The Voice of the West Coast Wall and Ceiling Industry • www.thetrowel.ca • Fall 2019
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Prompt Payment in Canada
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Best VIWCA Project 2019 Bridging the Generation Gap
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The Voice of the West Coast Wall and Ceiling Industry • www.thetrowel.ca • Fall 2019
Font style: Silom
Prompt Payment in Canada
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Best VIWCA Project 2019 Bridging the Generation Gap
The Trowel team Jessica Kirby, Publisher / Editor 250.816.3671 • jkirby@pointonemedia.com Christina Tranberg, Advertising Sales 877.755.2762 ext 1408 • ctranberg@pointonemedia.com Lara Perraton, Creatives 877.755.2762 • lperraton@pointonemedia.com
contributing writers Mark Breslin Andrew Delmonico Deb Draper Roger Gillot Jason Krankota Ted Lewis Drew Smith Richard Wong
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cover photo Courtesy of Gordon n’ Gordon Interiors Ltd.
CONTENTS • FALL 2019 6 Canadian Prompt Payment and Construction Law
Published bi-monthly by Point One Media, Inc. The Trowel P.O. Box 11, Station A Nanaimo, BC V9R 5K4 t: 877.755.2762 • www.thetrowel.ca While information contained in this publication has been compiled from sources deemed to be reliable, the publisher may not be held liable for omissions or errors. Contents ©2019 by Point One Media Inc. All rights reserved. No part of this publication may be reproduced or duplicated without prior written permission from the publisher. Printed in Canada. Postage paid at Coquitlam, BC. Return postage guaranteed. Canada Post Canadian Publications Mail Sales Product Agreement #40719512. Return undeliverable Canadian addresses to: The Trowel Circulation Department
Reforms
How recent developments are impacting the Canadian construction and infrastructure sector.
8 Attention to Detail and Intricate Coordination
The 1515 Douglas St – 750 Pandora Ave project was a winning combination for Gordon ‘n’ Gordon Interiors Ltd.
10 Bridging the Generation Gap
Positive intergenerational work teams depend on co-operation, common ground, and seeing the best in one another.
P.O. Box 11, Station A Nanaimo, BC V9R 5K4 e: circulations@pointonemedia.com
Departments & Columns Journal of Record for
The Trowel is a registered trademark of the BC Wall & Ceiling Association. The Trowel is published six times per year expressly for members of the wall and ceiling industry.
04 editorial
13 it’s the law
05 drew’s rant
14 contractors’ advice
12 around the world
15 advertiser index
editor’s COMMENT Lead the Way Leadership is the kind of thing we all think we understand equally. Ask everyone in a room of people to picture what a strong leader should look and act like, and they will all formulate images in their minds that reflect their personal values. Each will assume his or her vision of leadership is more or less the same as everyone else’s, but really, this is a more complex term than people imagine. The truth is, the kind of person we respond to as a leader— and the kind of person we become when we are in charge— is deeply personal and idiosyncratic since it is based on our lived and working experiences. A person who has been yelled at his or her whole life may be a yeller, too—or the exact opposite. Someone who has always been praised for being funny will likely infuse their leadership style with humour, while someone more introverted may work harder at leading by example than by verbal communication. In the evolving future of the construction workplace, preconceived notions of leadership are extremely important— important to observe and then discard. Physical and emotional stereotypes we may hold about what makes a good owner, foreperson, or project manager aren’t going to ring true as they may have a decade ago, and individuals we may not be able to envisage as leaders are going to surprise us, I promise you. But all that is speculation—the most important thing to embrace as a construction leader in today’s climate is adaptation. It is time to think outside the box and entertain new methods for leading the pack. That means soliciting feedback from employees and putting it into action whenever possible. It means when a worker or an apprentice comes to you and asks you to consider a new system or way of operating, and that person has clearly thought this through and done their homework, say “Yes” whenever possible, even if it just on a trial basis. Read everything you see and don’t assume anything is off the table (unless it is completely ridiculous—you will know the difference; that’s why you’re the boss). Notice, too, that I said, “entertain new methods for leading
SAVE THE DATE BC Wall & Ceiling Association Events September 17-19, 2020 - Western Wall & Ceiling Convention, Victoria, BC Join delegates from across Western Canada as they gather for workshops, presentations, a table top tradeshow, and plenty of networking opportunities. Save the dates and plan to attend. For more information watch your email and visit www.bcwca.org for updates.
