WWW.LEXPERT.CA
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2016
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LEXPERT 21
Kirsh, Harvey J. Glaholt LLP
(416) 368-8280 hkirsh@glaholt.com
Mr. Kirsh is one of Canada's leading arbitrators, mediators and
litigators in resolving complex construction claims arising out of P3,
infrastructure, energy, mining, transportation, industrial, commercial
and institutional projects.
Kierans, David B. Gowling WLG
(514) 392-9551 david.kierans@gowlingwlg.com
Mr. Kierans practises in corporate and commercial law with particular
emphasis on secured lending, real estate acquisition and finance, asset-
backed, project financing and aviation finance. His experience includes
energy-generation projects and P3 project finance.
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 environmental matters. His clients include utilities, buyers, producers,
shippers and banks.
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 infrastructure and PPPs. Recent
projects include the Pennsylvania Rapid Bridge Replacement Project,
the US 36 Toll Road, Billy Bishop Island Airport, Humber Hospital
and Eglinton Crosstown LRT.
Kauffman, David H. De Grandpré Chait LLP
(514) 878-3217 dkauffman@dgclex.com
Mr. Kauffman's practice includes project structuring, financing, licensing,
tendering and contracting for major initiatives. He is one of the most
recognized and experienced lawyers in construction law, infrastructure and
development projects in Canada. In 2015, he published The Construction
Hypothec: Insights into Quebec Lien and Construction Law, an expanded
treatise of his 2008 monograph.
Karayannides, George J. Clyde & Co Canada LLP
(647) 789-4831 george.karayannides@clydeco.ca
Mr. Karayannides' commercial litigation and arbitration (domestic and
international) practice embraces a wide range of complex and high-stakes
business disputes, including infrastructure and construction, shareholder
remedies, product liability and class actions.
LEXPERT-RANKED LAWYERS
its own requirements in addi-
tion to getting an AMF," says
Dubord. "So clients have to be
aware of what they need to do
business with a local authority,
which may have its own rules
that could be different or even
more stringent than those of
the AMF."
No matter the locale, all P3
participants in Canada have
a legal obligation to adhere to
a duty of fairness and honesty
during the procurement and
all other stages of a project.
is requirement was first es-
tablished in a 1981 Supreme
Court of Canada ruling, R.
(Ont.) v. Ron Engineering and
Construction (Eastern) Ltd. It
stipulated that when an owner
issues a tender document or
an RFP, even prior to opening
any of the submissions, it has
entered into what is referred to
as "Contract A" with each bid-
der (once a winning bidder has
been selected, what's referred
to as "Contract B" comes into
effect). Over the years, most
litigation in the P3 area has
evolved out of a bidder believ-
ing the owner had breached
Contract A's fairness doctrine.
In 2014, the Supreme Court
took Ron Engineering a step
further. In Bhasin v. Hrynew
it decided there is a "general
duty of good faith in contrac-
tual performance," says Matt
Mulligan, a partner in the Vancouver office of Bull,
Housser & Tupper LLP. "Before that case, generally
in contract law it was always implied that there was a
duty of fairness or good faith, that all bidders had to
be treated evenly, that sort of thing." Now that onus is
clearer, he says, although Mulligan believes Bhasin will
not change the landscape that much because owners
have understood for some time that they had to comply
with that duty.
At the time of the decision, however, Neil Finkel-
stein of McCarthy Tétrault LLP in Toronto, counsel
for Harish Bhasin, the plaintiff who won the case, said,
"I think this is the most important contract case in 20
years. We're going to find another series of jurispru-
dence arising out of this case over time about how far
this duty of good faith and duty of honesty goes."
Howard Krupat, a partner at DLA Piper in Toronto,
tends to agree with Mulligan that the effect of Bhasin
is yet to be determined. "e question that derives from
