Construction and Infrastructure Law

Energy 

We have extensive experience serving the Canadian energy industries. Our lawyers have represented owners, contractors, engineers and procurement firms at all stages of projects and disputes, including risk management, loss mitigation and the prosecution and defence of claims.

Representative Experience

• Acted as legal counsel and fairness advisor on the largest six energy projects in Canada (involving multiple contracts) totalling $12B.
• Acted for a large provincial energy corporation in procurement and construction strategies, risks, contracts and non-recourse project financing for a $6.2B hydroelectric project, which resulted in EPC, EPC management and traditional design-bid-build contracts.
• Advised a large provincial energy corporation in procurement and construction strategies and contracts for a $3.2B high-voltage direct current project, which includes conventional and EPC contracts and international suppliers and contractors.
• Advised a large provincial energy corporation on procurement strategy and construction contracts for a $6B hydroelectric generating station project.
• Acted in a case concerning the failure of hydroelectric transmission lines in British Columbia. The claim includes cost of repairs or replacement of the existing line and a large loss of income claim, in the range of $50M.
• Acted for large construction company at trial and on appeal for a $7M project to install a new 7.5 MW turbine and generator, associated switchgear and control systems at a hydro plant located northwest of Whitehorse.
• Acted for an EPC contractor for a large hydroelectric project in respect of its $100M cost over-run claim.
• Acted for a general contractor for a project to install a turbine, generator, switchgear and new control systems at a hydro plant in Yukon.
• Acted for an Alaskan engineer in relation to her professional liability on a steam-metering project conducted on three U.S. Army bases in Alaska.
• Acted for an EPC contractor in respect of a major claim arising out of the boiler refurbishment program for a nuclear generating facility.
• Acted for the spillway gates, turbines and generators supplier to a major a hydroelectric generation facility project in Newfoundland and Labrador with regard to the settlement of major claims arising as the result of a two-year delay.
• Acted for participants in offshore oil and gas exploration projects for claims for extras and delays.
• Acted for a contractor for a large hydroelectric project in respect of its $200M cost over-run claim.
• Successfully defended a professional liability claim against a consultant in the context of a major hydroelectric project in British Columbia, which involved a $20M claim for damage.
• Defended participants in offshore oil and gas exploration projects for claims for extras and delays.
• Advised a renewable resource company on the construction of multiple solar power generation facilities, including the drafting and negotiation of bespoke EPC contracts for the design and construction of the facilities, the drafting and negotiation of supplementary conditions for CCDC contracts related to the construction of the facilities and major supply agreements
• Advised an engineering firm in relation to a $80 million EPC Contract

Government and Public Policy

We are called upon to draft and revise contracts for the public sector. By virtue of our construction industry expertise, we are also regularly tasked with reviewing and drafting new legislation.

Representative Experience

• Acted as co-counsel for the Ontario Government in conducting a review of Ontario’s Construction Lien Actand prepared a report, Striking the Balance: Expert Review of the Construction Lien Act. Worked closely with the Ministry of the Attorney General in drafting the Construction Act,which included 98 out of the 101 recommendations presented in their report. This Actintroduced prompt payment and adjudication.

• Retained as co-counsel by the Government of Canada to provide recommendations on prompt payment and adjudication, which included engaging with industry stakeholders across Canada. The movement toward prompt payment and adjudication is a significant public policy development for the construction industry.

• Designed, drafted and revised contracts for the public sector. This has included not only writing the standard form construction and consulting contracts, but also preparing manuscript forms for specialty contractors and consultants.
• Created and implemented zoning building permits and building regulation schemes for local and aboriginal governments.

Healthcare

We advise healthcare clients on project procurement, construction and corporate/financing matters; we represent consultants, contractors and subcontractors on major construction projects at hospitals and other healthcare organizations; and we regularly provide advice to hospitals on the defence of construction claims and the validity of claims submitted during or after project completion.

