J. Cote & Son Excavating Ltd. is suing the City of Burnaby after the city enacted an allegedly unconstitutional policy precluding companies from bidding on public works tenders if the company had been involved in legal proceedings against the city within the preceding two years.
The excavation company filed a notice of civil claim in BC Supreme Court on December 19. The firm claims the bulk of its business involves competitive tenders for municipal infrastructure projects, and the claim lists more than half a dozen multimillion-dollar projects it has worked on with the City of Burnaby over the last decade.
But during a sewer construction project, J. Cote & Son claims a dispute over payment culminated in the company suing the city in December 2013. In February 2014, according to the claim, Burnaby enacted a “reprisal clause” to its public tenders, disallowing firms that had been involved in legal action against the city in the preceding two years from submitting bids.
Since the addition of the reprisal cost, J. Cote has lost out on the chance to bid for several projects, the claim says, including Kingsway corridor improvements, Hastings Street infrastructure renewal and other road, sewer and water main replacement contracts.
“The effect of the reprisal clause is Burnaby blacklists from future public contracts those contractors resorting to the courts to enforce the rule of law,” the claim states.
The company claims the clause is unconstitutional by limiting access to the courts and “contrary to public policy because it fetters access to the courts.”
“Such attempts to interfere with a person’s access to the courts is injurious to the public good in that it attempts to hinder the rule of law and enforcement of legal rights,” the claim states.
The company seeks costs and a declaration that the clause is unconstitutional.
The allegations have not been tested in court, and the city had not filed a response by press time.
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