– The Ontario Construction Report Special Feature
WeirFoulds LLP has been serving clients in complex and challenging matters for more than 150 years. As construction projects and contracts become more complex, and as the risks associated with these projects grow, the firm is applying its expertise from the earliest stages, right through project completion.
As part of Construct Canada, WeirFoulds will be on hand and taking part in the event’s construction law update discussion. Partner Glenn Ackerley says a key component will be a discussion of the recent Construction Lien Act (CLA) Review and its recommendations. “We’ll look at the recommendations from the perspective of trades, contractors, owners, and design professionals, and drill down to help attendees better understand what it all means, and potential problems.”
Sandra Astolfo, a partner with Weir- Foulds, says the challenge of being paid is one that impacts everyone below the owner in the construction pyramid. “It is both the timeliness of payment and the timely resolution of disputes, that create challenges.”
She says companies must not only be focused on the construction in the field, but also be mindful of the contract provisions regarding claims for additional compensation and time to ensure the notice of claim provisions are being met.
“You either need really strong communication between office administrators and experienced project managers, or someone to specifically be watching what is happening in the field and give proper notice of a claim. Either way, there is a greater level of sophistication in the paperwork which is creating additional overhead and time required to monitor that is a burden upon contractors and subcontractors.”
Add to that change orders, consultant payment application processes and you still only scratch the issue’s surface.
Ackerley says this is one reason the CLA review recommendations include an adjudication feature. “A timely adjudication process, in which decisions about disputes are made quickly, will free up money so projects can continue to move forward.”
There has also been a proposal to extend the lien right timeframe to 60 days to allow dispute resolution to play out. “What we’re looking at here is modernizing a decades old statute to require payment in a fixed timeframe, the engagement of a dispute process if payment is not made, and, as important, the right to stop work so contractors don’t dig themselves into deeper holes continuing work they aren’t being paid for.”
Ackerley says the nature of construction today and the kinds of projects, encompassing higher values, greater complexities and more pressure to deliver, is creating greater potential for risks and issues to arise. “We see designs being rushed, and contractors trying to price projects that are essentially still evolving…All of this creates unrealistic budgets and expectations.”
Adding to this, he says, is the increasing challenge of having the necessary skilled workforce, both in the trades and among engineers and architects to cope with the demand, when there are in fact growing shortages of skilled and experienced people to help develop them within the industry.
While some projects and groups such as Infrastructure Ontario, have gone the route of the P3 project delivery model, where planning and risks are reassigned, others are still seeking solutions to the challenge.
Both agree that given all of these challenges, the role of a construction lawyer has changed to that of project lawyer, with legal teams assisting from the negotiations of the contract through to dealing with onsite issues and dispute resolution right through to conclusion. “It’s worth a preliminary investment to conduct a contract risk assessment before signing an agreement and then having the support of an experienced team to ensure technicalities or other contract issues either don’t arise along the way or are dealt with promptly.”
For more information, visit http://www.weirfoulds.com.