Construction in Vancouver - Issue 1419

VRCA news feature

J a n u a r y 1 0 – 1 6 , 2 0 1 7 v R ca . b c . ca

Boosting employee benefits Construction employers offering daycares and other innovative perks to hire and retain skilled workers

FINDit

In British Columbia’s in-demand construction industry, wages are only a part of the total employment package being offered to prospective employees. Canada Scaffold Supply Co. Ltd. has a subsidized 37-child daycare facility available to employees. Story, page B2 | Submitted

SPOTLIGHT B2 Employee benefits boost companies’ competitive hiring advantage

BUSINESS Future-proofing your company

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Legal Specs B7 Penalty clauses and breach of contract

EDUCATION Construction industry gives big to revitalize high school shop classes

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CONSTRUCTIVE COMMENT Collaboration is key ingredient to successful innovation

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leadership B7 Chris Atchison named new BCCA president

EMPLOYMENT Apprentices on Public Projects

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CONSTRUCTION B6 Fostering a culture of learning in the construction industry

DAY IN THE LIFE B8 With Noel Keane, site superintendent with EllisDon

January 10–16, 2017

special news feature | Vancouver regional construction Association

B2 news SPOTLIGHT: benefits boost hiring advantage B.C. construction employers are thinking outside the box for competitive employee benefits packages

“I truly believe we are somewhat of a pioneer in trying to do all of it together. I can guarantee there’s nobody with a garden, a restaurant, a daycare, a caretaker’s suite and a gym,” says Christopher Jones, general manager of Canada Scaffold Supply Co. Ltd. | submitted

by Hayley Woodin

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s British Columbia’s indemand construction industry faces a forecasted 32,000-person skills shortage, employee attraction and retention practices will be top of mind for employers looking to keep up with the competition and take advantage of industry opportunities.

Construction already has a high rate of turnover compared with other sectors, according to benefit advisers JP Griffin Group, and, unlike companies in certain sectors, the biggest necessity for construction firms is an available and skilled workforce. In fact, it’s crucial.

Last year, 94% of B.C. construction employers were planning to hire, according to a survey conducted by the BC Construction Association (BCCA). And it was large companies, those with 100 employees or more, that preferred to entice workers through wages.

But even with the bigger budgets to do so, larger companies were the most likely to lose their employees due to pay.

In fact, the highest-paid survey

respondents were most likely to change jobs. Meanwhile, small companies of five workers or fewer were leaders in retention, and 89% of medium-sized companies offered benefits to their employees.

The lesson is that employee retention is about more than a paycheque.

“I truly believe we are somewhat of a pioneer in trying to do all of it together,” said Christopher Jones, general manager of Canada Scaffold Supply Co. Ltd. “I can guarantee there’s nobody with a garden, a restaurant, a daycare, a caretaker’s suite and a gym.”

The business, which would fall into the BCCA’s large-company category and is also a member of the Vancouver Regional Construc­ tion Association (VRCA), has gone above and beyond when it comes to offering benefits to its 115 to 120 employees, most of whom are based at the company’s 10-acre Mitchell Island site.

Aside from offering a standard extended health and dental benefits package secured through the VRCA, Canada Scaffold Supply Co. Ltd. built what Jones describes as an “incredibly high-end”

37-child daycare, available to employees’ children, from newborns up to five-year-olds.

“We have an aging workforce here,” Jones said. “So as we try to attract young, educated individuals to work for us we are finding that our facility is a real enticement that moves the position from a job to an experience.”

Research by the Canadian Centre for Policy Alternatives has pegged the median monthly daycare cost for an infant or a toddler at more than $1,200. At Canada Scaffold, in-house daycare costs are subsidized by 50% by the company, and parents enjoy the added benefit of being able to pick up their children right after work, without a commute.

Russell Carnley, senior manager of construction and property for Vancouver with Hays Canada, said incentives, perks and benefits are how companies can better attract and retain employees. After all, there can only ever be one company that pays the highest salary in a given market.

For exa mple, Hays Ca nada found that more than 20% of B.C. construction companies offered employees gym memberships last

year, up from the year before.

For its employees, Canada Scaffold built a gym.

“I truly believe that health and wellness is a bigger thing than people realize,” Jones said.

“We’re all in the construction business and our bodies get a little older. If you keep people fit and healthy, you’re going to have less WorkSafe reports, less downtime with your people, happier people and less stress.”

