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Jason J. Annibale is the co-leader of McMillan’s Construction & Infrastructure Group and is recognized as one of Canada’s leading construction, infrastructure and energy lawyers. He acts in highly complex construction law disputes and sophisticated project finance transactions for clients throughout the construction pyramid, including authorities, special purpose vehicles, lenders, contractors and owners. He is a talented and seasoned arbitration and litigation counsel who has appeared at all levels of court in Ontario.

Jason has represented clients in disputes over delay and cost overruns relating to force majeure, COVID-19, changed site conditions, scope of work changes, owner interference, and other impacts in respect of underwater tunnels, biomass plants, prisons, hospitals, First Nation schools, residential and commercial developments, highway service stations, electrical power stations, and other infrastructure assets.

An authority in his field, Jason regularly speaks on the Ontario Construction Act, prompt payment, adjudication, delay and impact claims, dispute resolution, and managing risk in the P3, construction and real estate contexts. Jason has been recognized by Chambers Canada and Best Lawyers in Canada as a leading lawyer in construction law. The Canadian Legal Lexpert Directory has identified Jason as a repeatedly recommended lawyer in the area of construction law, and Who’s Who Legal: Construction has identified him as a future leader. He has also been recognized by Lexpert/ROB as one of Canada’s Leading Infrastructure Lawyers and one of Canada’s Leading Energy Lawyers.

A fellow of both the Canadian College of Construction Lawyers and the Construction Lawyers Society of America, Jason is the co-chair for Osgoode Hall’s premier construction programs, including the full-week Construction Law Certificate, Construction Liens, the Construction Act, and Construction Delay and Impact Claims. Elected three times to the Ontario Bar Association’s Construction and Infrastructure Law Section Executive, he also served as its co-chair program coordinator and is the author of the chapter on dispute resolution in the LexisNexis text, Public-Private Partnerships in Canada: Law Policy and Value for Money.



Representative Matters

  • Defeated over 20 cost overrun and delay claims forwarded by an international engineering contractor totalling over $300 million for alleged owner interference and changes and awarded all liquidated damages sought in the amount of $37 million and costs 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 tunnelling 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 refinancing 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 of 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.

Speaking Engagements

Think Tank on Effective Project Management in a COVID Era: From Force Majeure to Defending Against Delays and Impact-Related Claims, 13th Annual National Symposium on Managing Risk in Construction Contracts & Projects, The Canadian Institute, Co-Panelist with Rick Moffat, Sean Hollywood, Joshua Strub and Graham Brown

February 25, 2021

2nd Annual Legal Guide to Managing Construction Liens in Ontario, Osgoode Hall Law School Professional Development, Program Co-Chair with Sandra Astolfo

February 22, 2021

Common Issues that Lead to Disputes and Claims, Ontario Bar Association – Construction Law Primer, Co-speaker with Joshua Strub

November 26, 2020

Dispute Resolution in Construction, The Osgoode Certificate in Construction Law, Osgoode Hall Law School – Professional Development

November 13, 2020

Delivery of Healthcare Infrastructure with P3: What Am I Getting Into?, Osgoode Professional Development Workshop for Siemens Canada and Siemens Healthineers, Co-speaker with Julie Han and Ahsan Mirza

October 26, 2020

The Osgoode Certificate in Construction Law, Osgoode Hall Law School – Professional Development, Co-Program Director with Geza Banfai and Howard Krupat

October 16, 2020

Managing Construction Risk in 2020 and Beyond, The International Concrete Repair Institute and the American Concrete Institute

July 21, 2020

Successfully Litigating Delay and Impact Claims, 5th Annual Conference on Managing Risk in Construction Contracts and Projects, The Canadian Institute, Speaker

July 17, 2020

The Legal Context of Construction Project Delay and Impact Claims, Advanced Construction Issues: Construction Project Delay & Impact Claims, Osgoode Hall Law School – Professional Development, Co-Speaker with Andrea Lee

June 25, 2020

Advanced Construction Issues: Construction Project Delay & Impact Claims, Osgoode Hall Law School – Professional Development, Co-Program Chair with Andrea Lee

June 25, 2020

Construction Liens Under Ontario's New Construction Act, Strategies for Navigating the New Regime, Osgoode Hall Law School – Professional Development, Co-Program Chair with Sandra Astolfo

February 20, 2020

How to Succeed in Dispute Resolution, The Osgoode Certificate in Construction Law Osgoode Hall Law School – Professional Development

November 15, 2019

The Osgoode Certificate in Construction Law, Osgoode Hall Law School – Professional Development, Co-Program Director with Geza Banfai and Howard Krupat

November 11, 2019

Dispute Resolution in P3 Projects Panel Discussion, The Canadian Council for Public-Private Partnerships 2018 Conference

November 2018

Contracts, Consultants, and an Emerging Landscape: What you need to know - Ontario Bar Association, Co-Chair

September 2017

ADRIC 2016: ADR Canada's Annual National Conference: Reflections and Innovations, "Med-Arb: Marriage of Opposites"

October 2016

Golf Day and Dinner Program – The Path Ahead – Infrastructure Ontario's Perspective with Marni Dicker, Ontario Bar Association, Aurora, Ontario, Co-Chair

June 2016

Recoverable Damages for Breach of Lease, The Six-Minute Commercial Leasing Lawyer, The Law Society of Upper Canada

February 2016

Lease Remedies 101: Navigating Your Options, McMillan Corporate Counsel Series

September 2015

Aboriginal Law - The Legal Landscape and Application, Presented to the Legal Group of Infrastructure Ontario

March 2012

Fundamentals of Construction Law, 21st Annual Construction Super Conference, The Canadian Institute

December 2011

Civil Court Proceedings and the Enforcement of Orders - A Primer, Presented to directors, executive team, and in-house legal of Teranet Inc.