Representative Experience

• Counsel to a major engineering firm being sued for alleged deficiencies relating to the public-private partnership design and operation of the mechanical system of a newly built hospital.
• Acted for a major hospital regarding a multi-million-dollar total cost claim of its general contractor.
• Acted for a major hospital defending 36 claims for lien aggregating in excess of $50M.
• Advised sponsors and proponents on more than ten major health projects in British Columbia totalling $10M.
• Arranged the completion of a hospital project following a call on a surety bond, including drafting, tendering and awarding a completion contract.
• Acted as procurement advisor on multiple major health facilities in British Columbia with a construction value totaling more than $10 billion and including major regional hospitals, extended care facilities, emergency facilities and mental health facilities.

Manufacturing

We act for manufacturing owners, supplies and contractors on construction-related projects across Canada.

Representative Experience

• Acted for a Canadian construction materials manufacturing firm that supplied materials for thickening tanks in an oil sands plant expansion.
• Acted for the owner of a state-of-the-art ethanol distillery in respect of a major cross-border claim regarding project delay, the retrofitting of the distillery and the completion of commissioning.
• Counsel to a general contractor in respect of a $500M direct strip production complex, defending 56 claims for lien aggregating in excess of $80M.

Mining

We provide legal advice to mining company owners, contractors, consultants and engineers, procurement and construction (EPC) management firms. We also help clients navigate and resolve complex mining-related construction disputes.

Representative Experience

• Counsel to an EPC management project manager in a $300M mining dispute.
• Advised project managers in multi-million-dollar International Chamber of Commerce Arbitrations regarding international mining disputes.
• Represented a large environmental remediation company in relation to disputes arising from a mine remediation project located in Northern Manitoba.
• Represented a large international mining company to manage disputes arising on a potash mine project in Saskatchewan, including in relation to cost overruns on construction of access tunnels. This dispute was resolved summarily.
• Represented a contractor in the defense of a $40 million action relating to an EPC contract for the design, supply and installation of a 16 km overland coal conveyor at the Quintette Coal Mine.

Transportation 

We advise owners, contractors, subcontractors, consultants and suppliers in relation to large transportation projects in Canada. We have collectively been involved in resolving more transportation-related construction disputes than any other Canadian law firm.

Representative Experience

• Advised on contract negotiation and drafting with respect to a major urban rail hub’s corridor signalling system.
• Shadowed and made amendments to the project agreement for an 11 km, $1.4B highway infrastructure project in Southern Ontario.
• Acted for project sponsors on light rail transit system project in British Columbia totaling $4B.
• Acted for a large municipality in relation to the disputes involving a major urban light rail transit system in Eastern Ontario.
• Acted for a large regional transportation authority with respect to a significant dispute relating to vehicle procurement issues.
• Acted as general counsel for major transportation ten lane bridge project.
• Acted as legal counsel for major engineering consortium over the failure of grout pads installed in the rail system of a light rail transit project in Alberta.
• Acted for a joint venture (JV) in respect of its claim as developer of a public-private partnership (PPP) highway project.
• Counsel to a JV design-builder in respect of its $200M claim in relation to a PPP highway project.
• Acted for a JV Project Co in respect of its $125M claim as developer of a PPP highway project.
• Defended a delay claim involving the construction of a major works bridge initiative, which was resolved through a multi-party mediation with the Ministry of Transportation and others.
• Designed and implemented zoning, building permit and building regulation schemes for an international airport authority.

Tunnelling

We are active on dispute resolution boards that deal with tunnel-related issues. We manage the impact of notice provisions, limitations concerns and proof of damages, working with technical experts on changed geotechnical and hydrogeological conditions and proof of damages. We are also experts in defending construction consortiums involved with foundation and geotechnical problems in residential, commercial and offshore facility tunnelling projects.

