OsgoodePD Program Lawyer, Alexandra Karacsony, sat down with the Geza Banfai, a Counsel with McMillan LLP in Toronto, who celebrates 40+ years of legal experience and leadership in Canada, including an awe-inspiring list of educational and professional involvements and achievements. Geza co-founded and continues to lead numerous educational events across Canada that target both non-legal and legal professionals, including the OsgoodePD Certificate in Construction Law. Geza discusses why various construction professionals need to develop a working knowledge of construction law matters to adapt to the rapidly evolving construction legal landscape in Canada. He also offers an exclusive ‘sneak-peak’ at the upcoming OsgoodePD Certificate in Construction Law, running November 11-15, 2019, in Toronto.
AK: First, kudos to you for your ongoing legacy of leadership and involvement with various education programs and initiatives across Canada. On behalf of everyone in the construction community – tremendous thanks, Geza! As well, urban legend indicates that you are informally known as a “Construction Law Rockstar”. Any comments?
GB: Does Keith Richards know about this?
AK: We’ll need to ask Keith and circle back. In the meantime, let’s discuss your educational involvement, and specifically, your experience as co-founder and Program Director of the OsgoodePD Certificate in Construction Law. Why should busy construction professionals take this program?
GB: Because it’s important, because it’s unique, and because it’s Osgoode.
It’s important because the legal landscape within which the construction industry operates is remarkably broad. Anyone engaged in construction today needs a working knowledge of so many things – contract law, project delivery methodologies, procurement, health and safety, labour relations, insurance, the list goes on and on. Much of the time, this working knowledge is acquired on the job, or worst-case scenario, in some courtroom somewhere. We thought there might be a way to help with this – not to provide all the answers – we only have a week – but to enable better questions. That’s the key.
The other reason it’s important is because the landscape is constantly evolving. You need to keep up.
It’s unique in that there is no other industry-focused program in Canada which covers the field in this breadth, and which brings together such a stellar group of speakers who are among the leaders of the construction bar, the bench, and the industry itself. This year, for example, we are delighted to welcome The Right Honourable Beverley McLachlin, former Chief Justice of the Supreme Court of Canada – and a top-notch construction lawyer in her own right, I might add!
The fact that it’s Osgoode is a bonus. Osgoode is one of Canada’s pre-eminent law schools, and it sets a high standard. The fact that this program is an Osgoode initiative attracts speakers of the highest rank, and I dare say, encourages them to raise their own bar, approaching their topics in a way that is just that much more incisive, that much more useful to the audience.
AK: Why did you partner with OsgoodePD?
GB: Because it’s a first-rate organization with an amazing team! You know, there are a number of others out there providing educational services to the industry, but frankly, I’ve never encountered one that matches Osgoode for the professionalism they bring to the task. They’re really quite exceptional, and it’s a privilege to be able to continue to work with them all this time.
AK: This will be the 9th year for this OsgoodePD program in Toronto. How has it evolved over time?
GB: There have been a number of positive changes to the program over the years.
In the beginning, it was a week of solid lectures – great for flowing raw information, but not necessarily the most effective way to learn. In response to feedback we’ve received from attendees, not to mention a bit of mentoring from the people at Osgoode, we’ve tried to make the program more interactive, engaging the attendees in different ways. For example, we introduced a negotiation workshop exercise into the program a couple of years ago, and this has proven to be a great success. Our session on thorny contract clauses used to be a simple lecture, but we moved to a mock negotiation exercise last year featuring one lawyer who negotiated from the perspective of a design professional and another lawyer from the perspective of an owner, and the attendees loved it! It took a dry subject and made it real, in a way that a lecture never could. These are just two examples.
In general, we try to adapt while keeping the basic format intact – from project delivery models and the contract, through bidding and tendering, claims dispute resolution, and more specialized topics such as occupational health and safety, surety bonding and so on. And we still use the lecture format extensively, there’s no getting away from that, but I think we get better each year in mixing up straight lectures with other modes that allow the attendees to participate in different ways.
Of course, we also have to keep up with developments in the law and in the industry. So, for example, we introduced a talk on IPD some years ago, and the emergence of prompt payment and adjudication in Ontario and elsewhere required still other changes. We work hard to keep the content current, occasionally even a little ahead of the times.
Last but certainly not least, we’ve brought on Jason Annibale and Howard Krupat as Co-Program Directors for the course. Both Jason and Howard are first-rate construction lawyers in their own right, and the program has been enhanced by their ideas and the energy they bring. We’re all better for it!
AK: What are you proud of (in respect of this program)?
