THE BOROUGH OF EAST YORK EXPERIENCE:

PRIVATIZATION OF WASTE COLLECTION SERVICES

By Quinto M. Annibale

"PRIVATIZATION" the municipal buzz word of the 1990's! The debate continues as to whether turning municipal services over to private companies is a realistic solution for municipalities to address their ever increasing responsibilities and demands in the face of diminishing resources.

It is a sensitive topic. To some it means: reduction of costs, need for less capital equipment, flexibility in responding to fluctuating demand and improved services while to others, it means: loss of job security, loss of public control and loss of manager control. Discussions of privatization are usually initiated in situations where costs are perceived as being too high or where there is a loss of revenue.1 The topic can be raised either through proposals by private firms or internally by municipal staff or councillors.

It has been said that:

"Privatization or contracting out should never be a goal or an end to itself. It is a management tool that may or may not fit specific circumstances. The goal should be the provision of the highest level of government services at the least possible cost."2

There are generally thought to be three levels of privatization:

1. Contracting out of basic services where there is no direct involvement with the public (i.e. janitorial services, maintenance of municipal vehicles).

2. Contracting out of services with varying degrees of direct service to the public (i.e. garbage collection).

3. Involvement in large scale infrastructure projects3 (i.e. development of Metro Hall and full blown public/private partnerships).

Our firm represents The Corporation of the Borough of East York ("Borough"), one of the area municipalities forming part of The Municipality of Metropolitan Toronto. Recently, the Borough has undertaken several initiatives at the second level of privatization. Namely, contracting out in situations where there is a degree of direct involvement with the public. The three principle projects have been:

(a) A contract whereby a private company agreed to design, implement and administer a periodic payment plan for the payment of municipal taxes by Borough residents;

(b) A contract whereby a private company was to administer all parking services in the Borough and to actively enforce illegal parking situations; and

(c) A contract whereby a private waste management company assumed responsibility for the collection of all waste and recyclable materials in two of the four wards in the Borough.

In this paper, we propose to focus on the Borough experience in the privatization of waste management services. We will undertake a close analysis of the various aspects of the project from initiation to implementation and will include a checklist to highlight some of the do's and don'ts in the process.

CONTRACTING OUT OF WASTE COLLECTION SERVICES:

Introduction of the Privatization Concept

The concept of privatization of garbage collection services in the Borough of East York was first introduced in 1994 as a recommendation in a Structural Management Review Report. The Report identified that Borough garbage collection costs were the highest in Metro Toronto in 1988 and in 1992 were still only mid-range. Personnel costs were also high relative to other municipalities.

Council of the Borough of East York determined it appropriate to proceed with the tender process and adopted a recommendation to open bids. The Borough ultimately contracted for Laidlaw Waste Systems Inc. to collect waste and recyclable materials from two of the four wards in the Borough. However, in the process leading up to the making of the decision to privatize, Council directed management and union representatives to undertake a cost analysis whereby the union would be invited to match the savings proposed to be achieved by tendering and concurrently, staff were directed to consider protection of displaced workers.

It is fundamental that the first step toward any type of privatization initiatives be to confirm that there are no statutory impediments and that privatization will not result in a breach of any collective agreement which is in place with unionized employees. In the Borough, the Collective Agreement with the union clearly contemplated the contracting out of services in specified circumstances. The applicable sections are reproduced in Appendix "1" attached. It was also determined that there were no statutory impediments to proceeding.

Factors to be Considered in the Decision to Contract Out

Ronald Jensen, relating the experience of the City of Phoenix in contracting out, recommends against the practice of making quick decisions to privatize followed by immediate preparation for bidding. He suggests that extensive research is a must with input from a multi-disciplinary team that includes management, staff, union representatives, affected employees and legal counsel.4 The impact of the proposed contract should be fully evaluated and include consideration of long term impacts relative to short term goals.

