Managing Risk in Construction Contracts & Projects – Western Canada Edition

Registration and Breakfast

Opening Remarks from the Co-Chairs

Leanna Olson
Senior Legal Counsel
Bantrel Co.

Paul Ryzuk
Partner
Miller Thomson LLP

Keynote

Nathan Neudorf
Minister of Infrastructure
Government of Alberta

Making the Best of a Bad Situation: Winning Solutions to Supply Chain Disruption and Price Escalation

Robby Sohi
Senior Counsel
EllisDon

Bryan G. West
Partner
McCarthy Tetrault LLP

Brent Willett
Interim President and CEO
Supply Chain Canada, Alberta Institute

The COVID-19 pandemic and the war in Ukraine have caused significant disruptions to supply chains and have raised required spend in an unprecedented manner. With the future still uncertain, solicitors, contractors, and owners must be creative with their risk mitigation solutions. In this session, topics of discussion will include:

• Considering contractual relief provisions beyond the traditional force majeure to mitigate risks
• Rethinking Guaranteed Maximum Price and other similar contracts in light of increasing and fluctuating prices
• Lessons learned from recent case law on the issues of supply chain disruption and price escalation
• Considering strategies to argue entitlement and applicable laws
• Extrapolating the lessons learned for future planning

Networking Break

Moving Towards Collaborative Delivery Models: A Shift in How Construction Does Business?

Jen Hancock
Vice President, Collaborative Construction
Chandos Construction

Ryan Jolly
Manager, Project Excellence
TC Energy

Brian Maksymetz, P. Eng.
President
Better-Projects.ca

Craig Webber
Architect and President
Integrated Project Delivery Alliance

Selecting the right construction contract model for a particular project can be the difference between harmony and discord among project participants. More importantly, it can be the difference between the financial success and failure of the project. In recent years, the construction industry has witnessed the introduction of alternative delivery models: the Integrated Project Delivery Model (IPD) and collaborative delivery models. These project delivery models adapt to the realities of a changing marketplace by bringing all parties to the table early on to collaboratively manage their respective risks. In this session, topics of discussion will include:

• Analyzing the pros and cons of each to determine which projects are right for a collaborative delivery model

Networking Lunch

Mitigating Health and Safety Risks: Building a New Standard of Construction Safety

Christopher Spasoff
Founder & OH&S Lawyer
F2 Legal Counsel

Federal statistics show that the incidence rates of nonfatal injuries and illnesses are down significantly from 20 years ago. The fatal injury rate, however, remains high, and so improving health and safety on the construction site should remain a top focus for the industry. Moreover, since sweeping changes to Alberta’s occupational and health and safety legislation came into force on December 1, 2021, this timely session will review the changes applicable to the construction industry. Topics of discussion will include:

• Understanding the reporting obligations under the updated Occupational Health and Safety Code
• Appreciating the benefits of providing training to employees and how to develop a health and safety program
• Learning the benefits of obtaining COR and SECOR
• Learning the different situations where workers have the right to refuse work
• Avoiding the risk of liability by knowing when the prime contractor must be present on site, and when they can delegate responsibility

Networking Break

Industry Pulse: How Environmental, Social, and Governance (ESG) Frameworks Work to Your Advantage

Prabhjit (Prabh) K. Banga
Director, Sustainability
AECON Group Inc

ESG is more than just a buzzword – capital assets in Alberta will need to be constructed to withstand decades of use, change, and exposure to weather extremes. Integrating resiliency and sustainability into all public capital assets will help build future-focused infrastructure, guard against risks presented by floods and wildfires, and support positive environmental change through sustainable materials, lower emissions, and more efficient energy use. Construction and engineering firms can help maximize ESG goal setting and reporting to become industry leaders.

• Understanding the core pillars of environmental, social and governance and integrating ESG into business strategy
• Knowing the standards to follow, what to measure and which metrics to compile when developing and implementing ESG goals
• Effectively instituting ESG reporting mechanisms and considering the benefits of a standalone ESG annual report

Addressing Diverse and Evolving Needs: Developing and Maximizing Indigenous Partnerships

Byng Giraud
President
Sedgwick Strategies Inc

Sharon G.K. Singh
Co-Head, Aboriginal Law Practice
Bennett Jones LLP

Matthew Foss
VP, Research & Public Policy
Canadian Council for Aboriginal Business

Ifeoma M. Okoye
Partner
Ackroyd LLP

The concept of “going it alone” on major capital projects is undesirable and, in many cases, financially infeasible. Leveraging the wide range of expertise, knowledge, and infrastructure from Indigenous partners across sectors encourages innovation and appropriate risk sharing, ultimately leading to better outcomes. Moreover, owners and service providers are increasingly requiring collaboration with Indigenous peoples. In this session, topics of discussion will include:

