Case information

Constitutional law — Access to justice — Crown law — Government contracts — Municipal government imposing clause indicating that tenders would not be accepted from certain bidders engaged in legal proceeding against municipality — Whether it is lawful for a municipal government to use its power over public works to punish contractors who have taken court proceedings against it — Whether the constitutional right of access to the civil superior courts only protects against a virtually complete denial of access to the courts — Whether the constitutionally protected right of access to the civil superior courts applies only to interference by legislation — Whether the clause is ultra vires because it abrogates the common law right of reasonable access to the courts.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

J. Cote & Son Excavating Ltd. is a construction contractor that does much of its work on municipal infrastructure for the City of Burnaby. After J. Cote began an action against the City in relation to one of its contracts, the City added a Business Performance Clause to the invitation to tender on municipal works. That clause indicated that the City would not accept tenders from anyone who is engaged in a legal proceeding against the City in relation to a contract with or works or services provided to the City, or has been engaged in such an action within the previous two years. The clause prevented J. Côté from bidding on work for the City. J. Cote brought a summary trial application against the City seeking declarations that the clause was of no force and effect because it unjustifiably infringes the constitutionally protected rule of law and, contrary to the Charter, the right of reasonable access to the courts and, contrary to the Constitution Act, 1867, s. 96, prevents access to the courts. It also sought damages pursuant to s. 24 of the Charter. The City deleted the impugned clause from its tender terms prior to trial and then brought an application seeking to have the proceedings declared moot. As the request for damages continued to be a live controversy between the parties, the application was addressed even though the matter was no longer a live issue. The trial judge dismissed the action and the Court of Appeal dismissed the appeal.