TRAINING.

Overview

After participating in this course, you will be able to:

• Examine claims arising from construction
• Discover in detail the roles and obligations of contractor/consultant/owner
• Protect yourself in construction contracts
• Recognize special risk and liability issues
• Apply your knowledge gained to tendering on construction projects
• Determine the type of contract that best suits your needs

Description
Today’s competitive and complex construction industry requires careful consideration in the formation of the construction contract. We all want the work, but are the contracts equitable? Are the specifications and timetable feasible? What is your liability exposure?

Properly prepared contractors, subcontractors, architects, engineers, and developers can avoid anticipated liability, reduce performance disputes and receive payment for work performed. In this course you focus on practical solutions for today’s construction problems. Relying on years of experience, the instructor will illustrate what you should look for in a contract, exposures to avoid, and ways to protect yourself should a dispute arise.

Actual case examples will be discussed explaining contract performance, how to resolve construction disputes, how to prepare for a litigation case, and the bidding process. This course covers legal issues from the formation of the contract to the final payment and is designed to assist construction professionals and their lawyers in day to day business activities.

Course Outline

• The Canadian legal system
• Basic contract law
• Types of construction contracts
• Construction bidding and tendering
• Construction claims
• Disputes over cost and time
• Allocation of responsibility for unknown risks
• The nuclear option and quality of performance
• Hidden risks and delay claims
• Architects and engineers
• Construction torts and insurance
• Bonds and liens

Who Should Attend
Contractors • Subcontractors • Architects • Engineers • Owners • Developers • Suppliers • Lenders • Project Coordinators • Credit Managers • Liability Insurers • Brokers • Lawyers wanting to develop expertise in the field of Construction Contract Law • Municipal, Provincial and Federal Agencies that engage Contractors for Public Contracts

More Information

Syllabus

Daily Schedule:
8:00 Registration and Coffee (Day I only)
8:30 Session begins
12:00 Lunch (provided)
4:30 Adjournment

There will be a one-hour lunch break each day in addition to a refreshment and networking break during each morning and afternoon session.

Day I

Registration and Coffee

Welcome, Introduction, Learning Outcomes, and the Assessment Methods

The Canadian Legal System

What is the legal system

• Substantive law – rules to follow
• The courts – a body to enforce the rules
• Procedural law – hurdles to jump to get to court

Where do the legal rules of substantive law come from?

The government - statutes and regulations

• The Constitution and Treaties and Trade Agreements

The common law: history, stare decisis and precedent

Branches of the law

• Public law and private law
• Property law
• Tort law
• Contract law

• R v Paradis and Farley
• The two rules of contract law: (1) The Contract means what it says; (2) except when it doesn’t
• General principles of judicial control over contract terms
• Good faith

Procedure in lawsuits

Alternative dispute resolution (ADR)

Basic Contract Law

• Basic principles
• What is a contract?
• Enforceability
• Evidence of intention to be legally bound
• Agreement as to subject matter
• Written versus verbal contracts
• Enforcement – what does it mean?
• Specific performance versus damages
• Calculation of damages
• Limitations on the recovery of damages

Construction Bidding and Tendering - Legal and Practical Do’s and Don’ts

• The tendering process
• The contractor’s obligations to the owner: the Ron Engineering revolution
• Obligations of the owner to contractors: M.J.B. Enterprises, Martel Building and Double N Earth Movers
• Exclusion of liability for owner’s breach of contract: Tercon v British Columbia
• Bid evaluation; preventing ambiguities; technical evaluation (time, performance); financial evaluation
• Minimizing the risk of bid disputes
• New rules governing the tendering process – Canada Free Trade Agreement, New West Partnership Trade Agreement
• New ways to have tendering disputes
• Bid protest mechanism
• Judicial Review

Day II

Types of Construction Contracts

• The evolution of construction contracts
• Allocation of Risk
• Fixed price
• Cost plus
• Unit price
• Construction management
• Design/Build and EPC
• P3
• Integrated Project Delivery

