Navigating Risk in Construction Contracts & Projects

Registration and Breakfast

Opening Remarks from the Co-Chairs

Graham Brown
Partner
Cassels Brock & Blackwell LLP

Barbara Capes
Assistant General Counsel
Kiewit

COLLABORATIVE DELIVERY MODELS PART I

Uncovering the Core Features of Integrated Project Delivery, Alliance, and Progressive Design Build: A Blueprint for Critically Assessing the Suitability of These Contracts for Your Project

Lynnell Crone, PMP, MBA
Vice President, Alternative Contracts & Light Industrial
Bird Construction

Bill Deley
Assistant General Counsel
GHD

Joshua Strub
Partner
Margie Strub Construction Law LLP

Collaborative delivery models are gaining popularity in the Canadian construction industry, and some are pushing for them to become the new norm. While this may be a positive development, it’s important not to blindly follow, as some projects are simply not suited for these contracts. This session will teach you the key features of these models and the factors to critically consider when deciding if they’re the right fit for your project. Topics of discussion include:

• Understanding the core features of the IPD, Alliance, and PDB models
• Contrasting the collaborative models with the traditional, non-collaborative models
• Analyzing which projects are right for a collaborative delivery model and delineating the factors that parties must consider when making this decision
• Comparing Canadian IPD trends to other countries and lessons learned

COLLABORATIVE DELIVERY MODELS PART II

Risk Assessment and Lessons Learned from North America’s First Bridge Constructed with the Integrated Project Delivery Model: The Kingston Third Crossing

Mark Van Buren
Deputy Commissioner
City of Kingston

Mark Mallett
Area Manager, Ontario
Kiewit

Philip Murray
Senior Vice President
Hatch Corporation

Zachary McGain
Bridge Engineer
Systra International Bridge Technologies

Moderator:

Barbara Capes
Assistant General Counsel
Kiewit

The Kingston Third Crossing (Waaban Crossing) represents the first use of an integrated project delivery model for a bridge crossing in North America. In this special roundtable, the project owners and contractors will delve deep into never before heard discussions of on-the-ground successes and growing pains of using a collaborative delivery model.

Morning Networking Break

KEYNOTE

Trends in Public Infrastructure

Chris Bittle
Parliamentary Secretary to the Minister of Housing, Infrastructure and Communities
Member of Parliament
Government of Canada

Change Orders, Defective Work, and Unforeseen Site Conditions: Proven Strategies for Contract Management and Resolving Claims to Prevent Going to Court

Robert Pattison, BA, JD
Senior Vice President, Commercial Resolutions
Infrastructure Ontario

Leanna Olson
Senior Legal Counsel
Graham

Jennifer Brusse
Lawyer
Jennifer Brusse Law

Avoiding costly legal battles is a paramount concern for construction professionals. While litigation is always an option, the best approach is to minimize the need for it in the first place. In this session, constructions leaders delve into strategies for proactive contract management and dispute resolution on the ground. Topics of discussion include:

• Appreciating the role of effective communication and the importance of clear communication, documentation, and record-keeping in preventing disputes and protecting the interests of all stakeholders
• Streamlining the change order process to handle scope modifications efficiently, reducing disputes and keeping projects on track
• Exploring methods for ensuring work meets quality standards, detecting subpar work early, and implementing strategies to rectify issues without resorting to litigation
• Discussing how to deal with unexpected site conditions, such as geological surprises or environmental challenges, without disrupting the project timeline or incurring substantial costs
• Appreciating when the claim cannot be resolved and must be escalated to legal counsel

Networking Lunch

New Construction Contract and Project Strategies for Mitigating the Risks of a Volatile Supply Chain Environment

Paul Dipede
General Counsel
Corebuild Construction

Jennifer Burstein
Vice President of Construction
Collecdev

Fahreen Kurji
Vice President, OnCorr Commercial Management
Metrolinx

Numerous geopolitical factors continue to disrupt global supply chains, causing construction delays and surging material costs. Inflation and volatility also lead to rapid price fluctuations. This session explores the newest and best approaches, from contract drafting to project management, to mitigate the risk of delays and fluctuating prices. In this session, topics of discussion will include:

• Considering contractual relief provisions beyond the traditional force majeure
• Reviewing price escalation clause templates circulating within industry and assessing the viability of such a clause in your contract
• Rethinking Guaranteed Maximum Price and other similar contracts in light of increasing and fluctuating prices
• Discussing recent material escalation and price escalation claims
  • How are owners and contractors reacting?
  • Are there collaborative solutions, such as the hiring of a neutral project consultant, or must the parties resort to alternative dispute resolution mechanisms or litigation?

