Construction & Infrastructure

Construction crane in downtown Vancouver at sunrise

CONSTRUCTION

Construction is a highly complex, heavily regulated industry with myriad stakeholders involved in every project — including landowners, financial institutions, builders, developers engineers, construction companies and suppliers. All parties want a project to be completed on-time and within budget but with so many moving parts the potential for cost and schedule overruns is ever-present. Our lawyers understand this process and how best to move through it to achieve our clients’ objectives.

McMillan’s blend of industry-specific knowledge and unmatched litigation skills make our construction law practice one of the largest and most highly regarded and recognized construction law teams in Canada. Our construction lawyers understand the entire construction process from the RFP and tender process through completion and turnover and are deeply experienced in project financing, performance bonding, insurance and related issues. We represent our clients through arbitration processes, adjudication, mediation, and litigation at all levels of court. We are a leader in the resolution of P3 and other large-scale construction and infrastructure disputes, employing state-of-the-art technology and innovative business solutions to manage complex arbitrations and litigation on expedited schedules.

We specialize in drafting tenders and contracts, advising on security enforcement, counselling on zoning, variances and assessments and advising on risk allocation and management. We also advise on facilities management contracts and risk allocation in the Canadian Construction Documents Committee (CCDC) standard form contracts. When there is a breach of construction contract or laws that govern construction, we represent clients in litigation and arbitration proceedings related to defects, liens, delays, warranties and other construction claims.

INFRASTRUCTURE

Effective and efficient infrastructure is essential to maintaining our standard of living and economic growth, but government funding restraints and increased urbanization is pushing existing infrastructure to its limits.

Public and private sectors are joining forces through arrangements such as public private partnerships (P3s) to facilitate infrastructure growth. These financing schemes enable governments and quasi-governmental organizations to deliver on infrastructure projects while sharing the risk and responsibility. However, the financial arrangement propping up P3s are extremely complex, necessitating the counsel of an infrastructure law firm to create the partnership structures and risk-sharing agreements that allow each party to achieve their respective goals.

McMillan’s team is comprised of lawyers specializing in infrastructure law and how it governs civil infrastructure construction. With experience in the structuring and execution of major infrastructure projects, we provide a complete range of services including assistance with procurement, construction, financing, environmental review, community consultation, tax and regulatory issues.

Primary Contacts

View All Contacts

Jason J. Annibale

Partner, Construction & Infrastructure

Toronto

jason.annibale@mcmillan.ca Phone

416.865.7912

Laura Brazil

Partner, Litigation & Dispute Resolution

Toronto

laura.brazil@mcmillan.ca Phone

416.865.7814

Annik Forristal

Partner, Construction & Infrastructure | Municipal, Land Use Planning & Development

Toronto

annik.forristal@mcmillan.ca Phone

416.865.7292

Glenn Grenier

Partner, Aviation | Construction & Infrastructure

Toronto

glenn.grenier@mcmillan.ca Phone

416.307.4005

Patrick A. Thompson

Partner, Corporate Commercial Litigation

Ottawa

patrick.thompson@mcmillan.ca Phone

613.691.6102

News

Related Expertise

Insights (124 Posts)

A Rock and a Hard Place: Owner, Employer, and Constructor Liability Under the OHSA

Ontario Court of Appeal - construction project liability under OHSA despite retaining a constructor responsible for health & safety.

Dec 3, 2021

Federal Court Denies Injunction to Suspend Federal Government’s Supplier Mandate

The Federal Court of Canada recently dealt another blow to those challenging workplace vaccine mandates when it denied an interlocutory injunction that would have suspended the implementation of the federal government’s COVID-19 mandatory vaccination requirement for suppliers.

Nov 30, 2021

You Can’t Get There From Here: Vaccination Mandates in the Transportation Sector

Federal government announces details of mandatory vaccination for air, marine and rail travellers

Nov 29, 2021

Construction Remedies On Public Projects: Alberta’s Public Works Act and Comparable Legislation in Other Provinces

This bulletin outlines the key requirements for contractors seeking payment under construction contracts with the provincial government in Alberta and elsewhere

Nov 23, 2021

Mandatory Vaccination Policy: “Reasonable, Enforceable”

A labour arbitrator upheld an employer’s mandatory vaccination policy, finding the policy to be reasonable and enforceable.