Representative Experience

• Represented a large Canadian rail company in a tunnelling case that went to the Supreme Court of Canada after a tunnel boring machine (TBM) became inoperative partway through a major railway tunnel.
• Acted as Ontario litigation counsel regarding a tunnel collapse that trapped the TBM that was boring a a large subdivision outfall tunnel.
• Acted for project sponsors on a $4B light rail transit system in British Columbia.
• Advised the tunneller of an award-winning Georgian Bay Shale tunnel to a major urban island airport in Ontario, in respect of its claims arising out of the project.
• Acted for the surety of the tunneller of a 5.88 km major urban watermain project in Ontario, which advanced claims arising out of a major flood that incapacitated the TBM.
• Acted as litigation counsel concerning adverse conditions encountered in excavation by TBMs of two 7 km, hard rock tunnels in a British Columbia mountain range.
• Served as the arbitrator of a claim relating to an underground water channel encountered in excavating a hard rock tunnel for an underground power house in British Columbia.
• Served as counsel for engineers involved in litigation over corrosive tunnel conditions in 14 km and 9 km railway tunnels in Northern British Columbia.
• Provided risk management advice with respect to the construction of an 11 km hard rock water supply tunnel for an industrial complex in Northern British Columbia.
• Advised a large project consortium with regard to insurance issues arising out of a 2.6 km viaduct replacement project in Seattle.
• Acted for both consultants and contractors in claims for extras and delays associated with tunnelling projects for both railroads and hydroelectric projects.
• Represented both consultants and contractors in claims for extras and delays associated with tunnelling projects for both railroads and hydroelectric projects.

Water and Wastewater

We advise owners, contractors, subcontractors, suppliers and consultants, and represent parties in disputes relating to large water and wastewater projects across Canada.

Representative Experience

• Acted for a municipality in relation to the construction of a new biosolids building, headworks building, equalization tank, UV building and modifications/upgrades to the tertiary filtration process and aeration system.
• Acted for the engineers who were sued by owners and involved two treatment plants on Vancouver Island.
• Acted for a wastewater treatment plant regarding a class action defence of owners and ongoing legal advice on plant modifications to maximize odour control.
• Advised on a litigation involving allegations of discharge of caustic waste into natural water courses and groundwater from metallurgical and fertilizer plants and mining activities.
• Advised design consultants on a $600M wastewater project in Saskatchewan.
• Acted for a municipality in the upgrade of its wastewater treatment plant involving claims by general contractors and subcontractors.
• Acted for the design-builder in relation to a Northern Ontario biosolids plant.
• Acted for a surety in relation to a claim involving a Southern Ontario water treatment plant.
• Advised a large Alberta municipality in relation to its water treatment plant regarding multiple course of construction losses.
• Represented a British Columbia wastewater treatment facility regarding the defence of design engineers in relation to an excavation failure.
• Acted as counsel for international consulting firm in relating to problems encountered on a new waste water treatment facility for a major city in Western Canada.
• Advised a British Columbia wastewater treatment facility regarding design and delay claims.

Industrial, Commercial, Residential and Institutional

We represent developers, owners, consultants, contractors, subcontractors, sureties and suppliers in relation to industrial, commercial, residential and institutional projects across Canada.

Representative Experience

• Acted for a general contractor in respect of a $5.6M lien claim, including claims for unpaid contract funds, holdback funds and a delay claim against the owner of a $36M residential project.
• Acted in a case arising out of the failure of three large wood pellet storage silos in British Columbia involving a claim of approximately $25M.
• Acted for a construction company that owns about 2,000 residential units in British Columbia involving construction questions, structural dynamics and lease interpretation.
• Prosecuted a claim for a construction client in relation to a municipal building, achieving a successful result for the client without the need to attend examinations for discovery or trial.
• Acted for a large institutional owner regarding the $50M total cost claim of its general contractor.
• Acted for a design-build subcontractor in a $47M lien litigation in respect of a major sports facility.
• Acted for consultants and builders on more than 500 condominium projects in British Columbia.
• Acted for a condominium corporation and its unit owners relating to the recovery of an amount sufficient to remediate a luxury condominium’s seriously leaking building envelope.
• Acted for a general contractor in relation to a $40M multi-unit residential tower project substantially completed nine months late, where responsibility for the delays are in issue.
• Acted for a joint venture developing a 44-storey residential tower in a dispute with its initial curtain wall contractor arising from the contractor’s decision to abandon the project.
• Acted for a developer in relation to the formation of its contract with a general contractor for a three-phase, six-tower mixed commercial and residential development.
• Developed a suite of contracts and subcontracts for a major contractor carrying out residential and commercial construction works
• Drafted and negotiated CCDC and bespoke contracts for a number of developers undertaking the development and construction of large residential, commercial and industrial developments
• Represented an owner/developer in a complex arbitration proceeding relating to the delays in the construction of a large residential building in Vancouver

