Navigating Risk in Construction Contracts & Projects

This session will present a variety of construction models, and the risks, the rewards and the costs associated with each delivery method.

Topics of discussion include:

• Examining the successes and challenges to date of traditional Design-Bid-Build, Design-Build, P3s and Progressive Design-Build, using real-world experiences; what are the risks associated with each?
• Understanding the core features of Integrated Project Delivery (IPD) and Alliance models
• Understanding the benefits and disadvantages of collaborative delivery models and the value of each
• Analyzing which projects are right for a collaborative delivery model and delineating the factors that parties must consider when making this decision.

Gain real-world insights into the IPD model, exploring how it differs from less integrated methods and assessing its suitability for complex projects in a collaborative environment. Topics of discussion include:

• Differentiating IPD from more traditional Design-Bid-Build, Design-Build and Design-Build models
• Determining if IPD is a fit for your project, including when it works and when it doesn’t
• Time and schedule benefits, and cost implications
• Identifying ideal project types for this model
• Minimizing disputes and budget challenges with IPD agreements
• Resolving disputes through mutual benefit and teamwork in IPD
• Comparing Canadian IPD trends to other countries and lessons learned

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. Learn how to handle changes, delays, and identify critical legal precedents that might cause issues.

Topics of discussion will include:

• Understanding the potential risks and complications of the “Frankenstein” contract, where clauses are borrowed from other contracts, or address non-existent conditions
• Streamlining the change order process to handle scope modifications efficiently, reducing disputes and keeping projects on track
• Issuing notifications of change and delay within contractual requirements for form and notice, and working through the ensuing Change Order
• Discussing how to deal with unexpected site conditions, such as geological surprises or environmental challenges and implementing strategies to rectify issues without resorting to litigation
• Documenting and tracking delays clearly and in conformity with the contract
• Solutions to arrive at an equitable and defendable claim for costs and delays

A question that frequently arises on large projects is whether a general contractor can recover from the owner any damages which its subcontractors are entitled to recover from the general contractor by reason of the owner’s breaches, without the subcontractors having a direct claim against the owner. Recent case law has raised a few important issues in this regard.

In this session we will:

• Examine Canadian cases which have held that such claims can be passed through to the owner in some circumstances, and the potential impact of the Walsh decision which indicates the availability of pass-through claims may be limited
• Compare the state of the law to the Severin doctrine in the U.S., which prevents pass-through claims against an owner if the general contractor has no liability to the subcontractor for the damages at issue, and review contractual solutions utilized there
• Explore the reasons behind the court disallowing pass-through claims in Walsh, despite attempts to include similar provisions in the contracts
• Analyze how Walsh integrates with the prompt payment scheme under the Construction Act and its impact on Canadian law; Did Walsh change the law in Canada?

While the principles for good contracts remain the same, and building strong operating and cooperative relationships is important, disputes become magnified simply by the scale of the project.

De-risking and contingency planning are critical to ensure that ample alternative routes are considered to reduce risks and disputes.

• Upfront planning and its influence in de-risking the project
• Commercial frameworks that promote collaboration and align interests
• Dispute Resolution Boards and Combined Dispute Boards
• Resolving disputes in a timely manner and preserving your business relationships

Effectively addressing the low bidder dilemma is an essential skill in the selection of labour, materials, and sub-contractors. The “low bidder must be taken” approach carries risks to timelines, costs, and quality.
This session explores strategies to navigate these challenges, offering insights on balancing fairness, competitiveness, and flexibility for resilient bidding decisions.

Topics of discussion include:

• Analyzing the low bidder dilemma and if negotiated bidding yields the better results
• What to do when a low bidder is substantially lower than the next bid
• Working with the low bidder to ensure best performance and to avoid retaliatory Change Orders
• Exploring the public owner’s duty of fairness and its implications
• Understanding debarment and exclusion clauses and their usage to ensure quality and qualified bidders going forward
• Navigating evolving definitions of the procurement process start, including tender response implications and the balance between flexibility and competitiveness.