Nov 11, 2021

November 2021 Update: Extended Deadline for Pre-Existing Owners Filing a Transparency Report on the Land Owner Transparency Registry

On November 2, 2021, the deadline for Pre-Existing Owners to file a transparency report was extended from November 30, 2021 to November 30, 2022.

Nov 8, 2021

Privacy Commissioner Releases More Guidance for Video Teleconferencing Companies

Video teleconferencing companies face unique cybersecurity and data privacy risks. The OPC has new guidance on how these companies can best address them.

Nov 3, 2021

Making a Lot out of a Little – Laneway Housing a Niche Market Opportunity for Municipalities, Property Owners, Real Estate Developers and Investors

An overview of laneway suites / housing as means of adding to housing stock in Toronto and beyond.

Oct 25, 2021

Vaccination Mandates in the Construction Industry – What You Need to Know

An overview of vaccination mandates in the Construction industry and what you need to know.

Oct 12, 2021

Real Estate Litigation: Summer Highlights

Even in the summer months, the legal news does not let up. Here are some recent decisions and legislative developments as we head into the 2021 fall season.

Sep 21, 2021

Divisional Court confirms Environmental Significance of Ministerial Zoning Orders and Importance of Consultation under the Environmental Bill of Rights, 1993

Review of Divisional Court decision: Ontario’s compliance with Environmental Bill of Rights in passing Bill 197, particularly re: Ministerial Zoning Orders

Sep 13, 2021

Evidence of ESG in the Construction and Development Industry

An overview of ESG initiatives in Construction & Development; key information for those looking to implement their own ESG strategies

Aug 18, 2021

Watch as that Trust is Swept Away

Suppliers and subcontractors in the construction industry should be mindful of a recent unreported decision of the Ontario Superior Court of Justice.

Jul 30, 2021

City of Toronto’s Current Municipal Comprehensive Review Process

An overview of the City of Toronto's current Municipal Comprehensive Review Process; Request for Employment Land Conversion under the City's Official Plan

Jul 14, 2021

Masters and Clergy – Is the Clergy “Principle” No More?

An overview of a recent Ontario Divisional Court decision which weighs in on the legal status of the Clergy Principle.

Jul 7, 2021

Is Private Sector Privacy Legislation Looming in Ontario?

Ontario government seeks input on privacy policy proposals, signaling that Ontario private sector privacy legislation may be on the horizon

Jul 5, 2021

Amendments to the OHSA Consolidate Reporting Requirements for Workplace Accidents Effective July 1, 2021

The Ontario government introduced amendments to Regulations under the Occupational Health and Safety Act to consolidate accident reporting requirements.

Jun 30, 2021

Striking a Balance Between Major Facility and Sensitive Land Use Developments: A Discussion of Ontario’s New Land Use Compatibility Guideline

The Ontario Ministry of the Environment, Conservation and Parks has published the Land Use Compatibility Guideline to establish land use compatibility policies

Jun 30, 2021

Impending Implementation of Ontario’s Inclusionary Zoning Regime in Toronto and the GTA

An overview of inclusionary zoning policies and their impending implementation in Toronto and the GTA.

Jun 25, 2021

Registering Copyrights as They Arise May Improve Chances of Future Success at Trial

Companies consider registering copyright as a potential dispute arises, but recent case law shows this may not be the best course of action to enforce IP rights

Jun 21, 2021

June 2021 Update: British Columbia’s New Registry of Beneficial Ownership

Now that the Land Owner Transparency Registry is searchable by the public, it is important to understand the scope of its use, and its current limitations.

Jun 14, 2021

Canadian Privacy Commissioners Issue Joint Guidance on Vaccine Passports

Commissioners warn that privacy considerations must be “front and centre” as organizations develop and implement vaccine passports in the coming months

May 25, 2021

Crosslinx v. Ontario Infrastructure: Turns out the Pandemic is an Emergency…

The public sector’s hardline view of risk allocation in P3 contracts suffered a serious setback with the release of the Crosslinx decision.

May 25, 2021

Commercial Leases During the COVID-19 Lockdown: Where are we Headed?

Ontario has also passed legislation to protect commercial tenants.