4 » The Trowel
By / Jessica Kirby, Editor
When a worker or an apprentice comes to you and asks you to consider a new system or way of operating, and that person has clearly thought this through and done their homework, say “Yes” whenever possible. the pack”. That means the practical execution of your goals and vision can change—but not your values. If worth ethic, accountability, personal strength, honesty, integrity, and good old fashioned hard work are what drive your business (and they should be) then stand by that with all you have. But that doesn’t mean you can’t try new ways to achieve those things. Think of it as finding new roads to the same destination, that destination being profitability, job satisfaction, cohesive and reliable crews, and general well-being and growth. Leadership isn’t the same thing for everyone, and we all have our ways of getting our points across. Born leaders take charge instinctually and built leaders rise to the top learning from the wisdom and direction of others. Either way, we all bring something to the table and sharing it is what makes business sustainable. Being the kind of leader who opens up to others’ ideas ensures a diverse, innovative company culture and it encourages buy-in from employees who understand their ideas matter. You can’t buy that kind of investment, you can’t force it, and you certainly can’t fake it. So, start tomorrow. The industry, in its state of demographic shift and technological change, is begging for your attention and for the ideas of those who will bring it into the future. All you have to do is lead the way. ▪
industry NEWS PARTICIPATION RIBBON? NOPE! Good day, readers. I have been on a hiatus from my column— my apologies. The industry came calling me back to site, management, and supervision on top of my obligations to training our youth as your BC Wall and Ceiling Association (BCWCA) instructor. I’ve been a little busy, so to speak. Nothing that’s new to all of you, I’m sure. In this column I will write truly living up to its title: “Drew’s Rant”. You have been forewarned. I hope you are sitting down. First, some abbreviated historical set up. The BCWCA and the Finishing Trades Institute (FTI) along with our member companies and the Industry Training Authority (ITA) have analyzed, redesigned, and developed a more up-to-date training system for delivery to our wall and ceiling apprentices. This process has taken an enormous amount of effort by all aforementioned parties spanning in excess of two years. I bring to the attention of readers that we have changed from a two-visit, Module A/B, Module C/D curriculum to a threevisit, Level 1, 2, 3 system of information delivery. This new process of delivering the curriculum allows the apprentice to receive a more enhanced presentation of our material and also requires that a candidate for Red Seal certification achieves a work-based training hour bank of 1,500-2,000 hours more than previously required to qualify. Note, with contractors’ blessing. It is our intent and hope that, at the conclusion of their theory and practical experience at your training facilities, we are able to develop a higher standard of candidate to set on the final path to Red Seal certification as a wall and ceiling installer. I trust I can speak for both the FTI and the BCWCA when I say neither facility is interested in “pumping out” Red Seal journeypersons. We do, in fact, feel your pain. Thus, the changes to our processes needed to be addressed. We have received feedback from our contractors that confirm our suspicions: the apprentices need more theory and further training onsite to develop their craft. In short, the employers were not entirely satisfied with the “new journeypersons” running around waving their Red Seal tickets and still not being totally confident in their ability to produce for their employers. Their value and knowledge base wasn’t developed to the standard employers were expecting. I have to agree with these concerns. The rant starts here. I am so damn tired of hearing from our youth that they “just want to get it over with”. That is, get training over with. Not all have that attitude, but there are too many who do. They want to get that Red Seal certification so their learning process
By / Drew Smith, BCWCA is over. Here’s a wake up call! If you ever stop learning, you will fail—insert expletives here. Both the FTI and the BCWCA consistently strive to deliver the highest quality of instruction, in theory through developed curriculum, and in hands-on training through our in shop projects. This is our sole mission. To teach. We are not running a “sports day”. We do not hand out “participation ribbons” at your training facilities. Your apprentices are expected to be punctual—insert laugh track here—and they are expected to study and work hard. They are expected to earn and show us that they are worthy of achieving their Red Seal certification. This is our mission. Our contractor members expect, or rather demand, that when you send us your valued youth to learn at our facilities, we do our job. Train and inform the apprentices. Some may pick it up quickly, comprehend and soak it up. Some apprentices put in truly outstanding effort to succeed. They are deserving of our respect and our efforts to work with them. Then there are some who are just going through the motions to pass the time. The individuals that truly put in the effort to succeed will not fail. Those that do not put in the effort will, hopefully, continue to learn and strive to turn their attitudes around for the employers supporting them and for the benefit of themselves as tradespeople. We are not handing out “participation ribbons”. The career choice to be a wall and ceiling installer can and should be a bright, prosperous future for our youth. One must earn it, and own it. I’ve gotta wrap it up here, folks. Time to check my blood pressure—insert sarcastic laughter here. Rant concludes. Keep the dream alive. Send us your future leaders and we will endeavour to send them back a little more rounded, knowledgeable, and, possibly, a little black and blue, but definitely more resilient and proud of their true achievements. Until next time, Cheers! ▪ wallandceiling.ca » Fall 2019 » 5