We concur with this recommendation and in the Borough, in addition to the anticipated cost savings, other factors considered in making the decision to privatize part of the waste collection service included:

• the Management Restructuring Report recommended contracting out of sanitation services;
  
  
• the early retirement package being offered, along with other factors, would create sufficient vacancies to accommodate most of the displaced sanitation and recycling employees. This created an opportunity to permanently downsize while maintaining the level of service. As a result, the work could be contracted out without laying-off or terminating any sanitation employee (a condition of the collective agreement);
  
  
• the permanent downsizing would leave positions vacant in other sections and result in short term savings as well as regrowth over time;
  
  
• sanitation and recycling were identified as high risk jobs and accordingly, downsizing in this area would make good business sense;
  
  
• the aging nature of the work force increased the injury exposure;
  
  
• work force flexibility would be improved as it is easier to transfer sanitation and recycling workers to other positions than vice versa. This reduces likelihood that temporary employees would be necessary;
  
  
• generally, there is a high level of satisfaction with contracted out services;
  
  
• the current Borough fleet was aging and, if municipally provided service continued, new equipment would be required at a cost exceeding $1,000,000.00;
  
  
• if one half of the Borough collection system was privatized, permanent elimination of expenditures for equipment could occur and much of the existing equipment could be disposed of.

Some other factors which should be taken into account generally are:

• whether operating efficiencies will improve;
  
  
• whether it will encourage competition;
  
  
• whether there is a need for private capital (as originally thought necessary with the Highway 407 ETR);
  
  
• access to private sector technology or innovation.

THE TENDER PROCESS:

Role of the Union

Once the decision to privatize has been made, can the union submit a bid? In 1995, subsequent to the awarding of the contract to Laidlaw Waste Systems Inc., and perhaps in anticipation of the prospect of further privatization, our opinion was sought on the issue of whether the union could submit a bid on equal footing with private companies in any future privatization initiatives. It was our conclusion that, while certainly cost comparisons and analysis could be undertaken to compare public and private sector services to assist in the decision,5 a bid in the formal "tender process" sense could not. However, having said this, it should be pointed out that the City of Phoenix Arizona appears to have done just that.6

Our reasoning for the position which we took was as follows:

1. The union is composed of Borough of East York employees and therefore, the union as a separate legal entity could not provide the services which would be promised as part of the bidding process.

2. Entering such an arrangement could jeopardize the trade union's status before the Ontario Labour Relations Board.

3. The union would likely have difficulty in meeting bonding and other financial requirements of the tender.

4. It would be a clear violation of the Borough of East York's conflict policy prohibiting employees from having an interest in Borough contracts.

5. It would, in effect, be the Borough submitting a bid to itself and deciding the appropriateness of the bid at the same time.

Although, in our opinion, the union (or the Borough) was precluded from formally "bidding", they could be involved in an internal cost analysis relative to the proposed market costs. This could be useful in the preparation, review and assessment of the bid proposals.

Tender Documents

The usual legal rules respecting tendering apply to the tender of what are historically "public" services. Therefore, extreme care must always be taken in preparation of the invitations to tender and the bid package. Selection criteria and preferences7 must all be disclosed. Tendering parties must be ever cognisant of the duty to ensure that the information contained in the tender documents is accurate and not misleading.8 This is especially true where public funds are involved.9 If there are errors, the municipality could be held liable in negligence for any damages suffered by the bidding party. Liability may be avoided where a term disclaiming liability for the accuracy of the specifications included in the call for tenders but this may not apply to errors of agents.10 Inclusion of provisions in the tender documents that require the bidder to give notice to the tendering party of any disparity found between actual conditions and those indicated in the tender documents can also serve to limit liability on the tendering party.11

When the Purpose of the Tender is Limited

In the Borough, prior to finalizing the decision to privatize waste collection, the Borough underwent an exhaustive internal versus market cost analysis. For any municipality which intends to use the tender process for this purpose, it is important to make this clear in the tender documentation in order to preserve the integrity of the tendering process and to avoid claims that decisions were made on the basis of undisclosed criteria. This is especially true if the municipality hopes to be able to rely on any exclusionary provisions that provide that "the lowest or any tender may not necessarily be accepted" or provisions that state that the municipality "reserves the right to reject any or all tenders" should it ultimately make a decision to retain the service in-house. Of course, the down side to doing this is that it may discourage otherwise competitive bids from operators who perceive the process as strictly an exercise in internal benchmarking.

