Opening Remarks from the Chair

Karen Groulx
Partner
Dentons Canada LLP

OPENING ADDRESS

Managing Contract Risk in the Era of Prompt Payment

Neil Abbott
Partner
Gowling WLG

New provincial legislation with respect to prompt payment swept the country in 2019 – in Ontario, Manitoba, Saskatchewan, British Columbia, and Nova Scotia. At the same time, Canada enacted the Federal Prompt Payment for Construction Work Act, which introduces a new prompt payment regime for projects undertaken for the Federal Crown or on federal government lands. Focusing on the amendments to Ontario’s Construction Act that went into effect on October 1, 2019, this session will address:

• Identifying where the contract risk is under the Prompt Payment regime
• Evaluating the extent of the risk and who should bear the burden between the Owner and Contractor
• Clauses for consideration to enhance or decrease the effect of Prompt Payment
• How to draft collateral documents such as proper invoices to manage risk and Prompt Payment
  

Case Law Review

New Developments Impacting Construction Projects

Karen Groulx
Partner
Dentons Canada LLP

New Developments Impacting Construction Projects This session will cover decisions rendered in 2019 for disputes relating to construction projects. Gain insight into this year’s most important court judgments and arm yourself with timely legal information.

Morning Break

Q&A With ODACC

Carina Reider
Project Manager
ODACC

In July 2019, the Ontario Ministry of the Attorney General named the Toronto-based dispute resolution firm ADR Chambers as the Authorized Nominating Authority – known as the Ontario Dispute Adjudication for Construction Contracts (ODACC) – for adjudication of payment disputes in construction contracts, as mandated by the Construction Act. Hear directly from the authority and come prepared with questions!

The State of the Construction Workforce: Ontario’s Labour Shortage

Bob Collins
Senior Economist
BuildForce Canada

Aaron Stokes
Partner
Stokes Economics

Public investment in infrastructure and private real estate development alike are growing and will continue to do so, but the labour pool is not expanding at a proportionate pace. BuildForce Canada estimates that Ontario’s construction industry will need to recruit over 100,000 new workers over the next decade to meet demand. Learn about the challenges that the industry and your organization are likely to face in maintaining a skilled and reliable workforce. Gather intelligence on:

• Current and expected future trends
• The causes and consequences of increasing demand
• The impact of the labour shortage on your operations as an owner or contractor

Lunch Break

PANEL

Risks in Construction Contracts – Unforeseen or Unforeseeable?

Lianne J. Armstrong
Partner
Lerners LLP

Michael Swartz
Partner
WeirFoulds LLP

Robert Poole
Managing Director, Construction Solutions
FTI Consulting

Whether a risk is unforeseen or unforeseeable is not always a conscious and intentional distinction that parties to construction contracts make. Shifting course due to unforeseeable circumstances may constitute a legitimate change of scope, but failing to foresee events that ought to be reasonably anticipated constitutes a change of plans that confronts you with financial loss or liability. Hear from our panel of experts:

• How to distinguish between the two types of risk
• What kinds of risks tend to be overlooked at the contract negotiation stage
• Maximizing your awareness and preparedness for any potential setbacks over the course of your project’s execution

Meeting Bonding Requirements for Public Projects

Sharon Vogel
Partner
Singleton Urquhart Reynolds Vogel LLP

The new provisions of the Construction Act include mandatory surety bonds on projects with a contract price of $500,000 or more where the owner is the Crown, a municipality, or a broader public sector organization. Hear directly from an industry leader consulted by the Ontario government in its construction law modernization efforts.