How recent developments are impacting the Canadian Construction and infrastructure sector
By / Richard Wong and Roger Gillot Reprinted with permission from Osler. See www.osler.com The prompt payment movement is spreading throughout Canada, and it is critical for players in the Canadian construction and infrastructure sector – including owners, developers, contractors, sub-contractors, lenders, construction managers, architects and engineers – to be aware of ongoing developments and the related implications so they can prepare and respond effectively. As many know, on December 12, 2017, Ontario’s Bill 142 introduced sweeping reforms to the Construction Lien Act. Based on the recommendations of an in-depth report commissioned by the Ontario government in 2015 and released in 2016, the reforms included a prompt payment regime, adjudication of construction disputes and implementation of various technical amendments to modernize the Act. The changing nature of the legislation, expanding beyond traditional construction liens, was also reflected in its new name: the Construction Act. To provide industry participants with sufficient time to prepare for the changes, the Ontario government staggered their implementation, with the technical amendments which came into force on July 1, 2018, and prompt payment and mandatory adjudication, which came into force on October 1, 2019. The adjudication process will be administered and overseen by an Authorized Nominating Authority known as Ontario Dispute Adjudication for Construction Contracts (ODACC), as described in our Update. The other amendments include transitional provisions pursuant to which certain 6 » The Trowel
© Can Stock Photo / Leaf
Canadian Prompt Payment and Construction Law Reforms
improvements or contracts will be “grandfathered” and subject to the Construction Lien Act or Construction Act as it read prior to the amendments taking effect. Prompt payment and adjudication have gained significant momentum in Canada as the federal and other provincial governments have considered various aspects of Ontario’s new Construction Act in the context of their own jurisdictions: In Nova Scotia, the Builders’ Lien Act was amended by Bill 119, which received royal assent on April 12, 2019. The act was renamed Builders’ Lien and Prompt Payment Act. Although the bill introduces concepts from Ontario’s new prompt payment regime, it seems to take a narrower approach as regards availability of adjudication. The amendment limits availability of adjudication to disputes that are the “subject of a notice of non-payment.” Unless exempted by the regulations, the amendments are applicable to contracts and subcontracts made after the date of enactment. Our team is monitoring the progress, as we await regulations prescribing application of the amendment, payment timelines, adjudication procedures and details regarding notice of non-payment. In Saskatchewan, Bill 152 to amend The Builders’ Lien Act was introduced on November 20, 2018, and received royal assent on May 15, 2019. The bill introduces a prompt payment and adjudication regime similar to Ontario. Further, the amendments include transition provisions pursuant to which certain contracts will be “grandfathered” and subject to the act as it read prior to the amendments taking effect. As it prepared the regulations to accompany the amendments to
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In British Columbia, Bill M223, titled the Builders Lien (Prompt Payment) Amendment Act, 2019 was introduced to the Legislative Assembly of British Columbia on May 28, 2019. Unlike the Ontario legislation, the B.C. bill introduces a prompt payment regime with no mention of an adjudication mechanism other than a requirement to provide an undertaking to refer the matter to adjudication as a part of notice of nonpayment. In September 2019, the British Columbia Law Institute issued a consultation paper on the Builders Lien Act with 80 tentative recommendations and invites responses from the stakeholders by January 15, 2020. It is worth noting that the consultation paper does not treat prompt payment as a separate subject, because it believes that payment delays in construction projects are not exclusively related to the Builders Lien Act.
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In Québec, Bill 108, which received royal assent on December 1, 2017, authorizes the implementation of pilot projects aimed at testing various construction law reforms for public contracts and subcontracts. The measures to be tested include a prompt payment regime and adjudication. In Alberta, starting in April 2016, Alberta Infrastructure began implementing prompt payment clauses in its various contracts.