GB: Not only is the program successful, it is expanding! Osgoode now offers a Western Canada Edition of this course, focused on the particular needs of the industry in that part of the country. And that too appears to have taken off – thanks to the efforts of our Co-Program Director out there, Tim Mavko. Tim’s a prominent construction lawyer in Edmonton, but that’s just his day job. What makes him unique is his extraordinary commitment to education, which becomes obvious when you listen to his presentations. He’s far and away the best lecturer I’ve ever seen – and this is amid an already very fast crowd! We’re all lucky to have him, as well as the many Western Canada speakers he’s able to bring onboard out there.
AK: What keeps you engaged in leading and teaching this OsgoodePD program for 9 years and counting?
GB: There’s an expression: “A rising tide raises all ships”.
When I reflect upon the literally hundreds of construction executives, project people, consultants, lawyers and others who’ve come through the course over the years, I think how each one of them, in some way, has taken that learning back out into the world. And how as a result, the construction industry has become just a little better – contracts that are a little more equitable, disputes that get resolved a little more quickly, projects that go a little more efficiently.
It’s tremendously gratifying knowing that we’ve played some role in that. And this includes Osgoode itself. The construction industry owes a big debt of gratitude to OsgoodePD for their foresight and for championing this in its early years.
AK: What can participants expect this year?
GB: A very interesting course!
We begin as always with the first day devoted to project delivery models – Design-Bid-Build; Design-Build and Construction Management. Then talks on more esoteric (alternative) delivery models, Public-Private-Partnerships (P3s) and Integrated Project Delivery (IPD). The day ends with a mini-workshop on project delivery, where attendees break-off into small groups and work through fact scenarios that require them to select one or more models by which the projects can get delivered most appropriately.
The second day continues the focus on the contract with sessions on key terms, navigating the construction contract, and a contract negotiation demonstration. The day ends with the ever-popular “Negotiating a Construction Contract” workshop put together by a long-time and well-loved faculty member, in which the attendees work in small groups to negotiate an owner-contractor contract using a very realistic fact pattern.
On the third day, we move into bidding and tendering, both the fundamental principles and advanced issues, then into construction liens. The afternoon is devoted to an intensive treatment of various claims issues, such as extras, changes of scope and so on, and we wrap-up with an exploration of the technical aspects of proving productivity, delay and impact claims.
The fourth day is our “Top 5” series of sessions on some specialized areas of the law which affect construction. We ask our speakers to give us the Top 5 things people need to know about environmental issues affecting construction, insolvency and restructuring, insurance, bonding, labour, and occupational health and safety.
The last day begins with an in-depth treatment of dispute resolution, followed by what promises to be a very interesting “The Decision-Makers Speak! A View from the Bench” panel session featuring The Right Honourable Beverley McLachlin, Master Charles Wiebe, and Dr. Cyril Chern. This is an exceptional panel indeed, and will explore dispute resolution from the various perspectives of a judge, an arbitrator and an adjudicator. We then continue with a Fireside Chat with former Chief Justice McLachlin, which promises a unique opportunity to engage with our former Chief Justice about her experiences both on the bench and following. We have a keynote speaker this day, being Charles Todd, Senior Director, Investments, Canada Infrastructure Bank, who will share his unique perspectives. The afternoon then features a new session on some of the implications of emerging technologies in construction such as the Internet of Things, Virtual Reality, Blockchain, and Smart Contracts. We then move to an interactive round-table discussion about emerging trends and developments in the industry, and then a final wrap-up of the course.
All in all, it’s an intensive, exhilarating journey, and we are all very much looking forward to it.
To learn more about OsgoodePD’s Certificate in Construction Law running November 11-15, 2019, Click Here!
Geza R. Banfai is a Counsel with McMillan LLP, practicing infrastructure – construction law and mediation. He is a Fellow of the Canadian College of Construction Lawyers and was the recipient of the 2016 Award of Excellence in Construction and Infrastructure Law from the Ontario Bar Association, as well as the 2017 Toronto Construction Law Lawyer of the Year by Best Lawyers in Canada. He is listed in Chambers Global, Construction – Canada, the Leading 500 Lawyers in Canada (Lexpert/American Lawyer), Best Lawyers in Canada (Woodward/White), International Who’s Who of Professionals, Who’s Who Legal, Canada and International Who’s Who of Public Procurement Lawyers. His past directorships include the Canadian Construction Association, Consulting Engineers of Ontario and Toronto Construction Association. He continues to sit as the ex-officio legal representative on the Canadian Construction Documents Committee (CCDC), and was chair of CCDC’s IPD Task Force which created the CCDC 30 standard form IPD contract document. He was a member of the Advisory Group assisting the Ontario Ministry of the Attorney General in the finalization and implementation of the new Construction Act. Geza continues to write and lecture extensively on various issues involving the industry.