Hot or Not: Does the Canadian Public-Private Partnership Legal Framework Attract Foreign Investment?

  • October 12, 2021

by Alex Maly, winner of the 2021 Atrium Law Student Essay Contest

(A) Introduction

Infrastructure is a cornerstone of the global economy. Trade and mobility depend on roads, ports, airports, railways and telecom systems, while production depends on electricity. In 2016, the McKinsey Global Institute estimated that every dollar of infrastructure investment has the capacity to increase gross domestic product (“GDP”) by twenty cents over the long term due to increased productivity.1 Despite the necessity of modern and sophisticated infrastructure, by 2040, the world is projected to have a $15 trillion gap between projected investment and the amount of funding needed to provide adequate infrastructure across the globe.2 In the past, infrastructure funding was primarily handled by the public sector. However, tight government balance sheets and major economic disruptors have led many countries to seek out foreign private capital and use alternative funding models.3

In 2008, the Canadian government created PPP Canada with the goal of institutionalizing public-private partnerships (“P3s”). P3s are an alternative financing and procurement model that aim to close the infrastructure gap by forming cooperative ventures between the public and private sector, giving governments the opportunity to engage the expertise and capital of the private sector.4 The P3 model is most often used where there are insufficient public funds to meet infrastructure needs. Canada is considered a global leader in the P3 space and yet, as of January 2020, Canada’s infrastructure deficit is estimated to be between $110 and $270 billion.5 Moreover, a recent study found that commuters in Montreal, Toronto and Vancouver spend ten thousand years in additional commuting time every year due to the current congestion caused by inefficient infrastructure systems.6 Evidently, despite serving as a benchmark for the rest of the world, Canada’s infrastructure deficit suggests that the country must refine a component of its P3 strategy in order to provide public services in a timely manner.

For P3s to succeed, the host country’s government must commit to ensuring that all relevant levels of government are coordinated and have the same philosophy toward P3s, while also ensuring that they have access to the necessary project financing tools.7 Perhaps most importantly, the host country must ensure that it has a legal framework that attracts investment from both domestic and foreign private capital.8 Bridging global infrastructure gaps will require increased cross-border infrastructure financing and as such, it is necessary to consider whether Canada’s legal framework is hindering foreign investment in Canadian P3s.

This paper will explore the different components of Canada’s legal framework as they pertain to infrastructure, with the goal of determining whether they are conducive or detrimental to foreign investment in Canadian P3 projects. I will begin with a general overview of P3s, before examining why investment into Canadian P3 projects is critical. I will then conduct an in-depth analysis of each of the four main components of the Canadian P3 legal framework – the regulatory environment, contractual clarity and integrity, the procurement process and dispute resolution mechanisms. My analysis will reflect on what the Canadian legal framework does well, what it does poorly and any changes that should be made. Based on this analysis, I will determine how the legal framework impacts foreign investment into Canadian P3 projects and suggest other factors that may impede investment. Furthermore, it is critical to point out that private funding of public assets is an approach that is riddled with controversy and as such, arguments against foreign investment into Canadian infrastructure will be considered throughout.

(B) Overview of Public-Private Partnerships

There are a wide variety of P3 models, ranging from concession to operation and maintenance. A concession model involves the government contracting out services to the private sector as an alternative to public services.9 It falls short of privatization as the private sector only undertakes investment and operation for a fixed amount of time before reverting ownership of the asset back to the public sector. On the opposite end of the spectrum, operations and maintenance P3s involve the public sector contracting out operations and maintenance activities to a private entity for a specified period of time, while retaining ownership of the asset.10 The public sector also commonly contracts out design, build and financing activities to the private entity. Within Canada, P3 projects typically refer to long-term contracts, whereby the private sector will design, build, finance, operate and maintain the public infrastructure for a specified amount of time.11

The parties to the long-term contract (the “Project Agreement”) that provides the basis for a P3 project are the public sector entity and a private sector consortium. In Canada, the public sector sponsors the project and may consist of a federal government entity, a provincial government entity or a municipal government depending on the type of project.12 The members of a private consortium will vary based on the P3 model being used but typical consortium members include a lending entity (provides financing), a construction contractor (designs and builds the project) and a services contractor (operates, maintains and repairs the asset).13 These private entities will form a Project Company (known as “Project Co” or alternatively, as a “private consortium”), which acts as the point of contact for all private entities that are party to the P3 project.

A P3 is normally used to achieve two goals: (1) cost and time certainty and savings and (2) innovation and high levels of efficiency.14 There is also evidence to suggest that P3s can solve many of the structural and operational problems that cause budget overruns and schedule delays that normally occur during traditional project delivery.15 These benefits are largely attributable to the private sector’s expertise at managing construction and operational risks, as well as Project Co’s aversion to financial penalties for project overruns.16

While the benefits are certainly enticing, P3s are not suitable for every large infrastructure project.17 There are three cases where P3 projects should be avoided: (1) where there is an institutional framework that lacks a clearly defined P3 strategy; (2) where the legal framework does not feature P3 specific laws, a fair dispute resolution mechanism, contractual integrity or a structured procurement framework; and (3) where the financial environment of a nation prevents the fair and reasonable allocation of risk between the private and public sector.18 Canada, often viewed as a benchmark for P3 best practices, has implemented institutional, legal and financial frameworks that allow the nation to be presented as one of the most dynamic P3 markets in the world.19

i. Trends in the Canadian Public-Private Partnership Market

In Canada, like other markets where they exist, the proliferation of P3s was largely in response to the country’s deteriorating infrastructure in the social, transportation and communications spaces.20 Canada boasts a mature P3 market with a vast number of successful projects and is therefore considered to be an exemplary model for countries who hope to use P3 projects to close their infrastructure gap.21 There are currently 291 active P3 projects in Canada with an approximate market value of $139 billion.22

Despite Canada’s success with P3 delivery, there is still a looming infrastructure deficit that is only expected to grow due to the effects of COVID-19. Across the globe, COVID-19 has created operational disruptions and construction delays due to supply chain issues in the labour, equipment and raw materials markets.23 This, in turn, has had a negative impact on access to financing for projects that have yet to achieve financial close.24 The hallmark of P3s is risk allocation between the private and public sectors and in June, the Canadian federal government committed to providing $2.2 billion in infrastructure funds to cover COVID-19 shortfalls.25 However, this funding has not materialized and stakeholders in Ontario fear that if Ottawa cuts back on infrastructure spending, the province could lose out on 60,300 jobs and $22 billion in provincial and federal government revenue.26 These trends illustrate the important role that foreign investment funds will play in the post-COVID era.

