RoadBuilder - Fall 2024

FALL 2024 VOL21 NO2

Five-Year Review of Ontario’s Construction Act

EPDs move industry closer to sustainable future

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The official publication of ROADBuilder is published biannually by the Ontario Road Builders’ Association Publications Mail Agreement #40011181

TABLE OF CONTENTS

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Return undeliverable items to: The Ontario Road Builders’ Association 365 Brunel Road, Unit 1 Mississauga, ON L4Z 1Z5

MESSAGE FROM THE CHIEF EXECUTIVE OFFICER

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AROUND QUEEN’S PARK

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DUNCAN GLAHOLT’S REVIEW OF CONSTRUCTION ACT

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ASPHALT MIX EPDS

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BILL C-59 TARGETS ENVIRONMENTAL CLAIMS

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ON THE ROAD WITH ORBA

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SLOW DOWN, MOVE OVER CAMPAIGN

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FROM DISPUTE RESOLUTION TO CONFLICT AVOIDANCE

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CATCHING UP WITH ORBA MEMBERS

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GOLF TOURNAMENT

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IMPROVING WORKPLACE SAFETY WITH DPAS

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MUNICIPALITIES CAN AVOID LITIGIOUS CONTRACTORS

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EDUCATION

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ORBA CORNER

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NEW MEMBERS

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LIST OF ADVERTISERS

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Tel: (905) 507-1107 Fax: (905) 890-8122 orba.org ADVERTISING SALES REPRESENTATIVE Patricia Abbas 416.438.7609 pabbas8@gmail.com EDITOR Lara Henry larahenry@sympatico.ca DESIGN & EDITORIAL LAYOUT pdplante.com pdominiqueplante@gmail.com

COVER PHOTO Fowler Forest Home Yard, Orillia (Ethan Newman, CDMC Simcoe, Fowler) © 2024 All Rights Reserved.

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D Chief Executive Officer

WALID ABOU-HAMDE

uring the most recent meeting of ORBA’s Board of Directors, almost every conversation started with “Where did time go?”

It is hard to believe we are inching closer to the end of another road construction season, but we are certainly not wrapping up 2024 any time soon. With a busy legislative calendar, several planned government announcements and a potential for an early election next year, the ORBA team is in full gear working on your behalf and advancing your interests at Queen’s Park and beyond.

Message from the Chief Executive Officer I had the pleasure of joining Ontario’s Minister of Transportation, Prabmeet Sarkaria, last month as he announced the award of the west section of the Bradford Bypass to ORBA’s longtime member, The Miller Group. My remarks highlighted ORBA members’ place at the forefront of innovation, safety, quality and sustainability, as well as our commitment to customer service. This announcement will hopefully pave the way for a busy construction season next year with much of the government’s historic investment being realized in tender calls across the province.

In this issue of ROADBuilder, we share with you important updates about several important longtime and emerging policy files, and we take a look at the latest trends in the industry. ORBA’s own Steven Crombie sat down with Duncan Glaholt, one of Canada’s leading experts in construction law and Ontario’s appointment to lead the first five-year review of the Construction Act, to reflect on successes and contemplate opportunities for improvement.

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Perhaps there is no better time to bring our focus to sustainability in the asphalt industry as we celebrate the inking of the agreement between the ORBA and the National Research Council Canada to develop a joint program designed to lower greenhouse gas emissions and enhance competitiveness. This project will be developed in synergy with and build on Miller’s innovations in Canadian EPDs for asphalt mixes which we also cover in this issue.

With several high-profile disputes lingering and worrying trends emerging in municipal asphalt specifications this year, we look at ways we can promote collaboration and proactive conflict avoidance to ensure successful project delivery and steer clear of unnecessary impasses and cost overruns.

Earlier this fall, ORBA’s membership grew to exceed 300 members, a historic milestone for the association. This is a great accomplishment which we are all proud of and is the product of the collective herculean effort of many. I cannot thank you all enough for your vote of confidence in the team and leadership here at ORBA, and once again I commit to put your interest first above all else in everything we do.

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s part of our ongoing commitment to advocate on behalf of the roadbuilding industry, we would like to update you on several key lobbying activities ORBA has undertaken recently. Our efforts continue to focus on improving the regulatory environment, ensuring fair and transparent procurement practices, and safeguarding the interests of our members across Ontario.

Inconsistent application of O. Reg 406/19 – Management of excess soils

Senior Director of Public Affairs

STEVEN CROMBIE

One of the ongoing issues we have identified is the inconsistent application of Ontario Regulation 406/19 concerning the management of excess soils. ORBA continues to receive reports from our members about owners releasing tenders without including critical soils information, such as soils characterization reports or assessments of past uses. This lack of essential data at the outset of a project places undue risk on contractors who are left to navigate potential environmental liabilities and unforeseen costs without adequate information.

Around Queen’s Park ORBA has been actively engaging with buyers of construction, including public and private sector owners, to communicate the importance of providing comprehensive soils data in tender documents. We are emphasizing that including this information at the onset of the procurement process is not just a regulatory requirement but also a best practice that leads to more accurate bids, reduces project delays, and enhances overall project outcomes. We will continue to advocate for consistent compliance with O. Reg 406/19 to ensure a level playing field for all contractors.

Occupational Health and Safety Management System (OHSMS) requirements Another critical area of our advocacy work has been around Occupational Health and Safety Management System (OHSMS) requirements. ORBA has established a clear position: We support all Ministry of Labour, Immigration, Training and Skills Development-accredited health and safety management systems. However, ORBA does not advocate for any specific OHSMS over another. Instead, we encourage buyers to recognize and accept all accredited systems in pre-qualification processes.

This inclusive approach aims to provide contractors with the flexibility to implement a health and safety management system that best suits their operations while meeting recognized standards. ORBA continues to communicate this position to owners and buyers to ensure that accreditation does not become a barrier to competition in the procurement process. ››

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Five-year review of the Ontario Construction Act Earlier this year, the Ministry of the Attorney General announced the appointment of Duncan Glaholt as an advisor to conduct a five-year review of the Ontario Construction Act. ORBA actively participated in the consultation process and provided a detailed submission to the review. Our feedback focused on three key recommendations that we believe will enhance the effectiveness of the Act: 1. P rohibit adjudication exclusion clauses: We have proposed prohibiting the inclusion of adjudication exclusion clauses in contracts or purchasing policies.

These clauses undermine the intent of the Construction Act by allowing parties to opt out of or discourage the use of this essential dispute resolution process. By prohibiting these clauses, we aim to ensure that adjudication remains a viable, accessible option for resolving payment disputes promptly.

2. M andate phased holdback release: ORBA has recommended the mandatory phased or progressive release of holdbacks to ensure a more consistent application across the industry. This approach would improve cash flow for contractors and subcontractors, especially on large projects, and provide financial stability throughout the project lifecycle.

3. Remove Section 6.1.7 of the Act: The provision allowing owners to prescribe additional information for a “proper” invoice has become a significant burden on contractors, often delaying payments. ORBA recommends removing this section to streamline the invoicing process and promote timely payments across the industry.

Advocacy on defibrillators on construction sites

not legislate mandatory defibrillators on construction sites but instead continue to promote voluntary implementation where practical and safe.

Looking ahead ORBA remains committed to working tirelessly on behalf of our members. Whether it’s advocating for consistent application of regulations, pushing for fair procurement practices, or influencing legislation, we are dedicated to advancing the interests of the road-building industry. To further these efforts, ORBA has established the Major Projects Working Group to collaborate with Infrastructure Ontario (IO), Metrolinx, and the Ministry of Transportation of Ontario (MTO) in identifying opportunities for de-risking major projects. This group will focus on streamlining project delivery, mitigating risks, and ensuring that key infrastructure projects are delivered efficiently and effectively.

In addition to ensuring that major projects like Highway 413 and the Bradford Bypass move forward, ORBA has also begun engaging with the government on several other critical infrastructure priorities, including: • Completing the twinning of Highway 69 between Parry Sound and Sudbury to enhance safety and support economic growth in northern Ontario; • Twinning Highway 17 between Kenora and the Manitoba border, a vital corridor for trade and regional connectivity; • Improving the network of unpaved and winter roads that connect northern First Nations communities with all-season roads, ensuring year-round accessibility and supporting community development; and • Piloting a Scandinavian-style 2+1 highway configuration for Highway 11 which could improve safety and traffic flow by providing alternating passing lanes, a proven concept in northern Europe.