The Canadian construction and infrastructure sector should be keeping a watchful eye on developments in individual provinces and federally. By staying informed – and engaging legal experts with proven experience and know-how – industry participants can ensure that their projects are structured in the most effective way while mitigating the risk of encountering serious issues and minimizing the potential of unforeseen delays and cost overruns. ▪
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In Manitoba, an independent prompt payment regime was proposed by Bill 218, which passed first and second reading in April 2018, but died in November 2018. On November 19, 2018, the Manitoba Law Reform Commission released its final report titled The Builders’ Liens Act of Manitoba: A Modernized Approach, which recommended the introduction of a prompt payment and adjudication regime, among others. Private member’s Bill 245, titled The Prompt Payments in the Construction Industry Act, was introduced on June 3, 2019.
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In New Brunswick, the Legislative Services Branch of the Office of the Attorney General published two sets of Law Reform Notes proposing the replacement of Mechanics’ Lien Act with a modernized Construction Act largely based on the Ontario reforms. Law Reform Notes #40 released in December 2017 dealt with modernization of structure of language. Law Reform Notes #41 released in May 2018 addresses prompt payment and adjudication. While Note #41 recommends adopting a prompt payment scheme similar to Ontario’s and agrees that a prompt payment scheme must be accompanied by an expedited dispute resolution mechanism, given the GDP of the construction industry in New Brunswick, the authors remain unsure as to whether Ontario’s adjudication scheme is appropriate for New Brunswick.
in the House of Commons, which includes the Federal Prompt Payment for Construction Work Act. The bill received royal assent on June 21, 2019, but the Cabinet has yet to determine the date this law becomes effective. The proposed legislation is surprisingly distinct from the Ontario legislation as regards its transition provisions. Construction contracts existing before the enactment of new legislation are not grandfathered; rather they will also be subject to new legislation from one year of coming into effect. In addressing stakeholders’ concerns regarding consistency and legislative alignment, under the new legislation, the Governor in Council may exempt designated provinces from application of the proposed legislation. In granting exemption, the Governor will take into account whether a province has a prompt payment or adjudication regime “reasonably similar” to the federal legislation. This may disrupt existing contracts mid-performance to provide for contractual clarity or compliance with the new legislation.
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the act, the Ministry of Justice had sought comments from the public by August 30, 2019.
1-877-678-6565 DeltaQuotes@Steeler.com SHAPING SKYLINES SINCE 1974 wallandceiling.ca » Fall 2019 » 7
Attention to Detail and Intricate Coordination A Winning Combination for Gordon ‘n’ Gordon Interiors Ltd. By / Deb Draper Photos by / Gordon ‘n’ Gordon Interiors Ltd.
The BC Wall and Ceiling Association has awarded the Best VIWCA Project of 2019 to Gordon ‘n’ Gordon Interiors Ltd. for its challenging work on the spectacular new office complex across from the historic city hall in downtown Victoria. With the completion of this project, developer Jawl Properties has added approximately 285,000 square feet of office space to the Victoria business community at 1515 Douglas Street and 750 Pandora Avenue. The two buildings—a six-storey low-rise at the front on Douglas joined by a glass concourse to the 12-storey tower in the back on Pandora—were designed by D’Ambrosio Architecture & Urbanism and delivered by general contractor Campbell Construction. 8 » The Trowel
Both buildings have achieved Class AA LEED Platinum certification under the exacting and rigorous v2009 Core & Shell system for office and retail buildings. This means, among other criteria, increased energy efficiency and the provision of excellent indoor environment quality. For Gordon ‘n’ Gordon, commercial and residential wall and ceiling specialists working on the project, that meant meeting some large challenges beyond the company’s usual scope of work. First, a hybrid air-source/geothermal heat pump plant was designed and installed to deliver heating and cooling to the office spaces through modular radiant ceiling panels—
excellent for regulating temperature but also creating the need for perfect planning and building precision to exactly meet the designed fit. Colby Messer, a manager with Gordon ‘n’ Gordon, explains the company’s scope of work and the areas where extra coordination was especially needed. “We did all the walls and drywall ceilings,” says Messer. “We also helped with the radiant ceiling panels, although that was not our contract. The issue was that the access floor and those panels had to be installed before some of the other walls and demountable partitions could be constructed.” To accomplish this, along with the unusually large size of the building—normally about 8,000 feet per floor area for a highrise compared to 30,000 feet for this project—the company had to run a much larger crew, two to three times larger. “With all the intricacies of the building, the mechanical, the electrical involved with those radiant ceilings, everything had to be really well-coordinated,” Messer says. And then there was the 2,600-square-foot, 20-metre-high skylit rotunda atrium in the six-storey building on Douglas Street. Six radial boomerang-shaped glulam beam columns are connected by a three-metre steel ring beam in the centre with 30 mm tension rods below each. The unique timber structure supports the skylight with its two-storey cast-glass interior façade. The radiant ceilings brought further challenges when it came to building the curved walls and bulkheads that formed the rotunda. Because radiant ceiling panels ran into these walls on all the levels, there was absolutely no room for error in