As the infrastructure deficit in Canada grows, so does the need for investment. In comparison to other types of contracts, P3 agreements are complex, long-term and involve many counterparties and ancillary agreements, making them less amenable to change.27 As such, before providing financing, investors will need to trust that the host country’s legal framework features a sound regulatory environment with minimal barriers, contractual integrity and clarity, a transparent procurement process and adequate dispute resolution mechanisms.

(C) The Importance of Investment to Canadian P3s

If investment in Canadian P3s does not increase, closure of the current infrastructure gap will be impossible. One of the benefits of P3s is that they increase the available financing opportunities, allowing (and in most cases, requiring) the public and private sectors to both contribute funds to a project.28 The private sector’s involvement in the delivery of a public asset makes P3s an inherently controversial model. Some opponents suggest that the government should seek out sources of revenue that are democratic and progressive in nature, including expanding state ownership and revenue sources or enhancing existing sovereign wealth funds.29 Other opponents claim that private investment is counter intuitive because although the project is removed from the government’s balance sheet, private financing results in project funds being borrowed from public budgets for a longer period of time.30 However, the reality is that P3s are largely a response to a nation’s crumbling infrastructure and governments’ inability to provide immediate funding for urgently needed assets. Canada, like most Western nations, finds itself in a position where the country is facing two contradictory challenges: (1) a high unemployment rate and a deflating economy, requiring maintenance of economic activity and investments into necessary public sector assets; and (2) the need to limit government debt, thereby resulting in the postponement of certain major projects that can negatively impact employment rates.31

Irrespective of the competing arguments, P3s have become increasingly institutionalized in Canada and it appears that they are here to stay. Former Canadian Transportation Minister, Lisa Raitt, pointed out the importance of private investment saying, “the private sector has the ability to keep costs down and that in turn, gives better value to taxpayers.”32 However, the Business Council of Canada has estimated that in order for the Canadian economy to run with optimal productivity and efficiency, up to $1 trillion in investment is required.33 This shortage in funding is profound and will likely only be rectified by tapping into the over $120 trillion in assets under management by private investors.34 Notably, many of these assets lie beyond Canada’s borders, making it imperative to consider foreign investment.

i. The Impact of Foreign Investment

Foreign parties can be involved in P3s in varying capacities. On the one hand, foreign institutional investors may be direct or indirect shareholders in the project and on the other hand, a foreign investor may be a counterparty to the Project Agreement.35 This paper’s reference to foreign investors is inclusive of the various capacities that a foreign party may have within a P3 in Canada.  In 2016, sixty percent of the $120 trillion in privately held assets across the globe came from Europe and North America.36 However, the market share of private assets held by European and North American companies continues to decline as Asia now accounts for more than twice as much growth capital as North America and approximately the same amount of venture capital.37 As resources continue to shift,38 Canada must ensure that its legal and business environments coalesce to attract investment from new economies. Foreign investment, especially in relation to public assets, almost inevitably raises the concern that Canadian sovereignty will be eroded if the country loses control of its economy.39 While valid, these concerns hold less credence in the context of P3s. P3s, at their core, are a tool that aligns private efforts with public objectives.40 At all stages of a P3 project, there is typically international, national and local representation,41 all but ensuring that domestic interests are consistently at the core of the transaction. In fact, the P3 Council of Canada has outwardly stated that the idea that P3s send profits from Canada to foreign companies is a myth.42 On the contrary, between 2003 and 2012, Canadian P3s contributed $25.1 billion in direct GDP and $92.1 billion in total economic output to the Canadian economy.43

Opponents of foreign counterparty involvement in Canadian P3 Project Agreements are concerned that Canadian firms will be less competitive and lose their ability to innovate if large P3s are being won by international firms.44 However, some Canadian engineering companies have rebutted this concern claiming that their ability to gain experience in large Canadian P3 projects has allowed them to become competitive in international markets.45 In addition, the diverse range of domestic and international firms has increased competition, thereby forcing suppliers to drive down their prices and to submit project bids that are extremely innovative.46 Lower supply costs allow P3 projects to be delivered at a lower cost overall, while innovation during the procurement stage ensures that new infrastructure will offer the best solution to the current issues plaguing the industry. These factors are paramount as Project Co is delivering a public asset, thereby making innovation and lower cost in the best interest of Canadian taxpayers.

Some construction companies have also expressed concern stating that the differing workforce cultures between companies in a private consortium may result in vastly different business practices and approaches to projects, causing inefficiency.47 It is true that different companies in a private consortium may have different business cultures. However, companies explicitly choose to form a private consortium before the P3 procurement process even begins.48 Often, a cultural risk is more likely to emerge due to the host country having a different approach to public assets, as it can affect communication styles and negotiation tactics between the private consortium and the government agency.49 However, this problem can be mitigated by having a transparent and consistent procurement process50 and a positive attitude toward innovative thinking and diligence.51 Additionally, the reality is that while there are many established construction companies across Canada, only a finite number have the capacity to complete large P3 projects.52 Canada’s infrastructure gap is so large that there is no time to wait for Canadian construction companies to scale their operations to take on large P3 projects. Instead, the best option is to invite foreign firms to compete for Canadian procurements, thereby further advancing innovation within the Canadian industry.53

Despite the counterarguments, foreign investment in Canadian infrastructure has steadily increased over the years as large, foreign multinational corporations are attracted to the P3 bidding opportunities that Canada’s market offers.54 Additionally, the Canadian P3 market is transparent and lacks significant entry barriers, ensuring that very few projects fail due to lack of private sector interest.55 As such, P3 projects in Canada have had the benefit of access to streams of private sector capital from domestic and international banks and institutional lenders.56 The multitude of players in the Canadian landscape creates significant competition between lenders, thereby resulting in financing rates that are low by international standards.57 To ensure that this competitive environment continues to be fostered, Canada’s P3 legal framework must be conducive to foreign investment.

