Project Finance & P3
PROJECT FINANCE & PUBLIC-PRIVATE PARTNERSHIPS (P3)
Large-scale infrastructure projects have the potential to deliver permanent and dramatic improvements to a region’s economy, bringing new wealth and greater opportunity to its people.
For those financing such projects, deals are characterized by their size and complexity. Participants may include governments, lenders, engineers, construction firms and owners, and investments can reach into the billions of dollars.
McMillan’s Project Finance and P3 Industry Group are recognized leaders in structuring complex financing arrangements on a domestic and international scale. Our lawyers have worked on a wide range of project finance initiatives executed by enterprises, as well as public-private partnerships (P3s). We deliver a comprehensive range of advice to both project sponsors and lenders on the financial concerns inherent in bankrolling large projects.
We have acted on transactions involving all types of public infrastructure arrangements including privatizations, outsourcing arrangements, P3s, concessions, leases and alternative financing structures. Our experience spans the complete range of P3 arrangements including design-build, design-build-finance and design-build-finance-maintain projects.
The McMillan Project Finance and P3 team have provided legal advisory services to public authorities, consortia and lenders across all asset classes. Our lawyers has been counsel to key players on more than 100 of Canada’s significant P3 projects ranging from transportation-related projects to healthcare. We maintain a strong equity sponsor/consortium-side practice, acting for some of the leading Canadian and global development, construction, and investment companies. We have undertaken significant lender’s and underwriter’s counsel roles with all of the major Canadian capital markets players, as well as private placement investors and foreign banks.
As a result, we serve our clients based on a deep understanding of the key issues and the latest trends in the marketplace. Having acted for several different stakeholders in P3 projects, we are uniquely qualified to implement the collaborative approach required to successfully and efficiently bring a project through the pre-procurement process and procurement processes.
McMillan’s infrastructure lawyers help clients to successfully structure public private partnerships by advising on procurement and bidding strategies, and drafting bidding agreements; establishing tax-efficient special purpose vehicles/borrower structures; reviewing concession/project agreements and identifying risk issues for participants; negotiating on behalf of governmental bodies and private sector bidders, and financial institutions and borrowers; and advising on insurance matters.
Alternative Financing and Procurement (AFP) is the model form of public-private partnerships (P3s) frequently used in Ontario. First coined by Infrastructure Ontario, AFP is not dissimilar to P3 arrangements—aiming to deliver essential infrastructure efficiently and cost-effectively by partnering with the private sector.
Our breadth of infrastructure experience and the strength of our government and private enterprise relationships enable us to deliver tangible value all along the project life cycle, from concept through completion. We facilitate successful AFP arrangements by executing transaction and project due diligence; advising on the procurement and selection process; advising on and structuring project finance arrangements; providing risk analysis and risk mitigation strategies; preparing project documentation and negotiating contracts; advising on tax, procurement, construction, government regulations, labour, real estate, intellectual property and contract law matters; and representing clients in litigation or alternative dispute resolution proceedings.
Insights (78 Posts)
Canada announces that consultations on a possible "foreign agent registry" will begin soon. What is that and how is it different from a lobbying law?
Ottawa LRT and the Future of P3s: Public (interest), Private (collaboration) & (meaningful) Partnerships
A summary of the Commission’s key recommendations arising from the Ottawa Light Rail Transit Public Inquiry regarding the public-private-partnership (P3) model.
While every company strives to achieve constructive relations with regulators, sometimes this is not enough. In such cases, understanding the rules that apply to regulators and the limits of their powers can be essential to levelling the playing field.
August 2022 Update: Upcoming Deadline for Pre-Existing Owners to file a Transparency Report on the Land Owner Transparency Registry
The deadline for Pre-Existing Owners to file a transparency report on the Land Owner Transparency Registry will occur on November 30, 2022.
Developers Beware: Changes to O. Reg. 242/08 Under the Endangered Species Act and What They Mean for Projects Already Underway
Companies may be affected by updated requirements under the Endangered Species Act, including prohibitions on harming new species at risk and related exemptions.
CDOR to cease being published after June 28, 2024; Term CORRA to be potentially created; market participants need to prepare for end of CDOR now.
