Jason J. Annibale 

Toronto

Brookfield Place, Suite 4400

181 Bay Street

Toronto, Ontario M5J 2T3

t: 416.865.7912

e: jason.annibale@mcmillan.ca

overview

Jason is a partner in McMillan's Advocacy and Dispute Resolution Group specializing in the P3, construction, and real estate industries. He is the National Co-Chair, Construction and a member of the firm's Professional Services Committee.

Jason has acted in the most complex construction disputes and sophisticated commercial transactions. He has assisted authorities, special purpose vehicles, and owners in resolving construction delay and cost overrun disputes involving changed site conditions, severe weather, contract changes, allegations of owner interference, protest actions, and increased financing costs in respect of underwater tunnels, biomass plants, prisons, hospitals, highways, service stations, electrical power stations and other infrastructure. Jason has resolved a dispute involving the correct calculation of a refinancing gain of an asset constructed through the P3 model and represented an international energy company with the purchase of construction projects and related assets in the context of one of Canada's largest ever construction bankruptcies.

Jason has appeared at all levels of court in Ontario and is seasoned arbitration counsel.  In 2019, he was recognized by Lexpert/ROB Special Edition as one of Canada’s Leading Infrastructure Lawyers and one of Canada’s Leading Energy Lawyers. Jason has also been recognized by his peers in both the 2019 Canadian Legal Lexpert Directory as a Repeatedly Recommended Lawyer in the area of Construction Law and in Who's Who Legal: Construction – Future Leaders.  He has been elected to the Ontario Bar Association's Construction and Infrastructure Law Section Executive three times and was the Executive's Co-Chair Program Coordinator.

Jason is the author of the chapter on Dispute Resolution in the text by Timothy J. Murphy, Public-Private Partnerships in Canada: Law Policy and Value for Money and the co-author of the chapter on Construction Delivery Methods in McMillan's "soup-to-nuts" consideration of the construction process, Construction Law in Canada. He regularly speaks on Ontario's Construction Act and managing risk and dispute resolution in the P3, construction and real estate contexts.  Jason is also the co-chair for some of Osgoode Hall’s premier construction programs, including the full week Construction Law Certificate program, the Construction Liens under the Construction Act program, and the Construction Delay and Impact Claims program.

