16th National Conference on Navigating Risk in Construction Contracts & Projects - DS

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16th National Conference on

NAVIGATING RISK IN CONSTRUCTION CONTRACTS & PROJECTS The premier event for industry updates for construction professionals and their counsel

2024 Co-Chairs Barbara Capes Assistant General Counsel Kiewit

Graham Brown February 22–23, 2024 Sandman Signature Toronto Airport Hotel

Partner Cassels, Brock & Blackwell LLP

Gain insights from industry-leading stakeholders:

New for 2024:

• Bird Construction • Kiewit • Buildforce Canada • Ontario General Contractor’s Association • Chandos Construction • ODACC • GHD • Toronto Transit • Graham Commission • Hancock & MacArthur Inc.

 Safeguarding Payment Rights and Financial Stability Through Insolvency: Navigating Liens, Bonds and Holdbacks

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

 Appreciating When Legal Impacts Industry: Adjudication Decisions Reviewed by Ontario Courts and a Supreme Court decision on OHSA Duties

Lanyard Sponsor

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Welcome to the premier event for national industry updates for construction professionals and their counsel Effectively navigating risk remains a central and continuous challenge throughout all phases of construction projects. From project inception to completion, the complex nature of construction with numerous stakeholders, schedules, and voluminous invoices, change orders, and project correspondences demands meticulous attention.

Moreover, navigating an industry impacted by both global and local factors, such as supply chain volatility and the Canadian labour shortage crisis, necessitates a nuanced understanding of challenges that can either make or break a project's success.

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Who Should Attend

That is why the Canadian Institute’s 16th National Conference on Navigating Risk in Construction Contracts & Projects will address the most critical challenges faced by the construction industry.

While every construction project is inherently unique, with distinct timelines, resources, priorities, and risks, our robust two-day conference ensures that attendees gain valuable insights and strategies applicable to their specific projects. Join us for two days of timely updates and forward-thinking discussions, offering invaluable perspectives on the pressing matters impacting construction professionals across Canada.

2024 Highlights include:  Learning New Strategies for Mitigating the Risks of a Volatile Supply Chain Environment and Price Increases  Exploring the Increasing Use of Collaborative Contracts and Blueprints to Assess Suitability of This Contract for Projects

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

 Learning the Best Practices for Writing Legally Sound Correspondence, Contract Management and Resolving Claims to Prevent the Need to go to Court

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• Project Managers

• Engineers and Architects

• Risk Managers

• Construction Managers

• Lawyers in private and public practice

• Procurement Specialists

• Contract Administrators, Managers, and Specialists

• Construction Consultants

• Estimators

• Construction Associations

Speaker Faculty 2024 Co-Chairs Barbara Capes Assistant General Counsel Kiewit Graham Brown Partner Cassels, Brock & Blackwell LLP

Government and Associations Mark Van Buren Deputy Commissioner City of Kingston Giovanni Cautillo President Ontario General Contractor’s Association Bill Ferreira Director Buildforce Canada Enzo Garritano President and CEO Infrastructure Health and Safety Association (IHSA) Shaun Hashim Solicitor Toronto Transit Commission David Ho Chief Procurement Officer Infrastructure Ontario

Fahreen Kurji Vice President, OnCorr Commercial Management Metrolinx Robert Pattison, BA, JD Senior Vice President, Commercial Resolutions Infrastructure Ontario

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

William Deley Assistant General Counsel GHD Paul Dipede General Counsel Corebuild Construction Matthew Gardner Partner | Environmental Law Specialist, Certified by The Law Society of Ontario Willms & Shier Environmental Lawyers LLP

Faren Bogach Founder and Lawyer Construct Legal

Venus Garg Vice President, Major Pursuits AECOM

Jennifer Brusse Lawyer Jennifer Brusse Law

Aaron Hamill Health and Safety Manager Acquicon Construction

Jennifer Burstein Vice President of Construction Collecdev

John Illingworth Partner Mathews, Dinsdale & Clark LLP

Erika Carrasco Partner Field Law LLP Lynnell Crone, PMP, MBA Vice President, Alternative Contracts & Light Industrial Bird Construction

Chad Kopach Partner and ODACC Adjudicator Blaney McMurtry LLP Howard Krupat Partner DLA Piper

James Little Partner Singleton Urquhart Reynolds Vogel LLP

Preet Saini Partner McMillan LLP Megan Sanford Legal Counsel CML Construction Services Limited

Mark Mallett Area Manager, Ontario Kiewit

Sahil Shoor Partner Gowling WLG (Canada LLP)

Zachary McGain Bridge Engineer Systra International Bridge Technologies

Joshua Strub Partner Margie Strub Construction Law LLP

Jamie McMillan Ironworker | Freelance Iron Workers International | Made In the Trades Philip Murray Senior Vice President Hatch Corporation

Sharon Vogel Partner Singleton Urguhart Reynolds Vogel LLP

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

Jamie West President Peninsula Construction Maria Williams Project Director Chandos Construction

Leanna Olson Senior Legal Counsel Graham

Bill Woodhead Partner Borden Ladner Gervais LLP

Lindsay Reynolds Principal Project Manager & ODACC Adjudicator Hancock & MacArthur Inc. Paul Ryzuk Partner Dentons

Earn CPD and Gold Seal Credits!

Conference hours can be used towards the Gold Seal Certification application for credits, subject to credit approval upon review.

Note: every 6 hours of learning equals 1 Gold Seal credit This program can be applied towards 10.5 Substantive hours and 1 Equality, Diversity and Inclusion hour of annual Continuing Professional Development (CPD) for Law Society of Upper Canada, the Law Society of Saskatchewan, the Law Society of British Columbia, the Law Society of Alberta, and the Barreau du Quebec. Members will also receive 3 additional CPD credit hours for the attendance of each of the workshops.

