Lexpert magazine features articles and columns on developments in legal practice management, deals and lawsuits of interest in Canada, the law and business issues of interest to legal professionals and businesses that purchase legal services.
Issue link: https://digital.carswellmedia.com/i/1470131
10 www.lexpert.ca Feature While they are increasing in complexity, he says the primary claims are typical. ere are claims arising from delay, changes to the scope of work, and lost productivity or disruption, to name a few. Lately, there have been a lot of force majeure claims stemming from COVID. e sheer scale of the larger projects and the nature of what is causing the claims mean lawyers must ensure they have access to a broader group of those with expertise on their counsel and expert teams, says McArthur. For example, there is an increasing stringency in environ- mental regulations that affect infrastruc- ture-project construction. Indigenous involvement – from the permitting stage on through the project – has also risen in importance, he says. "e size of the arbitrations and the complexity of the claims really call for a diverse and large group with very strong bench strength." More than two years aer the pandemic began, says McArthur, there is not one major project on which COVID has not had an impact. Shutdowns caused delays. ere were fewer workers available, which resulted in productivity loss. Parties had to "dig in deep" into contractual provisions, usually those related to force majeure, to determine whether COVID was covered, who bore those risks, and which could be traced back to the pandemic, he says. COVID is a "diffuse, global event," which makes its impacts tricky to argue in a dispute arising from force majeure provisions, says Haddon Murray, who practises commercial litigation and restructuring and insolvency law in the Toronto office of Gowling WLG. Force majeure typically involves a "single event" with a "demarcation point," says Murray, like a tornado destroying a railway and preventing a delivery. It is easier to talk about those types of delays or damages than how, for instance, social distancing created a gradual loss of productivity. While he says most parties agree that COVID has had an impact, defining that impact and deter- mining its degree are now frequent debates. COVID-related claims can be chal- lenging from an evidentiary standpoint, says Natasha Carew, a litigation partner in Gowling's Toronto office. A design builder has expressed the intention to bring COVID-related claims on a couple of her files involving public-private partner- ships, but has yet to do so. As time passes, she says it will become more challenging to determine what was caused by COVID and various safety protocols and what was caused by something else. "It's a very confusing and difficult type of claim to make," says Carew, whose prac- tice involves various commercial disputes, including construction, infrastructure, and public-private partnerships. "Because it's an ongoing situation, and every time you INFRASTRUCTURE'S ECONOMIC IMPACT IN 2021 • $89.7 billion: Infrastructure investment by business or government • $67 billion: Total Canadian infrastructure assets (value-added) • 548,450: Number of jobs • $41.2 billion: Value of employee compensation Source: Statistics Canada