[1] This an appeal from an order of MacKay J. ("the Motion Judge") dated May 16, 2001, whereby he granted the respondent's motion for summary judgment and ordered the matter to go to trial on the remaining issues.

[2] The Motion Judge adopted the approach taken by Pelletier J. in a similar motion for summary judgment involving the same parties, reported as [2000] F.C.J. No. 635. In that case, the appellant launched an action on the same basis as the action before us, claiming first that the respondent had breached the term of the contract that it would award the ultimate contract to the lowest bidder, and, second, that the respondent had acted unfairly in the tender process. The respondent sought an order for summary judgment on the first issue on the ground that there was no genuine issue for trial, which Pelletier J. granted.

[3] Pelletier J. held that contractual obligations arose when the appellant submitted its tender in response to Public Works' invitation to tender and relying on M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd., [1999] 1 S.C.R. 619, he held that the nature of those obligations is defined by the terms of the tender documents themselves. Pelletier J. also concluded that, because the tender documents contained a privilege clause which stated that Public Works was not obliged to accept the lowest or any tender, Public Works did not breach its contract with the appellant when it rejected its lowest bid. Similar privilege clauses are apparent on the face of the tender documents in the present case.

[4] Before us, the appellant argued that MacKay J. erred in granting the motion for summary judgment, since the conflicting evidence raises issues of credibility which can only be resolved at trial, and that he failed to expressly state his view that the material before the Court did not disclose a genuine issue for trial, as that test is articulated in subrule 213(2) of the Federal Court Rules, 1998. Further, the appellant argued that the affidavit evidence was relevant to the issues raised in the Statement of Claim.

[5] We do not accept the appellant's argument that MacKay J. erred in failing to expressly use the words "there is no genuine issue for trial." The fact that he granted summary judgment, and did so with express reference to the reasoning used by Pelletier J., indicates unequivocally that he found no genuine issue for trial. In fact, unlike Pelletier J., MacKay J. had the benefit of the appellant's affidavit regarding statements allegedly made by a representative of Public Works. We are satisfied on the evidence before him that MacKay J. was correct to conclude that there was no genuine issue for trial on the paragraph that he struck from the Statement of Claim.

[6] The appeal will be dismissed with costs.

"B. Malone"

J.A.

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

DOCKET: A-321-01

STYLE OF CAUSE: TREVOR NICHOLAS CONSTRUCTION COMPANY LTD.

Appellant

- and -

HER MAJESTY THE QUEEN

Respondent

DATE OF HEARING: THURSDAY, FEBRUARY 7, 2002

PLACE OF HEARING: TORONTO, ONTARIO

REASONS FOR JUDGMENT

OF THE COURT BY: MALONE J.A.

DELIVERED FROM THE BENCH AT TORONTO, ONTARIO ON THURSDAY,

FEBRUARY 7, 2002.

APPEARANCES BY: Mr. Michael Swinwood

For the Appellant (John Susin, President of Trevor

Nicholas Construction Company Limited.

Mr. P. Christopher Parke

For the Respondent

SOLICITORS OF RECORD: John Susin, President

Trevor Nicholas Construction Company Limited

4971 Stanley Avenue

Niagara Falls, Ontario

L2E 5A1

For the Appellant

Morris Rosenberg

Deputy Attorney General of Canada

For the Respondent

FEDERAL COURT OF APPEAL

Date: 20020207

Docket: A-321-01

BETWEEN:

TREVOR NICHOLAS CONSTRUCTION

COMPANY LTD.

Appellant

- and -

HER MAJESTY THE QUEEN

Respondent

REASONS FOR JUDGMENT

OF THE COURT

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