drive belonging to a former employee accused of misappropriating confidential information and competing with his former employer.

Disputes arose regarding who should conduct the review, how privileged material should be handled, and whether backup files on the drive should be examined.

The court held that the defendant must review potentially privileged communications with former counsel and produce those relating to advice about the enforceability of a restrictive covenant, over which privilege had been waived.

The court also authorized further forensic analysis of backup files by an independent expert and ordered transparency regarding prior searches conducted by the plaintiff’s counsel.

Costs of the forensic work were ordered to be borne by the plaintiff but recoverable in the cause.

The plaintiff brought a motion under subrule 5.04(2) and rule 26.01 of the Rules of Civil Procedure seeking leave to amend its statement of claim to add a new defendant in a property contamination dispute.

The proposed defendant opposed the amendment on the basis that the applicable limitation period under the Limitations Act, 2002 had expired.

The court held that the moving party failed to provide sufficient evidence to rebut the presumption of discoverability under s. 5(2) of the Act, including evidence of when the claim was discovered or what investigative steps had been taken.

Because the evidentiary record did not establish any doubt about the expiry of the limitation period, the proposed claims were considered clearly statute barred.

The motion to amend was dismissed, though the moving party was permitted to renew the motion with proper evidence within 45 days.