Navigating the golden age of infrastructure in Canada: Legal experts lead the way

Governments are broadening their policy goals, and new legal tools are emerging to keep up
Navigating the golden age of infrastructure in Canada: Legal experts lead the way

Infrastructure is in a golden age. “There were times when things weren’t getting built, but there now is an absolute explosion of new infrastructure projects,” says Brad Nipcon at McCarthy Tétrault LLP.

With growth, however, comes complexity.

Infrastructure and socioeconomic strategy: legal implications in Canada

Governments are increasingly recognizing how intertwined infrastructure is with their other policy goals. Sharon Vogel at Singleton Urquhart Reynolds Vogel LLP says infrastructure is now part of an overarching socioeconomic strategy. “As society has developed and grown, there’s increasing importance placed on how infrastructure can meet larger objectives.” 

For example, public discussion on infrastructure now includes much-needed development in internet broadband for isolated communities, the transition to a “clean, green” economy, and affordable housing. 

Creating more affordable housing isn’t just about building more homes or rental units. Larger cities require density, which means schools, sewage systems, hospitals, and public transit.

“This vision of transit-oriented communities effectively connecting everywhere is challenging, but the priorities of housing and transit are important,” says Jason Annibale at McMillan LLP.

Legal challenges in emerging infrastructure models in Canada

As infrastructure projects become more complex and pressing, new tools are emerging to get projects built faster.

Brian Kelsall at Fasken Martineau DuMoulin LLP says that while the Canadian Infrastructure Bank started slowly, it has since made progress. He says the CIB has “been more and more successful” in identifying needs, solving problems, and taking on risk while broadening the sectors it will support.

New models are also emerging to allocate that risk. Progressive procurement models, which are adaptations of the classic P3, are gaining popularity. “The public authority and the private partner are forced to seek more collaborative solutions to issues that come up during the actual construction phase,” says Ilan Dunsky at Dentons.

Dispute resolution in Canadian infrastructure projects: a legal perspective

As conflicts inevitably arise, dispute resolution also evolves. Mark St. Cyr at Cassels Brock & Blackwell LLP has seen a “big shift” where contractors push to accelerate alternative dispute resolution processes. “They want to speed up that process.”

St. Cyr says the trend toward faster dispute resolution also pushes parties toward statutory adjudication, which is part of the prompt payment laws recently enacted nationwide. Lawyers say project participants are also increasingly using dispute resolution boards.

The role of legal advisors in Canada’s infrastructure boom

Ultimately, the role of legal advisors has become more complex at every project stage.

“Our role can come at the very beginning of project development, and all the way through to the end of the project,’ says Patricia Morrison at Borden Ladner Gervais LLP.

The lawyers selected in this Special Edition: Infrastructure have the experience to help navigate the complexities of these projects from beginning to end.

Lexpert is pleased to partner with The Canadian Council for Public-Private Partnerships, whose advocacy, research, and education on behalf of its members continue to drive this sector.