Not all advocacy involves pushing for new legislative changes – sometimes it’s about maintaining the status quo. Recently, there was discussion within the Ministry of Labour about potentially legislating mandatory defibrillators on construction sites. While ORBA acknowledges that many companies already voluntarily have defibrillators on-site, we raised concerns about the challenges of making this a mandatory requirement.

These initiatives reflect ORBA’s ongoing commitment to advocate for investments in Ontario’s transportation infrastructure that enhance safety, improve connectivity, and drive economic growth across the province.

The proposed regulation would involve complex training, servicing, and location requirements, potentially creating significant implementation challenges and liability concerns for our members. As such, ORBA recommended that the ministry

We encourage all members to stay engaged and reach out with any feedback or issues you encounter in your projects.

Your input is invaluable as we continue to advocate for a more predictable, fair, and prosperous operating environment.

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Building on a legacy: Duncan Glaholt’s reflections on the five-year review of Ontario’s Construction Act

BY STEVEN CROMBIE

In a conversation with Steven Crombie for RoadBuilder magazine, Duncan Glaholt, one of Canada’s leading experts in construction law, shares insights from his role as the appointed reviewer of Ontario’s Construction Act. With a career that has bridged the gap between fieldwork and the courtroom, Glaholt brings a unique perspective to his work, marked by decades of experience and a deep understanding of the industry’s needs.

His review marks a critical moment for Ontario’s construction sector as it seeks to refine a legislative framework that has been evolving for over a century.

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From the field to the courtroom: A career rooted in construction Glaholt’s journey into construction law was shaped early on by his family’s deep roots in the construction and engineering sectors. Born into a family where his grandfathers worked on the railways and his father was an engineer, Glaholt’s introduction to the industry came naturally. As a young man, he spent summers working at his father’s construction company, gaining first-hand experience in setting grades for roads in subdivisions across Alberta and British Columbia.

These experiences were formative, exposing him to the skilled craftsmanship of grader operators and the intricacies of fieldwork.

“I got to work with grader operators of consummate skill. I really admired them,” Glaholt reflects. “I’d signal an inch off a crown, and somehow these guys would take their giant machines and do it, often ribbing me mercilessly afterward!”

These early encounters instilled in him a profound respect for the craft and a practical understanding of the challenges faced by those working in the field.

After initially pursuing architecture, Glaholt pivoted to law, recognizing a unique opportunity to combine his passion for construction with legal expertise. He started his legal career at Ontario’s only construction law boutique in the late 1970s before founding his own firm in 1986. Today, he is not only a respected practitioner but also an educator, teaching construction law at the University of Toronto. His journey from fieldwork to the courtroom gives him a rare vantage point that has greatly influenced his approach to legal challenges in the construction industry.

Taking on the five-year review: A commitment to the industry A key objective of the Construction Act is to

ensure timely payments across the construction supply chain.

Glaholt’s involvement in the five-year review of Ontario’s Construction Act was driven by a sense of responsibility to the industry that has defined his career. “I’ve spent my whole career working with the Act – litigating the Act, writing about the Act. It was time for me to give back,” he explains. He took on the role when the Attorney General called, knowing that this was a rare opportunity to influence the future of the industry he has dedicated his life to.

Although the specifics of his final report are still confidential, Glaholt provides a glimpse into his experience during the review process. He describes it as a humbling journey, enriched by consultations with over 40 groups and individuals, including contractors, subcontractors, industry associations, and legal professionals. “We have a lot of good, hardworking, committed people in this industry,” he notes. “It was humbling to listen to the insightful suggestions, comments, and ideas generated by this review process – all directed toward making a good Act even better.” ››

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Successes and challenges: Navigating the Act’s impact on the industry One of the most significant achievements of the Construction Act over the past five years, according to Glaholt, has been the introduction of statutory adjudication. This process supports the province’s prompt payment scheme, aiming to resolve payment disputes quickly and keep cash flowing within the construction supply chain. “This has been a real culture shift in the industry, one that still isn’t complete, but we are getting there,” Glaholt explains. The introduction of adjudication has changed the way disputes are handled, creating a more efficient mechanism for resolving conflicts that would have otherwise ended up in lengthy legal battles.

However, the Act’s complexity remains a notable challenge.

“Complexity in all its forms is the most notable challenge we face now,” Glaholt admits. While the Act has made strides in improving payment practices, particularly through adjudication and prompt payment provisions, simplifying the legal framework remains a work in progress. The goal is to achieve reliable, straightforward processes that ensure promptness of payment – a target the industry is still striving to fully realize.

Dispute resolution and payment practices: An evolving landscape The Act’s impact on dispute resolution has been profound.

For over a century, Ontario’s lien legislation has provided the construction industry with summary procedures designed to expedite the resolution of disputes. The role of lien Masters – now Associate Justices – in administering these procedures has been crucial. “The role of the lien Master was a brilliant innovation,” Glaholt emphasizes. “We owe decades of lien Masters and Associate Justices a real debt of gratitude. They have made the statute work for the industry. They, more

The Act serves the industry, not the other way around. –Glaholt

than anyone else, have been the real innovators in adapting procedures to the needs of a complex industry.”

The adjudication process, a key component of the Act, has been well received, though not without its challenges. Glaholt’s review included extensive consultations with stakeholders to gauge the effectiveness of adjudication in practice. “The culture shift to adjudication is still underway, and there are a few problems here and there that we must work out,” he acknowledges. Despite these issues, the consensus among stakeholders is clear: adjudication is necessary, it is working, and it has the potential to work even better with continued refinement.

Prompt payment: Progress and areas for improvement Prompt payment provisions are at the heart of the Construction Act’s objectives, aiming to ensure timely payments across the construction supply chain. While the Act has made significant progress in this area, Glaholt admits that there is still work to be done. “The Act represented a big step forward toward our goal of prompt payment, but we are not quite there yet,” he says.

The feedback received during his consultations suggests that further adjustments are needed to enhance the effectiveness of these provisions.

Glaholt is careful not to reveal specific recommendations before the official release of his report, but he emphasizes that his suggestions will be guided by the voices of those he consulted.

“I listened to all consultees on this point very carefully, and my recommendations will be guided by what I heard,” he states, underscoring his commitment to an inclusive approach.

Phased holdback and release: A system in need of refinement Another area of focus during the review was the phased holdback and release system, which has significant implications for project financing and contractor security. According to Glaholt, this is one area where the industry has not been quick to take advantage of the new provisions introduced by the Act. “There are reasons for this, of course, but it is one area where there is still work to do,” he notes. The key feedback from industry stakeholders was a call for a simple, effective system that is well understood and works at all levels of the industry.

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Continuous evaluation and engagement with stakeholders are important to ensure that the Act remains effective and relevant.

Glaholt’s final message to the industry is one of collaboration and adaptability. He underscores the importance of continuous evaluation and engagement with stakeholders to ensure that the Act remains effective and relevant. “A healthy and prosperous construction industry makes for a healthy and prosperous community,” he concludes, encapsulating the broader impact of his work.

Looking to the future: Recommendations and legacy

A collaborative path forward

As Glaholt’s review comes to a close, he reflects on the recommendations he has put forward. While some immediate changes are suggested, Glaholt also envisions a need for ongoing consultation and possible future amendments. His hope is that the review will improve what the Act already offers and set the stage for future evaluations. “The Act serves the industry, not the other way around,” he stresses, highlighting the importance of keeping the legislation responsive to the evolving needs of Ontario’s construction sector.

Duncan Glaholt’s review of the Construction Act is more than a regulatory update – it is a call to action for the industry to engage, adapt, and continue building on a century-old legacy. As Ontario’s construction sector navigates the challenges and opportunities ahead, Glaholt’s insights and recommendations remind us that effective legislation is not static but a living document shaped by those it serves.

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Asphalt mix EPDs move industry closer to sustainable future

BY JEAN-MARTIN CROTEAU & DOUBRA C. AMBAIOWEI

Currently, in Canada, the selection of materials and techniques used in pavement construction and rehabilitation is based on cost and performance. The environmental impact is often secondary or not always considered. Adding to the challenge of selecting environmentally friendly products and pavement solutions is the absence of the usage of recognized tools (such as LCAPave in the U.S. or SEVE in France) to bring it all together to allow the evaluation and comparison of different solutions and techniques.

