“There's no one right approach to risk allocation or to delivering a project,” says Laura Delemere at Borden Ladner Gervais LLP.
Delemere says the best way to successfully deliver a project and reduce disputes is for parties to ensure that they are familiar with the model they chose and consider whether it is the best fit for the type of work the project requires.
For example, the design-build public-private partnership model was developed to address challenges that parties often faced when allocating risk. While this model has improved parties’ collaboration, it is not a panacea.
“The difficulty with this model is that complex projects are difficult to estimate and to bid on at any time,” says Mark Crane at Gowling WLG.
When things go south, as they inevitably do, the appropriate dispute resolution framework will also depend on the context.
For example, provinces have enacted prompt payment legislation nationwide to resolve disputes, but the primary beneficiaries have been small-dollar and residential construction projects.
“The whole system is designed for claimants – for the little guys, for the subcontractors, suppliers, and unrepresented parties who don't have a lot of money and sophistication and want to be able to get a result quickly,” says David Outerbridge at Torys LLP. “For that purpose, it's well designed. But for complicated projects, or for respondents, it's not particularly optimal.”
For larger projects, dispute boards can take a long-term approach.
“These boards are usually set up at the outset of a project and track the progress of a project throughout its evolution, such that there is continuity and knowledge on the part of board members to address problems as they arise,” says Sharon Vogel at Singleton Urquhart Reynolds Vogel LLP. “They add an expense to the project, but employing them can result in savings in dispute resolution costs.”
Context matters, whether it is a small residential construction or an enormous infrastructure project. Speaking with experienced lawyers can help match your circumstances to the right approach.