Junger, Robin M.
McMillan LLP
(778) 329-7523
robin.junger@mcmillan.ca
Mr. Junger advises compan-
ies on regulatory matters
including major project
permitting and Aborig-
inal law. He has helped
obtain environmental
assessment approvals for
LNG infrastructure, metal
mining, coal mining and
clean energy projects.
Keizer, Charles
Torys LLP
(416) 865-7512
ckeizer@torys.com
Mr. Keizer's domestic and
international infrastructure
and energy practice focuses
on administrative and cor-
porate/commercial law
in the energy sector, and
includes financing, project
development, regulatory
and contractual matters.
Keough, Loyola G.
Bennett Jones LLP
(403) 298-3429
keoughl@bennettjones.com
Mr. Keough is a member
of the firm's Regulatory/
Environmental department.
He has particular experience
in oil, gas, electricity, LNG,
rates, facilities and environ-
mental matters. His clients
include utilities, buyers, pro-
ducers, shippers and banks.
Kauffman, David H.
De Grandpré Chait LLP
(514) 878-3217
dkauffman@dgclex.com
Mr. Kauffman acts in
transactions relating to
construction, infrastructure
and development projects.
His practice includes project
structuring, financing,
licensing, tendering and
contracting for major
initiatives such as natural
resources and PPPs.
Kelsall, Brian C.
Fasken Martineau
DuMoulin LLP
(416) 865-5493
bkelsall@fasken.com
Mr. Kelsall's practice is
focused on domestic and
international project finance,
with an emphasis on infra-
structure and PPPs. Recent
projects include the Pennsyl-
vania Rapid Bridge Replace-
ment Project, the US 36 Toll
Road and Humber Hospital.
Kierans, David B.
Gowling Lafleur
Henderson LLP
(514) 392-9551
david.kierans@gowlings.com
Mr. Kierans practises in cor-
porate and commercial law
with particular emphasis on
secured lending, real estate
acquisition and finance, asset-
backed and project finan-
cing. His experience includes
energy-generation projects
and P3 project finance.
PROMPT PAYMENT
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19
e CLA treats the general contractor in
a P3 project as a subcontractor. "ere are
different lien rights and different timelines
for liening depending on whether you're a
general contractor or a subcontractor," says
Roger Gillott, a partner at Osler, Hoskin &
Harcourt LLP. "One of the changes under
consideration is to amend the definitions in
the Act to better accord with the realities of
P3 projects."
Lien rights could be linked to carrying
out work or providing materials or services
to the project. "Another way you could do
it," says Gillott, "is to create a separate sec-
tion of the Act dealing with P3 projects
where there is a projectco entity. You would
provide both projectco and the general
contractor with the lien rights currently en-
joyed by the general contractor and then
make all entities below the general contrac-
tor have subcontractor lien rights."
Also up for reconsideration are hold-
backs. In any construction project, each
payer is required by the CLA to hold back
10 per cent of each payment they make to
the general contractor, subcontractor or
supplier below them on the pyramid.
When liens are registered, the party has
a right to claim against the hold-back fund.
e CLA now allows hold-backs to be
released when lien rights expire, but doesn't
make that mandatory. Sometimes owners
or general contractors retain the hold-back
as leverage to ensure construction deficien-
cies are remedied. e subcontractors feel
the lien hold-backs are retained far too
long. e expert panel is likely to consider
making release mandatory, as was proposed
in the unsuccessful Bill 69.
A possible amendment to the CLA with
particular implications for infrastructure
projects is the phased release of hold-backs.
Large infrastructure projects oen proceed
in phases, and the CLA currently provides
that hold-backs be retained until the certi-
fied completion of the project. is means
subcontractors involved in the early phases,
e.g., excavation, may wait years for their
hold-backs.
e CLA could be amended to allow
contracts to proceed in phases, and allow
certificates of completion to be issued for
each phase. is would allow the hold-
backs to be released in phases. Another
amendment might allow for lien rights to
be maintained for each subcontractor un-
til the release of hold-backs related to their
particular subcontract.
But all eyes in the industry will be on
the prompt payment provisions that the
expert panel recommends. Whereas pres-
ently, payment periods are determined by
the contract between the parties, Bill 69
would have imposed mandatory statutory
payment periods. Mandatory interest was
to be payable on late payments. e release
of hold-backs was to be mandatory one day
aer the expiry of the lien period. Also,
the Bill would have prohibited hold-backs
other than the 10 per cent lien hold-back,
banning, for example, a hold-back for the
warranty period.
"Perhaps we will see some legislative at-
tempts to make payments flow more rap-
idly," says Gillott, "but at the same time not
completely shackle the ability of the parties
to determine their own payment structure
by contract. Maybe there would be statu-
tory payment periods but giving the parties
the opportunity to contract out of them if
they wished."
Banfai disagrees, saying that "if you have
that, everyone will contract out." But he
acknowledges that statutory payment peri-
ods must take account of how projects are
structured. "Prompt payment legislation
could stipulate that payment must be made
within 30 days of the achievement of a proj-
ect milestone."
Also under review is a need for separate
accounts for trust funds. e CLA says that
all money received by a contractor or sub-
contractor is a "trust fund" for the benefit of
the people or companies hired for the proj-
ect. Contractors or subcontractors must
pay for work and materials supplied for the