Representative Matters

• Defeated over 20 cost overrun and delay claims forwarded by an international engineering contractor totaling over $300 million for alleged owner interference and changes and were awarded all liquidated damages sought in the amount of $37 million and a costs award of almost $8 million on behalf of our owner-clients in relation to the construction of two biomass plants.  Simultaneous language translation was used for approximately one-third of the 25 witnesses. There were almost 100,000 productions, 47 witness statements, 11 expert reports, over 1,000 pages of opening and closing statements with almost 5,000 hyperlinked records, one jurisdictional and three procedural motions, and a 200-page arbitration decision. 
• Resolved at formal mediation the cost overrun and delay claims of over $12 million from the special purpose vehicle, general contractor, and tunneling subcontractor against an authority in respect of a P3 asset. The dispute involved numerous alleged changed site conditions (including soil and rock quality issues, water ingress and pressure, ground contamination, and obstructions), severe weather, protest actions, an electrical shut down, and increased financing costs. 
• Defended a public utility company against the approximately $70 million cost overrun and delay claims of the Canadian subsidiary of an international general contracting company in CCAA proceedings and pursued a liquidated damages and related loss claim in the approximate amount of $40 million in relation to the over $200 million construction of an underground transformer station.
• Secured an arbitration victory for an authority against a special purpose vehicle respecting the correct calculation of a refinancing gain and the resulting monies properly payable to the authority in respect of a P3 asset. The authority was further successful in defeating the special purpose vehicle’s allegations of dishonesty and bad faith.
• Represented the special purpose vehicle through the maintenance period of a federally regulated building asset in relation to a dispute amongst the maintenance provider, the construction contractor, and the authority for responsibility for a service failure and resulting deductions from payments otherwise due to the maintenance provider. The service provider claimed that the building asset failed to reach required performance levels due to faulty construction, while the construction contractor countered that deficient specifications provided by the authority resulted in the building asset’s underperformance. 
• Provided dispute resolution and claim evaluation advice to a special purpose vehicle in relation to delay, cost overrun, and land contamination claims valued at approximately $60 million in respect of a rail transportation facility constructed through a P3 model.
• Settled a complex construction lien and trust matter involving the construction of an affordable condominium development on behalf of the owner-developer.  There were over 20 separate lien and trust actions, including a negligence claim against the owner-developer’s former lawyers, and over $3 million in claims being made by the general contractor and the subtrades.
• Construction counsel to an international energy company on its purchase of numerous construction projects and related assets across Canada arising out of the Comstock bankruptcy proceeding, one of the largest construction bankruptcies in Canadian history.
• Represented a Canadian bank in relation to the complex re-financing of the construction of an Alzheimer’s disease care facility.  The representation included the registration of various construction lien postponements and the defence against several construction lien actions and related priority claims of the general contractor and various subcontractors.
• Defended a Crown corporation's competitive bid selection process in relation to the construction of a world-class aquarium against allegations of unfairness, conflict of interest and bad faith.
• Defended a Crown agent against numerous lien claimants in a complex, multi-party suit in relation to two large development projects respecting the construction of a court house and a government office building housing tribunal hearing rooms.
• Defended the North American consulting arm of an international automotive manufacturer against numerous lien claimants and obtained judgment on a cross-claim against a design builder in relation to the negligent design, manufacture, and installation of recuperative thermal oxidizer systems supporting a paint line for a body and bumper manufacturing plant.
• Secured payment in full and legal costs together totalling over $1.2 million for mechanical and electrical consulting engineering services in support of the construction of an Ontario hospital through simultaneously forwarding a construction lien claim against the prime consultant and hospital and a construction trust claim against the prime consultant and its principals in their personal capacities.
• Obtained an order discharging a certificate of pending litigation registered against the old Christie Bakery manufacturing plant and defeated the subsequent motion to stay the discharge order pending the hearing of the appeal on the basis that the appeal raised no "serious issue".
• Obtained an order for security for costs on the (rarely granted) substantial indemnity basis in an amount over $300,000 against an appellant purchaser of property.
• Settled claims of a special purpose entity against the authority in relation to a delay in handover of certain sites and lost profits in relation to numerous transportation-related assets across Ontario under a single P3 model. 
• Provided advice to a consortium of insurance and bonding companies on the enforceability of a demand bond instrument to be used in a P3 context as an alternative to letters of credit.
• Defended an international furniture manufacturing commercial landlord against a tenant's allegations of loss of business resulting from expansion of shopping centre and parking facilities.
• Represented an international energy corporation in a product liability claim respecting the premature disintegration of piping product in a geothermal loop system.
• Defended a truss component designer from a series of complex, multi-party design defect and negligence claims respecting the collapse of barn roofing systems across southern Ontario.
• Represented a national gaming and entertainment company in a product liability claim respecting complex and numerous roof-top heating, ventilation, and air-conditioning units servicing gaming floor areas.
• Defended a First Nation consultation process performed by a Crown agent on behalf of the Government of Ontario.
• Represented an educational institution in a matter involving the custody and handling of aboriginal remains.

Presentations

Publications

News

Education

• McGill University, LLB (Distinction) - 2000
• Queen's University, BA Honours (First Class Honours) - 1997
• Osgoode Hall Law School, Construction Law Certificate - 2015

Year Of Call

• Called to the Ontario bar - 2002

Directorships and Professional Associations

• Ontario General Contractors Association, Associate Partner Member
• Canadian Bar Association
• Ontario Bar Association Construction and Infrastructure Law 
• Advocates' Society

Community Involvement

• St. Michael’s College School – Enhanced Law Program Alumni Faculty Lead and Coordinator 
• St. Michael's College School – Alumni Association Director 
• St. Michael’s College School – Career Day Speaker and Mentor
• North Toronto Soccer Club – House League Coach (2015)
• North Toronto Soccer Club – Nitros Volunteer Competitive Assistant Coach (2016)

Awards & Rankings

• Recognized in the 2019 Lexpert/ROB Infrastructure – Special Edition as one of Canada’s Leading Infrastructure lawyers
• Recognized in the 2019 Lexpert/ROB Energy – Special Edition as one of Canada’s Leading Energy lawyers
• Recognized in the 2019 Canadian Legal Lexpert Directory as a Repeatedly Recommended Lawyer in the area of Construction Law
• Who's Who Legal: Construction - Future Leaders 2019
• McMillan Leadership in Mentoring Award - 2010

Media Mentions

• "Ontario’s AG and Authorized Nominating Authority confident in launch by Oct. 1", Daily Commercial News, July 22, 2019
• "Ontario construction lawyers keen for new adjudication regime", Daily Commercial News, May 9, 2019
• "CCPPP panellists compare optimal dispute strategies", Daily Commercial News, November 15, 2018