Court File and Parties
COURT FILE NO.: 295/09
DATE: 20090717
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CHAPNIK, FERRIER AND MOLLOY JJ.
B E T W E E N:
AECON CONSTRUCTION AND MATERIALS LIMITED
Applicant
- and -
THE CORPORATION OF THE CITY OF BRAMPTON
Respondent
- and -
GRAHAM BROS. CONSTRUCTION LIMITED
Intervenor
Counsel:
Duncan W. Glaholt, for the Applicant
Glenn W. Ackerley and Barnet Kussner, for the Respondent
W. Andrew McLauchlin and Megan W. Sanford, for the Intervenor
HEARD at Toronto: July 17, 2009
Oral Reasons for Judgment
MOLLOY J.: (Orally)
[1] Aecon has raised serious issues of breach of procedural fairness and breach of natural justice by the City of Brampton in the tendering process and in the manner in which the ultimate contract was awarded to Graham Bros.
[2] Assuming, without deciding, that these issues are within our jurisdiction, there is still a difficult issue as to remedy. Aecon seeks an order quashing the decision of City Council awarding the contract to Graham Bros. and remitting the matter to Council for a decision on the report of its staff as to who should be awarded the contract.
[3] It is exceedingly difficult, if not impossible, at this point to reconstitute the bidding process in a manner that is fair to all parties. Graham has already commenced work on the project. The wisdom of doing that can be questioned. However, halting that project now and awarding a contract for the balance of the work to another company creates all kinds of problems.
[4] The remedy sought by Aecon is extraordinary and discretionary. That discretion is appropriately exercised in favour of an applicant in a situation where damages would not be an adequate remedy.
[5] We are all of the view that damages would be an adequate remedy for Aecon in this situation. Indeed, it is the preferable remedy given that certiorari or mandamus would inevitably interfere with the rights of others completely outside this dispute. Any harm done to Aecon can be measured in monetary damages.
[6] We are of the view therefore that we should decline to grant the remedy sought here. The application is dismissed.
[7] The City has been successful on this application and is entitled to its costs. The costs as claimed are on the high side. The reasonable expectation of Aecon, in my view, is reflected by its own bill of costs. We are therefore of the view that the appropriate quantum for costs is $32,000.00. If Aecon does not commence an action against the City of Brampton within thirty days, costs of this proceeding shall be payable to the City fixed at $32,000.00, inclusive. If Aecon does commence an action against the City of Brampton within thirty days, the said costs of $32,000.00 shall only be payable if Aecon’s action is dismissed.
[8] Costs of the Intervenor are fixed at $5,000.00, payable forthwith. Given the limited role of the Intervenor and the fact that there was no divergence between the position taken by the City and that of the Intervenor, we are not persuaded that the full costs sought are appropriate.
MOLLOY J.
CHAPNIK J.
FERRIER J.
Date of Reasons for Judgment: July 17, 2009
Date of Release: July 29, 2009
COURT FILE NO.: 295/90
DATE: 20090717
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CHAPNIK, FERRIER AND MOLLOY JJ.
B E T W E E N:
AECON CONSTRUCTION AND MATERIALS LIMITED
Applicant
- and -
THE CORPORATION OF THE CITY OF BRAMPTON
Respondent
- and -
GRAHAM BROS. CONSTRUCTION LIMITED
Intervenor
ORAL REASONS FOR JUDGMENT
MOLLOY J.
Date of Reasons for Judgment: July 17, 2009
Date of Release: July 29, 2009