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Calgary v. Northern Construction co., [1987] 2 S.C.R. 757

 

Northern Construction Company Division of Morrison‑Knudsen Company, Inc., Northern Construction Company Ltd., Morrison‑Knudsen Company, Inc. and the Canadian Indemnity Company         Appellants

 

v.

 

The City of Calgary     Respondent

 

indexed as: calgary (city of) v. northern construction co.

 

File No.: 19797.

 

1987: December 3; 1987: December 17.

 


Present: Estey, McIntyre, Wilson, La Forest and L'Heureux‑Dubé JJ.

 

on appeal from the court of appeal for alberta

 

                   Contracts ‑‑ Tender expressly irrevocable for stated period or until acceptance of another bid ‑‑ Tender opened and accepted ‑‑ Mistake in preparation of bid ‑‑ Contractor not entitled to refuse performance of contract.

 

                   Held: The appeal should be dismissed.

 

Cases Cited

 

                   Followed: The Queen in right of Ontario and the Water Resources Commission v. Ron Engineering & Construction (Eastern) Ltd., [1981] 1 S.C.R. 111.

 

                   APPEAL from a judgment of the Alberta Court of Appeal (1985), 42 Alta. L.R. (2d) 1, 67 A.R. 95, allowing an appeal from a judgment of Waite J. (1982), 23 Alta. L.R. (2d) 338. Appeal dismissed.

 

                   G. C. Hawco and M. B. Cohen, for the appellants.

 

                   B. A. Crane, Q.C., and Adel Abougoush, for the respondent.

                   The judgment of Estey, McIntyre and La Forest JJ. was delivered by

 

1.                       McIntyre J.‑‑This appeal raises the question of whether the appellant, a general contractor who made a tender, expressly agreed to be irrevocable for a stated period or until the acceptance of another tender, was entitled to refuse performance of the contract resulting from its acceptance because of honest error in its preparation resulting in a lower price than intended. In accordance with the tendering procedure, tenders were opened and the tender of the appellant was accepted.

 

2.                       This appeal, in my view, is governed by the judgment of this Court in The Queen in right of Ontario and the Water Resources Commission v. Ron Engineering & Construction (Eastern) Ltd., [1981] l S.C.R. 111. Following that decision, I would dismiss the appeal with costs.

 

                   The reasons of Wilson and L'Heureux‑Dubé JJ. were delivered by

 

3.                       Wilson J.‑‑The central issue on this appeal is whether a person to whom an irrevocable tender has been made can accept that tender so as to bring into existence a binding contract when he has been advised prior to such acceptance that the tender is the result of a mathematical error in its calculation.

 

4.                       I agree with my colleage, McIntyre J., that this case cannot be distinguished in any significant respect from The Queen in right of Ontario and the Water Resources Commission v. Ron Engineering & Construction (Eastern) Ltd., [1981] 1 S.C.R. 111. Since that decision is binding on me, I agree that the appeal must be dismissed with costs.

 

                   Appeal dismissed with costs.

 

                   Solicitors for the appellants: Howard, Mackie, Calgary.

 

                   Solicitor for the respondent: Calgary City Solicitor, Calgary.

 

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