Canada’s major environmental consulting firms typically insist that their clients agree to extremely one-sided terms of service. Under these “Terms and conditions”, appended in fine print to the back of most proposals, the consultants severely limit their liability for negligence to their client, while imposing enormous liabilities in return. In one typical example, the client must agree to cap any future claim for damages against the consultant at $25,000 or $50,000, regardless of how much the consultant’s negligence may actually cost the client. The client must also bring any lawsuit within one year, a time limit that typically expires before the client finds out about the consultant’s negligence. Thus, the client must give up most of its normal contractual rights against the consultant. In return, the consultant insists that the client give it a permanent, unlimited indemnity for any losses the consultant may suffer, whether or not the client was negligent.
The net effect of these grossly unfair terms is that the client bears virtually all the risk of anything that may happen on the site, no matter how negligent is the consultant. The consultants get away with these terms, partly because most clients don’t read them, and partly because the major banks insist on clients using a small number of firms, all of whom have similar unfair contracts. Professional Engineers Ontario, the professional regulator for engineers who is supposed to protect the public interest, seems to have no objections to these contracts. Those who plan to retain environmental consultants should beware.