Over a three-hour period twice a week, a personal trainer is available in the company’s full-service, 5,000-square-foot facility, ready to assist with staff workout sessions and nutrition tips.

The space also features a games and interactive TV sports area, and Canada Scaffold runs various eight-week challenges two to three times per year to get staff using the facility and working toward their health and fitness goals.

Additionally, the company offers tuition reimbursements for workers who want to pursue their tickets, enhance their skill sets or pursue British Columbia Insti­ tute of Technology courses that cover in-demand skills. Canada

Scaffold also subsidizes its employees’ safety equipment, including safety harnesses that can range in price from $200 to more $1,000, Jones said.

“Bring a pair of boots, and we’ll take care of everything else for you – and that helps us bring in a lot of employees,” he said.

Through membership in the VRCA, companies in construction have the opportunity to offer certain benefits to their employees that are relevant and affordable.

“I think we are able to help our clients realize savings because we are a pooled environment,” said Arthur Chung, CEO of the BCCA Employee Benefit Trust. With 475 employer groups representing nearly 6,400 employees, companies with two to 200 workers get access to health, dental, life insurance, long-term disability and other benefits at a preferred price.

In addition to health and insurance coverage, companies in the local construction industry have access to a roster of training and professional development offerings for employees through the VRCA.•

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UBC’s new Pharmaceutical Sciences Building claims six awards For Nick Maile, the only thing better than having a building he helped plan and develop win a series of major architecture awards, it’s seeing the people who use the building truly enjoying it. The development manager for UBC Properties Trust believes the university’s new Pharmaceutical Sciences Building is “architecturally pleasing, but any building, no matter how beautiful, if it doesn’t work for the students and faculty, it’s not a success. This one, though, is incredibly lively – people like to be in it and they use every space.”

“At UBC, we are trying to be on the leading edge of sustainability and energy efficiency,” says Nick, “but it’s definitely a challenge with a building like this, where there is a data centre in the basement plus a lot of a lot of laboratories and many fume hoods.” (Fume hoods limit exposure to hazardous chemicals or toxic fumes, but they are energy-guzzlers: one fume hood alone can use more energy than three typical B.C. homes.)

For help, UBC turned to BC Hydro’s New Construction Program, which provides funding for an energy-modeling study – a simulation of how a building might function throughout a full year if it’s designed and built with a variety of energy saving measures – along with additional financial incentives for implementing those measures.

The energy-saving measures include capturing waste heat from the data centre and recycling it into the building, as well as daylight sensors and a low temperature water system. Together, these measures are estimated to add up to about 1.2 million kilowatt hours of savings every year over a similar building that does not include them.

In addition, says Nick, “The incentive from BC Hydro for installing these measures really does help. It may be a small percentage of the overall construction budget, but we can give that money back to the Pharmacy people to use for long-term operations. So not only does the university win by saving on energy use, the department wins as well.”

Looking for new ways to build better?

Visit bchydro.com/construction or call 1 866 522 4713 to learn more.

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January 10–16, 2017

special news feature | Vancouver regional construction Association

B4 news EDUCATION: Construction industry gives big to revitalize high school shop classes The Construction Foundation of BC donates to Vancouver’s Britannia Secondary School

by Colleen McConnell

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ot h i ng happens u nt i l something gets built, but what if true contribution happens with the construction of something bigger than ourselves?

This concept is the basis from which the Construction Founda­ tion of British Columbia (CFBC) began – with the idea that when an industry comes together, big change can happen.

In 2012, the British Colum­ bia Construction Association launched a new entity, the CFBC, as a way for industry to give back to the communities in which its members live and do business.

The foundation’s inaugural campaign, Project Shop Class, was designed to aid B.C. schools in the revitalization of their shop classes with new tools and equipment.

Project Shop Class was launched in February 2013 with a gala dinner in Vancouver that generated over $294,000 in industry donations. From there the CFBC team went on to raise and distribute over $3 million for new shop class equipment across the province.

“We are thrilled to provide a mechanism for industry and educators to connect and support each other in new ways,” said CFBC executive director Abigail Fulton. “The success of Project Shop Class and the wave of industry involvement and support is immeasurable. We look forward to continuing to grow industry

Robert Lashin, president of Houle Electric, presents a donation on behalf of the Construction Foundation of BC to Britannia Secondary School in Vancouver | submitted

support for high schools and the next generation of industry leaders.”

