Canada: Supreme Court Of Canada Rules Owner In Tendering Process Owes No Duty Of Care To Subcontractors

On May 8, 2008 the Supreme Court of Canada held that an owner in a tendering process does not owe a duty of care in tort to subcontractors.

In Design Services Ltd. v. Canada, Public Works and Government Services Canada (the Owner) launched a tendering process for the construction of a naval reserve building in St. John's, Newfoundland. Olympic Construction Ltd. (Olympic) submitted a bid but was not awarded the contract. For the purposes of the case, the Court was asked to assume that the contract was awarded to a non-complaint bidder and that the contract should have been awarded to Olympic. The appellants were subcontractors (the Subcontractors) of Olympic who had no privity of contract with the Owner. Absent privity of contract with the Owner, the Subcontractors sued the Owner in tort for the economic loss they claimed to have suffered.

The trial judge held that the circumstances warranted the recognition of a new duty of care owed by an owner to a subcontractor. The Federal Court of Appeal disagreed, and the matter was appealed to the Supreme Court of Canada.

The Supreme Court of Canada considered whether the Subcontractors' claim against the Owner fit within an existing category of duty of care and also considered whether a new duty of care ought to be recognized. Although the Supreme Court of Canada described the procurement process at issue as a "tendering process," the Court also made reference to terms such as "RFP," "proposal" and "proponent" in its reasons.

Subcontractors' Claim Does Not Fall Within Recognized Duty of Care

The Supreme Court of Canada held that the Subcontractors' claim did not fall within a recognized duty of care category for pure economic loss. The Court considered the five different categories of negligence claims for which a duty of care has been found for pure economic loss. The Court noted that relational economic loss was the only pre-existing duty of care category within which the Subcontractors' claims could possibly fall. The Court observed that relational economic loss has "always stemmed from injury or property damage to a third party" and that in this case, the Subcontractors did not fit within the relational economic loss category because none of Olympic's property was damaged.

New Category of Duty of Care Should Not Be Recognized

The Supreme Court then considered whether a new category of pure economic loss should nonetheless be established. The Court held that the recognition of a new duty of care between an owner and subcontractors in the context of a tendering process was not justified. Justice Rothstein applied the analysis mandated in the case of Anns v. Merton London Borough Council, recasting that analysis as follows:

(1) is there a sufficiently close relationship between the parties or proximity to justify imposition of a duty and, if so,

(2) are there policy considerations which ought to negative or limit the scope of the duty, the class of persons to whom it is owed or the damages to which breach may give rise?

Justice Rothstein noted that there were certainly factors that indicated a close relationship between the Owner and the Subcontractors; however, the Subcontractors' ability to foresee and protect themselves from the economic loss in question was an overriding policy reason why tort liability should not be recognized in these circumstances. Moreover, Justice Rothstein explained that the construction contract context is one in which the indeterminacy of the class of plaintiffs can be readily seen. He went on to state that,

Even if a prima facie duty of care had been found at the first stage of the Anns test, it would have been negated at the second stage because of indeterminate liability concerns.

He upheld the Federal Court of Appeal's conclusion that the tendering process in these circumstances was not unique and "recognition of an owner's duty of care towards subcontractors could lead to a multiplicity of lawsuits in tort."

Justice Rothstein summarized the Court's analysis, saying

To conclude that an action in tort is appropriate when commercial parties have deliberately arranged their affairs in contract would be to allow for an unjustifiable encroachment of tort law into the realm of contract.


This decision will be of interest to owners, contractors and subcontractors involved in construction procurement processes. The decision of the trial judge, which held that an owner owed a duty in tort to subcontractors, had generated much interest in the construction industry. However, the Supreme Court of Canada has now held that there is no such duty in a construction tendering process.

Paul Ivanoff is a partner in Osler's Litigation Department and is a member of the firm's Construction & Infrastructure Specialty Group. Roger Gillott is a partner in the Construction and Infrastructure Group at Osler and has significant expertise in construction litigation, arbitration and dispute resolution proceedings.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.