Further, care must be taken in the drafting of the tender documents as the cases interpreting exclusionary provisions are complicated and varied. The courts have held that in some circumstances, an owner retains the discretion to rely on these types of sections and accept a bid which is not the lowest or to reject all bids.12 In fact, one court held that the only time that one cannot rely on the exclusionary rule is in situations where there is fraud, collusion or secret agreement whereby fair practice is excluded.13 Other courts have focused on the "customs of the trade" and have allowed custom and practice to override exclusionary clauses in special circumstances. These circumstances include where undisclosed criteria are relied upon, irrelevant or extraneous considerations are taken into account, specific provisions in tender documents are inconsistent with the exclusionary clause or where the tender process is a sham.14

Furthermore, it has been held that in entering bid contracts, the government is obliged to treat all bidders fairly and in good faith and fully set out all the terms.15 Exclusionary clauses are not enough to exclude these obligations.16

Accordingly, we recommend that any invitation to tender issued by a municipality which is designed to compare internal and market costs should disclose this fact. We also recommend that the tender documents clearly state not only that the lowest or any bid will not necessarily be accepted, but that the municipality may decide to reject all bids and continue to provide services in-house for economic, policy or any other reason Council may deem appropriate. It is important to ensure that all bidding documents are consistent with this approach since purchasing departments will often amend one section to include a special clause without regard to its effect or whether it conflicts with other parts of the tender.

In our opinion, the timing of the contemplated internal review is not crucial (i.e. before, after or simultaneously with the bidding process). The only criteria is that the same information be available to all bidders and the criteria for choosing the successful bidder not be misleading or hidden. However, it should be noted that if an internal review is done prior to the bidding process, information which you might wish to keep from potential bidders may be available through the Municipal Freedom of Information and Protection of Privacy Act process. This should be borne in mind.

Issues in Drafting and Developing the Bid Contract

The tender documents in the Borough were developed on the basis of existing customer service levels and allowed for submissions on either a three year or five year contract.

Unlike any other tender in which a municipality may become involved, one which involves direct exposure of a private company to ratepayers (which is very much the case in the contracting out of waste collection services), will require extra sensitivity in drafting to ensure that all of the "public" issues which are important to the municipal client have been adequately addressed and that there is sufficient flexibility in the contractor obligations to ensure that new situations can be dealt with adequately from the municipality's point of view, as they arise.

If certain objectives are important to the municipality, they should be included in the Information to Bidders, rather than being left to the negotiation of the contract stage at a later date. In fact, ideally, the contract that you wish the contractor to sign should form part of the tender documents issued with the invitation, thereby avoiding the common complaint that a particular item not contemplated by the contractor at the time of submission of the bid will significantly increase the contractor's cost. In this way, the contractor will have to take the contract into account in setting their price or will simply have to eat the additional expense as a cost of doing business. Doing this will also allow the inclusion of "Commissioner's Reasonable Direction" clauses (discussed below) with less complaint.

Some of the following clauses are those which we included in the Borough of East York Bid Contract which we felt were particularly important in the public service context and which we felt were necessary because our client was embarking on a relatively new (and previously uncharted) model of service delivery. Therefore, a certain degree of caution and protection was necessary. Municipal solicitors should be careful to include these kinds of clauses and should take special care in their drafting. The following are offered as a checklist of items which should be addressed in the drafting of the documents, rather than as solutions for any particular situation (which vary from municipality to municipality). Of course, the usual provisions related to insurance coverage, indemnification, bonding etcetera should also be included.