May 17, 2021

Ontario’s New Excess Soil Regulations – Construction Contract Implications

Ontario’s new On-Site and Excess Soil Management Regulation, O. Reg 406/19 may impact existing and future construction contracts

May 5, 2021

April 30 Update: Amendments to Policy Statement 5 and Policy Statement 6- Extension of the Early Marketing Period in Response to COVID-19

This bulletin outlines the recently announced amendments to Policy Statement 5 and Policy Statement 6 by the Office of the Superintendent of Real Estate.

Apr 30, 2021

Unscrambling the Egg: New Guidance for Assessing Concurrent Delay on Construction Projects

A recent Ontario court decision provides new guidance on how to assess responsibility for concurrent delays in construction projects.

Mar 10, 2021

Emerging Competition & Data Privacy Issues for Real Estate Organizations

Changes to Canada’s privacy laws, developments with low-commission brokerages and changes to short-term rental regulations will impact real estate associations.

Feb 2, 2021

The Quick and Dirty on Ontario’s New Excess Soil Regulations

A concise summary of Ontario's new excess soil regulation (O.Reg 406/19) and key takeaways for affected parties.

Jan 25, 2021

Round 2: Ontario State of Emergency Again Restricts Construction

Essential construction activity during second state of emergency in Ontario.

Jan 15, 2021

Can You Register A Builders Lien For Pre-Construction Services on a Cancelled Project? – Case Comment: Shelly Morris Business Services Ltd v Syncor Solutions Limited

Jan 6, 2021

Mandatory Vaccination Policies for Employees: Enforceable or a Shot in the Dark?

There are vaccines, and there will be (at some point) enough for everyone in Canada to receive it. But what happens if your employees refuse to be vaccinated?

Dec 23, 2020

Sick, Lies, and Questionnaire: Arbitrators Uphold Terminations of Employees who Breached COVID-19 Safety Protocols

Two recent labour arbitration decisions held that attending work in breach of employer COVID protocols can lead to termination for cause.

Dec 9, 2020

‘But to What Effect?’ The Supreme Court of Canada Clarifies the Anti-deprivation Rule in Chandos

The authors discussion of the Supreme Court of Canada's decision in Chandos Construction affirming the anti-deprivation rule and consider its implications

Nov 16, 2020

No Longer the Wild West: Alberta’s New Prompt Payment and Construction Lien Act and What You Need to Know

No Longer the Wild West: Alberta's New Prompt Payment and Construction Lien Act and What You Need to Know

Nov 9, 2020

Canada’s New Cybersecurity Certification Goes Live

The federal government has launched a voluntary CyberSecure program to help small and medium-sized organizations protect against cybersecurity threats

Oct 13, 2020

Mandatory Indoor Face Coverings: What Ontario Employers Need to Know

Oct 6, 2020

Expropriation of Contaminated Land and its Fair Market Valuation

Oct 5, 2020

Ontario Employers be Aware: New Mandatory Screening Requirements for Ontario Workplaces

Employers should take immediate steps to implement the new mandatory COVID-19 screening requirements for Ontario workplaces.

Sep 30, 2020

British Columbia Modernizes Its Arbitration Act

The New Arbitration Act came into force on September 1, 2020 and this article explains its significant changes to the former Act, closing gaps and deficiencies.

Sep 29, 2020

The Splintering of Canadian Insolvency Law: Quebec Court of Appeal Confirms Expiry of Provincial Notice Periods are a Pre-Condition to Appointment of a BIA Receiver

The Quebec court of appeal's ruling in Séquestre de Media5 Corporation has profound implications for the enforcement of secured creditor remedies in Quebec.

Aug 6, 2020

Ontario Amends Employment Standards Legislation in Response to COVID-19

Ontario passes new protected leave of absence for employees impacted by COVID-19, and suggests COVID-19
cases should be reported as occupational illnesses.

Aug 5, 2020

COVID-19 and Commercial Rents: The Court Decides. Amicable Resolutions are Recommended

The Superior Court of Quebec decides a case about the effects of COVID-19 on commercial rents.

Jul 24, 2020

COVID-19: July 22nd Update on the Impacts to Development Applications and Hearings

Status update (July 22, 2020) re: land use planning and municipal response to COVID-19 in Ontario; processing applications, appeals, and municipal closures.