In 2015, B.C.’s construction sector employed over 201,000 people and contributed 8.2% to B.C.’s gross domestic product, making it a strong industry for youth to consider as they plan for their future. Industry support of Project Shop Class and similar initiatives enables young British Columbians to develop practical skills and encourages students to pursue careers in the skilled trades. In a region that has faced possible school closures and the

elimination of shop classes, industry support is more important than ever.

One such instance of industry support was recognized when the CFBC presented a $10,000 donation to Vancouver’s Britannia Secondary School, thanks to the generosity and support of Houle Electric.

“Partnerships between schools and industry occur in various ways – work experience placements, career fairs, job shadows, business simulations,” said Britannia principal Andrew Scho­ field. “This generous donation

will keep Britannia at the forefront of trades and technology education in the district and will enhance our goal of being a technology- and innovation-focused public school.”

During a presentation at the school, Houle Electric president Robert Lashin shared stories of construction career successes with the trades students. He spoke about people overcoming barriers and working their way to a Red Seal designation and then carrying on to management, and in some cases ownership.

“I a m proud to state that I

attended Britannia from Grade 7 to Grade 12,” Lashin said. “I have endless gratitude to the teachers that inspired us to see beyond our immediate challenges and see instead a bright future of endless possibilities.”

The CFBC’s next initiative is slated to launch in select regions of the province in 2017. The program is aimed at enabling high school students, via a web-based application, to cultivate and share with their teachers, future employers and other supports the knowledge they are acquiring.

The mission of the program is to enable them to successfully embark on their pathway to apprenticeship at a quicker pace than has been experienced in the past.

In light of the B.C. government’s recent commitment to invest $15 million in trades equipment in support of youth trades programs, the CFBC is looking ahead at ways it can support industry in the pursuit of strong community and provincial involvement.

After all, while we may be in the business of constructing physical structures, it is the ways in which we give back that construct the future. • C o l l e e n M c C o n n e l l i s d i r e c to r o f public relations with the Construction Foundation of British Columbia.

Established in 2012, the foundation is dedicated to the advancement of the construction industry, with a focus on education and research.

EMPLOYMENT: Apprentices on public projects

by Shirley Bond

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ritish Columbia is leading the nation in economic growth and is expected to continue to outpace all provinces again in 2017.

While this economic momentum puts B.C. in an enviable position in Canada, it comes with a set of challenges that our government is meeting head-on.

As our economy continues to grow, so does our need for skilled tradespeople. Last year’s British Columbia 2025 Labour Market Outlook forecasts almost one million job openings in B.C. over the next seven years, and about eight out of 10 of those jobs will require post-secondary education, including trades and technical training. The largest share – 42% – will require a diploma, certificate or apprenticeship training.

B.C. has reached a point where the number of young people entering the workforce is lower than the number of people retiring

from it, so it is essential that we create conditions that give young British Columbians a streamlined route from middle and high school through to post-secondary training and on to the workforce.

Helping to build and expand a skilled workforce to meet this demand is one of our government’s key commitments under the Skills for Jobs Blueprint. Our investments through the plan specifically target high-priority trades so that we can ensure that we have the workforce necessary for our growing economy.

In B.C. there are more than 360 major capital projects under construction worth almost $80 billion. In addition, the provincial government is a major investor in construction with more than $7.5 billion worth of major taxpayersupported capital projects across B.C. supporting over 38,000 jobs during construction.

To help maximize our province’s supply of experienced tradespeople, in 2015 our government initiated the Apprentices

on Public Projects policy, which applies to all infrastructure projects where the B.C. government is investing at least $15 million.

The policy requires all contractors that work on major public construction projects – those undertaken by ministries, health authorities, boards of education, public post-secondary institutions and BC Hydro – to demonstrate that they are engaged in apprenticeship training.

We believe that when taxpayers invest in projects such as hospitals, schools, roads and bridges, the companies building these projects should be committed to training apprentices.

Seventeen projects are under construction and another 29 projects are not yet underway but will be expected to apply the policy.

B.C. is setting an example to celebrate the importance of apprenticeship by requiring apprentices to be used on public infrastructure projects.

The North Island Hospitals Project is following the province’s

lead and voluntarily applying the policy. This project will result in the creation of two new, stateof-the-art hospitals in the Comox Valley and Campbell River.

Together, the two new hospitals have a construction cost of $606.2 million and will add 248 patient beds for North Island residents.

Through the Industry Train­ ing Authority (ITA), we are constantly looking to increase the total number of employer sponsors in the province. Apprentice sponsorship can also come from unions and trade associations, like Ironworkers Local 97, which act as sponsors for apprentices and help them find employers willing to train them on the job.

