This article is an excerpt from Government Procurement, which is available for purchase.
In its October 2015 decision in Radiology Associates of Regina Medical Pc Inc. v. Sun Country Regional Health Authority, the Saskatchewan Court of Queen’s Bench rejected an injunction application launched by an incumbent supplier over allegations of breach of contract. The case dealt with a radiology services contract in southern Saskatchewan. The applicant claimed that the health authority’s tender call for computed tomography services was a breach of its existing contract that already covered those services. While the court accepted that the supplier’s claim raised a serious issue, it rejected the injunction application after finding that the incumbent failed to establish irreparable harm since, even if there was a breach of contract, the incumbent could be compensated monetarily for any such breach:
51 In my view, and on an initial assessment of the case, the adequacy of a damage award seems readily apparent. If Sun Country were to contract its CT services to another entity, RARPC’s damages would be easily calculable. The calculation would not be dissimilar from that which would be done in the case of a services contract that is repudiated, in whole or in part, by the party contracted to pay for the services. In this instance, the trial court would likely receive evidence as to the number and type of CT services provided by the other entity over the period of time found to be appropriate. In all probability, this would be the period of time, during the currency of the 1998 agreement that CT services are provided in the Sun Country Health Region. This information would likely generate an anticipated revenue figure from which RARPC’s anticipated costs, related to the services, would be subtracted to determine its lost profit.
The application was therefore dismissed. As this case illustrates, in order to successfully obtain an injunction to stop a tendering process, an applicant must convince the court that allowing the tendering process to proceed could result in irreparable harm. Since most commercial disputes can be resolved through monetary compensation, injunctions against tendering processes are rarely granted by the courts.
