Engineering firms must be free to seek legal redress, says ACEC

The Association of Consulting Engineering Companies-Canada (ACEC) has issued a statement supporting the right of consulting engineering companies to go to litigation or other dispute mechanisms with clients over projects, without having to fear that it could jeopardize their chances of obtaining future work with those clients.

The ACEC member advisory issued May 2014 said that the association is aware of situations where municipalities and other public clients were prohibiting engineering firms and contractors from participating in project opportunities for extended periods if they had been engaged in some kind of legal dispute with the municipality.

ACEC says it “categorically opposes this practice,” and points out that “Every Canadian has the right to go to court, this being one of the fundamental freedoms enjoyed by Canadians by way of our Charter of Rights and Freedoms.”

Following is the full text as issued by ACEC:

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ACEC Supports Members’ Right to Litigation and Alternative Dispute Resolution (ADR)

The Association of Consulting Engineering Companies-Canada (ACEC) is aware that there are municipalities (and other public agencies) that are prohibiting engineering firms and contractors from participating in procurement opportunities with the municipality, sometimes for an extended period of time, if they are or have been engaged in either litigation or alternative dispute resolution (ADR) with that municipality. ACEC categorically opposes this practice. In support of its members, ACEC-Canada’s Board of Directors has formally adopted the following position on procurement during litigation and alternative dispute resolution.

Every Canadian has the right to go to court, this being one of the fundamental freedoms enjoyed by Canadians by way of our Charter of Rights and Freedoms. Consequently, ACEC-Canada believes that its member firms have the legal and contractual right to engage in litigation and/or alternative dispute resolution (ADR) with their public clients and have the right to defend themselves without threat.

ACEC therefore opposes the practice by public owners of excluding firms from participating in procurement opportunities or otherwise penalizing them for past or current claims and disputes with that owner or other owners.

ACEC believes such sanctions by public clients effectively coerce member firms into not exercising their legal rights (both in law and contractually) by threat of barring them from participating in projects if they are or have been legitimately involved in litigation, arbitration or alternative dispute resolution. ACEC member firms are entitled to due process. Further, such sanctions penalize firms even when litigation or ADR shows that the firms have been proven to be in the right, or even when client-launched actions are proven to be frivolous and vexatious.

ACEC members are free to share this advisory with affected parties, including clients.

If you have questions or concerns regarding this issue, please contact:

John Gamble, ACEC President

(613) 236-0569 ext. 201

jgamble@acec.ca