28 LEXPERT
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2016
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WWW.LEXPERT.CA
Osler, William S. Bennett Jones LLP
(403) 298-3426 oslerw@bennettjones.com
Mr. Osler's practice includes securities law and M&A, commercial
transactions and corporate governance, with a particular focus on the energy
sector. He has significant experience in IPOs and other public offerings for
issuers and underwriters, as well as Canadian and international take-over
bids and plans of arrangement, corporate reorganizations, divestitures, joint
ventures and partnerships.
O'Leary, Dean A. Farris, Vaughan, Wills & Murphy LLP
(604) 661-9316 doleary@farris.com
Mr. O'Leary's practice focuses on corporate and commercial law, with
an emphasis on energy and infrastructure matters. Mr. regularly advises
public utilities on a range of issues, including power supply arrangements
and capital expenditure projects. He also advises government and private
industry clients on public-private partnerships, land use, expropriation
and other real property matters.
Northey, Rodney V. Gowling WLG
(416) 369-6666 rodney.northey@gowlingwlg.com
Mr. Northey is in his 25th year of practice focused on federal and provincial
environmental assessments and approvals. Has advanced infrastructure in
water, energy and transportation sectors. Current environmental assessment
and approval work on green energy and infrastructure for urban and rural
municipalities and First Nations in northern Ontario and the Ring of Fire.
Nordick, D'Arcy Stikeman Elliott LLP
(416) 869-5508 dnordick@stikeman.com
Mr. Nordick is a partner in the Toronto office and is the co-head of the
Capital Markets/Public M&A Group. He advises foreign and domestic
clients on mergers and acquisitions (public and private), corporate
finance, securities licensing, joint ventures, project development
and general corporate and commercial law. His clients include banks,
dealers, governments, private-equity firms and more.
Murphy, Timothy J. McMillan LLP
(416) 865-7908 tim.murphy@mcmillan.ca
Mr. Murphy, former Chief of Staff to Canada's prime minister, focuses on
project finance transactions, including P3s, for sectors such as infrastructure
and energy. He also advises clients here and abroad in construction,
procurement and finance.
Mondrow, Ian A. Gowling WLG
(416) 369-4670 ian.mondrow@gowlingwlg.com
Mr. Mondrow leads Gowling WLG's energy regulation and policy practice in
Toronto. He advises on a variety of matters in the natural gas and electricity
sectors, including energy policy, regulatory policy and process, rates and
tariff matters, facilities applications and compliance and licensing issues.
LEXPERT-RANKED LAWYERS
Too oen, however, the contractor finds, as
the construction stage begins, that there's not
enough detail in the construction drawings.
Waiting for the designer to provide more de-
tail can result in delays, and the new elements
may also result in cost overruns due to addi-
tions or changes required in the construc-
tion. Under the P3 infrastructure model, the
owner's only exposure is for the amount they
agreed to pay at the outset. e fact that some-
thing is missing becomes an issue between the
contractor and the designer.
e contractor may contend that the full
design information should have been provided
at the time the contractor submitted his or her
price. Says Ackerley, "e contractor may turn
to the architect and say, 'you're going to have to
pay for the entire cost of what you overlooked,
because we're not going to get any additional
money from the owner.' e potential expos-
ure of the design professionals to the risk of
errors and omissions is much higher on a design-build
project than in the traditional model."
Also, P3 projects are susceptible to interpretive dis-
putes over the requirements contained in the Project
Specific Output Specifications (PSOS). e design
builder is responsible for delivering a project that meets
the requirements but they may be ambiguous or open
to interpretation.
Dispute Resolution
"All construction lawyers will tell you that disputes are
inevitable," says Carolena Gordon, at Clyde & Co Can-
ada LLP in Montréal. "ey happen frequently and it's
unrealistic to think they're not going to happen."
Typically, in a construction dispute, litigation is initi-
ated at the completion of the project. However, in the
hope of avoiding a long and expensive trial, the parties
may opt for mediation. By this time the parties have
already proceeded down the litigation path of filing
documents, exchanging documents with each other
and even deposing witnesses.
Increasingly, however, parties are opting for an accel-
erated mediation process. "e client receives the claim,
but not in the form of an action," says Gordon. "e
process is fast, cost-effective and confidential. e client
has better control over the dispute and may have an out-
come in 12 months or as fast as eight or nine months."
e parties can decide that, even as the mediation or
arbitration process unfolds, they will keep working on
the project. ey can either put off to a later time in the
project the actual mediation, or have the mediation on-
going while construction goes forward on the job site.
Regardless of whether mediation resolves the prob-
lem, it can be helpful to have the technical experts and
the business people sit together in the same room. "It
gives each side an education of how the other side sees
the claim," says Gordon. "You may not get a deal right
away, but you may get one in time." If the mediation is
