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Overcoming Legal “Growing Pains” in the Canadian Construction Industry

June 8, 2022

Alexandra Boelsterli

In recent years, the Canadian construction industry has undergone a period of tremendous and dynamic growth, resulting in new challenges, new processes and general “growing pains” for industry professionals and the lawyers that represent them.

To better understand these new challenges and how the industry is overcoming them, I recently sat down with Jason J. Annibale and Tim Mavko, two senior lawyers and formidable experts who have over 40 years of combined experience in Construction Law.

Not coincidentally, they are both also esteemed Program Directors/Chairs on several OsgoodePD CLE construction law programs, and they helped to break down some of the new challenges that have arisen in the construction industry and how they — and the OsgoodePD programs they assist to co-create — help to address them.

When working with clients or co-developing a program with OsgoodePD “[w]e turn our attention to the key legal issues that need to be [addressed] in construction…and then we consider what’s important in the industry,” says Annibale.

There is a benefit in bringing together both legal and industry expert voices to discuss and address the challenges in the real world, to teach these subjects at the OsgoodePD programs and to bring valuable insight and well-rounded experiences and perspectives to addressing these “growing pains” within the industry.


The rise and widespread use of new technology also means that those involved in a construction project could be located anywhere in the world. “As the world shrinks, and as we’ve become more interconnected, the ability for participants…to be involved in construction projects increases,” Mavko says.

And while this interconnection creates plenty of new opportunities, it also brings with it a host of new challenges for all parties involved, particularly as parties need to communicate and collaborate, and especially when the parties need to resolve disputes.

To navigate this new order, Annibale and Mavko have hand-selected valuable tips, best practices and practical insights gained from their busy practices and worked with OsgoodePD to add timely new topics involving technology and dispute resolution to the new and refreshed program: The Osgoode Certificate in Construction Law, which provides an overview on construction law in Canada, from contract formation to dispute resolution, and features select regional sessions for Eastern and Western Canada.

Legislative Change

Another major cause of change in the industry has come in the form of new legislation across the provinces. In 2018, major legal reforms and modernizations to the construction industry were enacted by “the Construction Act in Ontario [and which led to] changing regimes across the country,” says Annibale.

These sweeping legislative changes “are creating a whole new set of rules, a whole new set of problems, a whole new regime that has to be learned” says Mavko.

To help meet these needs, Annibale has worked with OsgoodePD to offer a series of annual programs on Ontario’s Construction Act, which involves key industry updates and perspectives.

This program gives construction professionals the practical steps they need to take to manage the changing legal risks, to manage prompt payment processes and to navigate disputes under the new adjudication regime.

The Rise of Force Majeure

The pandemic “changed the way we view risk; it has changed the way we view uncertainty; it has changed the way we allocate risk; it has changed the way we deal with a number of things we had never thought of before,” says Mavko. This is particularly evident in the case of force majeure. “Hardly anyone thought about force majeure since the ‘70s,” says Annibale. But with many parties caught unaware at the beginning of the pandemic with insufficient force majeure clauses (or in some cases, no clause at all), “there has been a rethink on the force majeure clause.”

Mavko and Annibale support a great number of their clients to address issues involving force majeure clauses, and they have also worked with OsgoodePD to create programming that offers deeper dives into claims issues, including force majeure clauses and delay claims in The Osgoode Certificate in Construction Law, leaving attendees better equipped to deal with these risks and to handle their future claims in the best way possible.

EDI, ESG and the Industry

And finally, a growing challenge within the construction industry is who is included and how projects are constructed. Efforts around advancing equity, diversity and inclusion (EDI) within the construction industry, as well as enhancing how “green” or sustainable projects are in consideration of environmental, social and governance (ESG) factors, are a growing focus as its leaders look to the future and try to imagine how the industry can best grow.

OsgoodePD is similarly dedicated to this growing need for EDI and ESG education in the construction industry, and The Certificate in Construction Law provides an excellent overview of some of the industry efforts and initiatives thus far.

It’s a challenging and exciting time for those working in the construction industry and the lawyers who represent them. More than ever, it’s important to keep your construction law and risk management knowledge and skills up to date. With all the changes and “growing pains”, there is also incredible opportunity for the industry.

Perhaps said best by Annibale: “Construction is at its best when it’s innovative and collaborative…I believe that the construction [industry] will be equal to the challenge and will become a better industry.”

Jason J. Annibale is the National Co-Chair of McMillan’s Construction Group and partner in the firm’s Advocacy and Litigation Group. He is recognized as one of Canada’s leading construction, infrastructure and energy lawyers. Jason is a program chair on a number of OsgoodePD programs, including the 3rd Annual Legal Guide to Managing Construction Liens in Ontario 2022 (available on demand), Ontario’s Construction Act: Practical Considerations for Managing Disputes and Key Risks 2022 (available on demand), and the Certificate in Construction Law (starts September 30, 2022).

Tim Mavko is a Partner at Reynolds Mirth Richards & Farmer LLP and an accomplished litigator with over 30 years experience practicing in construction law. He is a program chair on the Certificate in Construction Law (starts February 3, 2023).