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The Canadian College of Construction Lawyers an all-star roster of expertise

Peter Caulfield
The Canadian College of Construction Lawyers an all-star roster of expertise

Toronto construction lawyer Harvey Kirsh has won the 2018 Ontario Bar Association’s (OBA) Award of Excellence in Construction and Infrastructure Law.

“I extend my sincere thanks to the OBA in general, and the Construction Law section in particular, for honouring me this evening with this Award of Excellence,” Kirsh said in his acceptance speech.

“As I think back over my 45 years as a construction lawyer, I have to admit that construction law has been a huge and rewarding part of my professional life,” he said.

“It has been a life of privilege, experience, enjoyment and learning. And it has also been punctuated with incidents of pride and honour. Like this evening.”

The Construction and Infrastructure Law Section of the OBA established the Award of Excellence to recognize exceptional contributions by individuals both to the law and the construction bar.

In addition to his recent OBA honour, Kirsh is a Founding Fellow of The Canadian College of Construction Lawyers (CCCL), an “all-star team” of senior construction lawyers.

The CCCL was founded as a non-profit association in 1998, “to facilitate and encourage the association of outstanding lawyers who are distinguished for their skill, experience and high standards of professional and ethical conduct in the practice or teaching of construction law and who are dedicated to excellence in the specialized practice of construction law.

“Through the association of such members in an environment of collegiality and good fellowship, the College shall strive to nurture, improve and enhance the practice and understanding of construction law.”

The CCCL has approximately 100 Fellows and Emeritus Fellows, and a 20 Honourary Fellows, says CCCL president Matthew Alter.

“That number includes several current and retired members of the judiciary, including The Right Honorable Justice Beverley McLachlin, former Chief Justice of the Supreme Court of Canada,” said Alter.

“Fellows are admitted by invitation only.”

Alter says Canadian construction law did not used to be as distinctively identifiable as a legal practice area as it is today.

“The Fellows of the college contribute to the development and growth of construction law in Canada by providing a forum for members to exchange views and ideas on construction law, including legislative changes,” he said.

For example, since 2007 the CCCL has published the Journal of the Canadian College of Construction Lawyers every year. This collection of scholarly articles is available to the public.

Alter says that, in many respects, construction lawyers are similar to commercial lawyers and civil litigators.

“A main difference is the degree of specialization,” he said.

“Many construction disputes involve contracts and commercial agreements that involve statutory provisions unique to the industry, such as construction and builders lien legislation.”

Another difference between construction lawyers and generalists and lawyers in some other practice areas is that many construction lawyers provide solicitor services, such as contract drafting and negotiation, in addition to barrister work as counsel for litigation and disputes.

“Also, what makes construction law different from many other branches of law is the large number of documents involved in a construction dispute, especially in a project that is large and complex,” Alter said.

Another CCCL Fellow, Marc MacEwing, says he is one of about 30 lawyers in Greater Vancouver who practice primarily construction law.

“Unlike other forms of law in Canada, construction law cuts across many types of law — contract, negligence, liens, insurance, bonds and regulatory,” said MacEwing.

“Every case is different, covering many different legal issues.”

One of the unfolding trends that MacEwing has been seeing is an increasing number of disputes involving residential construction.

“In large, growing centres like Vancouver, there is an increasing number of residences being built, some of which are very expensive — in the millions of dollars,” he said.

MacEwing says disputes concerning the construction of such houses can involve many dollars, and therefore some of them are bitterly fought.

“Such disputes can become legally complex and expensive to resolve, especially if the owner is inexperienced with contracts or if the contractor draws up an unclear legal document,” MacEwing said.

MacEwing’s colleague Seema Lal also says litigation is becoming more common in construction.

“There’s more construction taking place, and therefore there are more opportunities for disagreements,” said Lal.

“In addition, individuals and small businesses are becoming more aware of their rights and are prepared to fight for what they believe to be their due.”

Another trend — a regrettable one, in Lal’s opinion — is that some people are going online and copying and pasting parts of contracts they like and trying to write a do-it-yourself legal document.

“The results are often sub-standard,” Lal said.

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