24| RISK
Managing
Risk
WHEN INFRASTRUCTURE CONTRACTS
ARE BEING DRAFTED, IT IS ALL ABOUT RISK
ANALYSIS — BY SHELDON GORDON
IN THE DESIGN, construction, financing and operation of public infrastructure,
there is much to consider, not least the apportionment and management of risk
among the parties involved in the project. "Risk analysis today is the number one
issue in every contract related to infrastructure," says Karen Martin, a partner at
Dentons Canada LLP in Vancouver. "In the public-private partnership (P3) model,
what has developed is a disciplined view of risks and the creation of risk matrices
and lists of the type of risks you would expect on construction projects. But long before the advent of P3s, cost and schedule were the risks that owners worried about."
The traditional project delivery method for a bridge, highway, hospital or government office tower sees government in the role of developer, bearing the typical risks
that an owner would bear. These would include the possibility of changes to the
scope of the project, the risk inherent in land acquisition (including issues of what's
on or under the surface that requires remediation), changes in the law made by a
different level of government, or public opposition such as a NIMBY backlash or
Aboriginal land claims. The contractor is responsible for acquiring the right of way,
Lexpert®Ranked Lawyers
MacDonald, Ross A.
Mackay, Tara A.
Stikeman Elliott LLP
(604) 631-1367
rmacdonald@
stikeman.com
Torys LLP
(416) 865-7528
tmackay@torys.com
Mr. MacDonald's real
estate and commercial
practice engages
infrastructure, PPPs, joint
ventures and strategic
alliances. His expertise
extends to all aspects of
development, including
acquisition, financing,
leasing and concession
agreements.
ROB-Infrastructure.indd 24
Ms. Mackay focuses
on infrastructure and
major capital projects,
including public-private
partnerships and
alternative financing and
procurement projects.
Ms. Mackay represents
sponsors, governments,
lenders, construction
contractors and service
providers.
MacKay-Dunn,
QC, R. Hector
Farris, Vaughan,
Wills & Murphy LLP
(604) 661-9307
hmackay-dunn@
farris.com
Mr. Mackay-Dunn
practises corporate
law in a broad range of
industries. He focuses on
partnering, cross-border
and domestic tender
offers, securities, M&A
and licensing. His clients
include companies,
investors, investment
banks and boards.
MacKenzie, QC, J. Scott
Stewart McKelvey
(902) 629-4507
smackenzie@
stewartmckelvey.com
Mr. MacKenzie's
corporate/commercial
and real estate practice
includes a focus on
financing, banking and
property development.
His clients include
large corporations,
financial institutions, and
government financial and
development agencies.
Maclagan,
William S. (Bill)
Blake, Cassels &
Graydon LLP
(604) 631-3336
wsm@blakes.com
Mr. Maclagan's
corporate tax practice
includes a focus on
structuring infrastructure
and P3 projects,
transactional advice
and reorganizations. Mr.
Maclagan is a bencher of
the Law Society of British
Columbia and Chair
of the Canadian Tax
Foundation.
Madras, Mark L.
Maho
Gowling Lafleur
Henderson LLP
(416) 862-4296
mark.madras@
gowlings.com
Torys
(416)
dmah
Mr. Madras specializes
in the practice of
environmental law,
including environmental
issues in project
approvals, regulatory
compliance, commercial
transactions and dispute
resolution.
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