T-3529-78
Richard V. Sankey (Plaintiff)
v.
Minister of Transport and Stanley E. Haskins
(Defendants)
Trial Division, Thurlow A.C.J.—Ottawa, August
10 and 11, 1978.
Practice — Application for interlocutory injunction
restraining defendants from calling for and receiving tenders
— Interim declarations in terms of declarations sought in
prayer for relief in statement of claim also sought — Motion
to strike statement of claim — Tenders invited by public
advertisement for the news stand concession at Toronto Air
port — Plaintiff demanding more information than what was
made available for purpose of preparing submission — Argued
that Minister, having invited tenders, was under obligation to
supply information needed to tender intelligently — Whether
or not interlocutory injunction and declaration should issue —
Whether or not defendant's motion for order to strike out the
statement of claim should be granted — Application dismissed
and motion to strike statement of claim allowed.
APPLICATION.
COUNSEL:
Julian Porter, Q.C., for plaintiff.
David Sgayias for defendants.
SOLICITORS:
Porter & Posluns, Toronto, for plaintiff.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for order ren
dered in English by
THURLOW A.C.J.: This is an application
For an interim and interlocutory injunction until the final
disposition of this proposed action restraining the Defendant,
the Minister of Transport, and Stanley E. Haskins, their ser
vants, representatives, or substitutes, or any of them, or any one
acting under their instructions, from calling for, receiving and
accepting any tenders concerning Stage I of the tender for the
design, installation and operation of the news stand concession
in the two Air Terminal Buildings, Toronto International Air
port, on August 15, 1978.
At the outset of the hearing, counsel sought leave
to amend the notice of motion so as to ask as well
interim declarations in terms of the declarations
sought in the prayer for relief in the statement of
claim. These read:
a) A declaration that the terms of the specifications and
tender must be satisfied and revealed to the plaintiff and that
the defendants must assist the plaintiff by providing informa
tion concerning paragraphs 9 (i) (ii) (iv) (v) (viii) and (x),
and 10 (i) and (ii);
b) A declaration that the information in respect to para
graphs 11 and 12 of Exhibit A constitute an integral and
necessary supporting part of Stage I of the tender;
c) A declaration that the specifications for the tender are of
such sufficient complexity and require such detailed informa
tion of prospective tenderers that the plaintiff could not
reasonably comply with the requirements of the Tender
Document until September 1, 1978, at the earliest, and that
the form of the specifications and tender require the defend
ants to supply the plaintiff with all pertinent information
Besides resisting the plaintiffs applications, coun
sel for the defendants moved for an order striking
out the statement of claim as disclosing no reason
able cause of action.
I know of no authority or rule under which an
interim declaration, which in substance would
accomplish the whole purpose of the action with
out a trial on the merits, may be made. If a case
for a declaration were shown to exist or to be fairly
arguable, the Court might perhaps intervene by
injunction, in an appropriate case, to hold matters
in status quo until the right could be tried but that
is by no means the same thing as granting an
interim declaration of right. The likelihood of ulti
mate entitlement to the declaratory relief would
help to persuade the Court to issue an injunction
but the Court would do so without determining the
right to the declaration either temporarily or at all.
The facts are that tenders have been invited by
public advertisement for the news stand concession
at Toronto International Airport and the plaintiff,
as one of a group of persons interested in tender
ing, is demanding more information than has been
made available to them for the purpose of intelli
gently preparing their submission for the first
stage of the tendering procedure, a stage which
must be passed to qualify them to tender in the
second stage. It is said that without such further
information the tendering process is unfair and
gives an unfair advantage to the present holder of
the concession who has all the necessary informa
tion at his disposal.
I see no reason to doubt that to have all the
information acquired by the present incumbent
during his tenancy would be advantageous and
desirable from the point of view of the plaintiff but
it is by no means clear that the procedure would on
that account be more fair having regard to the fact
that nothing is known as to the identity, experience
or present knowledge of the persons making up the
group of which the plaintiff is a member. But that
is not the point on which, in my opinion, this
matter must be decided.
The plaintiff's position, as I understand it, is
that, while the Minister may not have been under
any obligation to invite tenders, having done so an
obligation to persons wishing to tender arose to
supply the information that a tenderer needs to
tender intelligently. No authority for this proposi
tion was cited and I know of none that would
support it. In my view, a person inviting tenders is
no more under an obligation to provide informa
tion than a person interested in tendering is under
an obligation to tender. Neither is under obligation
to the other. It may be that without making the
information available the process may not be suc
cessful. Persons interested in tendering may decide
not to tender. In that case perhaps the best or most
advantageous result will not be achieved. If so,
where the Crown is involved, the responsible Min
ister may be answerable in Parliament. But in the
absence of any applicable statutory provision, he is
not required to justify in this Court to a prospec
tive tenderer his conduct of the tendering proce
dure. There is, in my view, no legal or statutory
duty to the prospective tenderer to give him infor
mation that he seeks and there is thus, as it seems
to me, no right of his that can be regarded as
violated. The application therefore fails.
I do not propose to set out or to summarize the
allegations of the statement of claim. In my view,
they contain nothing material to be added to what
has already been stated and, in my opinion, they
do not disclose an arguable case for any of the
relief sought. Moreover, there is nothing in what
has been put before me either by affidavit or in the
course of argument which suggests that the situa
tion is one in which by appropriate amendments
the statement of claim might be reframed so as to
disclose a cause of action. The statement of claim
will therefore be struck out and the action will be
dismissed.
ORDER
The plaintiff's application for an interlocutory
injunction and interim declaratory relief is dis
missed with costs.
The statement of claim is struck out and the
action is dismissed with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.