According to the Canadian Ap­ prenticeship Forum, for every dollar employers put into apprenticeship training, they receive an average return on investment of $1.47.

Additionally, the federal and provincial governments provide income tax credits for apprentices and employers of apprentices in

registered ITA programs.

Industry training facilities and post-secondary institutions are vital partners in apprenticeship training.

Lower Mainland-based organizations such as the Electrical Joint Training Committee and UA Piping Industry College of BC train tradespeople for their respective industries, while postsecondary institutions including British Columbia Institute of Technology and Kwantlen Poly­ technic University, both in Greater Vancouver, offer a wide range of apprenticeship and foundation programs in the skilled trades.

T he Apprentices on P ubl ic Projects policy is one more way we are connecting young British Columbians with skills training and apprenticeship opportunities, which helps ensure we are able to meet workplace demands in the coming years. • Shirley Bond is B.C.’s minister of jobs, tourism and skills training and responsible for labour.

special news feature | Vancouver regional construction Association

January 10–16, 2017

section B5 news B5

BUSINESS: Future-proofing your company Hays Canada’s recent talent continuation strategy

by Russell Carnley

or she has to do, and what skills make him or her successful. Use this list to evaluate your senior leaders who might step into that role eventually, and look for gaps. For example, your senior leader might have considerable tech n ica l a nd tea m-leadership skills, but no experience i n n e t w o rk i n g o r b u s i n e s s development.

If networking or business development skills are critical to the role, help prospects develop those skills so they are equipped for their future responsibilities.

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alent continuation planning is critical for longterm success of a business.

It’s more than just creating a hierarchy of who is next in line for a particular role.

An agile, comprehensive continuation plan allows a business to prepare its future leaders today, so when the time comes they have all the skills necessary to take on the leadership role that will allow them and the business to excel.

So why do only 48% of B.C. construction firms have a succession plan in place, according to last year’s Vancouver Regional Construction Association-Hays Canada Salary Guide?

Hays Canada director of human resources Amanda Harvey knows what it takes – she instigated the company’s continuation strategy in 2013.

“Creating a continuation plan can seem like a task too big to tackle, but taking it one step at a time ensured that we systematically future-proofed our business,” Harvey said.

“The easy part is pinning people to the plan. The hard part is following through on the plan. It’s easy to do something once but hard to ingrain as an ongoing

Monkey business images/shutterstock

process. That’s the challenge.”

Six steps to continuation planning: Get senior leadership buy-in If your leaders don’t believe that a continuation plan is necessary and don’t give it the resources needed, it won’t get off the ground. This was key to Harvey’s success.

“I’ve never worked somewhere that follows through like Hays did,” she said. “It’s one thing to say you should do it, or will do it, but it’s another to actually get it done.”

Start at the top “At Hays, we took a top-down approach to planning,” Harvey continued. “A lot of companies set themselves up to fail by trying to do too much at once. Take a long-term view. Aim to complete the top executives in your first year, then move to senior managers and finally to team or function leaders.”

Assess core competencies L ook at t he job descr ipt ion and the current leader’s skills or competencies. Write an exhaustive list of everything he

Align individual goals with corporate development plans “At Hays, we use performance reviews to establish individual career goals that align with corporate development plans, which not only helps employees achieve their personal goals, but prepares them for future leadership roles,” Harvey said.

These plans are also a key retention tool. Employees don’t need to know the details of the succession plan, but by investing in their career development, they showed a commitment to shared successes.

Planning is never done You need to review your succession

plan and refresh individual development plans regularly.

The frequency of these updates will depend on how agile your company is and how quickly things change.

“I review the overall succession plan annually and the corporate development plans every two years,” Harvey said, adding that team leaders review career goals with employees quarterly to ensure that they are being met.

Who is accountable?

Succession planning is easy to not do. For your planning to be truly successful you need accountability from everyone.

Human resources is held accountable for reviewing the plan and ensuring the resources are in place for employee development, leadership is responsible for providing employees with the support needed to achieve success, and employees are responsible for their own personal development. • Russell C arnley is senior manager for Vancouver with Hays Canada’s construction and property division. Hays Specialist Recruitment Canada has been at the forefront of the global recruitment industry for over 35 years.