fitting. And with those radiant ceiling panels being designed and built in Italy with months of lead time required, any adjustments to the system on site were simply not an option. Messer adds, “The exterior walls, made with terra cotta panels, are also from Italy, so we had to coordinate to meet all those shipping dates, as well. They would bring in one section of the building at a time, and we had to be ready for them—a bit different process from what we normally would do.” Gordon ‘n’ Gordon has been working on the project for three years, and although the main scope of the company’s involvement is now finished, a crew is still there completing tenant improvements. “This was certainly an interesting project with the level of planning involved and the systems in the building that we had to work around,” Messer says. “All that ceiling work, the materials coming in at different times… it took a lot of coordination, that’s for sure.” But working closely with suppliers, Slegg Building Materials and Foundation Building Materials (FBM), the company made it happen. It is through such attention to detail and scheduling, along with a mountain of coordination, that Gordon ‘n’ Gordon Interiors earned this year’s Best VIWCA Project award—a recognition well-deserved and appreciated by all in the industry and by the public who can now enjoy this amazing beautiful office complex. ▪ wallandceiling.ca » Fall 2019 » 9
BRIDGING © Can Stock Photo / Goodluz
the Generation Gap
By / Jessica Kirby
The question on everyone’s mind in the age of digital technology, where even the construction industry is feeling pressure to adapt, is how do we bridge the gap between the experienced generation and new comers to the industry? What can we say, do, and implement to ensure traditional knowledge finds a new home among the next generation, and that contemporary workplaces don’t squash innovation in the name of “the way things were”? The answer is complex. Mark Breslin is an author, speaker, and CEO specializing in workplace success across all levels of business. Having spoken to more than 400,000 people over his career, he has seen his share of workplace disconnect, including that between generations. He points out key benefits young people bring to the construction trades. “They have the ability to quickly adapt to the new technology,” Breslin says. “They offer low ego and high emotional intelligence, and they are innovators. They aren’t intuitively ‛back in the day’ thinkers.” But what about the ‛back in the day’ thinkers and the value they bring to the workplace? In an article for Construction 10 » The Trowel
Business Owner, author John Roshala says the longest-serving employees are baby boomers who “display specialized skill sets and dedication to management and professionalism.” They may also be slower to adapt to new technology, which brings us to an important point: how do we make the best of all that these generations bring to the trade? There are a few ways. Create harmonious teams or mentoring relationships, which means matching a variety of skills to create a completely functional working entity. Leaders should be creating teams that include a cross-section of generational knowledge and technique. Ignore age and focus on experience to avoid overt stereotypes. Make sure members of the more experienced workforce can bring knowledge to those just starting out, and set up opportunities for new recruits to share their passion for creativity and innovation. When people with various perspectives and approaches see they can work together and complement one another’s strengths, great things can happen. Keep everyone connected and engaged. There is a gross overgeneralization that millennials need 24/7 coaching and
positive feedback, but the reality is many people of all ages and experience levels appreciate guidance, feedback, and general acknowledgement. It is a leader’s job to determine who needs a text every time a task is finished and who needs a few words every two weeks, but regardless of these differences making feedback part of the workplace culture evens the playing field and ensures no one is singled out for enjoying it. Foster innovation in your teams. Like it or not, technology is here to stay. Bridge the gap among employees with varying feelings about this inevitability by tasking them with researching— together—the best software for the job. There is no denying ownership promotes pride, and finding a crossgenerational team to recommend a way forward for the team will also foster adoption and buy-in. Recruiting young people will take some of the innovation company owners would like to see in their employees. Watch for soft skills, attitude, and behaviour. There is very little by way of practical skills that a student or apprentice can not learn, but what about work ethic? Responsibility?