1. Reasonable Direction of the Commissioner or a Designate:

If possible, the bid contract should contain one or more omnibus clause which obliges the contractor to carry out all reasonable requests of the Commissioner of Parks, Recreation and Operations (or Chief Administrative Officer or other designate) without any increase or adjustment in the consideration (i.e. fixed fee, cost per tonne, cost per household, etc.). If necessary, the harsh effect of this provision can be tempered by an appropriately drafted arbitration clause. This clause is necessary, especially if the service is one which has never been contracted out before or if contracting out in general is new to the municipality. There are several clauses which can be included, which invariably will require the contractor to carry out the reasonable requests or orders of the Commissioner, complete work to the Commissioner's satisfaction and require the contractor to be bound by the Commissioner's interpretation in the event of disagreement or conflict with respect to the meaning of contract terms.

The Borough's experience has been that it has had to rely on these clauses fairly frequently to require the contractor to either carry out works or do things which were not specifically contemplated at the time of preparation of the tender or which the contract document deals with very clearly. It is a useful tool to have at your disposal.

2. Public Relations

Issues which should be addressed in the area of public relations should include:

(i) Marketing:

It should be decided who will be responsible for advising the public of the decision to privatize and, on a go forward basis, who will be responsible for advising customers of ongoing changes to the service. Typically, how you address these questions in the tender documents will depend on what balance the municipality wants to achieve between having the luxury of the contractor taking over the burden of the responsibility versus how much control the municipality wishes to retain over the ability of the contractor to communicate directly with the public and the content of such communication. In the several municipalities that we have drafted or reviewed tenders for waste collection, the degree of required control has been quite high (usually no contact without prior written consent of the municipality).

Another public relations issue relates to the private vehicle markings and the appearance of vehicles in general. It was important for the Borough to continue to maintain a corporate presence despite the fact that the service was to be privately provided. Since the trucks were to carry the Borough logo, it was also important to ensure that the appearance of the trucks would be maintained at an acceptable level.
General advertising not related to the business of the municipality (other than the name of the contractor) was expressly prohibited without the prior written consent of the municipality. However, the municipality retained the right to display public interest messages on the private vehicles.

Of course, the type, number and age of the vehicles and equipment must also be addressed.

Several other clauses dealt with the fitness of the fleet and equipment in some detail.

(ii) Receiving and Processing Complaints:

East York required the maintenance of an office within the Greater Toronto Area as well as the maintenance of a local number (important if dealing with an out of town firm) for the purposes of receiving complaints in a "courteous and tactful manner". The contract set out a full protocol for the dealing with, recording and passing on of complaints.

Complaints were required to be dealt with either the same day or the next day depending on the nature of the complaint.

The contractor was required, both for the purposes of dealing with complaints and for ensuring that the work is properly carried out, to maintain two-way radio contact between its office and all of its vehicles.

3. Service Levels

The contract should deal (in some detail) with performance benchmarks. These will be important for the purpose of determining compliance (or breach) of contract terms as well as remuneration levels pursuant to the contract. Benchmarks will also assist in the comparison of the contracted out costs with internal costs if, as in the Borough's case, only a portion of the municipality has been privatized.

The contract should determine what will be the result in the event that the performance benchmarks are not achieved (penalty in the Borough's case).

The municipality should retain tight control over hours and days of operation and the tender documents should be consistent with any waste collection by-law in effect in the municipality in this regard.

Given the importance of the service, the large sums of money at stake and the difficulty which would be involved in quickly securing a replacement, some consideration should be given to the inclusion of a provision for liquidated damages in the event of forfeiture of the contract. The Borough's tender provided for estimated liquidated damages in the amount of $100,000.00.

4. Treatment of Labour Force

Direct supervision should be in the control of the contractor, but the municipality definitely should retain the right to inspect and direct changes on an ongoing basis.

Consideration should be given to the kind of relationship you wish to create for the purposes of complying with provincial health and safety legislation.

The Borough contract provided for permanently hired rather than temporary employees (except for fluctuations in work).

