SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 10-49022

MOTION HEARD: January 16, 2014

RE: 1117322 Ontario Inc. (COB as TELECORE), Plaintiff

AND:

The Attorney General of Canada et al, Defendants

BEFORE: Master P. Roger

COUNSEL:
Joseph O’Regan, in person, as representative of the plaintiff

Peter Nostbakken, lawyer for the defendants

HEARD: January 16, 2014

REASONS FOR DECISION

[1] The plaintiff brings a motion seeking relief as outlined in the notice of motion:

a. An order directing Primus Canada to issue time and date stamps for all calls to and from 613-722-7887 and 613-596-6568 from March 7, 2007 to present.

b. An order directing Rogers Communications to issue time and date stamps for all calls to and from 613-451-1145 from March 7, 2007 to present.

c. An order directing the defendants to provide complete disclosure for bids W8486 – 075925A (subject to court review for admissibility of privilege claimed in disclosure) and W8486 – 075925B, including:

i) all reasons for cancellations

ii) all bids details and communication to/from the respective bidders

iii) all bidders key personnel contact information and phone records (dates and time) for their associated calls to and from PWGSC

iv) all disclosure regarding tenders and awards for any similar RFPs regarding/replacing this antenna build, including bidder contact information.

d. An order granting leave to amend the claim in pleadings to include causes of RFP VR 102231 and RFP 47064 – 125-554A to be heard at the same time;

e. An order directing the defendants to provide complete disclosure for RFPs regarding bids and awards of RFP VR 102231, reference 155765, and 47064 – 125554A, including all email and correspondence from all bidders and where privilege is claimed for the court to review for disclosure admissibility;

f. An order allowing Joseph O’Regan to maintain representation in causes of RFP VR 102231 and RFP 47064 – 125554A;

g. Costs;

h. An order extending time to receive required discovery disclosure prior to setting the action down for trial.

Background Information

[2] Mr. O’Regan is not a lawyer. He was previously granted leave to represent the corporate plaintiff (by order dated October 26, 2010). At this moment, this does not need to be revisited.

[3] In its current Amended Statement of Claim, issued July 22, 2010, and amended November 10, 2010, the plaintiff claims include that the defendants:

a. breached a contract it had with the plaintiffs for the supply of antennae components to DND;

b. were unfair in the bidding process for awarding the contract;

c. made negligent misrepresentations with respect to the technical documentation relating to the contract and the request for proposals related to the contract;

d. violated the plaintiff’s rights under sections 1, 7, 24(1), 32(1)a and 52 of the Canadian Charter of Rights and Freedoms; and

e. were unjustly enriched.

[4] Essentially, from the pleadings and evidence presented on this motion, this action relates to the following. On March 6, 2007, PWGSC issued request for proposal W8486-075925/A (“RFP1”) for the delivery of three items, in various quantities, to DND. The items are component parts of an antenna system to be used by DND. The plaintiff submitted a bid. However, a contract in RFP1 for one item was awarded to another bidder which, according to the defendant’s affidavit, had submitted the lowest bid for that item.

[5] A second request for proposals, W8486-075825/B (“RFP2”), was issued for the remaining items in RFP1 on May 7, 2007.

[6] The plaintiff submitted a proposal in response to RFP2 and was awarded the contract for RFP2.

[7] However, the contract with the plaintiff was eventually terminated by the defendants on or about July 25, 2008.

[8] Pleadings have closed and the parties have exchanged affidavits and lists of documents and have attended mediation. Examinations for discovery have yet to be scheduled.

[9] On August 7, 2008, a Notice of Proposed Procurement with solicitation number VR102231 (“RFP3”) was issued and published by Defence Construction of Canada (“DCC”). DCC is a Crown corporation that manages contracts with private sector contractors for the performance of construction and other work relating to DND’s infrastructure. RFP3 was for the supply of materials and equipment necessary for the installation of a GPS system in Valcartier, Quebec.

[10] On July 21, 2011, PWGSC issued request for proposals 47064-125554/A (“RFP4”) for the delivery of various quantities of intrinsically safe NiMH batteries for use in Kenwood TK3180 portable radios to the Canada Border Services Agency (“CBSA”). RFP 4 was amended on August 17, 2011.

Applicable Law and Analysis

[11] The relief sought at paragraphs (a) and (b) above is not opposed by the defendants. However, Primus and Rogers were not served with a copy of this motion and they obviously should have been served as this is really a rule 30.10 motion. The three telephone numbers listed are associated with the plaintiff such that this request does not appear to raise any privacy issues. The information is sought to allow the plaintiff both a tool and an evidentiary basis to quantify some of its damages such that the requirements of rules 30.10 (1) (a) and (b) are, at this point and subject to any further motion on this, met. Consequently, for the sake of expediency as contemplated by rule 1.04, an order will be made despite the lack of service for items (a) and (b) however with a brief stay to allow for service of this order and for time to either Primus or Rogers to return to this court should there be any issue with the order (see Disposition).