Gain expert insight on:

• Labour and material bond requirements and performance bond requirements
• How Alternative Financing and Procurement (AFP) projects are affected
• Provisions relating to bonds of security

Afternoon Break

PANEL

Trends in P3 Contracts

Paul Blundy
Partner
Bennett Jones LLP

Agnes von Dem Hagen
Vice President, Transaction Legal
Infrastructure Ontario

Tom Barlow
Partner
Fasken Martineau DuMoulin LLP

Jay Nathwani
Senior Legal Counsel
Crosslinx Transit Solutions – Constructors

Judy L. Wilson
Partner
Blake, Cassels & Graydon LLP

P3s have gained significant traction in recent years and Canada has positioned itself as a leader in the field. In this session, gain in-depth insight into the contractual agreements entered into by parties involved in P3 projects and the risks associated with them, and take away best practices for your organization should it enter into such an agreement. This session will address:

• Recent changes to Infrastructure Ontario’s procurement model
• Challenges specific to municipal and transit P3s
• How to best negotiate equity, subcontractor, and project-specific agreements

Improving Project Outcomes with Integrated Project Delivery

Geza Banfai
Counsel
McMillan LLP

Dick Bayer
Chairman
ReAlignment Group Ltd.

As a project delivery method, IPD is unlike any other, with the promise of significant improvements in achieving cost/time certainty and added value for owners while eliminating many of the impediments that plague more traditional methods. Its essential features include a single, multi- party relational contract focused on incentivizing the team towards efficient and timely performance towards common goals, early and intensive involvement of key project participants, joint decision-making, enhanced communication flow, sharing of risk/reward, and waiver of claims among the parties. This session will address:

• How IPD differs from other project delivery methods
• Overcoming barriers to implementation
• How best to procure and organize project teams
• Effectively managing an IPD project

Closing Remarks from the Conference Chair and Conference Adjourns to Day 2

Opening Remarks from the Chair

Karen Groulx
Partner
Dentons Canada LLP

Firm or Flexible Commercial Terms? Identifying the Right Delivery Model for Your Project

Andrew Wong
Partner
Osler, Hoskin & Harcourt

Ethan McCarthy
Associate
Osler, Hoskin & Harcourt LLP

Owners and contractors in different industries come to the negotiating table with varying interests and concerns based on the realities of their industry. Firm commercial terms are a priority for some smaller parties due to tight margins, whereas parties engaged in larger and more complex projects in which changes are inevitable may be open to more flexible commercial terms. The scenarios are many, based not only on the industry but the specific interests of the party and nature of the project.

• Understand the evolution of trends in project delivery models in the construction industry
• Identify the advantages and limits of stringent or flexible pricing arrangements and which is more advantageous to you
• Allocate risk in an informed and reasonable manner through the use of a risk matrix

Seminar on Ethics in the Life Cycle of a Project

Amee Sandhu
Principal and Founder
Lex Integra

Failing to properly identify risk of ethical violations during a construction project can have long lasting consequences for your business. Ethics questions can come up at any time in a project’s life cycle. Whether you are an owner or a contractor, do you have protections in place to guard against risks from the qualifying to the contract execution phase? This session will cover topics including:

• The use of Codes of Conduct and integrity due diligence in vendor pre-qualification and qualification
• Deterring allegations of collusion in the pre-bidding and bidding phases
• Integrating ethics-related terms and conditions into the contract you negotiate
• How to monitor and assess adherence to ethics and compliance criteria, and what to do in case of nonadherence
• Identifying types of dealings between owners and contractors that may constitute conflicts of interest

Morning Break

PANEL

Common Project Pitfalls and Frequently Litigated Disputes

Kenneth W. Movat
Partner
Fogler, Rubinoff, LLP

Maria Ruberto
Partner
Pallett Valo LLP

Graham Brown
Partner
Cassels Brock & Blackwell LLP

Howard Wise
Partner
Goodmans LLP

Construction projects are complex, with many moving pieces and potential for things to not go as planned. As such, they contain fertile ground for disputes often leading to litigation. Identifying common construction claims and working to avoid them must constitute an essential part of each party’s risk management plan. Join our panel of experts in an indispensable discussion of:

• What owners and contractors tend to overlook in contract negotiation
• Taking proactive steps to recognize possible pitfalls and learn from past cases
• Establishing controls to deter disputes and change course as soon as issues arise

Case Study

OPG’s Darlington Refurbishment – A Model for External Oversight and Assurance

Carla Carmichael
VP, Nuclear Decommissioning Strategy
Ontario Power Generation

Eric Gould
Partner
Modus Strategic Solutions, Inc.

