Judgment discussed: Construction BSL Inc. v. Attorney General of Quebec-Ministry of Transport of Quebec, 2025 QCCA 1438
In its decision Construction BSL Inc. v. Attorney General of Quebec – Ministère des Transports du Québec, the Court of Appeal reminds general contractors that the success of a project depends not only on expertise on the construction site, but also on the client sharing all their expertise and essential information from the tender stage onwards. In the construction industry, transparency is becoming the primary risk management tool.
Background
The Ministère des Transports du Québec (MTQ) awarded a bridge repair contract to a contractor following a public call for tenders. During the work, a significant amount of water appeared, requiring extensive pumping work. The contractor informed the MTQ that they could not have anticipated this situation and filed a reimbursement claim for the additional costs.
The MTQ refused, considering that a water management issue was a foreseeable risk. The contractor then filed a monetary claim and subsequently brought the case before the Superior Court, which ruled partially in their favour. The Court found that the MTQ had failed in their duty to provide information by not communicating certain relevant information but also criticized the contractor for not requesting more information before bidding.
Dissatisfied, the contractor appealed the case. The key issue to be decided is: what is the scope of the client's duty to provide information in a public tender?
The applicable legal framework
The Quebec Court of Appeal points out that the duty to provide information applies to the parties in contractual matters. It promotes transparency, collaboration and balance between all parties. Relying on the case law of the Supreme Court of Canada, the Court of Appeal specifies that the client's duty to provide information is based on the following criteria:
‑ Knowledge of the information: actual or presumed by the party required to disclose it
- The nature of the information: its importance in enabling the contractor to prepare an informed bid
- The contractor's inability to obtain the information themselves, or their legitimate reliance on information provided by the client
This duty to inform must be assessed on the basis of certain factors, including the allocation of risks and the respective expertise of the parties.
The distribution of risks
In principle, the contractor must assume the risks associated with the execution of the works on a construction site. They must be able to foresee them when preparing their tender. However, the client must not distort this assessment by failing to provide relevant information or by withholding it. Such an omission compromises the contractor's ability to assess the risks correctly and to bid in full knowledge of the facts.
The expertise of the parties
When the client has expertise in the field of construction and retains the services of professionals to design a project, their obligation to provide information is heightened. They must not only disclose the relevant information they possess, but also the information they should reasonably possess given their expertise. In this context, the contractor can legitimately rely on the information provided and assume that it is accurate and up to date at the time of the bid.
Application of the legal framework to the relevant facts
The Court of Appeal points out that the MTQ is the main public works client in Quebec and has recognized expertise in managing large-scale construction projects. The evidence showed that they had hired a specialized firm to design the bridge repair work.
This firm had anticipated the use of special pumps due to foreseeable water management issues. In the Court's view, this information was essential, but it did not appear in the tender documents. A contractor would normally expect to receive such information, as it directly influences the choice of work methods, timelines and costs.
The judgment
The Quebec Court of Appeal concludes that the Superior Court misjudged the scope of the client's obligation to provide information. The evidence showed that the MTQ, the main client in Quebec, has recognized expertise in the management of large-scale construction projects. They had retained the services of a specialized firm to design the bridge repair work. This firm had highly relevant information on the risks associated with water management and had even anticipated the use of specific pumps. This information was essential and did not appear in the tender documents.
Under the circumstances, the contractor could not have foreseen the presence of a large amount of water or the specific methods for managing it. They had no access to this information and could not reasonably have obtained it on their own. The contractor had acted diligently, in particular by visiting the site before submitting their bid.
Given the importance of the information in question and the considerable expertise of the MTQ and its agent, the client's duty to disclose information was very high. Their failure to do so resulted in additional costs for the contractor. The Court of Appeal therefore allowed the appeal and upheld the claim related to the water management issue.
Conclusion
The purpose of the duty to inform is to ensure contractual balance by allowing each party to have access to the information relevant to adequately assessing the risks.
In public tenders, this duty takes on particular importance when the client and the professionals it mandates have greater expertise than the contractor. In this context, the client's duty of obligation is very high, as it possesses data that can directly influence the preparation of the bid. The client's duty to inform is therefore evolving, ongoing and contextual. It does not end with the formation of the contract, but continues during the execution of the work.
However, the contractor must exercise due diligence. They must analyse the documents, ask questions and carry out checks such as site visits. Each claim is assessed according to the specific circumstances of the case. Diligence and caution are required at all times.
