Federal Court - Christian Aboriginal Infrastructure Developments ...

Page: 301
In the circumstances of this case, I find that the defendant breached
the terms of their agreement with Carrier; firstly, by failing to
provide the volume of wood required under the licence; secondly, by
manipulating the administrative procedures within its power to
withhold cutting permits improperly and to use its powers to suspend
and cancel improperly to frustrate performance of the contract; and
thirdly, by making promises and commitments to the First Nations
peoples which clearly had the effect of preventing any reasonable
resolution of the dispute and hence prevented the performance of
their contract with Carrier.
2010 FC 495 (CanLII)
These breaches went to the root of the contract between the parties
and constituted a fundamental breach of that contract.
[1143] These comments are apt in the present case. In the first place, the Defendant here in this
action failed to provide the wood supply to the Plaintiffs pursuant to the promise that gave rise to
the contract with the Plaintiffs. Second, there is evidence that servants and agents of the Defendant,
that is employees of DIAND in the Regional Office in Whitehorse, were manipulating processes in
such a way as to render the wood unavailable to the Plaintiffs. In this regard, I refer to the method
by which the TSA was created and the RFP was changed. I also refer to my comments on bad faith
under the negligence discussion.
[1144] Further, I take note of the numerous false statements made by the Regional Office to the
DIAND Headquarters in Ottawa with respect to the history, conduct and performance of the
Plaintiffs.
[1145] It appears that the current state of the law in Canada does not recognize an independent duty
of good faith based on the law of contract. In Schluessel v. Maier (2001), 85 B.C.L.R. (3d) 239