January 10–16, 2017

special news feature | Vancouver regional construction Association

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Constructive comment

Collaboration is key ingredient to successful innovation VRCA approaching construction advancements in practical ways

By Fiona Famulak

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he key to driving innovation in any industry is collaboration. So says Stephen Good, CEO of the Construction Scotland Innovation Centre, an organization launched in 2014

by Scotland’s construction association to foster a culture of innovation within the country’s construction industry.

E mploy i n g ab out 130,000 workers across 31,000 businesses, 80% of which have fewer than eight employees, the construction industry in Scotland, in size and demographics, is not unlike that in British Columbia, where most businesses are

small-to-medium-sized enterprises. It therefore makes sense that the Vancouver Regional Consruction Association (VRCA) embarks on some international collaboration to learn more about how the centre is supporting construction innovation in Scotland so that we can expedite progress in B.C. What exactly is construction innovation? Simply, it’s the successful introduction of new technologies and processes. It can be a fresh approach to attracting and retaining employees through a creative array of employee benefits as developed by Canada Scaf­ fold Supply Co. Ltd., the focus of this edition’s Spotlight feature.

It’s a manufacturer’s decision to leverage its prefab construction capabilities and contribute to Canada’s first multi-unit modular passive house as we saw with Britco LP, recipient of VRCA’s 2016 Judges’ Award. It includes a contractor’s commitment to drive change by operating at the leading edge of the market adoption curve, as is the case at Div­ ision 15 Mechanical Ltd., VRCA’s 2016 Member of the Year and a recognized champion of building information modelling (BIM)

in our industry. There is much more.

Whether focused on people, process or technology, innovation improves a business’ productivity and its resiliency to challenging market forces, and enhances the quality and performance of projects. An innovative company offers better customer value because it is more productive and it helps to raise the bar across the industry, motivating everyone to find better ways of doing things.

It is also a cool company – an attractive proposition to young workers.

T hroughout this edition of Construction in Vancouver are practical examples of how the VRCA is supporting construction innovation. We are engaging with high school students and counsellors on the myriad career opportunities available in our industry, and, through the Con­ struction Foundation of British Columbia’s Project Shop Class, we’re helping to equip schools with new tools and equipment.

More than ever, our members are relying on accessible, affordable and timely education and training to attract and retain their people. In that context, we are

testing different approaches to education and training as a way to improve skills and advance innovation. While our roster of classroom and online courses is extensive and will continue to evolve to meet market demand, we are experimenting with other teaching methods that include demonstrations, peer-to-peer support groups and field trips as a way of ensuring that the learning experience is lasting and meaningful. We’re particularly excited to pilot a first-of-itskind-in-Canada innovation boot camp, a four-day immersion in a wide range of emerging business and technical experiences for seasoned business owners and managers. There is even a module on the use of drones.

And because collaboration is a key ingredient to successful innovation, we will continue to connect young leaders with industry veterans at events such as our annual Construction Leadership Forum, to facilitate mentorship and the transfer of knowledge and ideas. We will continue to engage partners and other stakeholders to help us address industry issues that range from securing appropriate and adequate skills,

providing a front door to the construction industry for technology entrepreneurs and addressing capital procurement processes, to driving productivity, project performance and client value. And we will reach out to organizations like the Construction Scotland Innovation Centre to get a head start on innovation best practices.

Unprecedented econom ic, demographic and technological pressures are profoundly affecting the construction industry.

Ten years from now, we will be expected to deliver projects that perform better, i.e. are carbonneutral or close to it, using substantially less labour and fewer materials. We need to embrace construction innovation because “business as usual” doesn’t cut it any longer. At the VRCA, we’re committed to driving construction innovation forward in practical ways. • Fiona Famulak is president of the Vancouver Re gional Cons truc tion A s s o ci ati o n , th e l a rg e s t re g i o n a l construction association in B.C., which re p re s e n t s c l o s e to 70 0 m e m b e r companies that operate in the industrial, commercial and institutional construction industry.

CONSTRUCTION: Fostering a culture of learning Innovation in construction is no longer confined to manufacturing

BY Helen Goodland

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t’s been said way too often that people consider a career in construction because they don’t like school. However, the misperceptions about life in the construction industry – that it is physically hard work and you don’t need to have finished high school – are wearing thin. Increasingly, life in construction requires an iPad as well as a pair of strong shoes.

In fact, construction today demands a strong technical mind, excellent problem solving and the interpersonal skills necessary to function in highly effective teams. It is an industry that is changing fast. While there are still opportunities for craftsmen, state-of-the-art digital tools are commonplace. Increasingly, buildings are designed, fabricated and assembled using virtual models that factor time and motion into the construction.