Rapid technological advancements can reduce costs and improve efficiency in construction projects, contract evaluations, and litigation readiness. However, challenges like data breaches and privacy law violations pose significant risks.

This session will cover:

• Using AI for RFPs, contract review, and drafting correspondence and pleadings
• 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
• Responding effectively to data breaches or theft
• Discovering the best and newest strategies for data management
• Is AI being used effectively for schematic design, scheduling and budgeting?

With an aging construction workplace, what are the real means by which we can increase the productivity of skilled labour? How do factors like Immigration, government incentives for skilled trades training, automation of more tasks in construction and remote pre-fabrication impact the industry?
This panel will bring together industry leaders to explore strategies for attracting and retaining talent, including practical training initiatives and policy reforms. We will discuss how to tackle the labor shortage and create a thriving, resilient, and sustainable construction sector in Canada.

Litigation is costly, time-consuming, emotionally exhausting, and non-productive. Fortunately, alternative dispute resolution methods are available. Discover the benefits and drawbacks of each approach and learn about effective non-litigation measures to resolve disputes quickly and efficiently.

Topics of discussion will include:

• Identifying key steps and processes in settling a dispute
• Recognizing limitations and evidentiary issues
• Lessons learned from real cases to avoid common pitfalls
• Assessing the practical realities of adjudication, evaluating its usage and effectiveness
• Taking proactive steps to prevent disputes before they escalate
• What is are the various alternative dispute measures and the benefits of each

This session will provide a comprehensive overview of Dispute Boards, their workings, and their effectiveness in resolving construction disputes in Canada. Topics of discussion include:

• Understanding how Dispute Boards work
• Highlighting the benefits and real-world applications of Dispute Boards
• Showcasing project examples where Dispute Boards effectively resolved disputes
• Addressing challenges and lessons learned, including common problems and successful solutions

Discover how liens can be both powerful and problematic, potentially benefiting the wealthiest parties while derailing projects.

• What is a lien, what are lien rights, and where did they come from?
• How to register a lien, and how to perfect a lien
• What is an improvident lien and the risk?
• How a lien can be vacated, and the risk of that
• What are the rules about complying with legislation surrounding liens?

Glenn Ackerley, one of the key contributors to the Ontario Government’s review of the Construction Act, will discuss the key changes to the legislation and why those changes were enacted to address pressing issues in the industry.

The overhaul of the Ontario Construction Act introduces mandatory annual release of holdbacks and broadens access to adjudication, aiming to ensure timely payments and efficient dispute resolution in the construction industry.

Delay analysis is a powerful tool for determining, quantifying, and assigning responsibility for project delays, helping contractors and owners manage timelines, ensure fair compensation, and mitigate future risks.
This session will provide insights into best practices and real-world applications of delay analysis, equipping you to confidently handle complex delay claims.

Topics of discussion include:

• Identifying and quantifying construction delays accurately to support claims or defenses
• Applying key delay analysis methodologies to ensure clarity and fairness in assessments
• Exploring legal and contractual considerations critical to managing delay claims
• Leveraging delay analysis to enhance project planning, reduce risks, and promote timely dispute resolution

Going solo on major capital projects is both undesirable and often financially impractical. Partnering with Indigenous experts fosters innovation and shared risk, leading to improved outcomes. Collaboration with Indigenous communities is increasingly mandated by owners and service providers.

Topics of discussion include:

• Considering important legal risks from the perspectives of First Nation owners, contractors, subcontractors, and suppliers
• Understanding how Indigenous construction projects are typically financed and structured
• Examining differences in the procurement process for Indigenous projects, including key considerations for drafting and responding
• Addressing specific issues related to builders’ liens on Indigenous construction projects
• Recognizing the relevance of cultural considerations from both First Nation and contractor perspectives

• Assessing the substantive differences among provinces and the priorities between mortgage advances and liens (BC vs AB, ON)
• A close look at Ontario’s exceptions for construction-based lending
• Alberta case law on “revolving” credit facility advances
• Accepting repayment in face of potential trust claims
• BC case law on “good faith” advances