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EPDs give a complete, impartial,

third-party verified report on the environmental impacts on the specific product produced at a particular plant.

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ther challenges the industry faces include the lack of demand for environmentally-friendly products, as well as the cost and complexity of developing a tool to measure the environmental impact of sustainable pavement solutions to encourage their adoption.

To address these challenges, it is necessary to extend the usage of Environmental Product Declarations (EPDs) in the road construction industry in Canada.

As part of their corporate social responsibility initiatives, Colas Canada Inc. partnered with WAP Sustainability Consulting and, by association, the National Asphalt Pavement Association (NAPA) to adapt the NAPA Emerald Eco-Label tool for the development of asphalt mixture EPDs available in Canada. This tool will help Colas companies, as well as the industry, quantify the environmental impacts of the asphalt mixes produced.

The result of the Colas Canada-WAP Sustainability Consulting partnership was the first product-plant specific, cradle-to-gate EPD produced in Canada. Miller Paving’s Whitby plant, a Colas company in Ontario, published its first EPD in May 2024. This was quickly followed by several more Miller plants in southern Ontario (Bloomington in Richmond Hill, Mossport in Kawartha Lakes, and Tapscott in Toronto). Standard General Edmonton, another Colas company, followed suit and started publishing EPDs for their Acheson plant in July 2024. ››

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WHAT ARE EPDs An Environmental Product Declaration (EPD) is a standardized document that summarizes the information on a product’s environmental performance. An EPD is based on the results of a life cycle assessment (LCA), which is a scientific approach to assess an environmental footprint in keeping with the internationally recognized ISO 14040 standard series. EPDs can be narrow in scope, covering the product stage only (“Cradle to Gate”), or can include the entire product life cycle (“Cradle to Grave”). An Environmental Product Declaration (EPD), Type III Environmental Label is defined in ISO Standards. The Emerald Eco-label program helps to standardize plant-product specific life cycle assessments, allowing for credible and transparent reporting.

Photo NAPA

To paint a clearer picture, EPDs are like the nutrition facts found on food labels which give a complete, impartial, thirdparty verified report on the environmental impacts on the specific product produced at a particular plant. Developing an EPD requires consistency in data collection, analysis, and reporting, and third-party verification ensures trustworthiness in the information communicated through an EPD.

HOW ARE EPDs PRODUCED The Emerald Eco-Label uses a web-based tool in which the user inputs verified information for each material or step of the process into the system. These inputs are combined with plant- and mixture-specific information to output a thirdparty verified plant- and mix-specific EPD. Developing an EPD requires consistent data collection, analysis, and reporting supported by third-party verification. Emerald Eco-Label uses public data where possible to ensure transparency in calculating and allocating environmental impacts. A company’s proprietary information is never disclosed, only the environmental impacts in several required categories.

lower greenhouse gas emissions, enhance competitiveness through environmental performance transparency, and provide harmonized, quality LCA/Life Cycle Inventory (LCI) datasets. The program objectives include:

WHY EPDs

ORBA has selected WAP Sustainability Consulting as the LCA consultant for this project with the NRC. Via this joint program, users can develop their own EPDs using the calculator through a user pay-as-you go model. This model is thought to be beneficial because it spreads EPD renewal costs amongst all users, rather than individual companies incurring development costs every five years.

The purpose of EPDs is two-fold: One the one hand, EPDs help decision-makers assess a product from an environmental perspective, allowing them to make informed decisions regarding the impact of a product on a project. On the other hand, the information in the EPDs helps asphalt manufacturers to benchmark their products and to strive to find solutions to reduce their environmental impact.

The information contained in EPDs may be incorporated into an environmental scorecard; it is quantitative and accurate, allowing asphalt producers, road agencies and other infrastructure authorities to establish KPIs (Key Performance Indicators) which will guide them in striving to meet their own environmental goals.

ORBA AND THE NRC ORBA has been in long-term discussions with the National Research Council Canada (NRC) on a joint program designed to

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• Collecting, reviewing, and updating life cycle inventory data; • Determining the most expedient way NAPA could update its Emerald Eco EPD calculator such that it could apply to Ontario and the rest of the country; and • Creating and publishing regional average mix EPDs.

According to James McVeety, Director, Design & Construction, APD, Colas Canada Inc. and member of ORBA’s board of directors, “EPDs provide an opportunity for all roadbuilding stakeholders to share quantifiable sustainability metrics to capture and summarize benefits. Colas Canada, as a national material producer and contractor, sees significant advantages and opportunities to adopt a nationally recognized EPD system which can be uniformly applied and captured with consistency.

The Miller Group, as part of Colas Canada, strongly advocates for this initiative across the province of Ontario as a strong member of the Ontario Road Builders’ Association.” ››

EPDs provide an opportunity for all roadbuilding stakeholders to share quantifiable sustainability metrics to capture and summarize benefits. –McVeety

ORBA’s partnership with the NRC will aim to: • Establish baseline products and study samples; • Collect, review and update background LCI data; • Create a benchmarking data input page – revise the Emerald Eco-Label tool with Canada-specific LCI and interface; • Use and/or analyze the benchmarked regional foreground data; • Develop and provide regionalized foreground LCA and LCI reports; and • Create and publish regional average mix EPDs. The ORBA-NRC project is expected to enhance the sustainability of the Canadian construction sector, promote best practices in LCA, and support the industry’s move towards low carbon pathways. The next steps involve initiating the project, scheduling meetings, and confirming the detailed project plan and timeline. Currently, these efforts are at an advanced stage, with the expectation to get the work started with WAP Sustainability before the end of October 2024. ORBA expects to have more detailed information about the project shared at the 2024 Fall Asphalt Seminar on November 28.

Asphalt mix EPDs are one step closer to raising awareness of the environmental impact of construction materials, encouraging the use of sustainable materials, guiding policy and regulatory decisions, promoting research and innovation, fostering collaboration, and enabling the monitoring of progress in reducing carbon emissions associated with road construction. EPDs are a critical pillar to moving our industry towards a more sustainable future.

Jean-Martin Croteau is Technical Director at Colas Canada Inc. and Doubra C. Ambaiowei is Director, Technical Services, ORBA.

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Businesses have to substantiate environmental claims

BY LARA HENRY

Important amendments to the Competition Act became law on June The changes tackle unsupported envi20, 2024, following Royal Assent of Bill C- 59, the Fall Economic ronmental claims by: Statement Implementation Act, 2023. Among its provisions, the Bill • Requiring that claims about the enmakes it illegal to advertise or market something in a way that is vironmental benefits of a product be false or misleading. supported by adequate and proper testing; and Under this section of the Competition Act, companies will be required to prove any environmental claims made to promote a product or business interest. The Bill explicitly targets greenwashing, a blanket term for misleading or unsupported statements about a product or company’s environmental record, and now requires businesses to substantiate their environmental claims.

• Requiring that claims about the environmental benefits of a business or business activity be based on adequate and proper substantiation in accordance with an internationally recognized methodology.

Environmental claims will face increased scrutiny and enforcement, and businesses can be at legal risk for making environmental assertions that do not stand up to scrutiny and can be fined if found liable.

The Competition Bureau is assessing the impact of these requirements and expects to provide guidance that will offer transparency and predictability in the enforcement of the law. In July 2024, the Bureau launched a public consultation to gather input from Canadians on specific questions related to the new greenwashing provisions of the Competition Act. The Bureau invited feedback on the consultation questions

by September 27, 2024.

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Greenwashing: Misleading or unsupported statements about a product or company’s environmental record.

The Bureau also released a new edition of the Deceptive Marketing Practices Digest that addresses environmental claims. This edition aims to provide a foundation to understand the issues around environmental claims in general and how businesses can comply with the provisions of the Competition Act already in place prior to the amendments.

It’s important that companies review their environmental statements regarding sustainability, net zero, carbon neutrality, eco-friendliness, recyclability, etc. with these new provisions in mind and consult with their legal representative where appropriate.

Lara Henry is a communication specialist and editor of ROADBuilder.

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ON THE ROAD with ORBA

Our members are at the heart of constructing provincial and municipal roads, bridges, and transportation infrastructure throughout the province, leading the way in quality, innovation, and sustainability within the industry. As the industry association for transportation infrastructure in Ontario, it’s both important and thrilling to engage with our members on-site, witnessing their daily contributions and observing major projects come to life. Being front-row participants has highlighted the complexities involved in each project and deepened our appreciation for the craftsmanship behind what our members do.