(D) The Legal Framework

Canada’s infrastructure deficit is not unique. The lack of quality infrastructure is a global phenomenon58 and as such, countries around the world are going to be competing for private funding from global investors. Attracting foreign investors requires the host country to have a strong legal framework that ensures market confidence,59 keeps transaction costs low60 and most importantly, provides legal certainty.61 The “legal framework” refers to all of the laws and regulations that govern and impact a P3’s project cycle and typically depends on the legal traditions of the host country.62 Canada, with the exception of Quebec, uses a common law system which is less prescriptive than civil law and thus, has fewer laws governing the form of P3 contracts.63 As a result, P3 contracts in common law jurisdictions must clearly delineate the roles, responsibilities and relationships amongst counterparties to a P3 project.64 This often results in the contracts being long and complex. A strong legal framework is said to exist where legal certainty is achieved through a stable domestic regulatory environment with few barriers,65 contractual integrity and clarity,66 a fair and transparent procurement process67 and adequate dispute resolution mechanisms.68 Although these factors are closely related and tend to provide support to one another in the context of a holistic legal framework, this paper will attempt to analyze each factor separately in order to produce a clearer picture of the Canadian P3 environment, thereby determining if any individual factor may be responsible for hindering foreign investment.

i. Regulatory Environment

There is no single regulatory body that governs P3s in Canada. Rather, there are many actors at the federal, provincial and municipal levels.69 The general trend in the Canadian P3 market is that P3-specific legislation is only in place to the extent that is required to establish the various government agencies that are responsible for delivering and procuring infrastructure projects.70 Therefore, the P3 legal framework is primarily developed by provincial agencies71 as the division of powers under the Canadian constitution dictates that most large-scale infrastructure projects will fall under provincial jurisdiction.72 For example, in Ontario, a Crown corporation called Infrastructure Ontario (“IO”) was established by statute with the mandate of renewing the province’s infrastructure.73 Specialized provincial agencies (like IO) are the driving force behind P3 projects in each province and the scope of their services and competence is specified in the enabling legislation.74

There are some federal, provincial and municipal guidelines and policies that have been drafted with the aim of harmonizing the P3 structure within Canada.75 However, these policies and guidelines are not legally binding and as such, the provincial agency is largely responsible for determining the regulations that will apply during P3 projects.76 Ultimately, Canadian P3s are subject to very little legislation and regulation from the federal and provincial governments.77 At face value, the lack of regulation and legislation by a government seems odd, especially in the context of a large-scale public asset. However, the creation of a P3 program in each jurisdiction has proven to be the most effective way to create a stable P3 regulatory environment, as it organizes, coordinates and focuses government resources in an effective and predictable manner.78 Additionally, the creation of a provincial P3 program signals to investors that the jurisdiction is benefiting from a well-designed institutional framework that has strong political support.79

One approach to the P3 regulatory environment suggests that P3 projects cannot succeed in a politicized environment and thus, the government should be wholly separate from the agency that is procuring the asset.80 This is the approach that Canada has decisively chosen to pursue. However, Canada’s laissez-faire regulatory approach toward P3s is not accepted by all P3 proponents. For example, one school of thought in the United States advocates for the government to play a central and effective regulatory role due to the long-term and public nature of the asset that is being delivered.81 This premise relies on the idea that governments are responsible for resolving conflicts that may arise in a P3 project.82 While it is generally true that corporate finance demands a stable and attractive regulatory model,83 the lack of Canadian government oversight does not necessarily mean that Canada lacks this feature.

Regarding disputes, it is not always necessary for the federal or provincial governments to be directly involved. Given that P3s are a specialized infrastructure delivery model, it is more effective for there to be a specialized agency that oversees not only the growth of the P3 market, but its accountability.84 One of the initial concerns expressed by Canadian P3 opponents was the staggering costs that the government would have to pay to hire contracting lawyers to understand the legal environment and dispute resolution mechanisms that apply to P3s.85 However, the inception of provincial agencies with in-house legal counsel minimizes these transaction costs as in-house lawyers have a repertoire of specialized skills that enable them to effectively and expeditiously address potential disputes or concerns that arise.86 Specialized counsel, dedicated to ensuring a consistent and transparent approach to P3 projects, will provide far more legal certainty than government outsourcing.

In recognition of the fact that P3s have become an important tool to improve economic competitiveness and fill the infrastructure gap, in 2019, the United Nations Commission on International Trade Law (“UNCITRAL”) released model legislative provisions on P3s.87 UNCITRAL believes that codification, harmonization and modernization of P3s is necessary due to the abandonment of various projects caused by counterparty disputes, increased transaction costs from negotiating on a project-by-project basis and an overall lack of legal certainty.88 Legal uncertainty, in the context of the regulatory environment, is caused where parties do not understand the host country’s laws with respect to P3s and its P3 project structure and procedures.89 By UNCITRAL’s standard, there should be a legislative framework at either the federal or the provincial level that explicitly lays out the law as it pertains to P3 projects in order to clarify the regulatory environment for domestic and international counterparties. However, this approach is more akin to a civil law framework, where contract terms must adhere to codified law. This approach is wholly different from the common law regime in Canada (with the exception of Quebec), which places heightened reliance on quality contract drafting. It is unclear which approach is superior as UNCITRAL’s model legislative framework is still green. Future studies should compare the two ideologies to see which has more success in attracting foreign investment. That being said, it is highly unlikely that Canadian jurisdictions will modify their current approach as provincial agencies (like IO) have had substantial success delivering P3 projects.90 The time and effort that it would take to undo this framework would simply increase transaction costs, further increasing government debt. Additionally, the public can access P3 Project Agreements between provincial agencies and Project Co,91 resulting in the same legal certainty that UNCITRAL’s legislative framework is hoping to achieve.

Canada’s natural resource sector is a prime example of the negative effect that regulatory barriers can have on foreign investment within an industry. Recently, changes were made to Canadian regulations within the energy industry, effectively stifling investment.92 This stall in the flow of capital is largely attributable to regulatory uncertainty perceived by investors. More specifically, investors are concerned that Canada’s regulatory and tax environment do not provide enough legal certainty.93 While there is an infrastructure gap that exists within Canada, there is not a stall in the flow of capital. In fact, the flow of capital into Canadian P3 projects has been consistently strong,94 albeit not strong enough. Consequently, for the P3 industry to avoid the same fate as Canada’s natural resource industry, it is necessary that Canada continues to minimize P3 regulatory hurdles and uncertainty. It is also worth noting that because Canada has not over-legislated the P3 regime, Canada has allowed the regulatory framework to evolve in a Darwinian fashion, thereby creating a very efficient product which likely would not have occurred if there were legislative constraints.

ii. Contractual Integrity and Clarity

Contractual integrity and clarity are critical components of the P3 legal framework because when counterparties are confident in the form of agreement, it results in a diverse and competitive range of providers that want to be involved in the Canadian market.95 Furthermore, contractual clarity and integrity assume greater importance in common law jurisdictions like Canada, as P3 project disputes will not be easily resolved with reference to jurisprudence or legislation.96 Legal certainty is critical as a lack thereof could result in increased transaction costs if standard terms have to be renegotiated on a project by project basis.97 In order to avoid costly disputes and contract renegotiation, Canadian P3 agencies abide by a strict contractual form to make up for the lack of industry regulation. Specifically, the contractual agreements are structured to ensure that the rights and obligations of Project Co are clearly delineated under the Project Agreement and the corresponding ancillary contracts.98 In the case that Project Co hires various subcontractors, the Project Agreement and corresponding documents will also address the rights and obligations of these subsidiary parties.99 This strict form of contract is critical as it gives the various parties a clear, undisputed picture about what their roles and responsibilities will be throughout the P3 process.

