Date: Tue, 13 May 2008 16:35

From: Russell Brown

Subject: New SCC case

David, Vaughan et al.,

On a related point, I was intrigued by Rothstein J.'s (sigh) "policy consideration" negating liability, being that an action in tort law in circumstances where "commercial parties have deliberately arranged their affairs in contract" would be "an unjustifiable encroachment of tort law into the realm of contract". This deference to the parties' prior contractual ordering of liabilities does not (at least at the first glance I have given Design Services) seem to cohere to the majority's clear preference in BG Checo v. BC Hydro for concurrency in tort and contract (absent an express contractual term ousting tort liability).

Russ

Quoting DAVID CHEIFETZ:

A bit of a sticky wicket for the hypothetical subcontractor rebuffed by the general in an offer to enter into a joint venture, no?

What's the sub supposed to do? Write an anonymous letter (delivered by hand in a plain, unmarked, brown paper envelope, of course) in which the sub says, in substance, "we can't tell you who we are because that would be contrary to the bidding process, but you should know that we are a subcontractor on one of the bids who wanted to do a joint venture with the bidder. We were rebuffed. We are telling you this because we have read the decision of the SCC in Design Services v Canada, just in case we have to sue you directly for improper conduct relating to any aspect of the bid process or the granting of the contract".

Dr. Russell Brown
Assistant Professor
Faculty of Law
University of Alberta
435 Law Centre
Edmonton, Canada
T6G 2H5
tel. 1-(780) 492-1962
fax 1-(780) 492-4924

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