COURT FILE NO.: 551/07
DATE: 20080310
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, KITELEY AND LAX JJ.
B E T W E E N:
JARLIAN CONSTRUCTION INC.
Plaintiff
(Respondent)
- and -
THE CORPORATION OF THE CITY OF WATERLOO
Defendant
(Appellant)
COUNSEL:
Vicki A. Coristine, for the Plaintiff (Respondent)
Michael A. van Bodegom and Daniel Veinot, Student-at-Law, for the Defendant (Appellant)
HEARD at Toronto: March 10, 2008
ORAL REASONS FOR JUDGMENT
CARNWATH J.: (Orally)
[1] The conclusion is that the appeal must be dismissed. Insofar as the standard of review is concerned, we take our direction from the Supreme Court of Canada in the decision of Housen v. Nikolaisen (2002) 2002 SCC 33, 211 D.L.R. (4th) 577 [S.C.C.].
[2] In summary, we are directed as follows: On a pure question of law, the basic rule with respect to the review of a trial judge’s findings is that an appellate court is free to replace the opinion of the trial judge with its own. Thus, the standard of review on a question of law is that of correctness.
[3] The standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the trial judge made a palpable and overriding error. Where the trier of fact has considered all the evidence that the law requires him or her to consider and still comes to the wrong conclusion, then this amounts to an error of mixed law and fact and is subject to a more stringent standard of review than for the findings of fact.
[4] We find that Pattillo J.’s decision involved a mixed question of fact and law. He concluded that the requirement to submit a bid that included only the base bid was a material term of the contract. He was reinforced in this conclusion by the City’s addendum #2 which specifically provided “the bid price to be entered on page 1 of the bid form shall not include the price for the alternative (provisional) item”.
[5] Having found this to be a material term of the contract he found that Xterra did not comply with the terms of the tender.
[6] We reject the submission that Pattillo J. made an error in law and therefore the standard of review is correctness. The appellant’s submission that correctness was the appropriate standard of review was based on the submission that the City could waive an error that caused no confusion or ambiguity. The appellant says Pattillo J. failed to consider this. We disagree.
[7] Having found that the failure to follow the bid instruction was a non-compliance, Pattillo J. was not required to conduct this analysis proposed by the appellant.
COSTS
[8] Costs award will be on a partial indemnity basis fixed at $7,500 inclusive of fees, disbursements and applicable GST, payable 30 days.
CARNWATH J.
KITELEY J.
LAX J.
Date of Reasons for Judgment: March 10, 2008
Date of Release: March 17, 2008
COURT FILE NO.: 551/07
DATE: 20080310
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, KITELEY AND LAX JJ.
B E T W E E N:
JARLIAN CONSTRUCTION INC.
Plaintiff
(Respondent)
- and -
THE CORPORATION OF THE CITY OF WATERLOO
Defendant
(Appellant)
ORAL REASONS FOR JUDGMENT
CARNWATH J.
Date of Reasons for Judgment: March 10, 2008
Date of Release: March 17, 2008