Virtual reality helps to envision new designs. Building-scale 3D printing is now possible using concrete or bio-polymers. 3D lasers scan the surroundings.

Drones are being used for surveying. Heavy equipment can be remotely operated. Robots are even being developed that can lay bricks or lift large pieces of glass.

A career in construction is looking

more like life in digital media or advanced manufacturing, except you get to do more of it outside.

It is also heartening to know that technologies exist today that enable the buildings of tomorrow to be intelligent, produce clean energy, process waste and improve the health and well-being of their occupants.

Constant up-skilling is essential for anyone who is serious about a future in construction. If you are 20 years old, the fast-paced world of digital technology is exciting. For older folks, keeping up can be challenging. Construction professionals tend to be visual learners and very practical. They can be extremely good at multidimensional problem solving with an emphasis on building science and engineering. They are also busy. So, theory-heavy education doesn’t work well for them.

Learning environments therefore need to deliver tactical solutions that can be applied right away.

Brantwood Consulting, in collaboration with the Vancouver Regional Construction Associa­ tion (VRCA), has recently been testing different approaches to leadership-level training as a way to advance innovation. We have run two different programs so far. The first was a daylong workshop for 32 participants that was designed to develop and test best

SpeedKingz/Shutterstock

practices in public procurement for innovative projects.

Four project teams were assembled, each including an institutional owner, architect, engineer, cost consultant, general contractor and adviser from a specialty trade and another area (for example, the Passive House construction firm). Each team was issued an “almost-real” project that had been developed with input from the owners and which came with significant challenges.

For example, one project involved the construction of seniors’ housing in a remote northern community with limited access. Another involved a student residence over a train station that had to remain open during construction.

The program, funded by the British Columbia Construction Association and Wood First, explored the challenges and opportunities of mass-timber construction.

In any industry, innovation is driven by those who enjoy operating at the leading edge of the market adoption curve. Key to the success of this program was that participants were very experienced with a track record of innovative design and construction.

Indeed, one of the participating contractors is now testing the project case studies for internal training purposes.

To gain the most benefit from future sessions, attendees sugge s te d t h at pre d e ter m i ne d

learning outcomes, which identify what participants will know by the end of the program, should be advertised beforehand.

The second program was a fastpaced construction innovation “boot camp” over four days that packed in a wide range of topics and teaching styles. Delivered in a pair of two-day segments with an in-office assignment in between, topics ranged from building information modelling and brand strategy to case-study projects.

Recognizing that fostering a culture of learning requires a long-term approach, the objective is for program participants to establish an ongoing “best practice club,” facilitated by the VRCA, to provide a supportive environment in which they can continue to share lessons learned on a peerto-peer basis.

After all, the best education happens when the student becomes the teacher. • Helen Goodland, RIBA, MBA, is principal of Brantwood Consulting and co-founder of Building Technology Innovations. She recently completed the BC Construction Innovation Project for the BC Construction Association. She serves on the Canadian Construction Association’s corporate social responsibility task force and is chair of the Materials Technical Advisory Committee for the United Nations Environment Program’s Sustainable Building and Climate Initiative.

special news feature | Vancouver regional construction Association

January 10–16, 2017

B7

Legal Specs

Penalty clauses and breach of contract Norm Streu and Christopher Hirst

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The clause simply delayed the obligation to pay until such time as the damages could be properly assessed. It did not seek to impose a penalty beyond the actual damages that flowed from the breach, and was therefore enforceable

ourts generally give contracting parties a wide berth to structure their legal relations as they see fit. The principle of freedom of contract requires that the law generally enforce the agreements of contracting parties regardless of whether the agreement is one that is balanced or fair.

To this general principle there are a number of exceptions.

One such exception arises when the agreement is deemed to be unconscionable or contrary to public policy. Within the context of that exception, the law has determined that certain clauses will always be considered unconscionable, contrary to public policy, and therefore unenforceable.

Examples of such unenforceable clauses are those clauses designed to deter breaches of contract by way of penalties. For hundreds of years, courts have refused to enforce contractually based penalty clauses, reasoning that damages for breach of contract should be compensatory in

nature rather than purely punitive.

However, a clause that seeks only to estimate the actual damages that will flow from a breach and which is not disproportionate to the actual or anticipated damages will not be considered a penalty clause.