Jul 22, 2020

Managing Construction Risk in 2020 and Beyond – The Pursuit of Success and the Art of Avoiding the Train Wreck

Understanding how these relationships develop through contractual language, the construction process itself, and the resolution of disputes positions parties to allocate risk effectively, build strong relationships, and complete projects successfully.

Jul 21, 2020

Ontario Superior Court of Justice Sends Ontario Construction Employers Back to the Drawing Board

The Ontario Superior Court of Justice provides guidance on enforceability of termination provision for Ontario construction employees.

Jul 13, 2020

Construction Trusts Can Apply to Funds Received by CCAA Monitor: the Court of Appeal’s Decision in Urbancorp

There is good news from the Ontario Court of Appeal for contractors dealing with insolvent owners

Jul 13, 2020

The LPAT and the New “Ontario Land Tribunals” Cluster

The New Ontario Land Tribunals Cluster and moving forward with hearings at the LPAT.

Jul 6, 2020

COVID-19: July 6th Update on the Impacts to Development Applications and Hearings

Status update (July 6, 2020) re: land use planning and municipal response to COVID-19 in Ontario; processing
applications, appeals, and municipal closures.

Jul 6, 2020

Construction through COVID-19 in Canada: A Guideline for what each Province and Territory is Doing

How each Province is managing the impact of COVID-19 by restricting construction activities, suspending litigation time periods and recommending H&S practices

Jun 11, 2020

COVID-19: June 3rd Update on the Impacts to Development Applications and Hearings

Status update (June 3, 2020) re: land use planning and municipal response to COVID-19 in Ontario; processing applications, appeals, and municipal closures.

Jun 3, 2020

Ontario Provides Employers with Temporary Relief from COVID-Related Termination Risks

Ontario introduces creative measures (O. Reg. 228/20) to the Covid-related temporary lay off dilemma.

Jun 1, 2020

Privacy Penalties – Canadian Competition Bureau Wades Into Privacy Enforcement

Organizations operating in Canada are advised to immediately review their privacy-related policies and marketing to avoid false or misleading representations

May 26, 2020

COVID-19: May 20th Update on the Impacts to Development Applications and Hearings

Status update (May 20, 2020) re: land use planning and municipal response to COVID-19 in Ontario; processing applications, appeals, and municipal closures.

May 20, 2020

Construction after COVID-19: Finding new Coherence Amid a Shaken Industry

While the pandemic has certainly elevated everyone’s stress level, our present circumstances are forcing the industry to make quick adaptations as it rethinks attitudes and practices that were prevalent mere weeks ago.

May 14, 2020

COVID-19: May 13th Update on the Impacts to Development Applications and Hearings

Status update (May 13, 2020) re: land use planning and municipal response to COVID-19 in Ontario; processing applications, appeals, and municipal closures.

May 13, 2020

Pandemic and Epidemic Events: Addressing the Risk in P3 Projects

Using the benefit of experience with the COVID-19 crisis to re-evaluate risk allocation for pandemics and epidemics in P3 projects.

May 11, 2020

COVID-19: May 6th Update on the Impacts to Development Applications and Hearings

Status update (May 6, 2020) re: land use planning and municipal response to COVID-19 in Ontario; processing applications, appeals, and municipal closures.

May 6, 2020

COVID-19: April 22nd Update on the Impacts to Development Applications and Hearings

Status update (April 22, 2020) re: land use planning and municipal response to COVID-19 in Ontario; processing applications, appeals, and municipal closures.

Apr 22, 2020

How to Prepare for the Post-COVID-19 World of Construction

What construction industry stakeholders can expect in construction post COVID -19.

Apr 20, 2020

COVID-19: April 15th Update on the Impacts to Development Applications and Hearings

Status update (April 15, 2020) re: land use planning and municipal response to COVID-19 in Ontario; processing applications, appeals, and municipal closures.

Apr 15, 2020

Show Me the Money: Government of Ontario to Amend Emergency Order to Allow Release of Holdbacks

The emergency provision which had the unintended effect of preventing release of construction holdbacks is being reversed.

Apr 10, 2020

Project Management Amid COVID-19 – The Triage

Best practices for construction project management during the COVID-19 pandemic, and other force majeure circumstances.

Apr 8, 2020

COVID-19: April 7th Update on the Impacts to Development Applications and Hearings

Apr 7, 2020

Holdbacks in the time of COVID-19: Potential Impacts of Emergency Measures on BC

The bulletin discusses British Columbia's temporary suspension of limitation periods and civil deadlines, and how this suspension could impact BC construction.