Milton Caplan
President
MZ Consulting Inc.

Ontario Power Generation (OPG) is completing the refurbishment of the first of four units at Darlington Generating Nuclear Station, a complex megaproject with an expected cost of $12.8 billion. In 2018, an audit of the project by the Ontario Auditor General (OAG) praised OPG for establishing “a clear accountability structure” through which “project timelines and costs are being managed, monitored and publicly reported on a regular basis and corrective actions are being taken when issues arise.” (Office of the Ontario Auditor General, 2018 Annual Report, Chapter 3.02) Hear directly from OPG and oversight team leads about how:

• OPG structured its oversight and assurance entities and activities to provide visibility for its multiple stakeholders
• OPG’s oversight and assurance activities provide all stakeholders with unfettered information, enabling solid decision-making and preventing problems from growing beneath the surface
• OPG has meshed internal and external assurance activities with processes for contractor accountability and contract performance
• Lessons learned from oversight and assurance activities will benefit the remaining phases of the Darlington Refurbishment project

Lunch Break

Successfully Litigating Delay and Impact Claims

Jason J. Annibale
Partner
McMillan LLP

Disputes over delays can threaten the viability of your project while causing financial and reputational harm should your organization be found liable. Whether you are an owner or a contractor, a plaintiff or a defendant, equip yourself with the knowledge needed to effectively present or defend such a claim. Topics will include:

• Establishing the causes of delay and corresponding responsibility
• Proving legal entitlement to compensation
• Identifying recoverable losses
• Discerning the limits to liability imposed by the prevention principle
• Contractual terms to consider: notice, changes, liquidated damages, liability caps and exclusions
• How to best employ delay and quantification experts

Why the OHSA is More Important than Ever, and How Workplace Parties Can Protect Themselves

David Reiter
Partner
Aird & Berlis LLP

This session will cover recent developments in OHSA law, with a focus on their increasing relevance and importance in construction projects, and what workplace parties can do to prepare for and deal with the attendant issues. Specifically, you will gain timely insights on:

• The continuing convergence between criminal and regulatory law with respect to workplace safety – as echoed in Ontario (Ministry of Labour) v. New Mexico Canada Inc. (2019) and R. v. Fournier (2018) – and how construction projects are impacted
• The MOL’s modes of enforcement, how to prepare for them, and the steps you need to take following an incident
• The importance of setting out and understanding your role, and preparing for the attendant obligations – as echoed in R. v. Greater Sudbury (City) (2019)

Afternoon Break

Discerning the Role of Subtrades in the Construction Act

Catherine DiMarco
Partner
Heal & Co. LLP

Andrew Heal
Partner
Heal & Co. LLP

Subtrades have historically been forced to choose between waiting longer for payment than the subcontract calls for, and having to agree to pay-when-paid provisions, or expending pursuit costs in order to be paid what they are entitled to. This session will address issues relating to prompt payment, adjudication, and lien provisions of the Construction Act, as they relate to subtrades, GCs, and owners, including:

• Going beyond the theoretical place of subtrades in the new legislation and into practical issues that are unique to them
• How you should manage your relationship with subtrades as an owner or contractor

Resolving Disputes Through Arbitration

Andrea Lee
Partner
Glaholt Bowles LLP

Lena Wang
Partner
Glaholt Bowles LLP

Parties to construction contracts often opt for arbitration to avoid protracted litigation in an industry that is prone to disputes. However, in recent years, arbitration has turned into costly and lengthy “arbi- litigation.” How can arbitration be used more efficiently to resolve disputes? In addition, statutory adjudication has now arrived in Canada. How will arbitration dovetail with adjudication and be used to challenge adjudicators’ decisions? Attend this session to learn about:

• Efficiency in arbitration: selecting arbitrators, establishing processes, and managing hearing time
• Arbitration after adjudication: challenging decisions

Closing Remarks, Conference Concludes