Construction

Overview

The construction industry plays a significant role in Canada’s economy and has an impact on a range of sectors. To understand how the industry operates, it’s critical to gain insight into the recent legislative developments at both the federal and provincial levels that reflect the continued evolution of the legal structure that governs Canadian construction projects.

Federally, two initiatives are currently focusing on prompt payment. The proposed Canada Prompt Payment Act would mandate prompt payment at the federal level and would apply to construction contracts, including P3s, made with the federal government or federal government institutions and related subcontracts. On a separate note, Public Services and Procurement Canada and Defence Construction Canada are part of an industry working group that is in the process of reviewing and revising prompt payment measures.

Several provinces are also undertaking construction law reform. Most significantly, in Ontario, the Ministry of the Attorney General and the Ministry of Economic Development, Employment and Infrastructure commissioned an extensive review of the Construction Lien Act that culminated in the release of an in-depth report containing 100 recommendations for modernizing the Act. The proposed amendments include the creation of a prompt payment regime, the mandatory adjudication of most construction disputes, the mandatory payment of basic holdback and the revamping of the lien process – all notable changes to the current regime that will impact all aspects of a construction project, from project staffing to record keeping to contracting. The vast majority of these recommendations have been incorporated into Bill 142 which, if passed, will amend the Construction Lien Act

Other jurisdictions undertaking construction law reform include Quebec and Alberta, which both recently implemented prompt payment rules for certain government projects, and British Columbia where the B.C. Law Institute is undertaking a review of the Builders Lien Act with a view to developing balanced recommendations for reform.

Building teams to ensure client success

In this ever-evolving landscape, it’s critical for players in the Canadian construction and infrastructure sector – including owners, developers, contractors, sub-contractors, lenders, construction managers, architects and engineers – to be aware of ongoing developments and the related implications so they can prepare and respond effectively. By staying informed – and engaging legal experts with proven experience and know-how – industry participants can ensure that their projects are structured in the most effective way while mitigating the risk of encountering serious issues and minimizing the potential of unforeseen delays and cost overruns.

Canadian, U.S. and international clients regularly turn to the lawyers in Osler’s National Construction and Infrastructure Group for expert advice throughout the life cycle of their construction projects, whether they are large and complex projects or smaller projects where successful execution is critical. In addition to leveraging Osler’s significant experience in the optimal structuring and effective completion of these projects, clients benefit from the innovative way the Group is organized. Our construction lawyers are divided into two groups: solicitors who focus on the negotiation and preparation of all of the documents related to a specific project and litigators who specialize in dispute resolution in the construction industry and are available to lend their expertise in the event that unexpected issues develop on a project. These specialized lawyers work together as an integrated team that ensures that clients’ needs are met from the launch of a construction project until its conclusion.

A broad range of industry participants rely on Osler’s construction expertise and advice, and in particular leverage the Construction and Infrastructure Group’s demonstrated:

  • Understanding of project risk: Identifying – and minimizing – potential risks is critical to the success of a project. Osler lawyers provide practical advice to mitigate risk based on their deep experience and insight into market conditions and the latest trends

  • Technical and commercial knowledge: Many of our lawyers hold both law and engineering degrees and bring their hands-on project experience to bear on every file. As a result, clients benefit from the very best technical excellence and commercial skill on their most important matters

  • Litigation, arbitration and mediation expertise: In the event that a dispute arises during the course of a project, clients can count on our integrated team of construction litigators to work to get the project back on track and resolve the dispute. Our lawyers provide mediation, arbitration, litigation and other alternative dispute resolution advice, and are very familiar with construction lien legislation across Canada

  • National and U.S. capabilities: Drawing on a full range of project development and litigation services across the firm, Osler can build a team and provide services tailored to each client’s specific needs

Our National Construction and Infrastructure Group provides valuable insight and business acumen in the areas of project structuring, risk identification and allocation, financing, contract negotiation and documentation, and dispute resolution on a broad range of commercial, industrial and institutional construction projects and mega projects, including

  • energy (e.g., on-shore and off-shore wind, solar, natural gas, oil sands, nuclear and LNG)

  • behind-the-meter power generation

  • infrastructure developments

  • public-private partnerships (P3)

  • alternative financing and procurement

  • health

  • transportation

  • mining

  • other industrial processes

Osler’s team of lawyers is very active in the construction industry in Canada and closely monitors evolving trends and legislative changes that may affect clients. Our professionals are members of the Construction & Infrastructure Section of the Ontario Bar Association, the Canadian College of Construction Lawyers, the American Bar Association Forum on Construction Law, Professional Engineers Ontario and the Canadian Council for Public-Private Partnerships.