Accountability? Assuming these are characteristics an employer is seeking in his or her employees, these are the characteristics that should be highlighted when hiring. Focusing less on what new hires can do and more on who they are can help eliminate some of the intergenerational stresses that arise. Breslin says a company’s online presence matters in recruitment like it never has before. “Tell your story effectively or suffer,” he says. “Attempt to become a Best Workplace winner, and have existing young people in the company participate in recruitment efforts.” Inc.com, for instance, collects feedback on workplace satisfaction and lists winners in its annual Best Workplaces survey. The information forms a searchable database of workplaces ranked high by their employees, and the website encourages browsers to use it to find the qualities in a workplace they are most proud of. “In a tight labor market, these businesses are out to nab top-performing employees by making life on the job ever more rewarding,” says Inc.com. “You can search this year’s list by state, industry,
company size, and benefits—including generous parental leave, onsite medical and fitness, pet-friendly policies, tuition reimbursement, and more.” Would your company make the list? Being introspective and honest with what you discover takes courage, but it is an investment in yourself and your business that you can’t afford to avoid. Trade contractors who make the list and succeed at recruitment follow some key points. They are forwardthinking, open to new ideas, and still true to their founding values of quality, craftsmanship, and value. Breslin adds that contractors also need to invest in their workforce, young or old. “Have a career path plan for new people,” he says. “It is important to interview and evaluate candidates effectively, and to have a serious training budget.” It is time to stop buying into stereotypes and start seeing individuals for the value they bring to the workplace. When we choose to meet on common ground and see both strengths and weaknesses as opportunities for growth, we will begin to close the gap and move into a brighter collective future for all. ▪
BRIDGING THE GAP: KEY MESSAGES THAT APPEAL TO WORKERS ACROSS THE AGES Showcase how a job in the trades solves everyday problems and makes a difference in people’s lives. Promote job security, including living wage, pension, and benefits. Integrate technology thoughtfully—adoption for the sake of it is worse than not using technology at all. Think about ease of use, learning curve, and its effectiveness at eliminating mundane tasks. Use real life stories to sell recruitment. Use social media. Even certain platforms are moving into realms of “current” and “for old people” so a broad social media strategy should reach everyone. Reward hard work of all kinds—physical accomplishment, creativity in the work place, problem-solving, or meeting a company or personal goal all deserve recognition, not necessarily for the task itself but for the determination and drive it took to get there.
wallandceiling.ca » Fall 2019 » 11
around the WORLD WORLDLY RESTORATION The Great Stupa of Dharmakaya in Colorado’s Shambhala Mountain Center recently received an eye-catching exterior restoration Rising among wooded Colorado hillsides, The Great Stupa of Dharmakaya crowns a meadow at the upper end of Shambhala Mountain Center’s main valley. Standing 108 feet tall, it is one of the most significant examples of sacred Buddhist architecture in North America. Designed to last 1,000 years, The Great Stupa was built with the most advanced materials available to help it withstand the harsh climate at the elevated mountain site. Restoring the dramatic gateways with a high-performance protective coating was overdue, as the paint on the intricately ornamented arches and support columns was significantly faded, chipping, and flaking in the 11 years since its last paint job. Supporters of The Great Stupa wanted a rejuvenated look to radiate richness for a very long time.
APV Engineered Coatings custom-matched 15 rich and vibrant colors for the project, which were delicately applied to the detailed surface lined with gold leaf. Now, the bold and colorful exterior is ready for a long life in the extreme environmental conditions of the Rocky Mountains.
Painting the many different ornamental shapes was a very slow process due to the precision required and the team’s high standards of perfection. Vibrancy and colour were important considerations in the coating selection, says Joshua Mulder, director of art and design for the restoration. “We wanted to make the gateways look as beautiful as we could and for the rejuvenated look to radiate brightness and richness for a very long time.”
