It has been 15 years since the first edition of Construction Law in Canada was released. Significant developments in construction law have occurred across the country over that time.
The three original co-authors of the first publication have compiled a new second edition, now available through LexisNexis. It deserves a place on the desk of any construction professional.
Each co-author has significant backgrounds that cover key points of construction law; the project builder, legal counsel and the court justice. Their names are likely familiar within the industry.
Annik Forristal is a group head of McMillan’s National Infrastructure and Construction Group, a practice dedicated to the construction, infrastructure and development industries.
Timothy Murphy is the executive vice-president and chief strategic affairs officer with Aecon Group. Prior to this, Murphy had a prolific legal career with McMillan LLP and served as chief of staff to both the prime minister of Canada and to the finance minister of Canada as well as being a former federal MP.
Leonard Ricchetti was appointed judge to the Superior Court of Justice of Ontario in 2008. As a former partner with McMillan LLP, Justice Ricchetti focused on the fields of municipal, environmental, constitutional and commercial law.
Members of the legal community will find the new second edition a handy reference to supplement their firm’s individual libraries. However, the audience possibly best served by the second edition are the non-legal members of any large construction project.
Referencing the multitude of legal textbooks and “dinner conversations” where lawyers might enthusiastically dive into legal nuances, the co-authors recognize that such dialogue is not for everyone.
The text of this edition is instead, “intended for non-lawyers as a pragmatic overview of the legal issues that can arise in the life of construction projects,” said Forristal.
In a joint interview, the co-authors told the Daily Commercial News the numerous changes surrounding construction law since 2010 were the main motivations for a new edition.
“The landscape really has changed,” said Justice Ricchetti.
Each had their own view on what developments needed to be addressed.
“I think the low hanging fruit is the introduction of prompt payment in adjudication, starting in Ontario in 2019 and now moving across the country,” said Forristal.
Justice Ricchetti agreed, adding, “My view is that it is a system that really does help projects continue along without getting bogged down in the middle. That was the intention and it seems to be working quite well.”
Murphy referenced the migration towards more sophisticated or complicated construction contract models at the time of the first edition in 2010, such as public-private partnerships.
“Around the time of the first edition, the risk-reward balance of those contracts got out of hand. There were a number of new ways of looking at the relationship between owner and contractor that have developed since,” he said. “We try to capture some of that in the book, but to be fair, there is a process of change still going on, so it’s not quite landed yet.”
“The law is another important tool in ‘the project toolbelt’ that can be very powerful when effectively leveraged,” the authors said.
Is this a call for more lawyers to be involved earlier in a project’s development? Absolutely.
“The inclusion of legal advisers as part of the project team from start to finish can materially help reduce project risk, including risks of delays, cost overruns and expensive disputes.”
The book achieves what it sets out to do: walk the reader through all legal aspects of a project.
“We wanted a document that people could read and get a sense of the issues, whether or not they were lawyers — a one-stop place to go for people to understand the construction universe, from buying the property to the end of the project,” said Murphy.
The second edition is an impressive accomplishment.
Forristal, Murphy and Ricchetti have assembled over 500 pages of text contributed by 30 legal experts, further supported by more than a dozen law students and editors. This comprehensive compilation takes the form of 15 chapters, beginning with outlines that define the key parties, the risks and the project contracts, each with numerous sections and subsections.
As suggested by its title, the second edition of Construction Law in Canada is national in scope. However, not all provinces are covered in detail. Occupational health and safety, for example, is outlined in the context of Ontario, British Columbia, Alberta and Québec legislation, it being the authors’ view that lessons learned from those provinces can be applied to the others. Construction Hypothecs under Québec Law also have their own chapter.
“I’m very proud of all the work everyone put in,” said Forristal. “It really showcases just how many areas of law are engaged in a construction project. Construction law is not just one piece of legislation.”
“The first edition was well received,” Justice Ricchetti said. “It was a good book for lawyers who don’t practice in the area to give them a good background. This is a much better product.”
“There is there’s so much that goes into a successful project, and this text gives an excellent overview of all of those different pieces and how they work together,” concluded Forristal. “Readers will come away with a sense of what they need to know and what questions to ask, so that they can undertake their project successfully. We believe people will find it helpful.”