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Related Expertise

Paula Olexiuk

Partner, Energy
Calgary

Richard Wong

Partner, Commercial
Toronto

Paul Ivanoff

Partner, Litigation
Toronto
  • WS Atkins PLC

    WS Atkins PLC in its acquisition by SNC-Lavalin Group Inc. in a deal worth $3.6 billion

  • South West Calgary Ring Road P3 Project

    Acted for the preferred proponent for the $1.42 billion South West Calgary Ring Road P3 project

  • iCON Infrastructure

    iCON Infrastructure in its agreement to acquire Capstone Infrastructure for $480 million

  • Apache Canada Ltd.

    Apache Canada Ltd. on construction and procurement matters for the proposed Kitimat LNG terminal and Pacific Trail Pipeline.

  • Atomic Energy of Canada Limited

    Atomic Energy of Canada Limited on procurement, construction and consulting contracts for the construction of various waste storage facilities and infrastructure located at Chalk River Laboratories; the Ontario Nuclear Procurement Project conducted by Infrastructure Ontario and the refurbishment and retubing work required for the restart of major nuclear generating stations including Bruce Power Nuclear Generating Station (Ontario) and Point Lepreau Generating Station (New Brunswick).

  • Pattern Energy Group LP

    Pattern Energy Group LP on the negotiations of the EPC contract and Turbine Supply Agreement for the 138 MW St. Joseph Wind Farm in Manitoba, and on construction and equipment procurement for renewable power projects in Ontario and other provinces.

  • PetroChina

    PetroChina on its development of the Dover and MacKay River oil sands projects.

  • Babylon Resource Recovery Facility

    The project developer on the 750 tpd/17 MW mass burn Babylon Resource Recovery Facility waste-to-energy project in New York including tipping contracts, as well as other project developers and lenders on other waste-to-energy projects in the United States.

  • Various developers 

    Various developers of gas-fired power projects on the EPC contract, turbine supply, other equipment supply contracts, O&M agreements and interconnection agreements, including for the York Energy Centre (393MW) peaker and the East Windsor Cogeneration Centre (92 MW) in Ontario for Veresen Inc. (formerly Pristine Power); the Thorold Cogeneration Project (236 MW) in Ontario and the North Battleford Energy Centre (260 MW) and the Spy Hill Generating Station (92 MW) in Saskatchewan.

  • Various contractors

    Various contractors, including Stone & Webster Canada LP on disputes in the construction at the Lambton and Nanticoke Power Generating Stations; M.A. Mortenson Company on the EPC contract for Enbridge’s Leader Wind Project A (100 MW) and Project B (99 MW) in Kincardine, Ontario; and Signal Energy on civil works and EPC contracts for wind farm and other renewable power projects in Nova Scotia, Alberta and Ontario. 

  • Find More

  • Chambers Canada: Canada’s Leading Lawyers for Business, 2016-2018, recognized in the area of Construction Law.
    • "One interviewee highlights: "I have been very impressed with their knowledge of Canadian law and precedents and their understanding of the business issues in transactions."
  • Canadian Legal Lexpert Directory, 2015-2017, Toronto, Ontario, Osler ranked in the area of Construction Law practice as Consistently recommended.
  • Chambers Global: The World’s Leading Business Lawyers, recognized in the area of Construction Law. 
    • "A major national firm with a significant construction practice."
  • Who’s Who Legal 2014, recognized in the area of Construction Law, Public Procurement, Project Finance and Energy Law.
  • The Best Lawyers in Canada 2017, recognized five partners in the area of Construction Law as leading lawyers in Canada.

 

The Canadian construction and infrastructure sector needs to be prepared for a number of proposed major overhauls to construction law underway in several provinces and at the federal level.

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