Apr 2, 2020

The Impact of COVID-19 on the Construction Industry: McMillan Answers Your Questions

This webinar will unpack and address the impacts of COVID-19 on the construction industry and how these impacts can be best managed.

Mar 31, 2020

Transport Canada Relaxes Mandatory Off-Duty Time for Truck Drivers Transporting Essential Cargo

March 24 2020 after consultation with the provinces an exemption was issued permitting trucking companies and drivers to exceed maximum on-duty and driving time

Mar 30, 2020

COVID-19: March 30th Update on the Impacts to Development Applications and Hearings

Status update (March 30, 2020) re: land use planning and municipal response to COVID-19 in Ontario; processing applications, appeals, and municipal closures.

Mar 30, 2020

COVID-19: Alberta Government Announces List of Essential Services

Alberta's Government has published lists of essential services and non-essential places of business not permitted to
offer or provide services to the public.

Mar 29, 2020

Can I Safely Release Holdback in Ontario After March 16, 2020?

The new Ontario Regulation suspending the expiry of limitation periods may stop the release of holdback pursuant to the Construction Act.

Mar 24, 2020

COVID-19: What is the Impact on Development Applications and Hearings?

Status update re: the land use planning and municipal response to COVID-19 in Ontario; processing applications, appeals, and municipal closures.

Mar 23, 2020

Where the Restructuring Meets the Road: the Intersection Between Insolvency Proceedings and Construction Law

COVID-19 will strain the construction industry. This bulletin explores how insolvency and restructuring concepts interact with construction law.

Mar 20, 2020

Defendants Beware: Courts May Be Hesitant to Dismiss Action for Delay even when Plaintiff Is the Major Contributor

Where defendants play even a small part in delaying an action from getting to trial, courts may be hesitant to dismiss a plaintiff's action for delay

Mar 4, 2020

Lost in Transition: Working Through the Silence Surrounding Leasehold Interests in the Construction Act’s Transition Provisions

Lost in Transition - Working through the Silence Surrounding Leasehold Interests in the Construction Act's Transition Provisions

Feb 27, 2020

Is Your Refrigerator Limitation Period Running? Maybe Not Where One Party Promises to Fix the Problem

Limitation periods will not run where a party assures another it will fix the problem between them, and that party reasonably relies on that assurance.

Jan 7, 2020

Contact Information Posted on Websites Not Necessarily Up for Grabs

Investigation findings of the Office of the Privacy Commissioner highlight issues surrounding the use of personal contact information posted on websites

Dec 19, 2019

Consultation Paper: Reform of the Builders Lien Act – Deadline for Comments from Industry Stakeholders is Fast Approaching

The bulletin describes the British Columbia Law Institute's recently published consultation paper on reform of the Builders Lien Act.

Dec 13, 2019

Electricity Rebates for Multi-Unit Complexes in Ontario

Legal bulletin outlining changes to Ontario provincial government rebates for electricity consumers, including changes for multi-unit complexes.

Nov 6, 2019

Real Estate Developments: Challenges and Potential Solutions

Real Estate Developments: Challenges and Potential Solutions.

Details

September 24, 2019 - 8:30 am to 1:30 pm ET

Employees’ Duty to Mitigate: Comparable Employment Does Not Mean Any Employment

The Ontario Court of Appeal has confirmed in a recent decision that an employee’s duty to mitigate following a without cause termination does not require the employee to accept a notably lesser position with the same employer.

Jul 24, 2019

TOP TWELVE THINGS TO KNOW – New Canadian Trademarks Act June 17, 2019

On June 17, 2019 major changes to Canada’s Trademarks Act will come into force.

Jun 4, 2019

Performance Bonds: The New Form 32 Under Section 85.1 of the Ontario Construction Act

What Project Finance Lenders Should Know

May 1, 2019

Ontario Passes Amendments to the Labour Relations Act, 1995 and Employment Standards Act, 2000

Ontario Bill 66, the Restoring Ontario’s Competitiveness Act, 2018, received Royal Assent.

Apr 15, 2019

Life is not Fair: Unsuccessful Proponent Admits Non-Compliance with RFP, But Sues Fairness Advisor Anyways

Modern public procurements, particularly in the public-private partnership model, typically involve a third party fairness advisor.