Afternoon Networking Break

Crucial Deadlines, Definitions, and Processes: Practical and Legal Lien and Holdback Considerations for Contractors and Subcontractors

Faren Bogach
Founder
Construct Legal

Megan Sanford
Legal Counsel
CML Construction Services Limited

When payment is not forthcoming, contractors and subcontractors need to consider the enforcement mechanisms available to them: this includes construction liens. However, failure to comply with strict lien deadlines and processes may render your lien unenforceable. Topics of discussion will include:

• Exploring the legal and financial risks of miscalculation of lien deadlines in complex projects
  • Evaluating the practical challenges in determining when the contract was substantially performed and its effect on lien periods
• Mapping out the interactions between construction lien remedies and adjudication remedies
  • Understanding the interplay between both remedies
  • Reconciling ambiguities by taking the appropriate positions to preserve your rights
• Learning the factors that permit the release of holdback at different times throughout the course of the construction project
  • Examining the ethos of ‘pain share, gain share’ in construction, in relation to the impact of holdbacks on achieving cash-positive or cash-neutral arrangements for contractors and subcontractors

Strategies for Optimizing Financial Stability in Preconstruction and Construction and Exploring Insolvency Dynamics Should the Worst Happen

Preet Saini
Partner
McMillan LLP

Paul Ryzuk
Partner
Dentons

Prompt payment and adjudication regimes were introduced to help maintain a steady payment flow in the construction pyramid, preventing potentially severe repercussions, usually affecting those at the pyramid’s base. However, despite these new regimes, construction companies are increasingly facing bankruptcy due to elevated interest rates, inflation, supply chain disruptions, and geopolitical factors. This underscores the urgent need for construction professionals to understand payment safeguards when confronted with insolvency and bankruptcy.

Topics of discussion include:

• Exploring strategies for optimizing financial stability in the construction industry, both in pre-construction and in construction
• Learning the practical tips and advice for dealing with insolvent parties on a construction project
  • Considering whether the project can be salvaged
• Reviewing the federal Bankruptcy and Insolvency Act (BIA) and the Companies’ Creditors Arrangement Act (CCAA)
  • Considering complexities and claims against individuals or directors
• Assessing the potential impacts of insolvency on dispute resolution proceedings and prompt payment
  • Understanding lien priorities and trusts in insolvency

Conference Adjourns

Registration and Breakfast

Opening Remarks from the Co-Chairs

Graham Brown
Partner
Cassels Brock & Blackwell LLP

Barbara Capes
Assistant General Counsel
Kiewit

Navigating the Risk of the Low Bidder Dilemma: Rethinking Competitive Bidding in Project Procurement

Venus Garg
Vice President, Major Pursuits
AECOM

David Ho
Chief Procurement Officer
Infrastructure Ontario

Sahil Shoor
Partner
Gowling WLG

Bill Woodhead
Partner
Borden Ladner Gervais LLP

Moderator:

Giovanni Cautillo
President
Ontario General Contractors Association

The landscape of bidding and procurement in the construction industry is constantly evolving, and it’s essential to stay updated on the common and contemporary challenges to avoid costly mistakes. Topics of discussion include:

• Analyzing the low bidder dilemma and whether competitive bidding attracts the best results
• Exploring the public owner’s duty of fairness and it’s implications
• Unpacking debarment and exclusion clauses and how they are being used
• Navigating the evolving definitions of when the procurement process officially begins
  • Understanding how responses to tenders can inadvertently create contracts, leading to unprepared liability
  • Considering the opposite: that while flexibility in the tender agreement protects you, this flexibility makes your bid less competitive

Keynote: The Changing Nature of Canadian Construction Demographics

Bill Ferreira
Director
BuildForce Canada

In this illuminating keynote, the Director of BuildForce Canada will take you through the critical statistics showcasing problematic predictions for the future of the Canadian construction industry. These statistics provide context for the subsequent industry think tank.

Morning Networking Break

INDUSTRY THINK TANK

Addressing the Costs and Risks of The Canadian Labour Shortage: Practical Strategies for Fostering an Approachable Industry

Jamie West
President
Peninsula Construction

Maria Williams
Project Director
Chandos Construction

Jamie McMillan
Ironworker | Freelance
Iron Workers International | Made In the Trades

Moderator:

Lindsay Reynolds
Principal Project Manager & ODACC Adjudicator
Hancock & MacArthur Inc.

As construction projects continue to expand and diversify across the country, there is a growing urgency to find innovative solutions that ensure the availability of a skilled and sustainable workforce. By convening industry leaders, this think tank aims to identify and explore strategies to attract and retain talent, from practical training initiatives to policy reforms, that will not only address the current labour shortage, but also pave the way for a thriving, resilient, and sustainable construction sector in Canada.

