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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