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While NeverFade® Coatings typically are applied by manufacturer-approved or certified contractors, in this instance, The Great Stupa assembled a team of volunteers to handle the job. Prior to applying the topcoat, workers pressurecleaned the concrete substrate and made sure no chalking was left on the surface. Over the course of a week, the painting crew reached a preliminary goal of restoring one gateway and about 25 percent of a second gateway. Project manager Bob King explained that the painting was a very slow process due to the precision required and the team’s high standards of perfection. “We were applying the coating with very small brushes and there were a lot of cut-ins, multiple colours to work with, and many different ornamental shapes,” he says. “We were impressed with the coating system’s extreme weatherability and extended service life performance, which is backed up with a 15-year product and labour warranty against colour fading,” says Richard Assaly, lead painter for the project. “It was the ideal solution to meet the challenging goals of the restoration work.”
it’s the LAW “EXTRA, EXTRA”: UNDERSTANDING AND PROPERLY CLAIMING FOR EXTRA WORK Costs of additional or unanticipated work or “extras” can be a source of dispute during a construction project—especially when there is no mechanism in place to define the rights of subcontractors, contractors, and owners with respect to these costs. Whether or not the work was in fact “extra,” or instead a part of the original scope, is also a frequent point of contention. The case of Diamond 11 Excavating and Demolition Ltd. v Dhunna, 2018 BCSC 2230, offers a cautionary tale of a subcontractor who was recently denied payment for significant amounts in alleged extra work. The Facts The Defendant property owner (the “Owner”) and general contractor (the “Contractor”) retained the plaintiff subcontractor (the “Subcontractor”) to perform demolition work and provide assorted excavation services (the “Work”) on two properties in West Vancouver. The Subcontractor quoted a price of $75,000 for the Work at each property. The subcontract entered into between the Contractor and the Subcontractor did not specifically provide for extras. The Subcontractor took significantly longer in executing the Work than was typical, and also claimed numerous extras after it left the sites. For instance, at one of the properties, the Subcontractor invoiced extras for drywall dumping and associated fees, extra gravel and dirt hauling, extra digging and loading, machine time, and machine rentals and delivery, totalling over $91,000. For the other project, the Subcontractor invoiced for similar extras, as well as a specialist for the removal of drywall, totalling approximately $35,000. The Contractor and the Owner disputed the full amount invoiced for the Subcontractor’s extras, saying either that the extras were included in the subcontract price or that they were not agreed to. The Decision The Court ultimately denied the Subcontractor’s claims for extras. In its decision, the Court reviewed the general test for
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By / Andrew D.R. Delmonico (left) and Ted Lewis (right), Kuhn LLP
determining liability for extra work as follows: (1) the work performed must, in fact, be extra, in the sense that it is not within the scope of the work originally contemplated by the contract; (2) if outside the scope, the owner must expressly or impliedly authorize the work; (3) the owner must be informed or necessarily aware that the extra work would increase the cost; and (4) the owner must waive relevant change provisions under the contract (if applicable). The Court also noted that, in determining compensation for extras, parties may (in the absence of a mechanism for determining the price) be presumed to have intended a reasonable price, which may be implied as a term of the contract. Applying these factors, the Court was not persuaded the Subcontractor had properly charged for extras, determining for some claims that there was a lack of evidence to resolve whether the extras were owing, and in other cases finding that the amount invoiced as “extra” work was actually within the scope of the original subcontract price. Lessons Learned 1. A contractual mechanism dealing with changes to the scope of work is essential to a proper construction contract. It is prudent to ensure that your contract contains such a mechanism, and if so that you are actually following all contractual requirements in practice. 2. Be careful in relying on claims for extras to make up for a job that is simply underbid. Work that falls within the scope of work will not be treated as an extra allowing you continued on page 15
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contractors 101 A MILLION MILES LATER, SOME THINGS NEVER CHANGE Last month I was flying along, minding my own business, when the flight attendant came up to me. In the crowded cabin she announced to me and the other passengers that on this flight I would pass one million miles flying on United. Everyone clapped. I sat there stunned. A thousand presentations and four hundred thousand people later—and now, a million miles. My thoughts were interrupted by the woman next to me. She asked, “So what do you get for a million miles?” And before I could think, it just popped out of my mouth. “You get an ex-wife.” Everyone howled with laughter. So, after that many miles and years, I want to take an inventory on what has changed or improved in our industry and what has remained the same. With pretty much unlimited access to the owner community—construction CEOs and International presidents, learning specialists, training directors, business managers, field leaders, rank-and-file union members, and even apprentices—here are my findings for your consideration. The Good 1. Unions are much more businesslike and ROI-focused. The old school, status-quo dinosaurs have finally died off. The younger leaders are more professional and often getting it done. 2. Our safety culture is outstanding and remarkable in its depth and execution. 