Education

We advise education clients on construction matters, including drafting and advising on the standard form construction and consulting contracts and preparing contractual manuscript forms.

Representative Experience

• Acted for project sponsors on a $150M secondary school project in Vancouver.
• Acted for an educational institution in relation to the development of new buildings, leasing of property from a third party, cybersecurity and tendering for a new enterprise software system.
• Advised a British Columbia community college concerning its use of Canadian Construction Documents Committee contract forms for its library/parking garage and its science and technology buildings.
• Advised an Ontario community college in relation to various construction projects in drafting contracts and in dispute resolution.
• Advised a museum foundation and its developer in relation to the construction of a major museum and ancillary spaces in Toronto, Ontario.
• Acted as procurement advisor for construction of the new secondary school in Central Vancouver.

Construction Insurance

We provide construction-related legal counsel to the insurance industry, assisting insurers in developing policy wording and acting as general counsel in a variety of coverage issues at all levels of the courts in Canada. We have defended a broad range of property and casualty claims for both the private and public insurance sector.

Representative Experience

• Acted for an engineering company in a claim brought against a lawyer and the primary insurer of the engineer plaintiff. An earlier lawsuit was brought against the engineer by the owner of a project in Saskatchewan.
• Counsel in regard to a complex multi-party construction dispute in Saskatchewan where more than 16 comprehensive general liability (CGL) insurers issued commercial general liability coverage to sub-trades.
• Counsel with respect to a large multi-use sports and entertainment facility in relation to an action commenced by the owners of the project against the general contractor and others.
• Acted for the owner in relation to a $40M builder’s risk coverage issue, ultimately successful at the Supreme Court of Canada, in this leading case on coverage afforded by builder’s risk policies.
• Acted for a design-build joint venture on a $200M builder’s risk claim on a public-private partnership highway project, including successfully opposing a motion to suspend the proceeding.
• Provided claims and coverage advice to insurers and insureds under course of construction, CGL, errors and omissions and wrap-up policies.
• Acted as legal counsel on multiple cases involving the interpretation of the faulty workmanship, material and design exclusion found in builders risk policies.
• Acted as legal counsel for the insurance industries in multiple cases involving determination of the duty to defend.
• Advised a wide range of construction project participants concerning builders lien issues, including lien-related contractual provisions, statutory rights and obligations, holdback liability and the enforcement of lien rights.
• Represented a construction subcontractor on a major infrastructure project in the pursuit of payment recovery involving complex builders lien issues
• Represented general contractors, owners and subcontractors with respect to payment disputes and disputes relating to claims of deficiencies, delays and extras
• Involvement with complex builders lien disputes, including holdback claims.

Surety Bonding

We have advised owners on suretyship and security requirements for projects with values in excess of $8 billion. We also defend claims and prosecute claims for sureties under indemnity agreements.

Representative Experience

• Acted for a domestic surety company in the defense of a claim made by a contractor under a $10M performance bond issued for a highway construction project undertaken by the Province of British Columbia.
• Acted for a domestic surety company in the defense of a $1.8M claim under a performance bond issued for the construction of a water treatment plant in Nunavut.
• Counsel to a domestic surety in respect of a US$50M cross-border performance bond claim arising out of a high-rise luxury condominium project in New York City.
• Acted for surety in respect of the restructuring of a bus manufacturer with contracts for the production of 800 transit buses in Canada and the United States.
• Acted for a surety in relation to a suite of bonds totalling over $250M, including labour and material payment, performance and advance payments bonds, provided to an insolvent civil contractor.

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