The Borough contract provided for the hiring of only "orderly, competent and skilful workers" and provided for the residual ability of the Commissioner of Works to require the contractor to dismiss any incompetent or disorderly employee. A liquidated damages provision was also included for breach of this particular provision as well.

Certification from the Workers' Compensation Board that all assessments had been paid was required.

Not included in the East York contract, but common to some other privatization contracts we have seen, are provisions requiring the contractor to comply with the municipality's hiring practices or policies (i.e. non-discrimination or sexual harassment).

The Borough was particularly concerned about worker safety and so it included provisions requiring the contractor to ensure that all employees wear protective footwear and gloves on duty and provided for the issuance of rain wear during inclement weather. It required the contractor to implement and keep in place a training program to ensure that drivers are familiar with operations, public relations, policy and complaints procedures.

5. Conflict of Interest\Code of Ethics

A good idea is the inclusion of a clause expressly prohibiting the contractor, or any of their agents, employees or servants, from giving or attempting to give any bribe or gratuity to any municipal politician, official or employee and prohibiting the contractor and their employees from receiving any bribe or gratuity.

The municipality could also require compliance with the municipality's Conflict of Interest and Code of Ethics Policy, to the extent that it would be applicable.

6. Anticipating Change

Some specific items which, from experience, have the potential to change with alarming volatility are:

• tipping fees;
  
• government subsidy or waiver of tipping fees;
  
• market value of recycled products;
  
• closure of transfer stations, strike of municipal workers still responsible for part of the disposal "chain" (transfer stations and disposal sites);
  
• closure of disposal sites; and
  
• addition of classes of waste to the waste stream (or blue box program) during the contract term.
  
  The municipality should determine early, and with exacting clarity, how these items will be dealt with. In our experience, these have the potential to change, with relative ease, the economic viability of the privatization initiative in its entirety. A money saving privatization plan can change to a money losing one virtually overnight if these potentials for change are not anticipated properly.

7. Confidentiality

Although probably not as important in the waste disposal business as perhaps some other more sensitive areas which might be privatized, the confidentiality of any information received by contractors needs to be dealt with in the contract as well. Firstly, the contractor should be required to comply with the Municipal Freedom of Information and Protection of Privacy Act and in addition, should agree to keep all information it acquires during the course of its contract with the municipality in confidence.

8. Ownership of Intellectual Property

Again, although probably not all that relevant in the waste disposal business, a usual clause found in privatization contracts are those which will address the issue of who owns any product, technique, technology or other idea or intellectual property which the contractor develops on behalf of the municipality during the course of the contract. As a starting point, we take the position that the municipality should own these since it has paid for the development of same to occur, unless it can be demonstrated that the development may or will result from independent or unrelated efforts of the contractor (R&D).

If it is intended that a non-exclusive licence for the purposes of marketing the service to other clients or potential clients be retained by the contractor, this should be set out in the contract.

9. Proof of Ability

Apart from the usual proof of ability required by tenderers, the Borough was interested in at least knowing what other privatization experience the bidders had. This certainly helps if the privatization initiative is relatively new.

10. Assistance in Litigation

Since the service is no longer being provided by municipal employees, it is probably a good idea to include a clause which will require the assistance of the contractor and its employees in the event that the municipality becomes involved in litigation which involves the contracted out service. It should be made clear whether, and to what extent, this assistance will be at no cost to the municipality or will be an "extra". This clause should extend to the proceedings of administrative tribunals as well.

11. Termination

Certainly the contract should spell out with clarity what the events of default will be. The debate with privatization contracts, especially new ones, is whether a parachute clause should be included for the benefit of the municipality only; that is, a clause which would allow the municipality to terminate the contract on notice if it simply did not like the way the contract was going (short of an act of breach having been committed). The rule of thumb we have adopted with our municipal clients on this issue is that if it is kind of contract which does not require a substantial up front capital commitment by the contractor to provide the service (which would be the case in a strictly fee for service arrangement), then it would be fair and appropriate from the municipality's point of view to include a termination on notice clause. If on the other hand, providing the service will require a large capital expenditure up front (eg. such as the purchase of several hundreds of thousands of dollars worth of waste collection equipment), then the contract should be for a term of years, terminable only for cause or force majeure. If there is no termination on notice clause, then you could tighten up the "for cause" provisions or the performance standards to potentially make getting out of the contract easier if things do not work out.