[12] Rule 26.01 of the Rules of Civil Procedure provides that on motion at any stage of an action, the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[13] I find that the proposed cause of action related to RFP3 is statute barred as the limitation period has expired. The actions the plaintiff complains of occurred in August and September of 2008. Pursuant to the Limitations Act, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day the plaintiff knew of or ought reasonably to have known of the claim. There is no satisfactory evidence that the plaintiff did not or reasonably could not know. As a result, the amendments sought for RFP3 are not allowed. The plaintiff argues that section 16 of the Limitations Act, 2002 is applicable. It is not applicable as the proposed amendments do not seek a declaration with no consequential relief sought.

[14] Moreover and as an aside I note that the plaintiff has not proposed adding DCC as a defendant, and any claim against the current defendants related to RFP3 appears untenable as the current defendants did not play a role in the proposed additional cause of action. Leave to amend should not be granted if the proposed amendments amount to an untenable plea which is clearly impossible of success, in this case, against the defendants.

[15] With regards to RFP4, it is not disputed by the defendants that these amendments are not out of time. The defendants have presented no evidence of prejudice but argue that the proposed amendments regarding RFP4 have no relation to the claims asserted in the Amended Statement of Claim, that there is no good reason to hear the claims together, that RFP4 involves a contract for CBSA, not DND, and that it pertains to events occurring three years after the claims contained in the Amended Statement of Claim. It further argues that the parties have already exchanged pleadings, completed documentary discovery, and attended mediation and that adding the proposed amendment regarding RFP4 will essentially set the current litigation back to the beginning, solely to include an unrelated cause of action on different facts. I have considered the defendants’ arguments and have decided to allow the amendments relating to RFP4 as they are, in the circumstances, permitted by rule 26.01.

[16] Though not indicated in its notice of motion, the plaintiff’s proposed amendments also seek to add the additional causes of action, “inducing breach of contract” and “conspiracy”. These proposed amendments are as well refused as the limitation period has expired and, moreover, as the claims are untenable. I note that during oral arguments the plaintiff indicated that it did not pursue the amendments sought for inducing breach of contract.

[17] The expiry of a limitation period gives rise to a presumption of prejudice. The limitation period with respect to the claims regarding RFP1 and RFP2 expired on July 25, 2010 – the second anniversary of the termination of the contract on July 25, 2008. Accordingly, the plaintiff cannot now assert these new causes of action, not previously pled, with respect to those matters.

[18] Moreover, the plaintiff has not pleaded material facts with respect to any of the elements of either inducing breach of contract or conspiracy. Accordingly, these proposed amendments are untenable, do not disclose a cause of action, and leave to make them is refused.

[19] The plaintiff’s only proposed amendment relating to the Charter is to seek damages at paragraph 1 (j). The existing Amended Statement of Claim already raises Charter issues at paragraphs 43 – 49. Section 24(1) is already pleaded. Consequently, the amendment sought at paragraph 1(j) is only particularization of an existing claim or of the remedy sought. This amendment is not affected by any limitation period as it does not amount to pleading a new cause of action. Although I have serious issues about the viability of the existing Charter claims, these are part of the existing pleading and I will not now review whether they should have been allowed when the Statement of Claim was first amended. Consequently, leave is granted for the amendment sought at paragraph 1(j).

[20] Regarding disclosure, the defendants have served on the plaintiff a List of Documents in compliance with rule 30.02 of the Rules of Civil Procedure, disclosing every document relevant to any matter in issue in the action. The parties have not proceeded to examinations for discovery and some of the disclosure requests are premature.

[21] The plaintiff requests an order requiring the defendants to disclose the following:

i) All reasons for cancellations with respect to RFP1 and RFP2;

ii) All bid details and communications to and from the bidders with respect to RFP1, RFP2, RFP3 and RFP4, including phone records and emails;

iii) Key personnel contact information for all bidders with respect to RFP1 and RFP2; and

iv) All information regarding tenders and awards for any RFPs similar to RFP1 or RFP2.

[22] On such motions the court considers whether the requested disclosure is “relevant to any matter in issue in an action.” Most of the documents requested by the plaintiff do not meet this requirement.

[23] Save as outlined below, the details of other bids, communications with other bidders, and contact information for other bidders have no relevance to any matter at issue in this action.

[24] The damages sought by the plaintiff with respect to RFP1 and RFP2 are essentially for the time wasted in dealing with the contract awarded to the plaintiff under RFP2 which was ultimately terminated. The heads of damages claimed in the Amended Statement of Claim are for breach of contract, quantum meruit, unjust enrichment, punitive damages, and damages in negligence and negligent misrepresentation for providing incomplete technical documentation and not being forthright with respect to same. The information sought by the plaintiff with respect to other bidders will not assist the determination of these issues.

[25] With respect to the plaintiff’s proposed claim related to RFP4, the plaintiff claims that the defendants improperly determined that the plaintiff’s bid was non-compliant with the requirements of RFP4. Again, the information sought by the plaintiff with respect to other bidders will not assist the determination of these issues and is irrelevant.

[26] Save as outlined below, the plaintiff has failed to demonstrate the relevance of the requested disclosure pertaining to other, third party bidders and the requests are overly broad and contrary to principles of proportionality.