April 2011

Certificates of Substantial Performance, the Open for Business Act, and how the Construction Lien Act affects Condo Developers, Presented to in-house legal and project managers of Monarch Corporation

April 2011

De-Mystifying the Construction Lien Act - A Lender's Perspective, Presented to in-house legal and construction and building finance account managers of Royal Bank of Canada

March 2011

De-Mystifying the Construction Lien Act - A Lender's Perspective, Presented to commercial construction and building finance directors of the Bank of Nova Scotia

February 2011

What to do as an Owner when Liens Arise and the Construction Lien Act, Infrastructure Ontario at a 2009 meeting of its Vice Presidents, Counsel, and Project Managers

December 2009

Effectively Structuring and Managing Design-Build Projects, 19th Annual Construction Super Conference, The Canadian Institute

November 2009

The ‘Discovery' and Management of Aboriginal Remains, 2009 Insight Aboriginal Law Conference

October 2009

Construction Contracts and Delivery Methods, Managing Risk, Disputes, and the Construction Lien Act, 2009 Annual Conference of the Ontario Association of Physical Plant Administrators (OAPPA)

May 2009

First Nations Consultation and the role of Archaeologists within the Legal Framework, 2008 Annual Meeting of the Canadian Archaeological Association

Fall 2008

The Significance of Hiawatha First Nation v. Ontario (Minister of the Environment), [2007] 2 C.N.L.R. 186, First Nations Circle

Fall 2008

News


Media Mentions

Rankings & Recognition

  • Recognized by the Best Lawyers in Canada (2021) as a leading lawyer in the area of Construction Law
  • Recognized by Chambers Canada (2021) as a leading lawyer in the area of Construction Law
  • Recognized in the 2020 Lexpert Special Edition on Canada’s Leading Infrastructure Lawyers as a Leading Infrastructure Lawyer
  • 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

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)

Directorships & Affiliations

  • Fellow, Canadian College of Construction Lawyers
  • Fellow, Construction Lawyers Society of America
  • Member, Diversity Law Institute
  • Member, Trial Law Institute
  • Ontario General Contractors Association, Associate Partner Member
  • Canadian Bar Association
  • Ontario Bar Association Construction and Infrastructure Law
  • The Advocates’ Society

Education & Admissions

2002
Called to the Ontario bar
2015
Construction Law CertificateOsgoode Hall Law School
2000
LLB (with Distinction)McGill University
1997
BA Honours (First Class Honours)Queen's University

Publications

Insights by Jason J. Annibale (21 Posts)

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

Jan 25, 2021

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

Round 2: Ontario State of Emergency Again Restricts Construction

Jan 15, 2021

Essential construction activity during second state of emergency in Ontario.

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

Nov 9, 2020

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

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

Jul 21, 2020

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.

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

Jun 11, 2020

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

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

Apr 10, 2020

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

Project Management Amid COVID-19 – The Triage

Apr 8, 2020

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

The Impact of COVID-19 on the Construction Industry: A Reference Guide to the Changed Landscape

Apr 3, 2020

Contractual clauses, Permits & Inspections, Health & Safety, Labour, Litigation, Arbitration & Court Procedures,
Limitation Periods, Liens & Holdbacks

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

Mar 31, 2020

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

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

Feb 27, 2020

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

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

Apr 11, 2019

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

Performance Bonds: What Project Finance Lenders Should Know

Feb 28, 2019

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.

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

Mar 26, 2018

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

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

Mar 1, 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

Construction Law Seminar and Webcast

Mar 1, 2018

Learn more about the significant changes to construction law in Ontario and what impacts these changes will have on the construction industry.

Out with the old and in with the new: transitioning from Ontario’s old Construction Lien Act to the new Construction Act

Feb 14, 2018

An update to our December 2017 article, where some of the most significant substantive changes to the Construction Lien Act (the "CLA") are considered.

Winter is coming – and so is Ontario’s New Construction Act

Dec 19, 2017

Winter is coming – and so is Ontario's new Construction Act

Not as unconscionable as some might think: Court of Appeal orders purchaser to forfeit deposit after failing to close real estate deal

Dec 11, 2017

Not as unconscionable as some might think: Court of Appeal orders purchaser to forfeit deposit after failing to close real estate deal

Rolling Liability for Continuous Breaches of Commercial Leases

May 24, 2017

Rolling Liability for Continuous Breaches of Commercial Leases

Subcontractors May Unknowingly Lack General Lien Rights

Nov 3, 2016

Subcontractors May Unknowingly Lack General Lien Rights

Business Interests Working Through Parts Of Canada’s Identity: Aboriginal Law And Federalism

Jun 28, 2013

Business Interests Working Through Parts Of Canada's Identity: Aboriginal Law And Federalism