Thank you to all our friends at Amico Affiliates, Cox Construction Limited, Dufferin Construction Company, Fowler Construction, Green Infrastructure Partners Inc., and Roto-Mill Inc. for hosting the ORBA staff and providing us with an insightful look into our industry.

Dufferin Construction Company hosts ORBA and MTO at the Highway 417 rapid Bridge Replacement in Ottawa where new bridges, each weighing close to 2000 tons, were moved into place.

Amico Affiliates completes phase one of the Volkswagen Group PowerCo Electric Vehicle Battery Plant.

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Fowler Construction hosts ORBA and Simcoe North MPP Jill Dunlop for a tour of their Rosewarne quarry and Trillium-awarded asphalt plant.

Cox Construction Limited and Roto-Mill Inc. hosts ORBA on their construction site in Southgate Township, a project that uses Cold-in-Place recycling technology.

ORBA joins Green Infrastructure Partners Inc. and Amico Affiliates on a tour of the Geordie Howe International Bridge and Highway 3 expansion projects in Windsor.

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Slow down, move over Protecting Ontario’s road maintenance workers

BY STEVEN CROMBIE

In June 2024, ORBA launched its initiative to raise awareness around the urgent need for increased protection of road maintenance workers. The “Slow Down, Move Over” campaign highlights the alarming rise in injuries and fatalities among frontline road workers, stressing the need for legislative reform to ensure the safety of these workers whose lives are often at risk from passing vehicles.

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”Struck by” incidents accounted for

13% of workplace fatalities between 2006 and 2016.

The Problem: road worker injuries Every year, road workers in Ontario are either injured or worse while performing maintenance work on the province’s roads and highways. A timeline of recent incidents demonstrates a persistent and worrying trend of injuries due to “struck by” incidents – those where a worker is hit by a vehicle or construction equipment. Despite the growing severity of these incidents, data from Ontario’s Ministry of Transportation (MTO) road safety reports fail to capture the true extent of the problem.

“Struck by” incidents are a leading cause of workplace fatalities in Ontario’s construction sector. According to the Workplace Safety and Insurance Board (WSIB), these incidents accounted for 13 per cent of workplace fatalities between 2006 and 2016. In the United States, roadside construction sites account for nearly three per cent of all fatal workplace incidents annually, with the Centers for Disease Control and Prevention (CDC) reporting 2,000 deaths from 2003 to 2019, an average of 124 fatalities per year.

The road industry’s perception and labour market challenges Despite the high-paying and sustainable nature of jobs in Ontario’s road construction and maintenance sector, the industry is still perceived as dangerous.

This perception, coupled with ongoing safety concerns, is impacting recruitment efforts. According to BuildForce Canada, Ontario will need to recruit nearly 120,000 workers over the next decade to meet the demands of the MTO’s 10-year capital plan, which includes a historic $27 billion investment in building and repairing roads, highways, and bridges. However, if the industry continues to be perceived as dangerous, it will struggle to recruit and retain the necessary workforce, ultimately impacting the delivery of critical infrastructure projects.

Legislative tools and the need for reform To combat these challenges, ORBA has urged the MTO and the Ministry of Labour, Immigration, Training and Skills Development (MLITSD) to utilize the legislative tools available to make road construction safer for workers. One key area of reform is Ontario’s “Slow Down, Move Over” law, which currently mandates that drivers slow down and move over for emergency vehicles and tow trucks but not for highway maintenance vehicles. This contrasts with other Canadian provinces where maintenance vehicles and roadside workers are included in such legislation. ››

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ORBA’s “Slow Down, Move Over” initiative proposes several key legislative changes to ensure better protection for road workers.

For instance, in British Columbia, motorists are required to slow down and move over for all vehicles stopped alongside the road with flashing lights, including maintenance workers, utility workers, police, fire, ambulance, and tow trucks. Drivers must reduce their speed to 70 km/h in an 80 km/h or higher zone and to 40 km/h in zones below 80 km/h. Failure to comply results in significant fines and penalty points, underscoring the province’s commitment to road worker safety.

maintenance vehicles and workers in their “Move Over” laws, with varying speed limits, fines, and demerit points, further emphasizing Ontario’s lag in protecting its road workers.

Comparative analysis: Ontario vs. other provinces

ORBA’s “Slow Down, Move Over” initiative proposes several key legislative changes to ensure better protection for road workers. Among these is the inclusion of road maintenance vehicles in Ontario’s Traffic Act, ensuring that drivers slow down and move over when passing maintenance workers. This legislative update would align Ontario with other provinces and significantly reduce the risk to road workers.

Ontario’s Traffic Act Section 159, while a step forward, falls short compared to other provinces. In Ontario, drivers are required to slow down to 70 km/h if unable to move over for emergency vehicles or tow trucks, with fines ranging from $400 to $2,000 and three demerit points for non-compliance. However, highway maintenance vehicles are not included in this legislation, leaving road workers at increased risk. In contrast, provinces such as Alberta, British Columbia, and Quebec include highway

Recommendations for reform

As part of the campaign, ORBA advocates for a comprehensive public awareness effort to educate drivers on the importance of slowing down and moving over to protect frontline road workers. The goal is to foster a culture of safety on Ontario’s roads, ensuring that road workers return home safely to their families at the end of each day.

The “Slow Down, Move Over” initiative is not just about raising awareness; it’s a call to action for legislative reform and a shift in public perception to prioritize the safety of road maintenance workers in Ontario. By enacting stronger laws and fostering a safer work environment, Ontario can take critical steps toward reducing road worker injuries and fatalities.

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Moving from dispute resolution to conflict avoidance in Canada A proactive approach to resolving issues

BY MARTIN BURNS

Canada has seen an explosion in infrastructure investment in recent years. Major construction projects are complex and can be beleaguered by contractual disputes. A proactive approach to conflict avoidance and management can address issues before they escalate, costs get out of control, and project delivery timescales are impacted.

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In Canada, dealing with disputes added an average of

22% or $71 million to project costs and around 9.5 months to project timelines.

T

he Conflict Avoidance Process (CAP) has become a particularly effective tool at maintaining good relationships on a project, resolving issues early and enabling project leaders to focus their efforts on project delivery. It has helped to reduce the number of issues that get to dispute, and has significantly cut the costs of both handling issues and the overall project price.

The time and resources needed to deal with disputes add significant costs to projects. Estimates based on research in 2022 on 100 projects in Canada reveal that dealing with disputes added an average of 22 per cent or $71 million to project costs, and around 9.5 months to project timelines. On many projects, transparent and honest communications and collaboration on problem solving have been sacrificed for protection against legal liability.

Birth of a new process As in many countries, project delivery in the United Kingdom has historically been undermined by poor relationship management between owners and contractors, and high levels of spending on legal fees. In 2016, rather than stick with the status quo, Transport for London recognized that there must be a better way. The steps they and their project partners took in relation to the multi-billion-dollar refurbishment of London Underground stations and track has provided a catalyst for transformation across the infrastructure sector.

CAP traces its routes back to the £6 billion (C$10 billion) program of work undertaken by Transport for London (TfL). TfL worked with the Royal Institution of Chartered Surveyors (RICS) to develop a proactive approach that enabled both the public sector owner and contractors to work together to resolve issues early without the need for slow and costly arbitration or litigation. ››

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The Conflict Avoidance Process (CAP) is an effective tool to maintain good relationships on a project and resolve issues early.

The process involves the following steps: 1. Stakeholders (employers and key project partners) select an informal roster of highly credible experts who have technical expertise relevant to specific projects being delivered.

The experts are drawn from different professional groups including surveyors, lawyers, engineers, builders, and architects with approval of both the employer and project partners.

2. As and when issues emerge, the commercial directors for the relevant parties can, instead of going into adversarial mode and potentially losing control over the outcome, agree to initiate the CAP process and jointly select someone from the roster.

3. The jointly-agreed designated CAP expert then takes an inquisitorial approach. They will meet with the relevant commercial directors and gain a full understanding of the issues and questions on which they cannot agree the answers. The CAP expert may visit sites, hold meetings, review documents and undertake necessary enquiries and research they deem necessary to come up with an answer.

4. W ithin as little as 28 days, the CAP expert will provide all relevant parties with a report on their findings and conclusions. The report will also include written recommendations on how parties should move forward to resolve their disagreement. The CAP report is non-binding, but it is fully reasoned out. This provides all parties with a neutral and informed perspective of what the outcome may be if the issue were to go to more formal procedures such as adjudication, arbitration, or litigation.