A strong and widely understood contractual regime will attract a strong flow of foreign capital, as fewer financial risks arise when investors are certain that the contractual form is appropriate and there are no uncertainties associated with execution.100 It has been postulated that a modern P3 contract should feature a sound legislative foundation and clarity in the contractual terms and P3 process rules.101 As a result, contractual certainty tends to hinge on a combination of attentive contract drafting and positive relations between counterparties.102 For parties to carry out their obligations under the contract effectively, they require access to clear, transparent and objective information about the level of performance that is expected under the contract.103 In most cases, Canadian P3 agencies form the basis for a transparent relationship with Project Co during the procurement stage and as such, discussion about this process will be deferred until the ‘Procurement Process’ section of this paper.

A critical component of the Project Agreement is the method of payment throughout the contractual term. While clear and explicit payment terms are a material factor in any contract, they assume greater importance in P3 contracts due to their longevity. For the most part, Canadian P3s use the availability payment or payment for performance mechanisms.104 These mechanisms grant payment to Project Co in a lump sum once the asset reaches substantial completion (called a “completion payment”), before making periodic payments throughout the rest of the contract term (called “availability payments”).105 Availability payments are generally considered to be less risky than revenue-based payments (I.e.; through collection of tolls or a share of ridership fares) because the government entity assumes the revenue risk, thereby contributing to legal certainty.106 Revenue-based payments, on the other hand, involve the private sector absorbing the risk while also collecting revenue to recoup the cost of development.107 The high risk nature of revenue-based payments means the potential for, or at least the expectation of, higher reward. This is likely to attract investors who have a modestly higher risk appetite. Due to the nature of the public asset being delivered, Canadian governments are wary of the revenue-based system as the public may view this as an opportunity for the private sector to make a profit on public funds.108 If Canada wants to increase the amount of foreign capital in its P3s by attracting investors with a higher risk appetite, industry experts have predicted that it is likely that provincial agencies will need to start adopting a revenue-based model for some projects.109 While the revenue-based model could result in less legal certainty due to increased private sector risk, this can be addressed with careful contract drafting. For example, in the United States, some P3 Project Agreements that use a revenue-based payment scheme provide that where toll revenues are below a pre-determined threshold, the government will cover the difference.110 Additionally, revenue-based payment provisions in American P3s have been known to limit the profit of the private sector by creating a cost-sharing mechanism with the government entity once a specific profit level is achieved.111 In order to maintain legal certainty while also increasing the pool of investors, Canada should adopt an approach that has revenue-based payment provisions for transit projects (as they can charge tolls), while maintaining availability payment provisions for social P3 projects like hospitals and courthouses. Alternatively, Canadian P3s can adopt a blended payment mechanism that features a completion payment, an availability payment throughout the term and a revenue-based payment up to a specified amount, thereby satisfying the risk appetite of a variety of investors.

In any long-term contract, there is always a concern about contract renegotiation. In large scale infrastructure contracts, this phenomenon is known as the obsolescing bargain, referring to the inability of a foreign investor to lobby against new contract terms that may be introduced by host countries.112 This phenomenon rests on the premise that foreign investors have already contributed too much capital to back out.113 Common changes to contract terms may include increases in tax rates and fees, changes in accounting rules and manipulations of foreign exchange rates.114 Conversely, there is also evidence to suggest that infrastructure Project Agreements are unusually susceptible to renegotiation initiated by the private sector. A study of 1000 concession contracts awarded in Latin America and the Caribbean over a two-decade period illustrated that 55% of the transportation Project Agreements were renegotiated with 57% of the renegotiations being initiated by the investor.115 Evidently, the public and private sectors have a history of renegotiating long-term infrastructure projects and it appears that in the post-COVID-19 era, this trend may continue. Recently, lenders and equity sponsors have been seeking relief from their public sector counterparties where transactions are on the market and looking for funding, while provincial agencies have also been requesting relief from lenders where COVID-19 has caused delays.116 It is unclear how these changes will affect foreign investment in Canadian P3s, which have generally succeeded in part due to strong, predictable contractual terms. However, lawyers in the industry have predicted that the Canadian market may counteract these trends by including refinancing terms in future contracts.117 Refinancing terms, at face value, seem to erode legal certainty as they offer an opportunity for parties to renegotiate. However, a bleak economic outlook and lack of contract flexibility may completely deter investment and as such, P3 public agencies must engage in a delicate balancing act. Ultimately, the Canadian P3 market will only continue to succeed where there is an alignment of contractual obligations and project delivery functions between the public and private sectors.118

iii. Procurement Process

Procurement, at its core, is the description of what project proponents must submit as a bid and the corresponding evaluation criteria that the asset’s public owner will use to determine who will be awarded the contract.119 An effective procurement process should promote fairness, transparency and access to the project rules and procedures, while also allowing for negotiation of the Project Agreement.120 A disciplined procurement process can go a long way toward achieving legal certainty. Over the years, the uphill battle facing the P3 model has been fueled by the fact that transparency and fairness have not been a hallmark of these types of large-scale infrastructure projects.121 Canadian P3 agencies have tried to combat this issue by ensuring that they provide a clear, predictable and transparent procurement process that follows a disciplined set of rules.122 When looking at potential investment opportunities, investors want to ensure that the public owner has a clear objective, that the technical requirements are clearly defined and that the financing mechanism is achievable.123 While traditional procurement and P3 procurement aim to deliver the same types of projects, the actual procurement process is vastly different. This section will explain the traditional procurement process and its corresponding common law principles, before exploring the vastly different P3 procurement process and its challenges.

