National Forum prepares the profession for a golden age of construction arbitration

A new era of Canadian nation building projects could translate into a golden age for the country’s construction arbitration field.

Bruce Reynolds, the co-Program Chair of Osgoode Professional Development’s National Forum on Construction Arbitration: Designing, Building and Presenting the Case, says that Prime Minister Mark Carney signalled his government’s intention to put transformative infrastructure development at the heart of his economic plans when he established the Major Projects Office, just months into his term.

By the end of 2025, the new federal agency – which is designed to support projects such as ports, mines, trade corridors, pipelines and highways – had already announced major projects worth in excess of $100 billion, with a promise of more to follow.

“Events seem to be proceeding apace and we’re just about to enter a 20-year period where the capital expenditure on these types of major projects will probably be greater than at any time since the Second World War,” says Reynolds, a fellow of the Chartered Institute of Arbitrators and partner at construction and infrastructure law firm Singleton Urquhart Reynolds Vogel LLP.

“This will create an even greater need for counsel with strong expertise in this area and arbitrators with the specialist capacity for handling such disputes,” he adds.

A 1982 call, Reynolds quickly established himself as an authority on surety bonds and liens at the former Borden & Elliot. After acting on the landmark lien litigation surrounding the construction of Toronto’s SkyDome stadium, he broadened his practice to focus on a wider range of construction disputes.

However, Reynolds returned to his roots in 2016 when he and legal partner Sharon Vogel conducted the 2016 review of Ontario’s Construction Lien Act. The review laid the groundwork for the province’s prompt payment and adjudication regime, which was enshrined in law the following year. Reynolds and Vogel then performed a similar review for the federal government, delivering a report that provided the foundation of 2023’s Federal Prompt Payment for Construction Work Act.

Reynolds has also co-authored several books with fellow luminaries in the construction law field, including his Construction Arbitration National Forum Co-Chair, Howard Wise.

Drawing on more than four decades of construction law experience at Bay Street law firms, Wise now serves as an independent Arbitrator and Mediator of construction and infrastructure disputes through Wise Alternative Dispute Resolution Inc.

During his years in practice, he says construction arbitration has taken on an increasingly prominent role as more and more of the sophisticated parties involved in major construction projects moved away from the courts, in search of a more specialized and efficient dispute resolution process.  

These days, Wise explains that mandatory arbitration clauses are standard in agreements regarding the construction of major infrastructure such as hospitals, roads or linear transit. Parties are also attracted by the knowledge that their dispute will be decided by an arbitrator who has a deep understanding of the legal, technical and practical issues that arise in all complex construction projects and give rise to construction claims.

“If you’re dealing with a delay claim or design issues in a project, it’s important to have someone who is knowledgeable about the construction process and interrelations between the parties, to deal with both the technical and legal disputes that arise,” Wise says. “It’s a very unique subspeciality within the arbitration world.”

According to Wise, the National Forum on Construction Arbitration program was inspired by the lack of dedicated professional development options for those in the field. The program is ideal for mid- to senior-level disputes counsel working in arbitration and commercial litigators transitioning into construction matters, as well as commercial arbitrators seeking to reinforce their construction-sector competence, he adds.

“This is the first national program dedicated specifically to examining how construction and infrastructure disputes are dealt with in the arbitral setting,” Wise says.

The National Forum program will take place live on Oct. 14, with options to attend in person or online, including sessions that cover best practices and advanced strategies for effective case management, process design and advocacy.

An online replay will follow on Dec. 7, but Reynolds says those who are able should seriously consider attending live, so that they can take advantage of the optional second-day workshop on Oct. 15. In keeping with OsgoodePD’s reputation as a leader in hands-on legal learning, the optional workshop allows participants to put their learning into action via scenario-based simulations.

Attendees will be presented with a construction arbitration fact pattern and divided into teams representing the arbitrator and counsel for either side.

“As the day goes on, you’re given more facts to take on board. Some of them give you whiplash, because you think you’re heading one way and then you get a new fact that takes you off in another direction, because that is often the way files tend to evolve,” Reynolds says. “The workshop environment is very interactive and high-energy, which is really good experience.”

Legal practitioners and industry professionals who want to dive deeper into the subject also have an option to enhance their expertise further, thanks to Osgoode’s Professional LLM in Construction Law. 

Building upon elective construction law courses that were already available to Professional LLM students in the Energy and Infrastructure and Business Law programs, the LLM program recently graduated its first cohort of students, making Osgoode one of a select few global institutions – and the only one in Canada – to offer a dedicated Construction Law LLM.

---