Such genuine pre-estimates of damages arising from a breach of contract are known as liquidated damages clauses.

There is substantial case law over many years in many jurisdictions over whether specific clauses are penalty clauses (which are unenforceable) or liquidated damages clauses (which are enforceable).

In the recent decision of Ottawa Community Health vs.

Foustanellas, the Ontario Court of Appeal considered these well-established principles and creatively made the distinction between penalty clause and liquidated damages clause.

In this case, Ottawa Community Health Corp. (OCHC) had a contract with Argos Carpets. OCHC determined that Argos was overbilling and therefore notified Argos that it was cancelling the remaining work under the contract and

LEADERSHIP: Chris Atchison named BCCA president British Columbia Construction Association

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n December 6, 2016, the British Columbia Construction Association (BCCA) announced Chris Atchison as incoming president, replacing retiring incumbent Manley McLachlan. The handover began on January 3, with McLachlan staying as an adviser until March 31.

Working from the BCCA headquarters in Victoria, Atchison is responsible for continuing BCCA’s pioneering work delivering provincial programs and services to strengthen B.C.’s industrial, commercial and institutional construction sector, while advocating on behalf of employers on key issues. Offerings such as the Skilled Trades Employment Program will remain a priority, as will the development of the BidCentral procurement platform, plus many other important BCCA initiatives.

“Over the last 14 years Manley has built BCCA into a recognized leader in Canada’s construction industry, creating a powerful legacy,” said Bob Cooke, BCCA board chair. “Chris has the relationships, experience, skills and commitment to take us forward, as well as a strong vision for future growth and sustainability.”

Atchison brings a wealth of experience in employment and labour market programs to the top role within BCCA, including nine years as chief operating officer at the Association of Service Providers for Employability and Career Training, and

17 years as the provincial employment contracts manager for many successful programs. He is chairman of the Sandra Schmirler Foundation, a national charity that has raised millions of dollars – experience relevant to the role he will play in helping to guide BCCA’s charitable arm, the Construction Foundation of British Columbia.

A focus during Atchison’s tenure will be to work with the leadership of the four regional construction associations (RCAs), to ensure strong benefit to membership and productive collaborations across the province.

“I’m honoured to be stepping into this role and very conscious of the legacy that is being entrusted to me,” Atchison said.

“I look forward to working closely with the BCCA and RCA boards and staff, as well as our many stakeholders on behalf of the construction employers and workforce we represent.”

McLachlan said Atchison “is taking the reins at a time of immense change and opportunity.” He added, “Technology, infrastructure development, skilled-workforce challenges and even the traditional association business model are all in play.

I know he’ll do a great job, and I look forward to seeing what the future brings.” • The British Columbia Construction Association is the province’s voice of the construction industry, supported by four regional associations throughout B.C.

withholding payment.

In doing so, it relied on clause 1.6.3 of the contract, which states: “… Where any or all of the work has been taken out of the hands of the Contractor, the Contractor will not be entitled to any further payment, including payments then due and payable but not yet paid.

The obligation of the Owner to make payments will cease, and the Contractor will be liable upon demand to pay the Owner an amount equal to all of the losses and damages incurred by the Owner for the non-completion of the work.”

This clause could be considered an unenforceable penalty clause if it were interpreted to mean that the moneys due to the contractor were forfeited when the balance of the work was taken away from it.

Instead, the court held that clause 1.6.3 was neither a penalty clause nor a liquidated damages clause.

The court found that, in fact, the clause only operated to halt the owner’s contractual obligation to make payments to the contractor pending the determination of the owner’s

losses and damages arising from the contractor’s breach of contract.

The clause simply delayed the obligation to pay until such time as the damages could be properly assessed. It did not seek to impose a penalty beyond the actual damages that flowed from the breach, and was therefore enforceable.

Parties considering the inclusion of a damages-for-breach clause in their contracts should consider the Ottawa Community Health clause as a possible option.

By delaying the obligation to pay moneys, otherwise due and owing, until the damages suffered by the innocent party caused by the breach have been determined, such a clause may limit or even prevent damages that would otherwise be incurred by the innocent party without running afoul of the rule against contractual penalties. • Norm Streu is president and chief operating officer of the LMS Reinforcing Steel Group. Christopher Hirst is a partner and leader of the construction and engineering group Alexander Holburn Beaudin + Lang LLP.

