4 LEXPERT
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2019
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WWW.LEXPERT.CA
TOP 10 DEALS
THE 2018 DEAL YEAR was full of consolidation — both domestically and globally.
In the Cannabis sector, that theme promises to continue, perhaps with some casualties.
Moreover, the complications in the Canada-US relationship last year came up on a few of
the Top 10 Deals and on several of the Honourable Mentions. Here are the Top 10 Deals
and More from Lexpert® Magazine based on Lexpert-ranked lawyer feedback.
THIS WAS A
YEAR IN WHICH
LAWYERS SUPERBLY
EXERCISED THE ART
OF NEGOTIATION…
AND OPENED A NEW
FRONTIER…AND SET OUT
TO BUILD A BRIDGE
BY JEAN CUMMING
Lexpert
Magazine:
Top 10 Deals
1
Gordie Howe International
Bridge Project
It had long occurred to observers that hav-
ing the Windsor-Detroit road bridge be-
tween the two countries owned and con-
trolled by a private US citizen presented a
vulnerability — especially for Canada. Plus,
there were issues with the state of repair and
location of the Ambassador Bridge. en
Prime Minister Stephen Harper wanted
a change; and so did Governor Snyder of
Michigan — despite opposition.
According to Brian Kelsall, who, with
Tom Barlow, led the Fasken Martineau Du-
Moulin LLP team: "with strong leadership
on both sides of the border, the concept
of a crossing agreement between Canada
and the United States was developed. is
agreement would mandate the creation of
an international authority, the Windsor-
Detroit Bridge Authority (the "WDBA")
to be overseen by an international board
(the "IA") with representatives from both
countries. Canada would pay for the GH
Project in its entirety, hence avoiding the
legislative pitfall in Michigan and in return
Canada would receive all of the tolls until it
had recouped its investment.
"In addition, and importantly, it was
recognized by both Canada and Michigan
that the procurement methodology for the
GH Project would be a P3 following the
Canadian model. is model was seen to
be the most effective in allowing all of the
various constituents, the two countries,
Detroit and Windsor, all of the various
municipalities, First Nations, border secu-
rity, etc. to have a voice while at the same
time mandating an independent authority
to drive the project to completion. Fasken
was hired to represent Canada, the WDBA
and the IA for the GH Project in 2010. e
Crossing Agreement took shape in around
2012 with amendments through to 2017.
With this document in place along with the
Presidential Permit, the project was ready to
commence procurement."
e WDBA announced on September
28, 2018, that "we have signed a fixed-
priced contract with Bridging North Amer-
ica to design, build, finance, operate and
maintain the Gordie Howe International
Bridge project. e announcement also
signified that all contractual steps have been
completed and construction can begin.
"e fixed-priced contract is valued at
$5.7 billion (nominal value), which in-
cludes the design-build (DB) phase and
the operation, maintenance, rehabilitation
(OMR) phase. Bridging North America
will receive progress payments during con-
struction and a substantial completion
payment at the end of construction. ey
will also receive monthly payments for op-
erations and maintenance over the 30-year
concession (operating ) period.
"Bridging North America has presented
a 74-month construction schedule to com-
plete the four components of the project
with the bridge scheduled to be in service
by the end of 2024."
ere had been myriad legal challenges
over those years, not the least of which was
the consistent and litigious opposition of
the private citizen owner. ere was also the
issue of situating the legal border between
the two countries. As Kelsall wrote, the bor-
der between the two countries was by law in
the middle of the river. "us, the WDBA
and its counsel had to contend with the fact
that there were two sets of laws applicable
to the construction of the entire project.
Picture a truck driving from the Canadian
side to the American side and doing work
on the American side and then returning.
Which Construction Lien Act rules apply,
which taxes, which environmental laws?
"To deal with these multiple jurisdiction-
al issues the team had to take cognizance
of all of the applicable laws applying to the
entire construction site. It was also neces-
sary to seek enabling legislation such as the
Bridge to Strengthen Trade Act, a federal
statute that was put in place to streamline
certain requirements under various types of
law for the Canadian side."
e many lawyers and their stakeholder
clients were determined to speak with one
voice as they engaged in the bid process. Ac-
cording to Kelsall, at the recent Canadian
Council for Public Private-Partnerships'
annual conference, Nuria Haltiwanger,
Global CEO of ACS (part of the winning
consortium) "identified that the ability to
deal with the WDBA and know that that
Authority spoke for all of the various con-
stituents behind the scenes was an absolute
imperative without which the transaction
could not have been done."
When it comes to the Canadian-US re-
lationship in 2018, Lexpert® and other Ca-
nadian publications wrote in worried tones
about the break-up of NAFTA, the imposi-
tion of stern tariffs, and the Buy American
position of the current President. And so
we take notice when Kelsall describes this
Deal of the Year:
"Lastly, it's a story of friendship. e proj-
ect would not have been completed with-
out the friendship and trust that was devel-
oped between the two countries and their
working teams. It's a great example of what
can be done when friends help each other."
Windsor-Detroit Bridge Authority and
Her Majesty the Queen in Right of Canada
were represented by Fasken Martineau Du-
Moulin LLP with a team led by Tom Bar-