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5. I f either party disagrees with the report and recommendations, they can proceed to formal dispute resolution but should provide their reasoning for non-acceptance.

The impact The UK experience is very encouraging. For Transport for London, the number of disputes collapsed almost immediately from 1,200 to 200 per year after the process was introduced.

The cost of administration for both parties of the Conflict Avoidance Process has been, on average, around £12,000 per dispute, compared to £50,000 for typically small disputes which would be referred to adjudication, and upwards of £500,000 for larger matters.

The TfL experience should be of particular interest to small and medium sized companies who can often be dissuaded from using adjudication or arbitration because of the prohibitive costs. It has been said that the amount of adjudicator and lawyer fees can be twice as much, and more, than the amount of money that is in dispute. From its implementation in 2016, the conflict avoidance process over the first two years was used 16 times. In every case, the parties used the CAP report and recommendations as the basis of an agreement, and not a single case proceeded to adjudication, arbitration, or litigation.

TfL continues to use the CAP process, and its successful roll-out has seen others adopt the process. Network Rail, which builds and maintains the UK rail network, adopted a conflict avoidance process and the premium they now pay for disputes is around a quarter of what it would be expected to be compared to the industry average. Conflict avoidance and

After CAP was introduced, Transport for London saw the number of disputes go from 1,200 to 200 per year.

early intervention measures have been adopted as standard by increasing numbers of industry employers and contractors across the whole of the UK. The UK’s central government also encourage parties involved in public works projects to utilise conflict avoidance measures such as CAP via a formal guidance document known as the Construction Playbook.

Application in Canada For Canada, given the huge scale of investment currently underway, an approach like CAP can help provide public sector project teams with greater confidence to resolve issues at the project level without needing to escalate issues internally or lose control to external lawyers and the courts by resorting to formal dispute resolution channels. The use of credible and

impartial CAP experts is proven to help parties work their way through issues, effectively holding up a mirror to the problem and enabling joint problem solving for the overall benefit of the project.

The public sector across Canada is spending an estimated $65 billion per year on infrastructure. Disputes can drain much of that investment, meaning less gets built. A proactive and collaborative approach to problem solving, supported by impartial recommendations from credible CAP experts, could significantly reduce unnecessary legal spend and inevitable drain on time and resources of project leaders, and result in more budget capacity to build. A win-win for government and industry.

Martin Burns is Head of Alternative Dispute Resolution Research and Development at the Royal Institution of Chartered Surveyors.

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300 STRONG!

Catching up

with ORBA members

BY MATT BRADFORD

ORBA welcomed its 300th member in 2024. To mark this milestone, we reached out to several of our existing members to collect their insights and experiences with the association.

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THANK YOU!

specifications and best practices. Additionally, ORBA serves as a platform for sharing and accessing the latest innovations and technologies in road building and infrastructure, helping us remain competitive.

What benefits did your company anticipate from ORBA membership?

ORBA membership connects us with a wide range of clients and stakeholders in the industry. Through ORBA events and meetings, we can build relationships with contractors, government agencies, and other stakeholders, opening doors to new collaboration opportunities and potential contracts.

PNJ ENGINEERING INC. | Associate Member Prabhdeep Lubana P.Eng., Principal Why did your company join ORBA? As a participant in road and highway infrastructure, joining ORBA grants us access to a broad network of professionals within the road construction and infrastructure sectors, facilitating collaboration and partnerships with key industry players.

ORBA represents its members in discussions with government and regulatory bodies, ensuring that our interests in policy and regulations are wellrepresented.

Membership also increases our visibility, potentially attracting more clients and projects. ORBA provides learning opportunities through seminars and webinars, helping us stay current with engineering

Being part of ORBA also gives us a voice in shaping industry policies and regulations, allowing us to influence decisions that affect our business and the industry at large. ORBA membership enhances our company’s reputation by signalling our commitment to industry standards and quality, making us a trusted partner for clients.

What challenges were you facing before joining ORBA and what have been the results?

Since joining ORBA, PNJ has gained access to a vast network of road builders, contractors, and government agencies, which has facilitated partnerships and increased business opportunities. ORBA has provided PNJ with opportunities to contribute to industry advancements, such as our involvement in the Balanced Mix Design research study through Ontario Asphalt Expert Task Group (OAETG). This has helped us provide our expertise in asphalt mix design while understanding the performance attributes of asphalt mixes through this innovative approach.

The membership has also bolstered our reputation and credibility, providing us with a platform to showcase our work to potential clients, and also through sponsorship opportunities at various industry events.

These positive outcomes have resulted in greater growth opportunities, improved industry influence, and a stronger competitive position for PNJ. ››

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PLATFORM INSURANCE MANAGEMENT INC. | Associate Member Charles Quenneville, CEO Why did your company join ORBA? We joined ORBA to stay connected to the Ontario road building community. Many of our clients are ORBA members, and we feel it is important to show support to the associations that represent our clients, especially ORBA, considering how many clients we have that are either ORBA board members or active committee members.

What benefits did your company anticipate from having an ORBA membership?

Staying close to the association and its members by attending the ORBA AGM in February is one of the first benefits that comes to mind. The networking opportunity is fantastic; we’ve formed so many important relationships because of our participation in this event.

Secondly, the educational resources offered through the Road Building Academy are great. I’ve been on the Education and Training Committee now for twelve years and have been part of forming the content. As a committee, we always make sure to offer content that is relevant to the associate members, such as training on soft skills. We have been sending people from our company for years and have seen the benefit.

What challenges were you facing before joining ORBA and what have been the results?

The biggest challenge we had ten years ago was building our brand amongst the ORBA members. We started PLATFORM in 2014 and joined ORBA in 2015. We immediately started attending the networking events to ensure we had an opportunity to get airtime with the right people and slowly build our brand. The ORBA events allowed for this to happen and we’re grateful for it.

As an employer, we also faced our own challenges related to COVID-19, like everyone did. The Road Building Academy offered some great content on leadership and helping people deal with the various stresses that came from such a traumatic event.

D. CRUPI & SONS LIMITED | Asphalt Producer Dominic A. Crupi, Vice President Why did your company join ORBA? Our organization has always seen the value and importance of being part of an industry that has a united and purposeful

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direction and voice. We were one of the founding members of the Ontario Hot Mix Producers Association and were always advocates for all members of our industry to participate in initiatives that advance the good our sector can do and also advocate for quality and value for the clients we serve.

When OHMPA amalgamated with ORBA to become a council of the Ontario Road Builders’ Association, it made sense that we could advocate for our industry with a united voice through the broader reach of the entire construction industry in Ontario.

What benefits did your company anticipate from having an ORBA membership?

As part of ORBA, we have a pathway to starting dialogues with key stakeholders in municipal and provincial government to address challenges our industry faces. This is vital in order to deliver a high-quality product on time, improve value, and reduce our environmental impact to intelligently move toward a lower carbon footprint while extending the lifespan of our natural resources.

HEBSTER CONSTRUCTION INC. | Municipal Contractor Tarek El-Tahan, Managing Partner Why did your company join ORBA? Hebster joined ORBA to help support the road building industry since we have a road building division to complement the services we offer our clients. We are a company that likes to engage with the industry and provide any level of support we can offer to help improve the road building industry as a whole.

What benefits did your company anticipate from having an ORBA membership?

The main benefit we foresaw was ensuring we stayed “relevant to our industry;” in other words, staying up-to-date with innovative initiatives being introduced, preparing ourselves for upcoming challenges we are faced with, and, more importantly, being able to engage and provide assistance to the association when the opportunity arises.

What challenges were you facing before joining ORBA and what have been the results?

As a company, Hebster is new to the industry. Despite many Hebster members being experienced road builders, it was challenging breaking into the industry without being an ORBA member. Once we joined ORBA and were able to attend and network at a couple of industry events, Hebster quickly

managed to introduce its services to the industry and will continue to build on great relationships being built through the association to date.

ORBA provides a dynamic slate of programs and services to support the growth of our members’ businesses.

YELLOWLINE ASPHALT PRODUCTS LTD. | Asphalt Cement Supplier Kourtney Adamson, Sales Manager Why did your company join ORBA? Yellowline joined ORBA as it is the voice for the asphalt road building companies across Ontario. With ORBA’s trustworthy reputation and unwavering dedication to asphalt road building, it was an easy decision.