Construction Claims Overview

• How the courts deal with construction claims
• Principles of interpretation
• Ordinary meaning
• Whole contract
• Contra proferentum
• Exclusion and limitation of liability clauses
• Notice provisions

Disputes over Cost - Changes and Extras

• Payment provisions
• Scope of work
• Change or extra – does it matter?
• Pricing changes
• Enforceability of changes clauses

Allocation of Responsibility for Unknown Risks

• Concealed or unknown conditions
• Toxic or hazardous substances

Disputes over Time

• The importance of Scheduling
• Owner’s difficulties in enforcing timely performance
• Owners’ delay claims against contractors
• Enforceability of liquidated damages
• Contractors’ delay claims against owners

The Nuclear Option – Termination Provisions

• Perils and pitfalls of terminating the contract

Quality of Performance

• Warranty provisions
• Practical difficulties in enforcing warranties
• Practical solutions – the owner’s inspection authority

Day III

Workshop – Case Study

The class will review a real fact scenario, to consider how a court interprets and enforces a construction contract.

Bonds - Protection Against Contractor’s Non-performance

• The parties - principal, surety, and obligee
• The business of bonding
• Bonding versus insurance
• Types of bonds
• Bid bonds
• Performance bonds
• Labour and material payment bonds

The Owner’s Payment Obligations

• Under the contract
• Government regulation of payment terms
• the introduction of prompt payment legislation
• prompt resolution of payment disputes – adjudication

Liens - One of your Risks on Construction Projects

• The legislative scheme – theory
• Claimants’ rights under provincial lien legislation
• Obligations of owners – holdback
• Lien proceedings in practice – paradigm scenarios

Architects and Engineers

• The consultant’s multiple responsibilities under the contract
• The consultant – owner relationship
• Consultant’s liability for breach of contract
• Responsibility for design
• Responsibility for construction cost
• Responsibility for proper performance of the work
• The consultant’s responsibility as interpreter of the contract – duty to act judicially

Construction Torts

• What is tort law?
• Contractor’s obligations in tort law: Winnipeg Condominium Co. v. Bird Construction
• Consultant’s Obligations to the Contractor: Edgeworth v. N.D. Lea

Insurance

• The purpose and nature of insurance
• What does the insurance cover?
• What kind of insurance is available for construction projects?
• Builder’s Risk
• Commercial General Liability
• Professional Liability: Errors and Omissions
• How to deal with insurance companies

Taking Care of your People

• Occupational health and safety
• Worker’s compensation
• Employment law: union, non-union

Questions and Answers and Feedback to Participants on Achievement of Learning Outcomes

Concluding Remarks and Final Adjournment

Instructor

Michael MacKay, B.A., LL.B.

Michael MacKay, BA, LLB

Michael MacKay practiced law in Toronto for over 21 years, the last 19 almost exclusively in the field of construction law, and the last 14 at his own firm. He was a member of the Ontario Bar Association’s Construction Law Section’s Executive Committee from 1993 to 2009, and for most of that time co-edited its newsletter “Nuts & Bolts”. He is a frequent contributor to the Construction Law Letter. For over 20 years, he has travelled all across Canada to talk on construction law topics – including a complete construction law course for EPIC.

Venue

To be announced

Although the venue is not officially confirmed, EPIC courses are generally held at the following location(s):

Hotel Saskatchewan Radisson Plaza
2125 Victoria Avenue
Regina SK  S4P 0S3

DoubleTree by Hilton Regina
1975 Broad St
Regina SK  S4P 1Y2

Double Tree by Hilton Regina
1975 Broad St,
Regina SK  S4P 1Y2

Hampton Inn & Suites by Hilton Regina East Gate
3830 East Gate Drive
Regina SK  S4Z 1A5

Please confirm with EPIC that the venue has been officially confirmed before making any reservations or travel arrangements.