[27] Save as outlined below, the plaintiff’s request of tenders and awards relating to any RFPs similar to RFP1 and RFP2 also fails to meet the relevancy test. The plaintiff’s claims regarding RFP1 and RFP2 do not pertain to similar RFPs, but only to RFP1, RFP2 and the resulting contract between PWGSC and the plaintiff. Moreover, the plaintiff’s request is overly broad as it pertains to “any similar RFPs”.

[28] However, the following requests are relevant and all such documents are to be disclosed by the defendants:

a. Subject to any claim of privilege, all documents relating to all reasons for cancellation or termination of the contract with the plaintiff, by the defendants about July 2008;

b. Subject to any claim of privilege, all documents such as requests for proposals relating to the re-issuance by the defendants of RFP2 or of any of the items covered by RFP2 subsequent to the cancellation or termination of that contract by the defendant and, as well, if applicable, a copy of the winning bid(s) for any of the items covered by the contract with the plaintiff cancelled or terminated by the defendants about July 2008;

c. Considering that the amendments sought for RFP4 were allowed, all documents relevant to RFP4 issues between these parties (subject to any claim of privilege) is to be made by the defendants as per the usual course.

[29] Documents relating to (a) and (b) above are relevant to issues of liability and damages. Indeed, documents relating to how and on what terms the terminated contract was re-issued and granted could assist re liability and damages and are as such relevant. Moreover, that request is narrow and proportional. The defendants are as well to particularize their existing and any further claims of privilege and any claim of privilege may be reviewed on further motion to this court after examinations for discovery.

Disposition

[30] The following is ordered:

a. The plaintiff shall forthwith serve a copy of this endorsement and a copy of the plaintiff’s motion record filed on this motion on Primus Canada and Rogers Communications.

b. To the extent possible and subject to paragraph (d), within the next 90 days, Primus Canada is to issue time and date stamps for all calls to and from 613-722-7887 and 613-596-6568 from March 7, 2007 to present, with any associated disbursements to be charged to the plaintiff.

c. To the extent possible and subject to paragraph (d), within the next 90 days, Rogers Communications is to issue time and date stamps for all calls to and from 613-451-1145 from March 7, 2007 to present, with any associated disbursements to be charged to the plaintiff.

d. Paragraphs (b) and (c) above are stayed for 20 days to allow Primus Canada or Rogers Communications the opportunity to serve a motion returnable before this court for purposes of reviewing (b) and (c) above.

e. The defendants shall serve a revised list of documents disclosing:

i) Subject to any claim of privilege, all documents relating to all reasons for cancellation or termination of the contract with the plaintiff by the defendants about July 2008;

ii) Subject to any claim of privilege, all documents such as requests for proposals relating to the re-issuance by the defendants of RFP2 or of any the items covered by RFP2 subsequent to the cancellation or termination of that contract by the defendant and, as well, if applicable, a copy of the winning bid(s) for any of the items covered by the contract with the plaintiff cancelled or terminated by the defendants about July 2008;

iii) Considering that the amendments sought for RFP4 were allowed, disclosure of document relevant to RFP4 issues between the parties (subject to any claim of privilege) is to be made by the defendants as per the usual course;

iv) Particularizing any claim of privilege.

f. Subject to the above and to any motion made after examinations for discovery seeking disclosure or further rulings on appropriate evidence, paragraphs (c) and (e) of the notice of motion are otherwise dismissed.

g. Leave is granted to the plaintiff to amend the Amended Statement of Claim as per the draft Amended Amended Statement of Claim attached at tab 18 of the motion record incorporating the handwritten changes/notations of this court as indicated thereon, a copy of which is attached hereto.

h. Time to set this action down for trial is, on consent, extended to December 31, 2014 and the following timetable is ordered:

i) The plaintiff shall file the Amended Amended Statement of Claim with the court within the next 30 days and shall thereafter forthwith serve it on the defendants with service by mail or facsimile on their lawyer being sufficient.

ii) The defendants shall deliver any amended statement of defence within 40 days from the date of service and any reply by the plaintiff shall be delivered within 20 days from the date of service of any amended defence.

iii) The parties shall agree on a discovery plan by March 31, 2014.

iv) The plaintiff shall serve an amended affidavit of documents and the defendants an amended list of documents by April 30, 2014.

v) Examinations for discovery of all parties shall be scheduled by April 30, 2014 and completed by October 31, 2014.

vi) With the exception of the time to set this action down for trial which may only be varied by order of this court, any of the above timeline may be varied by consent of all parties.

vii) No further motion dealing with discovery issues may return without leave of this court prior to all parties being examined for discovery. Until then and if required case conferences may be scheduled.

viii) Any motion dealing with discovery issues after the examinations for discovery shall incorporate a refusals and undertakings chart duly completed by both parties as required by rule 37.10 (10).

i. If the parties cannot agree on costs of this motion within the next 20 days, then brief written submissions on costs are to be submitted by email to my registrar by the plaintiff at the latest by February 14 and by the defendants by February 21, 2014. If submissions on costs are not received by that time this court will assume that the issue of costs of this motion has been resolved.

Master P. Roger

Date: January 17, 2014