What benefits did your company anticipate from having an ORBA membership?

Yellowline saw the strong relationship that ORBA has with MTO and municipalities across Ontario, and how the association is growing and strengthening. Yellowline also saw the enormous amount of networking and educational opportunities that ORBA provides its members in many different formats that are accessible to their members.

What challenges were you facing before joining ORBA and what have been the results?

ORBA’s relationships with government agencies have given Yellowline the ability to work with different levels of government that we might not have had the opportunity to do work with before.

Matt Bradford is an industry writer for the Canadian construction industry. He can be reached at mirbradford@gmail.com.

FA LL 2024 35

2024 ANNUAL MEMBERS’

GOLF TOURNAMENT

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We couldn’t have asked for a better day for our Annual Members’ Golf Tournament!

With over 400 golfers spread across three courses, it was a hole-in-one success for our biggest golf tournament yet. Our members and guests brought high swings and positive energy, fostering a strong sense of community, collaboration and camaraderie all the way to the final putt. A heartfelt thank you to our incredible sponsors for providing unique experiences and supporting our efforts to create a memorable event. Here’s to the wonderful moments we shared as an industry and the connections that will continue to resonate long after the last swing.

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BY NORM KEITH

D

Improving workplace safety through DPAs

P

Deferred Prosecution Agreements (DPAs) avoid expensive and uncertain outcome of penal prosecution process Canadian Occupational Health Safety (“OHS”) regulators clearly have legal authority and moral responsibility to set, communicate and enforce workplace safety standards across Canada. The important question is what the best regulatory model is to protect workers on the job and ensure the highest standards of workplace safety. Many Canadian regulators have political and public pressure to enforce OHS laws by prosecuting employers and other workplace stakeholders when there are incidents, injuries and fatalities in the workplace.

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A

DEFERRED PROSECUTION AGREEMENTS

OHS penal prosecutions may take the form of either quasicriminal charges under health and safety laws or criminal charges under the Westray Bill.1 In either case, a conviction may result in high fines, jail terms, and debarment from future public and private business opportunities, adding to the punishment and costs of the corporate employer.

The recent decision of the Supreme Court in City of Greater Sudbury2 has resulted in the proactive use of pre-qualification and debarment of convicted employers by governments at all levels. Pre-qualification of contractors has been a longstanding risk management strategy. Debarment is also a prospective means of prohibiting the hiring of companies with a prior OHS record of conviction. The theory behind this risk management strategy is that an employer with a record of conviction of an OHS offence has a suboptimal commitment and execution of their OHS program and an increased risk of a complaint, incident or injuries to workers that will result in OHS regulatory enforcement.

The use of penal prosecutions by governments to enforce OHS standards under the criminal sanctions model is only one of many means available of OHS accountability and enforcement.

Many other models of regulatory compliance exist and are worthy of consideration to improve workplace safety.

For example, in the United States, the use of citations with Administrative Monetary Penalties (also known as “AMPs”) is frequently used as a model of OHS enforcement. British Columbia is the only Canadian jurisdiction that most frequently uses AMPs much more than penal prosecutions to enforce OHS laws. Other countries, such as the United Kingdom, use proactive inspections, constructive collaboration and mandatory compliance orders more often than prosecutions to achieve OHS law compliance. In fact, the United Kingdom, 1 2 3

with a considerably larger population, has many less OHS prosecutions annually than Canada.3 Another enforcement tool in the OHS regulators’ tool box is Deferred Prosecution Agreements (also known as “DPAs”). The regulatory mechanism of DPAs gives the option of resolving OHS non-compliance allegations constructively rather than by means of the criminal sanctions model. A trial of an OHS charge results in defendants spending a lot of time distracted with legal proceedings, asserting all available rights under the Charter of Rights and Freedoms, raising every possible legal defence available, and spending a great deal of money in nonrecoverable legal fees.

The regulatory mechanism of DPAs gives the option of resolving OHS noncompliance allegations constructively rather than by means of the criminal sanctions model.

DPAs avoid the very expensive and uncertain outcome of the penal prosecution process for all parties and the taxpayer-funded judicial system. DPAs are now the preferred resolution mechanism in the United States, the United Kingdom, and France. In fact, many jurisdictions around the world have considered the benefits of using DPAs as a better way to encourage compliance and ensure enforcement by ››

estray Bill, C-45, 2004, Canadian Criminal Code, S.217.1.

W R . v. Greater Sudbury (City), [2023] S.C.J. No. 28.

HSE Annual Report and Accounts 2022/23.

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DPAs may be an effective option to striking that balance in OHS legal compliance without the expense of a trial, the damage to innocent stakeholders, and the risk to the state that the charges will be dismissed.

organizations rather than the blunt and expensive criminal sanctions model.

A DPA is essentially a diversion program for the corporate employer accused in a regulatory or criminal law enforcement context. Canadian criminal law has used diversion programs for young offenders, indigenous offenders, and specialneed offenders for decades. A diversion program deals with individual accused who have been either arrested or charged with a criminal offence. A diversion program requires the accused to acknowledge their legal contravention and noncompliance, accept responsibility of the consequences of their actions, commit to address the non-compliant conduct, and then commit to a corrective rehabilitative program. The person who has been accused of violating the legal standards agrees to all of this in open court and is subject to judicial supervision.

For example, long before the legalization of cannabis by the federal government in 2018, young offenders arrested for the possession or consumption of cannabis were usually offered the option of entering into a diversion program rather than facing a criminal trial, a conviction, a criminal penalty of a fine or jail, and a criminal record. Youth diversion programs usually required the young offender to publicly acknowledge that they had broken the law, attend a drug education program to learn the adverse effects of cannabis use, and publicly commit to a stop the criminal behaviour.

Corporate diversion programs also exist in Canada. The Competition Bureau uses the co-called ‘Immunity Program’ with good effect in resolving price fixing and other offences under the Competition Act.4 The federal government has also used Environmental Protection Alternative Measures (“EPMA”) agreements pursuant to the Canadian Environmental Protection Act5 to effect resolution of environmental offences that result in environmental remediation but do not result in corporate convictions. Finally, the penultimate DPA in Canada is under

the Criminal Code6 and permits corporate criminal offenders to admit to the fraud, corruption or other white collar crimes in a manner that results in rehabilitation of the offender without a criminal record and automatic debarment from government and other business opportunities.

Corporate DPAs provide a potential ‘win-win’ result for both the regulator and the societal interest that they represent and the legitimate business interests of the corporate offender without harming their investors, their employees, and other corporate stakeholders. Therefore, DPAs may be an effective option to striking that balance in OHS legal compliance without the expense of a trial, the damage to innocent stakeholders, and the risk to the state that the charges will be dismissed.

A comprehensive review of the advantages and disadvantages of DPAs for corporate offenders have been addressed by the author elsewhere.7 A brief summary of the benefits of DPAs for OHS legal enforcement may include the following: 1. The lengthy, costly, and uncertain outcomes of an enforcement by OHS charges that result in a quasi-criminal or criminal trial; 2. The consequences that a public trial and conviction have on the employer’s business reputation and debarment from future business opportunities; 3. The adverse effects on innocent stakeholders, including investors, employees, customers, and suppliers who did not cause the incident.

Although the goal of OHS laws and their enforcement is the improvement of workplace safety for workers, the use of penal prosecutions has become so prevalent in Canada that there has been little reflection, review and reform of the efficacy of the criminal sanctions enforcement model. Since the writer is not aware of any published, peer-reviewed empirical study in Canada that reliably confirms a positive correlation between increased OHS prosecutions and penalties with a reduction in workplace incidents, injuries and fatalities, the policy model needs to be reconsidered. The absence of such evidence is incomprehensible given the continuing trend of Canadian OHS regulators to increase both the frequency and severity of penalties arising from OHS non-compliance prosecutions.

Rather than double down on a suspect and failed policy model, there must be a better policy model to improve workplace safety.8

R.S.C. 1985, c.C-34, as amended.

S.C. 1999, c.33, as amended.

R.S.C. 1985, c. C-46, section 732.

7 Corporate Crime, Accountability & Social Responsibility, Norm Keith, 3rd edition, Lexis Nexis, pages 450 to 478.

8 See a review of the leading OHS policy models in Chapter 1 of the book, Canadian Health and Safety Law, Norm Keith, Thomson Reuters, Canada.