Traditional procurement typically awards contracts to the lowest cost project bid,124 albeit with certain caveats. The Supreme Court of Canada, in MJB Enterprises Ltd v Defence Construction (1951) Ltd, held that an owner can retain discretion to not pick the bidder with the lowest cost, thereby taking a nuanced view of price (sometimes referred to as “best value” or “lowest price, technically acceptable” award mechanisms).125 This has been interpreted as giving the owner some flexibility to choose a suitable bidder during the procurement process. However, despite having the ability to not select the bidder who can deliver the project at the lowest cost, the owner owes a duty of fairness to bidders during the traditional procurement process. Canadian jurisprudence has held that a duty of fairness means that a tenderer may not select a noncompliant bid or use undisclosed criteria to select the winner.126 More specifically, a privilege clause may not operate to hide preferences since undisclosed criteria are a material factor during contract formation. Furthermore, there is no duty of transparency during the traditional procurement process as the public is normally not a party to the contract – it is merely a contract between the owner and the bidder.127 While the Canadian common law occasionally has divergences and nuances with respect to traditional procurement, it is generally reliable and provides legal certainty. As such, the fact that it does not directly apply to P3 procurement has raised concerns amongst both P3 proponents and opponents. That being said, there are cases where the common law will animate the P3 procurement process.

There are three issues that plague P3 procurement – risk allocation, the knowledge gap and design challenges.128 Risk allocation becomes an issue during procurement as the risk must be distributed amongst the public and private sector. As such, the private consortium must determine the price that it can deliver the project, thereby indicating its willingness to take on a given amount of risk.129 The knowledge gap diverges from the common law as the whole purpose of P3 procurement is to tap into the private sector’s expertise, meaning that bidders must have the flexibility to suggest innovative solutions that the public owner does not consider.130 As such, the public sector cannot specify what is required to win the contract within the tendering documents. Finally, it is difficult for the tenderer to give any reasonable technical requirements to bidders without constraining their design flexibility.131 For example, if the tenderer specifies that low price will be given the greatest weight during the evaluation phase, then there will be more utilitarian than innovative designs. This could become problematic in some instances as utilitarian designs may result in projects with shorter functional lives or higher maintenance costs.

The solution to these P3 procurement challenges is competition.132 Competition enables the private sector to come up with innovative solutions that address all three problems without being hindered by specific requirements from the public owner. It is this competitive process that allows P3s to thrive and provide more value for money than traditional procurement. Consequently, legal certainty during the procurement process hinges on the public agency’s ability to foster a competitive environment during the procurement process.

Provincial agencies in Canada, like IO, have developed a rigorous, two-step process for procurement: (1) the requests for qualification (“RFQ”) stage and (2) the requests for proposal (“RFP”) stage. In acknowledgement of the fact that the process is demanding, the public entity ensures that the RFQ stage involves minimal time and effort. During the RFQ stage, the public entity will ask interested private consortiums to submit a proposal stating that they are interested in the project based on their experience and expertise, before short-listing approximately three consortiums to move on to the next stage.133 The RFP stage is much more rigorous and involves the private consortium thoroughly outlining how it plans to deliver the project. This is costly and time-consuming for every private party that is part of Project Co.134 Due to the complex nature of this process, the public entity attempts to instil some legal certainty by clearly establishing the procedures of procurement within the RFP and a high-level overview of the responsibilities and obligations that the winning bidder will have to commit to.135 The RFP process also allows the bidders to provide comments on the draft Project Agreement, thereby fostering a collaborative environment and an opportunity to build open and transparent relationships among the counterparties.136

The rigorous nature of the process leads many opponents of alternative procurement to argue that P3 procurement is much costlier than traditional procurement and detracts from any legal certainty that bidders may otherwise have.137 However, while the process is not cheap, it can actually result in greater legal certainty for bidders as Canadian provincial agencies have provided for the inclusion of “collaborative meetings” during the procurement process.138 This allows each consortium to have confidential meetings with the public entity, whereby they are able to clarify questions or concerns. Consequently, when private consortiums submit their proposal, they theoretically should have maximum certainty that they are putting forward a competitive bid. collaborative meetings have even greater utility for foreign investors who may not be familiar with the Canadian market, as it gives them an opportunity to align their vision for the project with the owner. Furthermore, P3 procurement takes into account the long-term cost of ownership beginning with the design and build portion of the project and ending with the operation and maintenance component.139 While the initial expenditure during the P3 procurement stage may be larger than it would be in a traditional procurement setting, it clearly invites parties to optimize the capital expenditure that will be required over the long-term. If anything, it seems as though this approach offers more legal certainty as parties, including investors, are aware of their obligations throughout the entire life cycle of the asset. Moreover, it is standard practice to pay losing bidders for the time and effort involved in submitting a bid.140 P3 opponents are critical of this practice, alleging that large companies can afford to absorb the cost. However, P3 experts have held that this practice increases the competitiveness of bids and contributes to legal certainty.141

Opponents of Canadian P3s have also asserted that the procurement process inhibits design and architectural excellence, thereby limiting the public benefit.142 This concern is said to exist because private consortiums want to minimize risk and tend to be more concerned about value than creativity.143 Furthermore, in 2015, P3 opponents made the argument that since a Canadian P3 project had not won the Governor General’s Medal (the country’s top commendation for architectural quality), P3s are not innovative.144 Value is an inherent concern in the delivery of any public asset – this is a concern that is not unique to P3s. In fact, P3s are largely a response to the government’s inability to provide valuable infrastructure in a timely manner. Before any P3 project is undertaken, the relevant public agency undertakes a value for money assessment, whereby it compares the value of traditional procurement with the value of P3 procurement.145 P3 projects are only used where they will provide value superior to traditional procurement. Additionally, collaborative meetings during the procurement process allow private consortiums to suggest creative and innovative designs to the public sector, thereby gauging the agency’s reaction and ensuring that a competitive bid is put forward. It is evident that P3s are becoming increasingly innovative as P3 projects such as Casey House146 and Bridgepoint Health147 have won the Governor General’s Medal.

iv. Dispute Resolution Mechanisms 148

An adequate dispute resolution mechanism involves the host country having a system that fairly and expeditiously adjudicates issues that arise.149 In order to achieve legal certainty amongst investors, it is critical that dispute resolution mechanisms are binding and enforced by the host country.150 Canadian jurisdictions have further attempted to ensure legal certainty by keeping the dispute resolution mechanisms consistent across P3 contracts, relying upon a standardized set of procedural rules.151 Most P3 agreements will feature a notice provision that attempts to resolve disputes amicably through candid and timely discussions.152 However, from that point on, the type of dispute resolution mechanism becomes dependant on the nature of the dispute. Disputes involving issues including the determination of substantial completion, issues arising from minor deficiencies and changes to party obligations will typically rely on the determination of a non-binding, independent certifier.153 However, an expert determination is typically required in cases of tender and estimate issues. The expert will determine the process that should apply in each scenario and, unlike the independent certifier, his or her determination is final and binding.154 If a party disagrees with the determination, it is able to invoke its arbitration or litigation rights. Parties may also refer a dispute to adjudication if the dispute is not captured by the expert determination or independent certifier provisions in the Project Agreement. Evidently, there are quite a few dispute resolution mechanisms that are available to parties. Canadian P3 agencies have attempted to provide clarity and legal certainty through specifying what type of resolution mechanism will apply depending on the nature of the conflict. Additionally, the collaborative approach inherent to the Canadian P3 market seems to resonate during conflicts as very few disputes actually go to litigation,155 thereby saving investors time, money and important relationships.