12. Environmental

Clauses requiring proof of all environmental approvals or certificates (including Ministry of Environment and Energy provisional certificates of approval for a waste management system), should be included.

Provision should be made for dealing with spills or minor environmental problems (i.e. oil spill, strewn waste, damage to surrounding vegetation, lawns, trees, shrubs, etc., by workers).

13. No Assignment

Having gone to all the trouble of negotiating the perfect privatization contract, it would be a shame if all of its provisions could be avoided by an assignment of the contract by the contractor. The municipality spends a lot of time and effort on choosing the appropriate contractor. Assignment of the contract should be prohibited without the municipality's consent.

HOW THE SYSTEM IS WORKING:

Borough Council rejected the proposal originally presented by the union when it passed a resolution to contract out the collection of waste and recyclables for two of the four wards in the Borough. However, at that time, Council requested staff to work with the union to implement productivity improvements to reduce collection costs in the two wards where public service had been maintained.

This proved to be very successful. Through this process, together, management and the union were able to put forward a plan to reduce in-house costs to a competitive level with contracted services. Creative strategies were presented to increase productivity, decrease unit prices, reduce staffing and actually increase the level of service. The proposal contemplated a changeover to a four day work week comprised of 10 hour days, reorganization of the various types of collection services and collection of white goods by a private contractor at no cost to the Borough. The proposal also addressed ways of dealing with displaced employees and presented various programs to reduce lost time due to sickness and improve training and safety awareness to prevent injuries.

It was also possible to isolate two problem areas which impacted on the ability of in-house personnel to compete with the market costs. Namely, vehicle operating costs and vehicle size. By working with Council, appropriate arrangements were able to be made to purchase new vehicles and incorporate other changes in order to eliminate these deficiencies.

At the time of submission of the proposal late in 1995, it was proposed that the total costs could be reduced by approximately $359,905.00. A trial program was subsequently implemented and at the end of June, the in-house costs in the various collection categories had been substantially reduced. For example, garbage collection costs had been reduced from $60.55/tonne to $33.92/tonne and blue box collection had been reduced from $122.18/tonne to $103.17/tonne. In some cases, costs have been reduced to below the contracted out prices. Furthermore, it is interesting to note that improvements to operating efficiencies identified by the management and union were also incorporated by the contracted out service (ie. change from 5-8 hour days to 4-10 hour days).

So, how is the system working? It is working quite well. The combination of in-house and contracted out services provides a built in check and balance mechanism between the two in relation to both costs and operating efficiencies. East York appears to be truly moving "beyond contracting out"!

CONCLUSION:

Overall, the East York Experience involving the privatization of waste collection has been a positive one. This is, in part, for the reason that privatization was not perceived as an end in and of itself, but rather as a management tool. The splitting of waste collection services in the four Borough wards between the public and private sector has resulted in reduced costs, increased efficiency and improved service. There is no intention at the present time to change the equilibrium that has now been achieved.

In order for any privatization arrangement to be effective it cannot be stressed enough how important it is to "do your homework" and ensure that, at first instance, the reasons for considering privatization are sound and the tender documentation is carefully prepared following a thorough review of all aspects.

It can work to the benefit of all parties involved and result in an improved level of service to the municipal client, the public.