Jurisdictional Battle Over The Environment Continues – Canada’s Impact Assessment Legislation Found Unconstitutional
On May 10, 2022, the Alberta Court of Appeal ruled that the federal Impact Assessment Act and related Physical Activities Regulations are unconstitutional.
Alberta’s New Prompt Payment and Construction Lien Act: What You Need to Know Before August 29, 2022 (Consolidated)
A Primer and Comprehensive Overview of Alberta’s New Prompt Payment and Construction Lien Act. What You Need to Know Before August 29, 2022 (Consolidated)
Legal tools Canadian companies should seek advice on if they are no longer able perform contractual agreements because of the war in Ukraine
An Ontario arbitrator upheld an employer's vaccine mandate for both a site where a 3rd party obligation existed and a related site with no such obligation.
Ontario Arbitrators Continue to Uphold Terminations of Employees who Breach COVID-19 Safety Protocols
A recent decision by an Ontario arbitrator further affirmed the notion that dishonesty during COVID screening protocols by an employee can lead to termination.
Phase Two of Ontario’s On-Site and Excess Soil Management Regulation took effect on January 1, 2022 introducing a new framework for excess soil in Ontario
Ontario Court of Appeal - construction project liability under OHSA despite retaining a constructor responsible for health & safety.
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
A labour arbitrator upheld an employer’s mandatory vaccination policy, finding the policy to be reasonable and enforceable.
Changes to the Contract Security program affecting personnel clearances have now come into effect. This bulletin breaks down the changes.
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.
Major Canadian Banks Join Net-Zero Banking Alliance (NZBA) — Unpacking the Initiative and Net-Zero Commitments
On the eve of the 2021 United Nations Climate Change Conference, six of Canada’s largest banks announced they had signed on to the Net-Zero Banking Alliance.
A review of the stakeholder engagement process for proposed amendments to the Special Import Measures Act and the Canadian International Trade Tribunal Act
A BAA is useful for lenders relying on cash collateral in secured lending transactions. We discuss the nature and function of BAAs in the common law provinces.
An overview of ESG initiatives in Construction & Development; key information for those looking to implement their own ESG strategies
A review of the remedies in a federal procurement complaint to the Canadian International Trade Tribunal (CITT)
Canadians Heading to the Polls in a Federal Election. Is your Business Ready to Comply with the Canada Elections Act and Lobbying Act during the Campaign?
During the election period, for profit and non-profit companies and charities need to be aware of their Canada Elections Act and Lobbying Act obligations.
Ontario's lobbying czar wants changes made to Ontario's lobbying law that will capture more activity and require more corporations and non-profits to comply.
SOFR is the preferred USD alternative RFR to LIBOR. We discuss what SOFR is, the types of SOFR, conventions for SOFR, and using SOFR in loan agreements.
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.
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
Will BC’s UNDRIP action plan create compliance challenges under the US Foreign Corrupt Practices Act, the UK Bribery Act or the Criminal Code of Canada?
Will BC’s UNDRIP action plan create compliance challenges under the US Foreign Corrupt Practices Act, the UK Bribery Act Criminal Code of Canada?
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.
Federal Procurement Basics #2: The Many Grounds for Federal Procurement Challenges: A ‘Keeping It Simple’ Summary
A review of the grounds for filing a federal procurement complaint to the Canadian International Trade Tribunal (CITT)
The public sector’s hardline view of risk allocation in P3 contracts suffered a serious setback with the release of the Crosslinx decision.
BILL 96 – Top 10 Impacts of the Revised Charter of the French Language on your Business and When to Expect Implementation of Such Revisions
Changes to Québec’s language laws are coming. Here is a top ten list of potential impacts, and the likely timeline and process for adoption.
Ontario has also passed legislation to protect commercial tenants.
Ontario’s new On-Site and Excess Soil Management Regulation, O. Reg 406/19 may impact existing and future construction contracts
Federal Procurement Update #1: Filing a Complaint at the Canadian International Trade Tribunal: A Sprint Rather than a Marathon
A review of when and how to file a federal procurement complaint to the Canadian International Trade Tribunal (CITT)
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.
A review of the Canadian International Trade Tribunal (CITT) procurement review mandate for 2020/2021.
