Hamilton, Sansfaçon, Bachand

Appeal from a judgment of the Superior Court dismissing an application for damages. Allowed, with dissenting reasons. Application to adduce fresh evidence. Dismissed.

In the context of a call for tenders by the Groupe d’approvisionnement en commun de l’ouest du Québec (GACOQ) to award contracts for the supply of medical equipment, the appellant, a distributor, submitted a tender based, for some items. on a price list provided by the respondent, a manufacturer. The tender documents indicated that any tender filed would be valid for 120 days from the deadline for the receipt of tenders, that is, until January 27, 2015, unless the GACOQ sent a notice extending the validity of the bid for a period not exceeding 90 days. The appellant won the call for tenders, but the respondent refused to honour its prices because the list contained errors. The appellant received this information after it filed its bid and had to purchase products elsewhere for a higher price.

The trial judge found that the appellant could have withdrawn its bid on January 28, 2015, since the GACOQ had not sent a notice extending the bid's period of validity. The appellant argues that the trial judge was mistaken because it had received a notice of extension, contrary to what was affirmed during submissions by its counsel, and therefore it could not revoke its bid before the contract was awarded. It seeks authorization to file that notice as indispensable fresh evidence on appeal.

This is not a case of fresh evidence within the ordinary meaning of the expression because the appellant acknowledges that the notice of extension was available at the time of the trial ([translation] "had [this evidence] been required at the time of the hearing"). In addition, parties that incorrectly administer their evidence cannot be permitted to correct that error on appeal by filing an application to adduce fresh evidence.

The trial judge committed a reviewable error, however, in finding that the appellant’s failure to withdraw its bid in January 2015, severed the causal link between the injury it suffered from being forced to purchase the medical equipment at issue at a significantly higher cost and the respondent’s fault in refusing the honour the prices indicated in the list underlying the dispute.

The judge's error was that he raised the issue that the causal link may have been severed. Indeed, a judge cannot advance a defence to the action before him on his or her own initiative, nor can he or she advance causes of action other than those put forward by the plaintiff. This limit on the judge's role is justified by the principle of presentation by the parties, a principle at the heart of any justice system based on the adversarial model. The file should be returned to the trial court so that the debate on the issue of the aggravation of the injury suffered by the appellant and the amount of damages to which it is entitled.

Hamilton, J.A. considers that the appeal raises just one issue, namely did the trial judge err in refusing to allow the appellant the opportunity to respond to his opinion that there had been no notice of extension and submit complete evidence for this purpose. The answer, however, is no because the judge did not err judge did not err in relying on the statements of counsel for the appellant.

Text of the decision: http://citoyens.soquij.qc.ca