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January 10–16, 2017

special news feature | Vancouver regional construction Association

B8

News

DAY IN THE LIFE: WITH NOEL KEANE, SITE SUPERINTENDENT WITH ELLISDON Construction in Vancouver spent the day at the Brentwood Town Centre redevelopment project

Noel Keane, superintendent on the 1.75-million-square-foot Brentwood Town Centre redevelopment project, inspects the site after heavy snowfall | Vancouver regional construction association

By Hayley Woodin

N

o el Kea ne s te p s ove r some cords, then ducks through a tarp and out of sight.

“I wouldn’t want to be someone who goes to work in an office every day and does the same thing – like someone manufacturing a car, placing the same bolt in the same hole every day, for 20 years,” said Keane, a site superintendent with EllisDon,

which is managing the construction of the Brentwood Town Centre redevelopment project’s first phase.

“I think construction is exciting,” he added. “A big part of what I enjoy is that every day you can be doing something different: ‘I’ve got to plan this,’ or ‘I haven’t done this before.’ It’s the challenge more than anything else that attracted me to the industry.”

On this particular December

day, Kea ne was check i ng to ensure the snow on part of the 1.75-million-square-foot mixeduse project was well on its way to thawing, so that concrete could be poured later. He estimated that the first snowfall of the season, and the ice and slush it left across the eight-acre site in Burnaby, set things back by around two weeks. When Construction in Vancouver visited, Keane was spending his afternoon checking in with different trades, inspecting how aspects of the project were coming along and handling the hiccups caused by the weather.

On a typical day, Keane figures that there are 300 to 350 people on site, working to build the new 1.2-million-square-foot Brentwood Town Centre shopping mall. Along with a significant renovation of the existing Brentwood mall, the completed project will feature a variety of premium retail stores, restaurants, entertainment amenities and public spaces.

According to EllisDon, the endeavour is one of the largest redevelopment projects of its kind in North America.

“A big part of our job involves scheduling because it is such a large project,” said Keane, one of two structural superintendents on the job, along with two assistant superintendents and a senior one.

Keane joined the Brentwood redevelopment at the beginning after spending a year and a half as an assistant superintendent with EllisDon on the TRIUMF project: an advanced rare isotope laboratory based at the Univer­ sity of British Columbia.

“It was a great project to be on

because it’s not every day you build a building that houses a lab that does work on nuclear research,” Keane said. “That was pretty awesome.” He added that out of the lab comes research that could help cure cancer.

Keane pursued his degree in construction in Ireland during a 15-year building boom that lasted until the 2008 financial crisis. Keane gained his experience on various residential and commercial projects in Ireland before losing his job, along with many in the industry. He moved to Canada five years ago and found employment with EllisDon as a labourer.

“It was quite difficult to get a job here because the construction industry wasn’t overly busy at the time, and then when you’re coming from a different jurisdiction, or with a different skill set or qualifications, people are sometimes unwilling to take a chance on you.”

As Keane makes his rounds through the Brentwood site, his phone buzzes with calls and messages, and his radio crackles with chatter. Keane estimates that over the life of the project, expected to complete in the fall of 2018, 250 different trades will have had a hand in making it happen.

Today, he checks in with those on site and handles any of the challenges that come up, ensuring different trades get their allotted crane time, that the shoring on part of the project matches the drawings and that a particular wall gets covered so that it’s protected from the elements.

It’s Keane’s job to know what needs to happen, when. It’s also

his responsibility to manage different people and ensure all groups involved in the project are on the same page, communicating properly, and delivering.

“You can have the best plan in the world, but if you don’t share it with anyone, it’s no good to anyone,” said Keane, who works to ensure he’s drawing on the collective experience of all the project’s trades personnel. Between site walk-throughs and meetings, he tries to use the different skill sets of various employees and engage different people to help EllisDon successfully deliver the $245 million project.

After completing his degree in Ireland, Keane pursued a twoyear certificate in construction th roug h the cou ntry’s Con­ struction Industry Federation (CIF). Similar to the Vancouver Regional Construction Associa­ tion (VRCA), the CIF offers programming and education to those building careers in the industry.

“Continued professional education, in my opinion, is important in order to keep progressing in your role,” Keane said. From online courses in business management and effective communication to a full roster of offerings that are Gold Seal-accredited, the VRCA provides ample opportunity for continuing learning. According to Keane, having additional education is never a bad thing – especially when it comes to performance on the job.

“I don’t think people outside of the construction industry understand the complexities that come with a project of this scale,” Keane said. “Communication is essential to a project’s success.” •