Lobbying Reform Déjà Vu? Canada’s Commissioner of Lobbying Recommends Heightened Obligations for Lobbyists Once Again
Canada’s Commissioner of Lobbying Submits Preliminary Recommendations to House of Commons Committee on federal Lobbying Act reform.
FCA announces dates for the official cessation and loss of representativeness of LIBOR. Implications for Lenders.
IBA and FCA expected to make announcement about the official cessation of LIBOR. Timelines for ceasing new issuances of LIBOR loans.
Update: British Columbia's New Registry of Beneficial Ownership
Employers should take immediate steps to implement the new mandatory COVID-19 screening requirements for Ontario workplaces.
Status update (July 22, 2020) re: land use planning and municipal response to COVID-19 in Ontario; processing applications, appeals, and municipal closures.
Significant Expansion of Ontario’s Personal Health Information Protections amid COVID-19: What you need to know
Bill 188 made significant amendments to PHIPA, which affect technology companies, and potentially insurers, who provide access to personal health information.
The Ontario Superior Court of Justice provides guidance on enforceability of termination provision for Ontario construction employees.
The New Ontario Land Tribunals Cluster and moving forward with hearings at the LPAT.
Status update (July 6, 2020) re: land use planning and municipal response to COVID-19 in Ontario; processing
applications, appeals, and municipal closures.
Status update (May 13, 2020) re: land use planning and municipal response to COVID-19 in Ontario; processing applications, appeals, and municipal closures.
Using the benefit of experience with the COVID-19 crisis to re-evaluate risk allocation for pandemics and epidemics in P3 projects.
Status update (May 6, 2020) re: land use planning and municipal response to COVID-19 in Ontario; processing applications, appeals, and municipal closures.
Status update (April 22, 2020) re: land use planning and municipal response to COVID-19 in Ontario; processing applications, appeals, and municipal closures.
Alberta Government Passes Bill 12, Liabilities Management Statutes Amendment Act, 2020 – What You Need to Know
What you need to know about the Alberta Government's Bill 12 in relation to Liabilities Management Statutes Amendment Act, 2020.
Status update (April 15, 2020) re: land use planning and municipal response to COVID-19 in Ontario; processing applications, appeals, and municipal closures.
Best practices for construction project management during the COVID-19 pandemic, and other force majeure circumstances.
Pivoting Production to Address COVID-19 Shortages – What Manufacturers and Distributors Need to Know
Summary of Health Canada pathways for accelerated approvals, business and liability considerations for manufacturers
Contractual clauses, Permits & Inspections, Health & Safety, Labour, Litigation, Arbitration & Court Procedures,
Limitation Periods, Liens & Holdbacks
Guide for borrowers to discussing loan defaults and additional credit support with lenders.
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
Status update (March 30, 2020) re: land use planning and municipal response to COVID-19 in Ontario; processing applications, appeals, and municipal closures.
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.
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
Authors discuss changes in 2019 to Canadian corporate and restructuring statutes and their possible implications for insolvency practice in Canada
On June 17, 2019 major changes to Canada’s Trademarks Act will come into force.
What Project Finance Lenders Should Know
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.
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.
Several lawyers from McMillan’s Franchise Law and Distribution Group presented at the 18th Annual Franchise Law Conference held on October 18, 2018 in Toronto,
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.
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...
On July 1, 2018, the first set of amendments to the Construction Lien Act (the "CLA") will come into effect. Although there are transition provisions
Inconvenient Termination: The Financial Impact of Terminating Public-Private Partnership (“P3”) Projects
The enormous success of the P3 model in delivering on time and on budget public infrastructure can see troubled waters when new Governments arrive
‘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
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
Out with the old and in with the new: transitioning from Ontario’s old Construction Lien Act to the new Construction Act
An update to our December 2017 article, where some of the most significant substantive changes to the Construction Lien Act (the "CLA") are considered.
CSA Provides Cybersecurity Risk Disclosure Guidance and Best Practices for Reporting Issuers
Final Report: Canada Transportation Act Review
2015 in Review: Significant Increase in Leveraged Investments by the Aboriginal Loan Guarantee Program
2015 in Review: Significant Increase in Leveraged Investments by the Aboriginal Loan Guarantee Program
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