Building expertise in construction law at OsgoodePD

Construction projects are – and always have been – a recipe for disputes, according to Tim Mavko.

Over the course of three decades in practice, Mavko – counsel at RMRF LLP and one of four program directors for Osgoode’s Certificate in Construction Law – says the fundamental characteristics of his cases have changed very little, regardless of the identity and sophistication of his individual clients.

“Every construction project requires a very complex series of steps to take place in a small area of land, involving a large number of people and a very small period of time,” he explains. “Things are going to go wrong: people get in each other’s way, they don’t show up or they do something they weren’t supposed to do. Any of those things can make the project take longer or cost more than expected, and you end up in a fight over who pays.” 

At the more granular level of legislation and case law, changes flow far more frequently, which is why the certificate program dedicates an entire module to legal updates in key areas that affect construction, including environmental law, labour law and health and safety.

“The other big change is that the size and complexity of projects has increased dramatically, as has the amount of money involved,” says Howard Krupat, a partner at DLA Piper and Mavko’s co-program director. “Clients also expect you to move at a faster pace, so it’s critical that you’re able to strike the right balance between being careful, while also ensuring that you are providing practical business and legal advice on a timely basis.”

Krupat was attracted to construction law early in his career, after realizing that it would provide him with a strong source of fast-moving and interesting files.

“You are presented with a variety of technical issues,” he says.   

More than two decades later, he has developed a much broader appreciation for the practice area and his clients.

“It’s a very down-to earth industry. You get to work with bright, practical, driven and business-focused people who are also very solutions-oriented, which is something I really like,” Krupat says. “It’s also a really tangible sort of practice area. It’s a satisfying feeling to witness the development of a project that you have provided advice on and the way that it contributes to the built environment around us.”

Mavko says the intensive, practical nature of the construction law certificate – which focuses on the core legal issues impacting construction projects over five information-packed days – has made it a consistently popular choice for lawyers whose practice only occasionally brings them in contact with the industry, as well as construction professionals without a legal background, including project managers, general contractors, engineers and architects, among others.

“We don’t expect people to be coming out of the program as an expert, but if you’re involved in construction projects, this is a great way to understand some of the big concepts and get yourself oriented to the area of construction law,” he says.

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

Building upon elective construction law courses that were already available to Professional LLM students in OsgoodePD’s Energy and Infrastructure and Business Law programs, the new LLM accepted its first intake of students this fall, making Osgoode one of a select few global institutions – and the only one in Canada – to offer a devoted Construction Law LLM.

Geza Banfai, a construction law legend who helped establish the certificate program more than 15 years ago, says its targeted and practical nature was a feature right from the very beginning.

“It’s very tailored to the needs of the industry and we have modified it fairly consistently over the years in response to feedback,” says Banfai, who has more than 45 years of experience behind him. Currently at McMillan LLP, he is counsel in the firm’s Toronto office.

“We ask our speakers to make their presentations digestible for a non-legal audience, which is great for the industry executives and professionals in attendance. But it’s also good for the speakers, because they get to transform their talks into something that is usable to their client base,” he adds.

According to Banfai, one of the recurring sessions that has helped make the certificate program a fixture on the Canadian construction law calendar is the “View From the Bench” panel. Typically scheduled on the fifth and final day, the session brings together a judge, a mediator, an arbitrator and an adjudicator to share some of their top tips for success when proceeding before them, as well as their pet peeves when acting as decision-makers.   

“It’s always a highlight for me. The judiciary don’t get too many opportunities to engage with the industry outside of the courtroom and I think they enjoy the opportunity to speak directly with the people that they may be sitting in judgment upon about the things that are important to them and what their expectations are,” Banfai says. “We have had some very senior judges and arbitrators on that panel and they keep coming back, so they must be having a good time.”

Jason Annibale, a colleague of Banfai’s who co-leads the construction and infrastructure practice group at McMillan, has experienced the construction law certificate from every angle – first as a student, then as a featured speaker in the dispute resolution module and now as co-program director. 

Even in his more senior role, Annibale admits he sometimes feels transported back to his time as a member of the audience. “It’s a real soup to nuts exploration of the construction landscape and I still learn a great deal from the program, going through it as a co-chair,” he says. “The level of expertise among the industry leaders we have presenting is extraordinary and we get some very rich discussions as a result.”

---