3. Accountability and performance matter. Finally. 4. Negotiated work becoming dominant has changed a lot of the low-bid mentality and bad business practices. 5. The amount of resources now dedicated to training is unprecedented and noteworthy. 6. The new generation of leadership has way more emotional and social intelligence and uses it well. 7. Contractors are finally focusing on people as their most valuable assets and investing in them at a level not seen before. Recruitment and retention are part of any successful contractor’s strategy for the first time. 8. The Millennial apprentices I meet today are better educated, more open to change, highly optimistic, and will change the game for our industry (despite their “issues”). The Bad 1. The stigma about working in our industry still exists. Parents, teachers, and counselors still don’t get the amazing opportunity. But at least the value of a college education (and debt) is up for debate. 14 » The Trowel
By / Mark Breslin
2. The intake system for apprentices in union construction still sucks. It is often disjointed and lacks proper testing, interview, and other protocols, leading to 10-30% drop outs and the entry of marginal candidates. We can do much better. 3. The structure of most major unions has not changed much, nor have there been the mergers or consolidation that were expected to increase resources, leverage economies of scale, and reduce union politics as an obstacle to change. 4. The state of training and development by most contractors for their field leaders is pathetic. Field leaders who manage tens to hundreds of millions of dollars in a career still rarely get any form of leadership and management training—and that falls squarely on contractors for their apathy. 5. Many owners still treat contractors poorly. Transfer of risk has become a high art: brutal specifications, insane schedules, poor designs, lack of communication, untimely responses, overreach by retained CMs, and a lot more— despite a full two decades of “partnering,” it still looks to me like the owner community has a long way to go. The Ugly 1. The other day, at a program for 200 field leaders made up of many companies, I asked how many of them had received praise and recognition for their work in the last month. Not one of them raised their hand. That is a broken “tough guy” culture that has yet to change. 2. Last month, I asked 500 apprentices how many of them had already heard on the jobsite the phrases, “You’re not paid to think” or “You get paid from the neck down.” Every hand went up. That, too, is a broken culture that needs to change. 3. Our industry is still often not a safe and supportive place for women and minorities to grow and succeed. Hard to believe in 2019, but there it is. In summary, I am actually very optimistic about change and our industry. Yes, it is taking a while. Yes, we probably could have moved faster on a lot of this. But every day now, I see and feel the hunger for more change and a culture of “better, faster, smarter and safer.” And its pace can be shocking. What I thought might be a little experiment in 2018 with microcontinued on page 15
advertiser INDEX INDUSTRY NEWS
IT’S THE LAW
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additional compensation. Only if the work is outside that scope can it really be considered an “extra” permitting an adjustment to the contract price. 3. Clear communication on extra work is vital. Make sure that, if you anticipate extra work, you advise the owner of the anticipated change and cost increases as soon as possible (and in any event as required by the construction contract). ▪ This article was written by Andrew D.R. Delmonico, a lawyer, and Ted Lewis, an articled student, who practice in construction law with the law firm of Kuhn LLP. This article is only intended as a guide and cannot cover every situation. It is important to get legal advice for specific situations. If you have any questions or comments about this case or other construction law matters, please contact us at 604.864.8877 (Abbotsford) or 604.684.8668 (Vancouver)
CONTRACTORS 101
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learning leadership video training resulted in contractors and unions putting 15,000 field leaders on the system in one year, blowing my mind and confirming that there is more momentum, belief, investment, and care for our workforce than meets the eye.
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As well, what makes me really happy is seeing a holistic change where employers and unions are focusing on our workforce as people—not looking at them as a commodity, a vote to be reelected, or a set of skills to be used for a jobsite function. I feel the care out there, and so do those working for you. I can say for certain that was absent when I got on that first flight way back when. Finally, I’d like to correct the record. The woman who asked about the million miles? I gave her the wrong answer. The real answer is for all those miles, I was gifted an opportunity to make a difference—for an industry and for individuals. It’s the same opportunity every reader of this article has every day in our industry. Let us all use it well to create positive change. Many are counting on us to do so. ▪ Mark Breslin is an author, speaker, CEO and influencer inspiring change for workplace success across all levels of business. Mark has improved leadership, accountability, innovation, and engagement for organizations and individuals. He has spoken to more than 400,000 people and published hundreds of thousands of books on leadership and workplace culture. See his work at www.breslin.biz
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