In 9329-0146 Québec Inc. (M. Potvin Excavation) v. City of Saint-Constant, 2026 QCCA 1199, the Quebec Court of Appeal reaffirmed the principles governing a contracting authority’s duty to provide information and a bidder’s corresponding duty to seek clarification where necessary.
The Facts
In May 2020, the City of Saint-Constant issued a public call for bids for infrastructure replacement and installation projects, including the reconstruction of three street segments, the replacement of water mains, sanitary and storm sewer lines, and the construction of curbs and sidewalks.
Before issuing the public call for bids, the City of Saint-Constant retained the services of Laboratoire GS to conduct a geotechnical and environmental characterization study. The report prepared by Laboratoire GS concluded that contaminants were present in some of the soil to be excavated during the work covered by the call for bids. This study, however, did not include any estimate of the volume of contaminated soil to be excavated.
Following the public bidding process, the bid submitted by 9329-0146 Québec Inc. (“Potvin Excavation”) was selected. The bid documents submitted by Potvin Excavation stipulated that the company was required to optimize the management of excavated contaminated soil by using it for backfill. The bid documents also specified a unit price of $69.83 per metric ton of contaminated soil to be disposed of at an authorized site. Furthermore, these bid documents indicated a quantity of 300 metric tons of contaminated soil which, according to the parties, could not be used for backfilling and must therefore be disposed of at an authorized site.
The Dispute
Following the completion of the work, Potvin Excavation disposed of 13,746 metric tons of contaminated soil at an authorized site. Citing the unit price of $69.83 per metric ton of contaminated soil disposed of, the company claimed the sum of $1,103,628.90 from the City of Saint-Constant.
Potvin Excavation alleged, amongst others, that the City of Saint-Constant failed to fulfill its duty to disclose the necessary information to the company, as the study by Laboratoire GS did not provide an estimate of the volume of contaminated soil.
The First Instance Judgment
In addressing the issue of the duty to disclose, the trial judge cited the Supreme Court decision in Bank of Montreal v. Bail Ltd., which holds that this duty comprises three main elements, namely: (1) The debtor’s actual or presumed knowledge of the information; (2) the decisive nature of the information in question; and (3) the creditor’s inability to obtain the information on their own, or the creditor’s legitimate reliance on the debtor.
The trial judge also explained that it is the bidder who has the burden to demonstrate that it acted in a diligent manner by seeking information, but that the contracting authority must describe the proposed work with sufficient care and precision so that the bidder knows what the contracting authority expects of it. Citing again the decision in Bank of Montreal v. Bail Ltd., she explains that the contracting authority may not conceal material facts that could directly affect the bidder’s willingness to enter into a contract, the terms under which the bidder would wish to enter into a contract, or the manner in which the work is to be performed.
Applying the aforementioned principles, the trial judge concluded that the City of Saint-Constant did not fail in its duty to disclose, finding that Potvin Excavation did not use the necessary means at its disposal to adequately inform itself about the nature of the work and the soil conditions at the project site.
She explains that Excavation Potvin, a specialist in excavation and levelling work since 2025, could have taken various steps to learn more about the amount of contaminated soil. She notes that Excavation Potvin could, for example, have performed volumetric calculations to determine the extent of the contaminated soil using the data contained in the GS Laboratory report, or could have consulted an expert to help it understand the report.
She concludes that the City of Saint-Constant did not withhold information from the bidders and that Excavation Potvin could not have been unaware of the amount of contaminated soil.
Court of Appeal Decision
The Court of Appeal observes that Excavation Potvin’s arguments do not raise an error of law but rather allege that the trial judge made reviewable errors of fact. Finding no manifest and overriding error in the trial judge’s findings, the Court of Appeal dismisses this ground of appeal. In doing so, however, the Court reaffirms the principles governing the contracting authority’s duty to disclose information, as articulated by the trial judge.
Takeaway
The case underscores the importance of bidders conducting thorough due diligence and taking all reasonable steps available to obtain sufficient information about the nature and scope of the work to be performed. The Court of Appeal confirms that a contracting authority does not breach its duty to disclose information where it has not withheld any material information and the bidder remains in a position to assess the scope of the contract adequately. A bidder who submits a bid without first obtaining the information reasonably necessary to evaluate the work therefore assumes the resulting risk, which cannot subsequently be shifted to the contracting authority.