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The actual process of how a DPA could work to achieve OHS enforcement without the lengthy, costly, adversarial process of a penal prosecution may look something like this: 1. There is a workplace incident, injury or fatality; the OHS regulator investigates and determines there has been an OHS legal contravention; 2. The terms and conditions of the DPA is voluntarily negotiated between the OHS regulator and the corporate employer and their respective legal counsel; 3. The DPA will include requirements for acknowledgement of a legal contravention of a legal OHS violation by the corporate employer; 4. The DPA will require the payment of a significant monetary penalty for not complying with the OHS legal standard in question; 5. T he DPA will include requirements to add or improve current OHS policies, procedures, training, accountability and other workplace safety measures.

Even if DPAs are allowed by legislation, the role of quasi-criminal and criminal OHS prosecutions will be preserved. However, the tremendous time, costs, and talent that are tied up in penal prosecutions can be better put into constructive resolution discussions to improve workplace safety. If governments and OHS regulators are truly committed to reducing workplace incidents, injuries, and fatalities, and improving workplace safety, there is no reason to not have OHS DPAs available in every jurisdiction in Canada.

This brief introduction and review of the concept of DPAs as an effective and efficient means of holding corporate employers accountable for OHS legal contraventions should be considered by governments and OHS regulators. It may not necessarily reduce the risk of high monetary penalties that employers may face, but it has the obvious advantage that it will not result in debarment and or cripple them from future business activity that punishes employers, investors, supplies, customers, and other workplace stakeholders inadvertently. DPAs also prevent a record of conviction from debarring an otherwise capable and competitive business from offering its goods and services to both the public and private sector.

DPAs have been widely reviewed and used in many other free and democratic countries with resounding success. While DPAs are not a panacea to improving workplace safety in Canada, they may go a long way to supporting legal enforcement of offenders, preventing hardship to non-offenders, and avoiding the existential threat of corporate capital punishment by OHS prosecutions, convictions and debarment.

Norman A. Keith, B.A. (Econ.), J.D., LL.M., is a senior partner at KPMG Law LLP and is a management-side employment, labour and regulatory lawyer.

6. The DPA will be reviewed in a public judicial proceeding by a justice that records the full details of the commitment to the improved OHS compliance program; 7.

When the above three criteria are completed, the pending or actual OHS penal charges will be addressed and stayed in open court by a judge at the request of the prosecutor.

The use of DPAs may not necessarily be offered by the OHS regulator and the courts may not always accept a DPA as the appropriate method of addressing non-compliance with OHS laws. For example, OHS regulators may set criteria, as is done in the United States, when DPAs may be accepted, especially in cases involving fatalities and repeat offenders.

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©Shutterstock

Courts support municipal right to avoid litigious contractors in procurement contracts

BY SPYROS BEKIARIS

Within the last two decades, several decisions have expanded a municipality’s ability to discriminate – and sometimes punish – litigious contractors early in the tender process. These cases primarily focus on “reprisal clauses” included in tender documents and designed to disqualify contractors which seek or sought a court’s assistance in securing their rights. Unfortunately, the decisions appear to expand the definition of litigation and support a municipality’s unbridled discretion to exclude contractors which seek to advance a claim.

Western jurisprudence This line of reasoning began with the Supreme Court of Canada decision Shell Canada Products Ltd. v. Vancouver (City),1 which upheld the City of Vancouver’s decision to prevent a petroleum company from submitting bids for municipal contracts to supply petroleum. In its decision, the Court confirmed that in the course of carrying out the business of the city, certain choices must be made along the way that are discriminatory. In this vein, discrimination for purported commercial or business reasons was essential to carry out the activities within the city’s control.

Shell Canada Products Ltd. v. Vancouver (City) [1994] 1 S.C.R. 231.

Cox Bros. Contracting & Assoc. Ltd. v. Big Lakes (Municipal District), (1997), 215 A.R. 126 (Q.B.).

Ibid at para 17.

4 Interpaving Limited v. City of Greater Sudbury, 2018 ONSC 3005.

1 2 3

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In Cox Bros. Contracting & Assoc. v. Big Lakes (Municipal District), 2 an Alberta court upheld the notion that a municipality should be entitled to avoid doing business with contractors.

Specifically, the Court provided some guidance with respect to when and why a municipality could elect to not enter into a contract with any contractor: • it would be prudent to avoid doing business with parties which may be prone to litigation; • the municipality would be guarded and cautious in dealings with a party with differing interests; and

Key takeaway The spirit of the jurisprudence appears to be favourable to municipalities. That is, a municipal decision to not do business with a litigious or potentially litigious contractor will be afforded considerable deference. This deference is protected by a municipality’s right to make a commercial decision. As a result, in the same way a business may choose not to work with someone they unilaterally – and potentially unreasonably – view to be prone to litigation, municipal decisions will equally receive the same protection without the interference of courts.

Spyros Bekiaris is Managing Lawyer at RAR Litigation.

• there was a risk of breaching confidentiality of information when dealing on a daily basis with parties against whom the municipality is in litigation.3

Ontario jurisprudence In 2018, the Ontario Superior Court adopted this same reasoning in Interpaving Limited v. City of Greater Sudbury.4 This case involved a municipal bylaw that prevented contractors who had been involved in litigation against the city from bidding on construction RFPs. The city rejected Interpaving’s bid because they had previously: • commenced a claim against the city; • violated health and safety legislation; and • demonstrated abusive behaviour towards city employees.

The Court found that the city, by allowing Interpaving to meet with city officials and discuss the rejection of their bid, sufficiently addressed any initial lack of fairness the contractor may have experienced. Once again, the Court recognized that fear of doing business with a party prone to litigation was an adequate reason to avoid litigious contractors.

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Investing in tomorrow’s transportation leaders with ORBA’s Scholarships Program In the world of civil engineering, where roads, bridges, and transit systems weave the tapestry of modern life, nurturing the next generation of leaders is more than a mere commitment; it’s an imperative. This is where the ORBA Scholarships Program takes center stage.

Empowering future engineers ORBA doesn’t just build infrastructure; it invests in the builders of the future. The ORBA Scholarships Program, backed by a substantial commitment of $10,000, is designed to empower Ontario’s budding civil engineers. It’s not just about financial assistance but also about recognizing potential and passion.

The ripple effect These scholarships aren’t just about financial aid; they are a catalyst for change in the field of civil engineering: • Encouraging excellence: Beyond easing financial burdens, these scholarships inspire students to strive for excellence, fostering dedication and hard work.

• Fueling innovation: By supporting students early in their educational journey, ORBA introduces fresh ideas and perspectives into the industry, igniting innovation that drives progress.

• Building a skilled workforce: These scholarships address the workforce gap in civil engineering by attracting more students to the field and facilitating their education, ensuring we have the right people to tackle complex infrastructure challenges.

• Showcasing excellence: ORBA doesn’t just support students; it celebrates them. At the annual convention, scholarship winners and their schools take the stage, not only acknowledging their achievements but also inspiring more young minds to consider careers in civil engineering.

• Long-term impact: The investment in these students has a ripple effect. As they graduate and enter the workforce, they become the architects of Ontario’s future transportation infrastructure, leaving an enduring mark on the communities they serve.

The ORBA Scholarships Program isn’t just a financial gesture; it’s an investment in the future vitality of Ontario’s transportation infrastructure. It’s a testament to ORBA’s commitment to fostering innovation, supporting talent, and ensuring a brighter, better-connected, and more sustainable future for our communities.

Through this program, ORBA doesn’t just build roads; it paves the way for a stronger, more resilient Ontario.

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ORBACORNER

ORBA WEBINARS

www.orba.org/webinars

INTERNATIONAL EXPERIENCES WITH HIGH RAP CONTENT MIXTURES

NAVIGATING OHS LEGAL UPDATES WITH ONTARIO’S ROAD BUILDING INDUSTRY

(September 25, 2024)

(October 30, 2024)

Presented by Mike Aurilio, Terminal Manager, Yellowline Asphalt Products Ltd.