The Canadian Institute will provide certificates of attendance upon request. You must request the certificate from CI and submit the certificate yourself to obtain credits.

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MAIN CONFERENCE DAY ONE Thursday, February 22, 2024 8:00am

Registration and Breakfast

9:00am

Opening Remarks from the Co-Chairs 9:15am

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 microphone-alt Lynnell Crone, Vice President, Alternative Contracts & Light Industrial, Bird Construction William 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 10:15am 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 microphone-alt 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

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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.

11:15am Morning Networking Break 11:30am

Keynote: Trends in Public Infrastructure 12:00pm

Change Orders, Defective Work, and Unforeseen Site Conditions: Proven Strategies for Contract Management and Resolving Claims to Prevent Going to Court microphone-alt 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, construction 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 matters 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 1:00pm

Networking Luncheon

2:00pm

New Construction Contract and Project Strategies for Mitigating the Risks of a Volatile Supply Chain Environment Paul Dipede, General Counsel, Corebuild Construction

This was a good conference, and I was pleased to participate in it!

Jennifer Burstein, Vice President of Construction, Collecdev

Partner, Stieber Berlach LLP

microphone-alt 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?

3:00pm

Afternoon Networking Break

3:15pm

Crucial Deadlines, Definitions, and Processes: Practical and Legal Lien and Holdback Considerations for Contractors and Subcontractors microphone-alt Faren Bogach, Founder and Lawyer, Construct Legal Megan Sanford, Legal Counsel, CML Construction Services Limited

4:15pm

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

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:

• Assessing the potential impacts of insolvency on dispute resolution proceedings and prompt payment

• Exploring the legal and financial risks of miscalculation of lien deadlines in complex projects

5:00pm

» Understanding lien priorities and trusts in insolvency Conference Adjourns

» 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

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MAIN CONFERENCE DAY TWO Friday, February 23, 2024 8:00am

Registration and Breakfast

8:30am

Opening Remarks from the Co-Chairs 8:45am

Navigating the Risk of the Low Bidder Dilemma: Rethinking Competitive Bidding in Project Procurement microphone-alt Giovanni Cautillo, President, Ontario General Contractor’s Association Sahil Shoor, Partner, Gowling WLG (Canada LLP) Bill Woodhead, Partner, Borden Ladner Gervais LLP Venus Garg, Vice President, Major Pursuits, AECOM David Ho, Chief Procurement Officer, Infrastructure Ontario 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

10:30am Morning Networking Break 10:45am INDUSTRY THINK TANK

Addressing the Costs and Risks of The Canadian Labour Shortage: Practical Strategies for Fostering an Approachable Industry microphone-alt Jamie McMillan, Ironworker, Iron Workers International | Made In the Trades Jamie West, President, Peninsula Construction Maria Williams, Project Director, Chandos Construction 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.

11:45am

• Unpacking debarment and exclusion clauses and how they are being used

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

• Navigating the evolving definitions of when the procurement process officially begins.

microphone-alt James Little, Partner, Singleton Urguhart Reynolds Vogel LLP

• Exploring the public owner’s duty of fairness and it’s implications

» 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 10:00am

Keynote: The Changing Nature of Canadian Construction Demographics microphone-alt 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.

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Shaun Hashim, Solicitor, Toronto Transition Commission 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.

12:30pm Networking Luncheon

• Best practices for scaffolding safety and fall protection that meet OHSA requirements • Ensuring machine and equipment safety is completed in accordance with safety guidelines

1:30pm

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

3:15pm

microphone-alt Erika Carrasco, Partner, Field Law LLP

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

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

Afternoon Break

3:30pm

microphone-alt Lauren O’Malley, Sustainability Specialist, Aecon Group Inc. Matthew Gardner, Partner, Environmental Law Specialist, Willms & Shier Environmental Lawyers LLP 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:

» Understanding open source, and what happens to the information or materials you put “online” through platforms like ChatGPT

• Knowing the standards to follow, what to measure and which metrics to compile when developing and implementing environmental goals

• Ensuring your privacy and data protection programs meet the demands of provincial, national, and international privacy laws

• Learning the environmental statutes that apply to construction, including the Excess Soil Act, and the penalties of non-compliance

• Developing cyber-security protocols to protect your data

» Understanding the proposed amendments to Ontario’s Excess Soil Act

• Learning how to respond to breaches or theft of data

» Considering the Supply Chain due diligence law proposed by the EU and whether it applies to your business partners

• Discovering the best and newest strategies for data management 2:15pm

What Every Construction Professional Needs to Know About Health and Safety on Today’s Construction Site: Critical and Practical Tips microphone-alt John Illingworth, Partner, Mathews, Dinsdale & Clark LLP Enzo Garritano, President and CEO, Infrastructure Health and Safety Association (IHSA) Aaron Hamill, Health and Safety Manager, Acquicon Construction In the fast-paced realm of construction, safety is critical 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

• Discovering the tax incentives, credits, and loans available to environmentally friendly construction companies and projects 4:15 pm

ADJUDICATOR’S ROUNDTABLE

A Retrospective on Adjudication in Ontario: Shortcomings, Successes, and Global Lessons for Construction Professionals microphone-alt Moderator: Howard Krupat, Partner, DLA Piper Chad Kopach, Partner and ODACC Adjudicator, Blaney McMurtry LLP Lindsay Reynolds, Principal Project Manager & ODACC Adjudicator, Hancock & MacArthur Inc. 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.

5:15pm

Conference Ends

» 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

Media Partners

• Strategies for effective and proper safety training and creating a culture of safety that resonates with employees

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