1. Ronald W. Jensen, Municipal Lawyer, January-February, 1996 Vol. 37, No. 1, p. 16 at p. 16
   
2. Supra, Note 1 at p.16
   
3. Dr. Robert Poole, Jr., "The Limits of Privatization" in Privatization: Tactics and Techniques - Proceedings of an International Symposium, Michael A. Walker, ed (Vancouver: The Fraser Institute, 1987), at pp. 79-91 at pp. 81-82
   
4. Supra, Note 1 at p.17. The Phoenix experience is interesting because it appears to have moved to the "fourth stage" of privatization which the author calls "beyond privatization" (the first stage being private takeover of public services, the second being public/private partnerships and the third being competition between public and private providers). In the "beyond privatization" stage, the emphasis is on developing the service and facilities in the manner which would better serve the public, without regard to whether the service is public or private. In Phoenix's case, garbage disposal occurs on the basis of a series of Reciprocal Service Agreements between city, county and privately operated solid waste transfer stations and landfills within the metro area. The new concept assumes single ownership of all facilities within the service area and collection vehicles are directed to the most efficient participating disposal location, whether public or private, taking into consideration travel distances and tipping fees. Fees are paid and reconciled on the basis of a credit system. This paradigm is referred to by the author as "managed competition".
   
5. Assuming the tender documents contained the appropriate privilege clauses and were drafted in such a way as to reveal the possibility of continued public service, it was our opinion that the Borough would have this option.
   
6. Peter Holle, "The Phoenix Model - When City Departments Compete", Municipal World, June 1996, p. 29
   
7. Tercon Contractors Ltd. v. British Columbia (1993), 9 C.L.R. (2d) 197 (B.C.S.C.)
   
8. Walter Cabott Construction Ltd. v. Government of Canada (1974), 44 D.L.R. (3d) 82 (F.C.T.D.); var'd (1975), 69 D.L.R. (3d) 542 (F.C.C.A.); Edgeworth Construction Ltd. v. N.D. Lea & Associates (1993), 8 W.W.R.129 (S.C.C.); Thomas C. Assaly Corp. v. Canada (1990), 44 Admin. L.R. 89 (F.C.T.D.); Cardinal Construction Ltd. v. Brockville (Municipality) (1984), 25 M.P.L.R. 116 (Ont. H.C.)
   
9. Zutphen Brothers Construction Limited v. Nova Scotia (Attorney General) (1993), 125 N.S.R. (2d) 34 (N.S.S.C.)
   
10. Edgeworth, Supra, Note 5
    
11. Corpex (1977) Inc. v. Canada, [1982] 2 S.C.R. 643
    
12. Elgin Construction Co. v. Russell (Township) (1987), 24 C.L.R. 253 (Ont. H.C.); Acme Building and Construction Ltd. v. Newcastle (Town) (1992), 2 C.L.R. (2d) 308 (Ont. C.A.); Megatech Contracting Ltd. v. Ottawa-Carleton (Regional Municipality) (1989), 68 O.R. (2d) 503 (H.C.)
    
13. Pro Star Mechanical Contractors Ltd. v. Sandbar Construction Ltd. (1992), 1 C.L.R. (2d) 310 (B.C.S.C.)
    
14. Chinook Aggregates Ltd. v. Abbotsford (Municipal District) (1987), 28 C.L.R 290 (B.C.S.C.), aff'd (1989), 35 C.L.R. 241 (B.C.C.A.); Protec Installations Ltd. v. Aberdeen Construction Ltd. (1993), 6 C.L.R. (2d) 143 (B.C.S.C.); Kencor Holdings Ltd. v. Government of Saskatchewan, [1991] 6 W.W.R. 717 (Sask. Q.B.); Martselos Services Ltd. v. Arctic College, [1994] 3 W.W.R. 73 (N.W.T.C.A.); Northeast Marine Services Ltd. v. Atlantic Pilotage Authority, [1995] F.C.J. No. 99 (F.C.C.A.); R. v. Canamerican Auto Lease & Rental Ltd., [1987] 3 F.C. 144 (F.C.C.A.); Best Cleaners and Contractors Ltd. v. Canada, [1985] 2 F.C. 293 (F.C.C.A.)
    
15. Chinook, Supra at Note 14
    
16. Health Care Developers Inc. v. Newfoundland (1996), 136 D.L.R. (4th) 609 (Nfld. C.A.)
    

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