Legal Blog

Bylaw Validity & Procedural Fairness

Cote & Son Excavating Ltd. v. Burnaby (City) 2019 BCCA

Bylaw noted that any contractor engaged in litigation with the City, during any period 2 years before the tender was to be given, was not allowed to tender a project. The plaintiff, who was involved with ongoing litigation with the City, moved to set aside the bylaw. The contractor argued that the bylaw improperly limited its access to the courts, contravening section 96 of the Constitution Act, 1867, the Charter of Rights and Freedoms, and the common law. The main attack was based on section 96, which has been interpreted to guarantee the core jurisdiction of provincial superior courts. The court held that (i) section 96 applied only if the legislation denied access in general to the courts and therefore impinged on the core jurisdiction of the superior courts; (ii) no specific section of the Charter of Rights and Freedoms protected the right of access to the civil superior courts; and (iii) the rule of law did not independently protect a right of access to the civil superior courts. The court noted that the bylaw was, in effect, a contractual clause that did not fall within section 96 and that there was no absolute right of access to the courts. Many contractual provisions, including mandatory arbitration clauses, discouraged access to the courts. The clause in the bylaw applied only to a small number of corporations bidding on public works contracts and they had a choice: litigate with the City and do no further business with it or do not litigate with the City.

Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.