Lexpert Special Editions

Special Edition on Infrastructure -Sept 2015

The Lexpert Special Editions profiles selected Lexpert-ranked lawyers whose focus is in Corporate, Infrastructure, Energy and Litigation law and relevant practices. It also includes feature articles on legal aspects of Canadian business issues.

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Legge, Jennifer G. Stikeman Elliott LLP (416) 869-5660 jlegge@stikeman.com Ms. Legge focuses on financing/secured lending, as well as M&A. She acts on domestic and international secured and unsecured financings, project finance, and ABL and equipment financings, for borrowers and lenders of all types. Leung, B. Glenn Terra Law Corporation (604) 628-8988 gleung@terralawcorp.ca Mr. Leung's practice involves all aspects of commercial real estate. He advises clients on acquisitions, structuring, partnering, financing, mu- nicipal approvals, develop- ment, construction, leasing and sale of investment and development property. Lewis, Mark V. Borden Ladner Gervais LLP (604) 640-4143 mlewis@blg.com Mr. Lewis's practice focuses on the purchase and sale, development, marketing and leasing of residential, retail, seniors housing, resort and industrial projects across BC, and he has extensive experience financing com- mercial real estate projects. Leroux, Pierre-Denis Blake, Cassels & Graydon LLP (514) 982-4121 pierredenis.leroux@blakes.com Mr. Leroux advises consor- tium and work providers on infrastructure and P3s in his real property and finan- cial services practice. His main focus is on mortgage and real estate financing, including securitization and property development. Lewis, Gregory D. Bull, Housser & Tupper LLP (604) 641-4923 gdl@bht.com Mr. Lewis, who leads the firm's Business Department, focuses on commercial transactions and financings in infrastructure, energy and other industry sectors. His experience includes PPPs, as well as hydro and co-generation projects. Lissoir, Luc Gowling Lafleur Henderson LLP (514) 392-9571 luc.lissoir@gowlings.com Mr. Lissoir focuses on P3s, project financing, PE, M&A and Corporate Finance. He acts for consortiums, de- velopers and lenders on infra- structure matters and major asset managers on fund for- mation and investments in Canada and internationally. PROMPT PAYMENT | 21 surrounded prompt payment legislation," says Karen Martin, a partner at Dentons Canada LLP (and a committee member) in Vancouver, "but that issue is front and cen- tre in this initiative." e committee intends to propose dra legislation, says Martin. Like Ontario, BC's experts haven't decided whether to propose separate legislation on prompt payment or include provisions within the Builders Lien Act, "e purpose of prompt payment legislation is to facilitate cash flow from the owner down to the general contractor down to the subcontractors," says Martin. "Some of the provisions in the Builders Lean Act facilitate that cash flow, but not in the direct way that proposed prompt pay- ment legislation would." One idea being considered is the elimi- nation of "set-off " rights. Under the cur- rent law, once a project has been certified as complete, the owner can still hold back funds (set-offs) to cover the cost of fixing work deficiencies. ese could be elimi- nated. ere might also be a prohibition on "pay when paid" clauses. In contracts, the general contractor stipulates to sub- contractors that their bills won't be paid until the general contractor has submitted them to the owner and received payment for them. e real problem to be addressed, says Martin, is the lack of a quick, effective dispute resolution mechanism. In the UK and Australia, she says, prompt payment legislation provides for adjudication to settle payment disputes. In a tight timeframe, a third party (an "adjudicator") determines whether money is owing or not, or whether an owner should be able to exercise set-off rights for a deficiency. "It is extremely rare that the unsuccessful party in an adjudica- tion appeals and takes the dispute to a trial or arbitration later," she says. "It's a success- ful process." "THERE ARE DIFFERENT LIEN RIGHTS AND DIFFERENT TIMELINES FOR LIENING DEPENDING ON WHETHER YOU'RE A GENERAL CONTRACTOR OR A SUBCONTRACTOR. ONE OF THE CHANGES UNDER CONSIDERATION IS TO AMEND THE DEFINITIONS IN THE ACT TO BETTER ACCORD WITH THE REALITIES OF P3 PROJECTS." – Roger Gillott, Osler, Hoskin & Harcourt LLP In British Columbia, the government in April 2014 asked the British Columbia Law Institute to launch a comprehensive over- haul of the Builders Lien Act. Senior law- yers who represent the various construction stakeholders serve on a committee formed to carry out this two-year project. "e process pre-existed all the publicity that

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