As requested by the Editor of our Construction and Infrastructure Newsletter, Jay Nathwani, these career reflections are written for inclusion in our Section’s Newsletter Reflections Series. I’m pleased to have been asked to participate, although somewhat reluctant to provide personal reflections. In setting the stage for my remarks I’ll focus briefly on some historical aspects of my career and particularly on the broad range of diverse opportunities that I encountered that enabled me, over the years, to expand the scope of my practice in Canada and internationally.
Many Canadian lawyers have already broadened the scope and jurisdictional aspects of their practice areas. My hope is that my reflections may be of some assistance, particularly to young lawyers similarly interested in expanding their practice areas and their horizons.
To quickly recap my history, I joined Osler, Hoskin & Harcourt after being called to the Bar in 1973. I enjoyed working with a number of Osler partners and particularly with one kindred spirit, Ron Ellis (who would go on to become the Director of the Bar Admission Course ), with whom I shared an engineering background. My early construction law files were lien matters and commercial disputes. I was also soon appearing in court on mechanics lien cases. I recall it all happened very quickly. I was exposed to a variety of lien issues and court appearances before Masters. The cases often involved multi-party subcontractors. I particularly recall significant lien cases opposite Douglas Macklem, a very senior counsel whose experience and demeanour impressed me, as did the resolutions we achieved. Eventually, Doug Macklem would play a significant role in encouraging me to become Chair of the OBA Construction Law Section.
My early commercial construction disputes also introduced me to the late David Bristow, another senior construction lawyer with whom I would have good dealings and with whom I would, years later, share insightful meetings at the Canadian College of Construction Lawyers.
My early and first exposure to international project work included an assignment to negotiate an engineering contract for the design and construction of a new cement plant in Indonesia, a somewhat daunting assignment at the outset as I had then had some experience with CCDC contract forms but the US contract forms were then new to me, as for example were the statutory provisions of the US Uniform Commercial Code. The negotiation of this major contract took place in Pittsburgh, where I found myself across the table from more experienced US counsel. But I did have the benefit of telephone contact with my mentor Ron Ellis. This negotiation was a fantastic experience, one that had me craving for more exposure to international project negotiations. That in turn inspired me to seek out seminars and conferences on international law matters. At that time in the 70’s, seminar and conference opportunities on international construction and engineering project law matters were not at all common in Canada.
Accordingly, I was keen to and did sign up for meetings and seminars on construction law subjects in the US, the UK and elsewhere. Somewhat to my surprise I found that various contact forms in use included many similar concepts and provisions; and I discovered that a number of these standard forms, particularly those in use in the Far East and elsewhere had been prepared by UK counsel. The more I dug into them and took advantage of opportunities I had to question their derivations, the more I realized their similarities. I was also intrigued with the opportunity this provided for insight into some European civil law concepts.
Of particular importance to the development of my international law practice was my involvement at meetings of the International Bar Association which eventually led to membership in the IBA that I maintained for many years. My IBA involvement took me on to speaking opportunities at many foreign destinations. As with any organization membership, it was important to make a commitment to the organization’s Committee work; that is of particular importance to becoming recognized and known to other members. I enjoyed the advantage of the support of Osler in participating in that networking and development aspect of my practice; and particularly so when legal work started to flow to me from international colleagues. Some examples of that legal work included arbitrator, mediator and counsel appointments in Canada, Asia, South America, USA, Israel and Eastern Europe,
I also noted very early on that the international construction law bar, in terms of keen international practitioners, was a relatively small one; that often the same international faces turned up regularly at the various seminars and committee meetings I chose to attend. These international contacts were very welcoming and keen to expand their own international contacts which made for great networking opportunities. I certainly recommend involvement in, and participation at, international meetings where practicable opportunities to do so may arise.
Moving on to reflect on the importance of career development through speaking and writing opportunities, in the mid 70s I received an opportunity to speak to fourth year undergraduate engineers at U of T. I found the engineering students to be keenly interested. That subsequently led to my teaching Engineering Law and Professional Liability courses to graduate engineers at U of T for more than twenty years.
My teaching at U of T also afforded me an opportunity to write my book on Law for Professional Engineers, Canadian and Global Insights, now in its Fifth Edition, 2019. Writing this text was an undertaking I was also encouraged to pursue by senior members of the Association of Professional Engineers of Ontario.
For the last twenty years or so, my practice has primarily focused on my appointments as an arbitrator or mediator, as already noted in this article. This ADR focus has also provided me with more than 12 years’ experience chairing Dispute Resolution Boards in Canada and in Eastern Europe. I have been impressed by the efficiency of the DRB process. Of course, as on any major project, disputes may arise but all disputes that did arise on my DRB projects were resolved during the course of the projects, by settlement by the parties. None proceeded through the courts.
And a closing thought on the role of construction lawyers as experienced candidates as technical counsel, mediators, or arbitrators on typical design and construction disputes. Less typical technical disputes may arise that include less typical AI issues and perhaps other issues on other emerging technical initiatives. These developments may well spell new opportunities for technical construction counsel.
I hope these reflections may be helpful.
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