WWW.LEXPERT.CA
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2016
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LEXPERT 23
Lucky, Donald C.I. Reynolds Mirth Richards
& Farmer LLP (780) 497-3354 dlucky@rmrf.com
Mr. Lucky has advised contractors and owners in large-scale power projects
(oil and gas, solar, wind and carbon capture), and has acted in over 80 P-3
projects (hospitals, penitentiaries, water treatment and transportation),
in Canada, the US and Australia. He has taught construction law at the
University of Alberta Faculty of Law and is a Fellow of the Canadian College
of Construction Lawyers.
Lissoir, Luc Gowling WLG
(514) 392-9571 luc.lissoir@gowlingwlg.com
Mr. Lissoir focuses on P3s, project financing, PE, M&A and Corporate
Finance. He acts for authorities, consortiums, developers and lenders on
infrastructure matters and major pension funds and asset managers on
fund formation, investments in Canada and internationally as well as project
interest portfolio transactions.
Leung, B. Glenn Terra Law Corporation
(604) 628-8988 gleung@terralawcorp.ca
Mr. Leung's practice is focused on all aspects of commercial real estate. He
advises clients on acquisitions, structuring, partnering, financing, municipal
approvals, development, construction, leasing and sale of investment
and development property, including mixed-use, multi-family residential,
commercial, industrial, resort and infrastructure projects.
Ledgett, Michael Dentons Canada LLP
(416) 863-4793 michael.ledgett@dentons.com
Mr. Ledgett has practised law in Ontario for more than 40 years.
Michael centres his practice on corporate and commercial law including
corporate governance and private company M&A. His clients include
businesses (domestic and foreign), governments and their agencies
and not-for-profit organizations.
Leblanc, Nicolas Fasken Martineau DuMoulin LLP
(514) 397-5262 nleblanc@fasken.com
Mr. Leblanc focuses on the real estate, transportation and energy sectors
and advises stakeholders in diverse infrastructure projects having a strong
real estate component. He represents public authorities and proponent
consortiums, sponsors, builders and operators in infrastructure procurement
processes related to project and construction agreements and real estate
and project financings.
Laval, Cyndi D. Gowling WLG
(604) 891-2712 cyndi.laval@gowlingwlg.com
Ms. Laval is a partner and co-leader of both Gowling WLG's Canadian
Corporate Finance, M&A and Private Equity Group and Mining Group. She
advises resource clients on a broad range of activities with a particular focus
on M&A, corporate finance and mining transactions.
LEXPERT-RANKED LAWYERS
parties, including in Canada, determine during the cre-
ation of a contract outlining compensation for breaches
such as failing to meet performance deadlines) and
penalty clauses.
e consequence of the twin rulings, says Sidnell, is
that "they took out this huge body of law that's existed
since the beginning of time [a 1915 ruling] and said
that's not the rule [for penalties] any more. All you have
to do now is have two things: a reasonable commercial
basis [for your claim] and that it can't be extravagant,
exorbitant or unconscionable. at's the test."
Canadian firms and lawyers, she says, need to be
aware that decisions made in the UK Supreme Court
"can be persuasive for Canada. I can't imagine our Su-
preme Court talking about liquidated damages and
not mentioning this decision."
A more onerous legal consideration affecting the P3
procurement process is a set of rules, known as the In-
tegrity Regime, that were first tabled by Public Works
and Government Services Canada, the federal govern-
ment's procurement arm, in 2012. ese rules, which
have been contentious and amended several times over
the past few years, govern the eligibility of suppliers to
do business with the government.
In April 2016, Public Works announced further
amendments, which included the imposition of "an
onerous new reporting requirement that when submit-
ting a bid, suppliers provide a certified list of all foreign
criminal charges and convictions with regard to the
supplier, its affiliates and its subcontractors," according
to an article posted on Bennett Jones LLP's website.
"e penalty for providing a false or misleading certi-
fication is automatic ineligibility to enter into procure-
ment contracts [debarment] for ten years."
e new ethical standards mean that companies
must be aware "of whether or not your or your sister's
sister company that operates out of – pick a jurisdic-
tion in the world – has been charged under the Com-
petition Act, under the Criminal Code or broken any
other applicable rules, such as collusion, of which there
have been a number of cases in Europe involving large
construction companies or their affiliates," says Greg
Southam, a partner in the Toronto office of Davies
Ward Phillips & Vineberg LLP. He believes, however,
that bidders have accepted the new rules as a reality of
doing P3 business. "I think in the last two or three years
people in Canada have become more aware, more at-
tuned to these requirements."
Southam, who does P3 work in Canada and the
US, says that Canada "has done a really good job of
creating a certain and sound market for procurement
infrastructure through the P3 model. e US is more
susceptible to time extensions and litigation. You just
don't see that stuff oen in Canada."
He says the procuring agencies have been especially
adept at "paving the way, in advance, before projects
come online." For those wanting to find a clear and
even road towards the federal government's infrastruc-
ture money, that's good to know.