Presented by Luiza Vikhnovich, SHERRARD KUZZ LLP

The Ontario Asphalt Expert Task Group (OAETG) put together a review of international practices used to produce high Reclaimed Asphalt Product (RAP) asphalt mixtures. This webinar will look at the high RAP experiences from different international research groups and owner/agencies including Japan, Sweden, Florida, Minnesota, Wisconsin and several others who have made changes to their general design principles, characterization of materials, and handling of RAP stockpiles. The examples set out by these different groups will provide Ontario with direction on how we can implement higher RAP contents into our mixtures and also alleviate performance concerns with our standard RAP usage. Increasing RAP usage has obvious benefits to all stakeholders, but doing so with quality in mind is paramount.

With several noteworthy developments in occupational health and safety law in Ontario, Counsel will provide an update on the key issues that various stakeholders in the road building industry should consider going forward.

Some of the questions that will be explored include: • What is the impact of R v Sudbury as it relates to liability for various stakeholders, including owners, on a construction project?

• What steps can be taken to support a future due diligence defence?

• How have factors considered during sentencing for an OHSA contravention been impacted by recent legislative changes? What does this mean for OHSArelated liability going forward?

•M TO FALL CAPITAL UPDATE (webinar) November 20, 2024

•O APC CHAIR’S DINNER November 27, 2024

• ORBA PRESIDENT’s TOUR · Nov 21 in GTA · Nov 25 in Kingston · Nov 26 in London · Dec 5 in Sudbury

• OAPC FALL ASPHALT SEMINAR November 28, 2024 • 98th ORBA ANNUAL CONVENTION February 2 – 4, 2025 • ORBA ACADEMY March 3 – 7, 2025

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Events

SPOTLIGHT ON

NEW MEMBERS! 4S CONSULTING SERVICES INC. 4S Consulting Services Inc. is one of Canada’s largest privately held Occupational Health and Safety service providers founded in 2004. 4S is an industry leader in setting up and implementing sustainable programs such as COR™ 2020, ISO 45001 and WSIB’s Health and Safety Excellence Program.

4S is also a leading provider of the WSIB’s Heath and Safety Excellence Program focusing on getting smaller businesses rebates to develop Health and Safety programs. 4S’s commitment to safety and excellence was recognized with the Avetta Award for Canada’s Best Safety Industry Provider at the 2023 Canada’s Safest Employers Awards, a testament to our leadership in the OHS sector. https://www.4sconsult.com/ BETON Beton is a North America-based, general construction services company and is a leading builder in diverse market segments. As a dedicated construction company with over four decades of experience, Beton is committed to delivering exceptional results to its clients. Beton also has extensive experience and expertise in concrete and steel structure restoration. Beton has expertise in the following areas: bridge rehabilitation and new construction, culvert rehabilitation and new construction, retaining walls rehabilitation and new construction, and concrete tanks and chambers rehabilitation and new construction. https://www.beton-icr.ca/ ECOGEST NORTH AMERICA INC. Ecogest North America Inc. is owned by Ecogest SpA, headquartered in Italy. Ecogest SpA has been creating and maintaining green areas and roadside vegetation along roads and highways since 1995.

Ecogest is considered a leading company in the Italian market thanks to the extreme specialization acquired in the mechanical maintenance of green areas along transport networks, regarding roads and highways. https://www.ecogestnorthamerica.ca/ FIDELITY ENGINEERING & CONSTRUCTION INC. The Fidelity Group of Companies has developed a reputable brand best known for quality craftsmanship, timely execution of work and a highly talented field and management staff. Fidelity Engineering and Construction’s core business is General Contracting in the Heavy Civil Construction Industry. We specialize in bridge replacement and rehabilitation, highway construction, culvert replacement and rehabilitation, earthwork including excavation and site development, retaining walls and erosion control, environmental habitat reconstruction, and demolition and decommissioning. https://fidelitygroup.ca/ INFRASTRUCTURE HEALTH & SAFETY ASSOCIATION (IHSA) The Infrastructure Health and Safety Association (IHSA) is Ontario’s trusted health and safety resource.

We provide the resources and training that control and eliminate safety hazards in work environments involving high-risk activities. As part of Ontario’s health and safety system, we are recognized by the Ministry of Labour, Immigration, Training and Skills Development, the Ministry of Colleges and Universities, Ministry of Transportation, and the Workplace Safety and Insurance Board as designated trainers and consultants. So you can be sure that the training you get from IHSA meets regulatory requirements and compliance standards. https://www.ihsa.ca/ RAR LITIGATION RAR Litigation, founded in 2010, has developed a specific focus on litigation within the construction and development industries. We regularly assist clients in the areas of construction and infrastructure, real estate, commercial and business litigation. Our team of highly skilled and trained lawyers are devoted to satisfying the specific litigation needs of each client through strategic and practical counsel. Since the inception of the firm, we have serviced a broad spectrum of clients that includes owners, developers, contractors, subtrades, suppliers, and design consultants. https://www.rarlitigation.com/

4 8 ORBA | ROA DBUILDER

RENEW YOUR MEMBERSHIP TODAY, OR BECOME A MEMBER, CLICK ON THE QR CODE! Joining ORBA is an investment in your company and in the future of road building.

Get inside access to exclusive events, continuous education, sponsorships and exhibitions.

Have an impact on government and contribute to a great industry. membership@orba.org

ROADMARKING CANADA LTD. Roadmarking Canada was founded in Ontario in 2022. The parent company, EDEL Gruppe, is located in Germany. Roadmarking Canada provides road and pavement, airfield and warehouse markings. https://edel-gruppe.de/ SAMSARA TECHNOLOGIES CANADA ULC Samsara helps companies find inefficiencies with end-to-end visibility so businesses can improve productivity and their bottom line through innovative technologies and trends. Samsara’s customers include the world’s largest organizations across construction, transportation and warehousing, field services, manufacturing, retail, logistics, and public sector. https://samsara.com/ SUPERB TRUCKLINE Superb Truckline is a locally owned and operated company that serves the GTA, providing professional hauling and transport services to a variety of residential, commercial and industrial customers. We maintain a fleet of 30 vehicles to serve your needs, as well as an experienced and knowledgeable crew.

From laying out driveways for residential and commercial use to hauling debris, dirt and sand from excavation and construction sites, we do it all at competitive prices. We provide trucking services and related project pricing solutions for all construction projects. Triaxle, trailer, live bottom, pony pup and float service.

YORK1 CONSTRUCTION SERVICES LTD. We are a forward-thinking and innovative environmental company with a fully integrated infrastructure division. We provide environmental services to both public and private sectors with a focus on nonhazardous solid waste management, soil remediation and beneficial reuse, and liquid waste solutions.

Our facilities and extensive fleet of collection vehicles support residential and commercial construction projects, municipal waste and recycling, and public infrastructure development. Our core values prioritize responsibility and sustainability, which is reflected in our wood recycling, scrap metal recovery, and low-carbon fuel initiatives. https://york1.com/

FA LL 2024 49

LIST OF ADVERTISERS ATS TRAFFIC www.atstraffic.ca

51

INSTA-MIX www.insta-mix.com

15

AVIVA www.aviva.ca/gcs

26

LAFARGE CANADA INC. www.lafarge.ca

49

BRANDT ROAD TECHNOLOGY brandt.ca

9

LiUNA! ONTARIO PROVINCIAL DISTRICT COUNCIL www.liunaopdc.ca

17

BRANDT POSITIONING brandt.ca

45

M&L TESTING EQUIPMENT www.mltest.com

12

BRANDT VALUE brandt.ca

27

MASTERS INSURANCE www.mastersinsurance.com

41

CANADIAN SCALE COMPANY LIMITED www.canscale.com

21

COOPER EQUIPMENT cooperequipment.ca

30

ramudden.ca

19

GALLAGHER AJG.com/ca

13

STINSON OWL-LITE www.stinson.ca

19

GIP www.gipi.com

18

STRONGCO CORPORATION www.strongco.com

7

HANDY HITCH MANUFACTURING www.handyhitch.com

35

NUCOR SKYLINE www.nucorskyline.com · www.nucorskyline.com/coldformed

52

RAMUDDEN CANADA

STUART HUNT stuarthunt.com

31

THE GEAR CENTRE www.gearcentre-offhwy.com

50

TOROMONT

50 ORBA | ROA DBUILDER

toromontcat.com

47

UPPER CANADA ROAD SERVICES INC. www.uppercanadaasphalt.com

5

WALKER CONSTRUCTION www.walkerconstruction.ca

20

WIRTGEN AMERICA www.wirtgen-group.com

2

YELLOWLINE ASPHALT PRODUCTS LTD. www.yellowline.ca

43