Recently, a second form of dispute resolution mechanism has emerged – deductions from payments.156 Deductions from payments allow a party who receives a service or product that does not meet the standard specified in the Project Agreement to reduce its next payment accordingly.157 A problem that may arise with this form of dispute resolution is the fact that parties can disagree on the level of quality that is expected under the contract and the price that should appropriately be deducted. Both of these issues arose in Groupe Infrastructure SantĂ© McGill SENC v Centre Universitaire de SantĂ© McGill.158 In McGill, the Superior Court of Quebec heldthat: (1) Centre Universitaire de SantĂ© McGill (CUSM) had an express right under the agreement to deduct from the payments in the event of default; (2) CUSM had notified Groupe Infrastructure SantĂ© McGill (GISM) of the defaults and given GISM a chance to remedy them; and (3) the right to deduct payment is not subject to other dispute resolution procedures as the right was provided for in the Project Agreement.159 McGill illustrates that deductions can offer legal certainty to parties by protecting them against defaults. The case also highlights that the issues associated with deduction of payments can be remedied by careful contract drafting that specifies the measures of quality and amount of payment in the case of a default.

As soon as parties require dispute resolution, a lack of legal certainty becomes somewhat inevitable. While having a clearly defined dispute resolution process is critical, the level of trust between the public and private sectors is also vastly important. The Canadian P3 landscape benefits from strong political support and a framework that provides parties with access to clear, transparent and objective information regarding the level of performance under the contract. These factors all contribute to a strong relationship between the Canadian public sector and both international and domestic parties, with the aim of making dispute resolution less frequent and investors more confident.

(E) Is the Legal Framework a Hindrance to Foreign Investment in Canadian P3s?

The foregoing analysis illustrates that although P3 projects do not inherently create legal certainty amongst domestic and international investors, Canadian provincial agencies have adopted a process that is transparent, innovative and predictable. These agencies have been successful at inspiring confidence in investors and providing a benchmark to the rest of the world. Therefore, while there are some changes that should be adopted and existing processes that should be modernized, it is very unlikely that the Canadian legal framework is hindering foreign investment in P3 projects.

(F) Alternative Causes of the Infrastructure Gap

Future research needs to be done in order to determine why, despite a solid legal framework, Canada is not receiving higher rates of foreign investment. While Canada’s national legal framework has proven to be strong, it is necessary to determine whether the international and bilateral investment treaties that Canada is a party to, are equally as strong. Studies have suggested that access to P3s for institutional investors can be improved if regulatory and investment framework impediments are removed.160 Currently, there is a large, fragmented web of over 3,200 international investment agreements.161 As such, it is important to determine whether a consolidation of these agreements into a single, international investment rule model could increase levels of foreign investment into Canadian P3s. It would also be beneficial to conduct a comparative analysis between Canada’s and Japan’s P3 models as both countries are considered to have mature markets and a strong project pipeline.162 A comparative analysis may reveal certain deficiencies in the Canadian market that can be rectified and improved in order to increase foreign investment levels. Finally, in the past couple of years, many insurance companies have been pulling out of P3 deals, partially due to projects going over budget and being delivered late.163 It would be interesting to study the effect of this phenomenon on other types of foreign institutional investors and identify what the Canadian P3 market can do to remedy this situation.

(G) Conclusion

Infrastructure is an economic multiplier.164 While stakeholders may disagree on the best way to deliver infrastructure projects, the importance of the industry to any country’s economy cannot be denied. Many countries have failed to maintain and expand their infrastructure assets, creating economic inefficiencies and forcing governments to look for alternative financing and procurement solutions due to limited public capital.165 Canada has had particular success with P3 uptake, largely stemming from a combination of the country’s clear P3 strategy and a strong legal framework. However, changes need to be made if the country hopes to attract more foreign investment, thereby closing its infrastructure gap.

This paper illustrates that Canada’s legal framework is not a hindrance to foreign investment. In fact, there is sizable evidence to prove the opposite. However, the legal framework should adopt some changes to further incentivize foreign investors to invest in the Canadian market. These changes include: (1) adopting revenue-based and blended payment systems; (2) adopting refinancing terms in response to COVID-19; and (3) developing clearly defined contractual provisions in response to the advent of payment deductions. While these changes will likely increase legal certainty amongst investors and may provide a boost to the current level of foreign investment, it is highly unlikely that they will have a large enough impact to close the infrastructure gap. If Canada does not find a way to update the country’s aging infrastructure, it will lead to dire economic consequences. As such, it is critical that further research is conducted in an effort to pinpoint the cracks in the system that are preventing higher rates of foreign investment.