• Going beyond consultation and towards collaboration, including joint ventures and other economic participation opportunities
• Building and nurturing Indigenous relationships to optimize construction opportunities
• Reviewing the provincial and federal grants available to Indigenous-owned construction projects and companies
• Protecting yourself through a review of the lesser-known legal obligations for construction projects on Indigenous land

Conference Adjourns

Registration and Breakfast

Opening Remarks from the Co-Chairs

Keynote

Barrie Marshall
Former Director
ADR Institute of Alberta

Six Months into a New Era: Status Update on Alberta’s Prompt Payment and Adjudication Legislation

Shaun W. Hohman
Partner
Rose LLP

William J. Kenny
Barrister & Solicitor
Kenny Law

Terry Milot
Executive Vice-President
Chemco Electrical Contractors

In August 2022, the long-awaited and highly anticipated Prompt Payment and Construction Lien Forms Regulation and a Prompt Payment and Adjudication Regulation came into force. The new regime was based off the scheme implemented several years ago in Ontario. Six months in, how is this regime being used, and what is the industry response? In this session, topics of discussion will include:

• Reviewing the timelines and features of the prompt payment regime
• Understanding what types of claims may be eligible for adjudication
• Navigating the growing pains of having some contracts fall under the new regime and older contracts not eligible for the regime
• Lessons learned from Ontario (but maybe by Jan there will be enough within AB to learn from, so revisit this)
• Comparing adjudication to other forms of dispute resolution and how it works with other dispute resolution mechanisms in the contract

Networking Break

Successfully Litigating Delay and Impact Claims

Tristen Pomerance
Legal Counsel
Graham

Adrianna Worman
Lawyer
Goodfellow & Schuettlaw

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

Networking Lunch

Construction Insurance: Going Beyond the Basics to Maximize Protection

Colin Hasick, CRM
Vice President, Construction Team Leader – Corporate
Marsh Canada Limited

Glen Anderson
VP Finance & Commercial Risk
PCL Construction

Dennis L. Picco, Q.C.
Partner
Dentons

Whether you are contractor, owner, or subcontractor, there are many different types of construction insurance coverage available to help you manage risk, beyond the minimums required by law. Learning how to customize your construction liability insurance policy will give you an advantage when it comes to mitigating the risks that come with construction projects. In this session, topics of discussion include:

• Reviewing the various insurance and bond options available for mitigating specific risks in construction
• Understanding the interplay between insurance, limitations of liability and waiver of subrogation
• Determining the right level of coverage and customizing your construction liability insurance policy
• Learning the best strategies for responding to insurance claims and limiting your liability

Networking Break

Bidding and Procurement: Common and Contemporary Landmines for the Construction Industry

Glenn Cyrankiewicz
Chief Executive Officer, Principal
Delnor Construction

Bert DeBruin, CME
CEO, Business Development
AltaPro Electric Ltd

Terri Gosine
Director Integrated Infrastructure Services
Edmonton Public School Board

The Canadian Government is one of the largest public buyers of goods and services in Canada, spending approximately $22 billion annually on behalf of federal departments and agencies. The competitive procurement process aims to get the best value for Canadians while enhancing access, competition and fairness. However, the bidding process is rife with presumptions and implied terms that can lead to unforeseen and unwanted consequences if not prevented or properly mitigated. In this session, topics of discussion include:

• Navigating the differing definitions of what constitutes the commencement of the procurement process
• Understanding when and how a response to tender may create a contract to avoid liability you are not prepared for
• Analyzing the Owner’s duty of “fairness” in bidding
• Managing allegations of bid shopping and addressing the impact of bid shopping on the industry
• Understanding exclusion clauses and your rights when the owner breaches their obligation of fairness
• Understanding the advantages and disadvantages that come with naming the subtrades in bids

Diversity, Equity, and Inclusion: Solving Canada’s Skilled Labour Shortage

Bill Ferreira
Executive Director
BuildForce Canada

Seema Lal
Partner
Clyde & Co Canada LLP

Terry Parker
Executive Director
Building Trades of Alberta

The shortage of skilled labour in construction is a pressing concern to the industry and to the economic well-being of Alberta and Canada as a whole. Ongoing challenges include attracting the younger demographic to trades, and the aging demographic in construction may be missing the skills needed to keep pace with the increase of technology in traditional industries. Indeed, satisfying a community benefit quota with untrained but eligible workers is setting yourself up for failure. Now more than ever the industry must come together to enroll and train the next generation for the benefit of all. In this session, topics of discussion will include:

• Strategies to encourage youths to enroll in trades
• Making space for women and Indigenous construction workers
• Updating company policies and corporate culture to foster diversity, equity and inclusion

Conference Ends