Case summary: B.C. court rules on banning bids from litigious contractors

  • January 16, 2019
  • Krista M. Johanson

J. Cote & Son Excavating Ltd. v City of Burnaby, 2018 BCSC 1491

Madam Justice Maisonville

M. Preston appearing for the plaintiff

C.L. Paterson appearing for the defendant

M. A. Whitten appearing for the Attorney General of B.C.

Aug. 31, 2018

May a public owner impose a blanket ban on bids from contractors who have litigated against it in the past?

In J. Cote & Son Excavating Ltd. v City of Burnaby, 2018 BCSC 1491, a general contractor on the banned list argued that such a clause infringed its constitutional rights by preventing it from accessing the courts.


The City of Burnaby added a clause in its Invitation to Tender that barred bids from proponents that had engaged in litigation against the City within the previous two years.

The reprisal clause was inserted approximately two months after the plaintiff, a construction contractor, had brought an action against the City arising out of the death of one of its workers. J. Cote argued that the clause imposed a limit on its right of access to the courts by dissuading it and other contractors from litigating so as to avoid missing out on business opportunities. To that end, J. Cote brought evidence that it had lost business as a result of the clause, citing nine contracts tendered by the city during the time it was barred from bidding. J. Cote also calculated that the City had provided 17 per cent of its work in the past, implying that these contracts would have comprised a substantial part of its work.

J. Cote applied for a summary trial seeking a declaration that the reprisal clause was invalid because it limited a constitutionally protected right of access to the courts. Essentially, there were three objections: first, the limitation infringed on the Charter of Rights and Freedoms; second, it was inconsistent with the rule of law and infringed s. 96 of the Constitution Act, 1867; and finally, it was contrary to public policy.


The court asked and answered the following questions:

  1. Does the impugned clause unjustifiably infringe a Charter protected right of reasonable access to the courts and thus is of no force and effect?

No. Section 24 of the Charter is not a remedy for unconstitutional action in general. The plaintiff “must be able to point to a breach of a specific right or freedom set out and guaranteed in the Charter in order for a remedy to be available” under that section (at para 41). As the Charter gives no general right of access to the courts for the resolution of civil disputes, there is no remedy under the Charter for an impaired right of access.

  1. Is the impugned clause unconstitutional because it prevents access to the courts in a manner inconsistent with s. 96 of the Constitution Act, 1867 and the rule of law?

No. Section 96 of the Constitution Act, in conjunction with the rule of law, does provide constitutional protection for access to justice in the civil context. However, not all limits on access to justice are unconstitutional. The plaintiff bears the burden of proving that the limit is in fact inconsistent with the rule of law by demonstrating that it suffered undue hardship, a threshold established in Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59, in the context of a proposed hearing fee scheme.

The court held that the fact that some contractors might choose not to access the courts as a result of a reprisal clause is not sufficient on its own to establish undue hardship. The plaintiff failed to furnish sufficient evidence that it lost business to the point of undue hardship as a result of exercising its right of access. Its evidence was speculative, based as it was on past work allocation, and thus did not satisfy the court.

  1. Should the impugned clause be declared invalid as contrary to public policy given that it may deny access to the courts?

No. The court found that, in the absence of bad faith, clauses that bar bids from contractors engaged in litigation serve a commercial purpose and are valid. Discouraging litigation is not the same thing as preventing it. If the two were to be treated the same, the undue hardship analysis would be undermined. Contractors were free not to submit bids where tender documents contained such clauses if they did not wish to be subject to such clauses.


In conclusion, the court held that there is a right of access to the courts but that the burden to prove impairment of the right is high. Absent evidence of undue hardship, reprisal clauses that penalize proponents who litigate against the owner will not violate that right.

It is open to a contractor who could marshal better evidence of undue hardship to mount a further challenge against a reprisal clause. For the contractor in this case, there was a victory of sorts in that the City deleted the reprisal clause from its tender terms prior to the hearing of the matter. (The City argued that this step made the force and effect of the clause moot, but the court permitted the constitutional issues to proceed to a hearing, because the plaintiff’s claim for Charter damages had yet to be determined.) Whether the City will now reinstate the clause in light of this ruling remains to be seen.

In the meantime, bidders should carefully consider the impact that legal proceedings will have on their other business opportunities and be alert to such clauses in Invitations to Tender. Owners should consider whether reprisal clauses are necessary in order to achieve their objectives and should avoid their use where there is serious risk that they could cause undue hardship to a bidder.

Prepared by: Krista M. Johanson, a partner with BLG in Vancouver