Endnotes

1 Jonathan Woetzel et al., “Bridging global infrastructure gaps” (14 June 2016) at 2, online (pdf): McKinsey Global Institute
2 Anita George, Rashad-Rudolf Kaldany & Joseph Losavio, “The world is facing a $15 trillion infrastructure gap by 2040. Here’s how to bridge it” (17 April 2019), online: World Economic Forum [George].
3 Funding options. Alternative financing for infrastructure development” (April 2013) at 1, online (pdf): Deloitte.
4What are P3s?” online: The Canadian Council for Public-Private Partnerships [Canadian Council].
5 Darwin Smith & Keith Halliday, “15 Things to Know About Canadian Infrastructure” (3 January 2020) at 1, online (pdf): BCG.
6 Kelly Ogle, “Canada Can’t: Our National Infrastructure Challenge” (March 2018), online: Canadian Global Affairs Institute [Ogle].
7 MT Adekilekun, CC Gan & Cao Fuguo, “International legislative frameworks for public-private partnerships: an evaluation” (2018) 1 Public Procurement L Rev 33 at 42 (WL) [Adekilekun];  Adrian Barrios, “The Canadian PPP Model and its Applicability in Latin America”, online (pdf): PWC [Barrios].
8 Barrios, supra note 7.
9 Canadian Council, supra note 4.
10 Ibid.
12 Nicholas Shkordoff, Helmut Johannsen & Thomas Barlow, “The Public-Private Partnership Law Review – Canada” (March 2015), online: The Canadian Council for Public-Private Partnerships.
13 Doug Sanders, “Public-Private Partnerships: A Procurement Panacea?” (2012) J Can C Construction Law 53 at 59 (WL) [Sanders].
14 L Bryce Jatto, “A Legal Perspective on the Case for Procuring Capital-Intensive Infrastructure Services Via P3s in Canada” (2012) 12 Asper Rev Intl Bus & Trade L 5 at 6 (WL) [Jatto].
15 Michael Della Rocca, “The rising advantage of public-private partnerships” (19 July 2017), online: McKinsey & Company [Della Rocca].
16 Canadian Council, supra note 4.
17 Generally, the price range that is suitable for a P3 project is between $10 million to $2 billion.
18 Michel Trochu, “The opening of public procurement markets in recent free trade agreements: is the use of public-private partnership (PPP) a timely solution?” (2020) 5:6 Intl Bus L J 569 at 579 (WL) [Trochu]. The three requirements for successful P3s have been suggested in the context of European P3 projects but these factors can be extrapolated to consider the viability of P3 projects in other developed nations.
19 Ibid at 573.
20 Sanders, supra note 13 at 53.
21 Della Rocca, supra note 15.
22Project Finder”, online: P3 Spectrum.
23How can governments look at COVID-19’s impact on infrastructure PPPs?” (9 April 2020), online: The World Bank [COVID-19’s Impact].
24 Ibid.
25 Elizabeth Raymer, “Investments not abating despite pandemic” (3 September 2020), online: Lexpert [Raymer].
26Navigating the COVID-19 Socio-economic Shock: New Higher Risk Scenario Supplement” (September 2020) at 5, online (pdf): Canadian Centre for Economic Analysis.
27 COVID-19’s Impact, supra note 23.
28 Sanders, supra note 13 at 57.
29 Heather Whiteside, “The Canada Infrastructure Bank: private finance as poor alternative” (2017) 98:2 Studies in Political Economy 223 at 237. Whiteside suggests that the government should use cannabis revenues to assist in funding infrastructure projects. However, Canada’s cannabis market has drastically underperformed, illustrating that government revenue sources are not always a reliable option.
30Why are PPPs used? Overpriced and Underwritten”, online: Bankwatch Network.
31 Trochu, supra note 18 at 570.
32 Angus Gillespie, “The P3 model continues to gain traction in Canada” (13 December 2019), online: The Canadian Business Journal.
33 Ogle, supra note 6.
34 Woetzel, supra note 1 at 26.
35 Brooke Guven & Lise Johnson, “PPPs and ISDS: A Risky Combination” (24 May 2018), online: Columbia Center on Sustainable Investment [Guyen].
36 Woetzel, supra note 1 at 26.
37A new decade for private markets” (February 2020) at 3, online (pdf): McKinsey Global Institute.
38 While the full effect of COVID-19 on global financial markets is still unknown, it is important to keep in mind that the shift in resources will likely be exacerbated by this phenomenon. As an example, various reports suggest that China’s economy is recovering from the pandemic at a much quicker rate than that of the United States.
39 Trevor Neiman, “Liberalizing the Investment Canada Act: Striking the Right Balance between Investment and Economic Security” (2019) 19 Asper Rev Intl Bus & Trade L 1 at 5.
40 Wojtek Mackiewicz Wolfe & Annette S Leung Evans, “China’s Energy Investments and the Corporate Social Responsibility Imperative” (2011) 6 J Intl L & Intl Relations 83 at 104.
41Public-Private Partnership (P3) procurements” (26 January 2016), online: Public Works and Government Services Canada.
42P3 Myth Busters”, online: The Canadian Council for Public-Private Partnerships.
43 Ibid.
44Understanding Public Private Partnerships in Canada” (6 June 2020) at 9, online (pdf): Association of Consulting Engineering Companies Canada.
45 Ibid.
46Public-Private Partnerships: What The World Can Learn From Canada” (February 2015) at 11, online (pdf): The Canadian Council for Public-Private Partnerships [Canadian Council].
47A guide to public-private partnerships in Canada” (July 2010) at 5, online (pdf): Canadian Construction Association.
48 Canadian Council, supra note 4.
49 David Lick & Roger Hamlin, “Public-private partnerships for promotion of cross-border trade and transportation” (2012) 37 Can US L J 171 at 171 (WL) [Promotion of Cross-Border Trade].
50 Della Rocca, supra note 15.
51 Promotion of Cross-Border Trade, supra note 49 at 171.
52 Michael Fenn, Mahmood Nanji, Jessica Rolfe & Andrew Sussman, “Moving Canada’s Economic Infrastructure Forward: Addressing six risks to timely, economical, and prudent project selection and delivery” (January 2019) at 24, online (pdf): Lawrence National Centre for Policy and Management.
53 Canadian Council, supra note 46 at 11.
54 Ilan Dunsky & Lampros Stougiannos, “Canada: The Success of P3 in Canada” (8 August 2013), online: Mondaq.
55The Benefits of P3s” at 3, online (pdf): PPP Canada.
56 Canadian Council, supra note 46 at 11.
57 Ibid.
58 George, supra note 2.
59 Canadian Council, supra note 46 at 11.
60 Adekilekun, supra note 7 at 34.
61 Ibid at 33, 36.
62Scope of the PPP Framework”, online: APMG International [Scope of the PPP Framework].