Apr 12, 2019

Construction Law Seminar and Webcast: Ontario’s New Construction Act

Ontario’s new Construction Act is now in force – What does this mean for my business and what practices do I need to change?

Details

April 11, 2019 - 8:00 am to 9:45 am

“Disguised expropriation” issues in an era of large infrastructure projects

Participants will benefit from the advice of the panelists on the steps to be taken when facing public authorities and the compensation they can expect.

Details

March 22, 2019 - 7:45 am to 9:15 am

Performance Bonds: What Project Finance Lenders Should Know

As part of the performance security package for construction projects, project finance lenders (as well as project owners, landlords and government authorities) often require performance bonds from the construction contractor as security for the performance of the contractor’s obligations.

Feb 28, 2019

Bill 57 – Clarity on When the New or Old Construction Act Applies

On July 1, 2018, the first portions of the new Construction Act (the “CA”)[1] came into effect. Section 87.3 of the CA contains transition provisions that state when the new or old version of the CA applies.

Jan 23, 2019

Ontario Proceeding with Further Substantial Amendments to Workplace Legislation

Ontario has introduced Bill 66, the Restoring Ontario's Competitiveness Act, 2018, an omnibus bill that proposes changes to several statutes, the LRA and ESA.

Dec 14, 2018

The Court of Appeal puts an End to ‘Jail on the Couch’ Sentences for Bid-rigging

Bid rigging and fraud in order to obtain public contracts will result in mandatory prison sentences when the contract is of high value.

Nov 30, 2018

Ontario Proposes Major Changes to the Employment Standards Act, 2000

On October 23, 2018, the Government of Ontario has put forward legislation, titled the Making Ontario Open for Business Act, 2018 (Bill 47)

Oct 26, 2018

Ontario to Make Major Changes to Employment and Labour Standards through the Making Ontario Open for Business Act

The Government of Ontario today introduced legislation to repeal several changes to the province's employment and labour standards legislation made through Bill 148.

Oct 23, 2018

Retail Trade: Challenges, Evolution and Solutions

Retail Trade: Challenges, Evolution and Solutions.

Details

September 18, 2018 - 10:30 am to 2:30 pm ET

Anticipatory Repudiation in Real Estate Deals: Can You Terminate if the Other Party Will Breach the Agreement of Purchase and Sale?

Agreements of Purchase and Sale in real estate transactions typically state what happens when a party breaches its terms. However...

Jul 6, 2018

Minimizing Risks Arising from the New Construction Lien Amendments

On July 1, 2018, the first set of amendments to the Construction Lien Act[1] (the "CLA") will come into effect. Although there are transition provisions

Jun 19, 2018

Construction Law Seminar and Reception

Join us for an informative seminar where you will have an opportunity to network and learn more about the significant changes to construction law in Ontario starting in July and what impacts these changes will have on your business and the construction industry.

Details

May 16, 2018 - 4:30 PM to 6:30 PM

New Regulations Add Detail to the Construction Lien Amendment Act

Construction Lien Act changes including the introduction of a prompt payment regime, adjudication, existing holdback, lien preservation and perfection periods, bonding, and trust provisions

Apr 27, 2018

‘Tis the Season – Ontario Government Introduces Bill Setting Minimum Pay Rates for Private-Sector Contractors on Government Contracts

'Tis the Season - Ontario Government Introduces Bill Setting Minimum Pay Rates for Private-Sector Contractors on Government Contracts

Apr 20, 2018

Think twice before obtaining a labour and material payment bond – new liability for an old security

Filing away procured labour and material payment bonds without taking proactive steps to notify claimants of the bond's existence exposes owners to claims from unpaid subcontractors

Mar 26, 2018

BC excavator’s court case takes a dig at municipal procurement policies undermined by the CFTA & CETA

Is the use of reprisal clauses (also called litigation exclusion provisions) in municipal procurement policies and tender documents about to hit rock bottom?

Mar 21, 2018

Change is Coming to Ontario’s Construction Lien Act – What Do You Need to Know for 2018?

Construction Lien Amendment Act received Royal Assent and became law in Ontario. It represents a thorough modernization of the Construction Lien Act including amendments to the lien and holdback rules

Mar 1, 2018