Adjudicator Decisions Finally Reviewed by Ontario Courts: Understanding the Impact of Recent Case Law on the Construction Industry

Shaun Hashim
Solicitor
Toronto Transit Commission

James Little
Partner
Singleton Urquhart Reynolds Vogel LLP

In this session, topics of discussion will include:

• Unpacking the test for leave to apply for judicial review of an adjudicator’s decision as set out by the Divisional Court in Anatolia Tile & Stone Inc. v. Flow-Rite Inc. (2023 ONSC 1291)
  • Exploring the significance of the court’s affirmation that the adjudicator decides whether the matter is eligible for adjudication
• Understanding what steps need to be taken, and what obligations must continue to be followed, while leave for judicial review is pending (SOTA Dental Studio Inc. v. Andrid Group Ltd., 2022 ONSC 2254)
• Discussing what the future holds for adjudications and how the rights and obligations of parties involved in construction disputes are likely to evolve in light of recent case law

Networking Lunch

Mindful Adoption of Artificial Intelligence: What Every Construction Professional Needs to Know About the Risks and Rewards of AI’s Productivity Promise

Erika Carrasco
Partner
Field Law LLP

Amir Azhari, Ph.D
Co-founder | Chief Commercial Officer
Brickeye

Technology is advancing at an extraordinary rate, offering potential cost reduction and enhanced efficiencies for construction projects, contract evaluations, and litigation readiness. However, employing tech is not without its challenges, particularly the threat of data breaches – which can have severe consequence – and potential breaches of privacy laws that can result in penalties. In this session, topics of discussion will include:

• Considering the advantages of project management software and takeoff software
• Comparing the use of artificial intelligence for RFPs, contract review, and drafting correspondence and pleadings
  • Understanding open source, and what happens to the information or materials you put “online” through platforms like ChatGPT
• Ensuring your privacy and data protection programs meet the demands of provincial, national, and international privacy laws
• Developing cyber-security protocols to protect your data
• Learning how to respond to breaches or theft of data
• Discovering the best and newest strategies for data management

What Every Construction Professional Needs to Know About Health and Safety on Today’s Construction Site: Critical and Practical Tips

Enzo Garritano
President and CEO
Infrastructure Health & Safety Association

Aaron Hamill
Health and Safety Manager
Acquicon Construction

John Illingworth
Partner
Mathews, Dinsdale & Clark LLP

In the fast-paced realm of construction, safety is paramount for workers, pedestrians, and neighboring businesses. Despite this, occupational health and safety legislation may not always be at the forefront of construction professionals’ minds. This session aims to harmonize legal and practical aspects, ensuring that policies and practices align with legal requirements.

Topics of discussion will include:

• Reviewing the legal frameworks that apply to liability on construction sites and reviewing recent case law to understand what actions or behaviour can shift the “employer” hat from owner to contractor and vice versa
  • Reviewing the Supreme Court of Canada’s recent Sudbury decision
• Discussing the steps employers and contractors must take to satisfy their due diligence requirements, including proper documentation
• Strategies for effective and proper safety training and creating a culture of safety that resonates with employees
• Best practices for scaffolding safety and fall protection that meet OHSA requirements
• Ensuring machine and equipment safety is completed in accordance with safety guidelines

Afternoon Break

The Concrete Reality of Environmental Sustainability: Appreciating the Risks of Non-Compliance with Environmental Laws and the Advantages of Going Green

Matthew Gardner
Partner | Environmental Law Specialist, Certified by The Law Society of Ontario
Willms & Shier Environmental Lawyers LLP

Lauren O’Malley, ENV SP
Sustainability Specialist
Aecon Group Inc.

ESG (Environmental, Social, and Governance) is more than just a buzzword, particularly the E: there are numerous environmental laws and regulations that impact the construction industry. Failing to comply with these laws could result in penalties. Conversely, companies that exceed basis mandates position themselves as industry leaders, reaping numerous benefits, including government funding. In this session, topics of discussion include:

• Knowing the standards to follow, what to measure and which metrics to compile when developing and implementing environmental goals
• Learning the environmental statutes that apply to construction, including the Excess Soil Regulation, and the penalties of non-compliance
  • Understanding the proposed amendments to Ontario’s Excess Soil Regulation
  • Considering the Supply Chain due diligence law proposed by the EU and whether it applies to your business partners
• Discovering the tax incentives, credits, and loans available to environmentally friendly construction companies and projects

Adjudicator’s Roundtable

A Retrospective on Adjudication in Ontario: Shortcomings, Successes, and Global Lessons for Construction Professionals

Lindsay Reynolds
Principal Project Manager & ODACC Adjudicator
Hancock & MacArthur Inc.

Chad Kopach
Partner and ODACC Adjudicator
Blaney McMurtry LLP

Moderator:

Howard Krupat
Partner
DLA Piper

At this exclusive roundtable, seasoned ODACC adjudicators unveil the latest developments in Ontario’s adjudication landscape. Discover the impactful trends, successes, and areas ripe for refinement, as they demystify the changing dynamics of dispute resolution in the construction industry.

Conference Ends