63PPP Legal Framework”, online: PPP Knowledge Lab [Knowledge Lab].
64 Ibid.
65 Woetzel, supra note 1 at 24-25; Guyen, supra note 35.
66 Canadian Council, supra note 46 at 11.
67 Trochu, supra note 18 at 579; Jatto, supra note 14 at 18.
68 Trochu, supra note 18 at 579; Woetzel, supra note 1 at 25.
69 Nicholas Shkordoff, Helmut Johannsen & Thomas Barlow, “Canada” (2015) 1 Public-Private Partnership L Rev 45.
70 Ibid.
71 Scope of the PPP Framework, supra note 62. The Canadian government also has a P3 program but it will only apply in the case of national projects.
72 Bradley Ashkin et al., “Canada” (2017) 3 Public-Private Partnership L Rev 46 at 49 [Ashkin].
73 Ibid at 50.
74 Ibid at 54.
75 Ibid at 53.
76 Ibid. While these policies and guidelines are not legally binding, they serve as a source of information for stakeholders involved in Canadian P3 projects by illustrating the national attitude toward P3s as well as the general legal landscape that applies during such projects.
77 Ibid at 52.
78 Jeffrey Delmon, “Public-Private Partnership Projects in Infrastructure: An Essential Guide for Policy Makers”, 2nd ed (Singapore: Cambridge University Press, 2017) at 28.
79 Ibid.
80 The Public International Law and Policy Group, “CUSLI expert roundtable report on international trade and North American infrastructure” (2016) 40 Can US L J 140 at 143 (WL) [CUSLI].
81 Guyen, supra note 35.
82 Ibid.
83 Woetzel, supra note 1 at 28.
84 Della Rocca, supra note 15.
85 Heather Fussell & Charley Beresford, “Public-Private Partnerships: Understanding the Challenge”, 2nd ed (Columbia Institute, 2009) at 5, 44, 66.
86IO Executive Recognized for Business Leadership” (16 June 2017), online: Infrastructure Ontario. On a more general note, an IO executive winning a national award for business leadership indicates Canada’s supportive policy stance toward P3s within the country – another factor that contributes toward legal certainty.
87 UNCITRAL, 52nd Sess, UN Doc A/CN.9/982 (2019).
88 Adekilekun, supra note 7 at 36.
89 Ibid.
90 CUSLI, supra note 80 at 141.
91Eglington Crosstown LRT”, online: Infrastructure Ontario. This reference is an example of how IO will upload the project agreement that corresponds to each major P3 project that has been completed. It provides an opportunity for the public and other relevant stakeholders to determine the contractual framework of Ontario’s P3 projects, thereby resulting in increased legal certainty.
92 Ogle, supra note 6.
93 Ibid.
94 Ashkin, supra note 72 at 46.
95 Canadian Council, supra note 46 at 11.
96 Knowledge Lab, supra note 63.
97 Adekilekun, supra note 7 at 34.
98 Ashkin, supra note 72 at 48.
99 Ibid.
100 Trochu, supra note 18 at 575.
101 Adekilekun, supra note 7 at 41-42.
102 Canadian Council, supra note 46 at 18.
103 Ibid.
104 Raymer, supra note 25.
105 Ashkin, supra note 72 at 56.
106Availability Payments in Public-Private Partnerships: Issues and Implications” (May 2018) at 1, online (pdf): In the Public Interest.
107What are payment mechanisms?”, online: Service Works Global.
108 Ibid.
109 Raymer, supra note 25. The revenue-based model is most often used in the context of transit projects (i.e.; Highway 407).
110 Ashkin, supra note 72 at 255.
111 Ibid.
112 Jalia Kangave, “QUAIL analysis of foreign investment and development-induced displacement and resettlement: Lessons from Uganda’s Bujagali hydroelectric project” (2012-2013) 44 Ottawa L Rev 213 at 248 (WL).
113 Ibid.
114 Ibid.
115 Guyen, supra note 35. Note: this percentage is likely understated as it does not consider contracts that were renegotiated by private parties other than the investor.
116 Raymer, supra note 25.
117 Ibid.
118 Della Rocca, supra note 15.
119 John Haythorne & Mollie Deyong, “Fairness and Transparency in Large Project Public Procurement” (2018) J Can C Construction L 59 at 60 (WL) [Haythorne].
120 Adekilekun, supra note 7 at 42-43.
121 Jatto, supra note 14 at 22.
122 Ibid at 18.
123 Barrios, supra note 7.
124 Della Rocca, supra note 15.
125 [1999] 1 SCR 619 at para 46 [MJB].
126 Chinook Aggregates Ltd v Abbotsford (Municipal District) (1989), 40 BCLR (2d) 345 (CA).
127 Haythorne, supra note 119 at 72.
128 Ibid at 76.
129 Ibid at 77-78.
130 Ibid at 79.
131 Ibid at 80.
132 Ibid at 80-81.
133 Ibid at 83-84.
134 Ibid at 85.
135 Ibid.
136 Ibid.
137 In “MJB”, a case involving traditional procurement, the court held that a bidder must expend considerable time and expense when bidding on a project despite having no guarantee of success. This illustrates that bidders within traditional procurement and P3 procurement face a similar struggle – the investment of time and money with no guarantee of winning.
138 Haythorne, supra note 119 at 85.
139 Della Rocca, supra note 15.
140 Alex Soloducha, “Paying losing P3 bidders is standard practice: expert” (10 Mary 2017), online: CBC News.
141 Ibid.
142 Matti Siemiatycki, “Public-Private Partnerships in Canada: Reflections on twenty years of practice” (3 September 2015) at 343, online (pdf): Canadian Public Administration.
143 Ibid at 358.
144 Ibid.
145Value for Money”, online: Infrastructure Ontario.
146Governor General’s Medals in Architecture – 2018 Recipient” (2018), online: Royal Architectural Institute of Canada.
147Awards” (2020), online: Infrastructure Ontario.
148 There are various bilateral and international treaties that feature their own dispute resolution mechanisms. In some cases, they may apply to P3 projects in Canada and they may raise concerns about legal certainty. However, as the focus is on Canada’s domestic legal framework, they are beyond the scope of this paper.
149 Trochu, supra note 18 at 579; “Benchmarking PPP Procurement 2017 in Canada” (2017), online (pdf): World Bank Group.
150 Adekilekun, supra note 7 at 43.
151 Jason Annibale & Howard Krupat, “Arbitrations and P3 Projects: Unique Considerations” (7 October 2016) at 3, online (pdf): Ontario Bar Association.
152 Ibid at 4.
153 Ibid.
154 Ibid at 5.
155 Ibid at 7.
156 Ashkin, supra note 72 at 59.
157 Ibid.
158 2016 QCCS 5621 [McGill].
159 Ibid.
160 Woetzel, supra note 1 at 25.
161 Ibid.
162 Trochu, supra note 18 at 574.
163 Don Wall, “ACEC panellists warn of excess risks, insurance challenges in P3” (15 November 2019), online: Daily Commercial News.
164 George, supra note 2.
165 Woetzel, supra note 1 at 1.