The Legal Guide to Managing Construction Delay and Impact Claims 2021

Jason Annibale, Partner, McMillan LLP
Andrea Lee, Partner, Glaholt Bowles LLP

Building on concepts covered in The Legal Context online module, this session will focus on navigating the legal context surrounding delay and impact claims. You will be provided with the knowledge and tools you need to navigate the legal framework, including:

• Understanding the main causes of delay – includes contractor, owner and force majeure
• How to deal with force majeure clauses in the context of ongoing pandemic impacts
• Exploring legal entitlement theories and standard contract terms that address delay
• What to do about troublesome contractual delay provisions and why
• Navigating notice requirements – how to comply, why it’s important, includes checklist
• Which types of damages are recoverable?
• What are the core elements of a persuasive claim?
• Top tips for managing and resolving contractual disputes and claims early

Meera Wagman, Managing Director, Secretariat International

• Why are there differing methods of analysis? Why do the differences matter?
• 5 delay analysis – techniques
• Advantages and disadvantages to commonly used alternatives, including:
– Time Impact Analysis
– Collapsed As-Built
– As-Built Critical Path
– Impacted As-Built
– As-Planned vs. As-Built – Total Time – where is the line?
• When to retain a specialist to calculate loss
• Industry standards, applicable guidelines – status and where things are going

Neil Gaudion, President and Founder, Lighthouse Consulting Group, LLC

This session will provide you with essential knowledge, insights and expert tips involving the common types of claims and defences for owners, contractors and subcontractors, including:
• Overview
– Claims and defences amid a global impacting event
– Why owners typically defend these claims, not initiate them
– How contractors and subcontractors are similar and distinct
• Technical
– What owners need to prove
– What contractors and subcontractors need to prove
– Tips on what courts are looking for, weaknesses in methodology, includes checklist
• Expert tips and considerations, includes valuable “lessons learned”

Glenn Ackerley, Partner, WeirFoulds LLP

Building on content covered in both online modules and the day’s sessions, you will get a practical overview of important case law dealing with delay and impact claims and expert evidence, as well as the latest on how the courts and the industry are dealing with ongoing pandemic impacts.
• Top cases that impact delay and impact claims
• How the courts deal with expert evidence, consultant’s testimony and recommendations
• How the court system and the industry are responding to the ongoing pandemic and impacts
• Guided discussion on key issues impacting practice management and professionalism, including scope considerations, duty to recommend, when to engage an expert, and in which circumstances

Moderators:
Jason Annibale, Partner, McMillan LLP
Andrea Lee, Partner, Glaholt Bowles LLP

Panel:
Master Todd Robinson, Ontario Superior Court of Justice
Maged Abdelsayed, PEng, MEng, Partner, Capital Projects, Deloitte Canada
Michael Casey, Vice President & Deputy General Counsel, EllisDon Group of Companies
Reza Nikain, Senior Managing Director, J.S. Held LLC
Lorna Tardif, Partner – Canada, HKA

This interactive round-table will further develop and synthesize the topics covered throughout the day with a focus on providing best practices and methods to mitigate delay claims when they arise on a project or how to advance and/or defend delay claims. Delve into real-world situations to gain a solid and solutions-focused recap to this intensive day of programming, including strategies for navigating the legal and practical implications of the ongoing pandemic upon parties’ rights and obligations. You will have the opportunity to get your most pressing questions addressed and benefit from 100+ years of combined construction experience.
• The importance of the schedule, including regular schedule updates and proper forecasting
• Keys to early recognition of delay – how to anticipate problems before they occur
• Monitoring and adjusting the critical path – are you really delayed?