by SHCA SHCA

News from the Field – April 2021

Sharing news that SHCA members need to know

April is Dig Safe month

April is Dig Safe month, as proclaimed by the province of Saskatchewan. And for more than 30 years, the Annual Contractor Dig Safe Awareness Breakfast program is held across dozens of communities around the province.

The Saskatchewan Common Ground Alliance (SCGA) and 21 of its member sponsors, including our province’s pipeline and utility companies, make this the unofficial start to our digging season for the year.

The events educate the frontline workers, safety managers, emergency personnel and the general public about the importance of digging safely around underground and overhead infrastructure.

An anchor of the program is the locally made and produced safety videos where a number of digging awareness topics are covered, such as:

  1. Costs to you, your family and your community when you contact underground facilities
  2. What to look for before you dig
  3. Proper pressures when day lighting
  4. Safe excavation practices and tolerance zone
  5. A powerful story of a man who sets himself on fire when he inadvertently pushes a pipe up into an overhead power line

The 2021 Contractor Dig Safe Breakfast program will look a little different due to the ongoing global pandemic. There will be no face-to-face sessions but there will be a chance for those frontline workers to win breakfast when our made-in-Saskatchewan safety video is watched.

Stay tuned to our social channels and website for more details soon!
www.scga.ca
www.twitter.com/saskCGA
www.facebook.com/DigSafeSaskCGA
Saskatchewan Common Ground Alliance on LinkedIn

Additional stimulus dollars will improve rural roads and bridges while contributing to economic recovery

Earlier in March, Premier Scott Moe announced that the province will advance $11.2 million in economic stimulus funds for the Rural Integrated Roads for Growth (RIRG) program. The funds will give RIRG a head start on getting projects approved for the 2021 construction season.

RIRG will continue to assist RMs with the cost of construction and upgrading municipal roads, bridges and culverts to support growth. With the additional dollars, government is contributing more than $39 million to the program in 2020–21.

The Rural Integrated Roads for Growth program is an important component of the province’s plan to rebuild 100 roads over the next three years and 100 bridges over the next four years.

“Rural municipalities play a significant role in our plan to build a Strong Saskatchewan,” said Moe. “This funding will ensure projects will be ready for this construction season to help build rural infrastructure while protecting and growing jobs across our province.”

RIRG is an important component of the province’s plan to rebuild 100 roads over the next three years and 100 bridges over the next four years. Through the first two phases of funding, 89 road projects and 45 bridge projects have been provincially approved, receiving nearly $38 million in support. Several of the bridge projects are still going through the federal approval process.

“Our rural municipalities greatly value this continued financial support through this time of economic recovery,” said Ray Orb, president of the Saskatchewan Association of Rural Municipalities. “Well maintained rural infrastructure is critical to the sustainability and growth of Saskatchewan’s economy and the rural-based industries using it daily.”

The Government of Saskatchewan is meeting its target of improving more than 1,000 km of provincial highways this year, the first of its 10-year Growth Plan goal to build and upgrade 10,000 km of highways. Another $300 million in highways stimulus funds is being invested over two years in thin-membrane surface upgrades, passing lanes and improvements to municipal roads and airports.

The Government of Saskatchewan has invested more than $9.8 billion in highways infrastructure since 2008, improving more than 15,800 km of Saskatchewan highways.

Canadian Construction Association welcomes its new Board of Directors for 2021–22 with Ray Bassett at the helm as chair

The Canadian Construction Association (CCA) is pleased to announce that Ray Bassett is the chair of the 2021–22 Board of Directors. CCA sincerely thanks outgoing chair, Joe Wrobel, for his dedicated leadership.

Bassett is the vice president and chief underwriting officer at Travelers Insurance Company of Canada, where he manages client relationships with national and larger regional construction companies, leads strategic initiatives in product development and technology and guides the business strategy of the Construction Services Group for Travelers in North America.

A 37-year veteran of the construction surety industry, Bassett has led both claims and underwriting practices for leading national surety companies in Canada and is focused on improving collaboration and value among stakeholders in the construction industry, including public and private project owners, the construction and project finance lending community, financial ratings agencies, consultants, the construction law bar and the surety industry.

Bassett joined the CCA Board of Directors in 2010, has chaired the Manufacturers, Suppliers & Services Council, as well as an executive committee focused on federal prompt payment, which was instrumental in having industry concerns and recommendations addressed in the Federal Prompt Payment for Construction Work Act.

In his address to members at the annual general meeting, Bassett articulated one of CCA’s advocacy focuses for the association over the next year.

“(We need) a long-term federal infrastructure plan, that is evidence-based and is better aligned with the needs and priorities of provincial and municipal governments, and has a clear and uncluttered funding mechanism – this will bring more public and private projects to the market in a more predictable flow,” he said. “This is good for our industry and good for Canada.”

Joining Bassett on CCA’s 2021–22 Board of Directors are:

  • Jean François Arbour, President, Groupe SCV
  • Andrew Arnill, Operations Manager, West-Can Seal Coating Asphalt Products
  • David Bowcott, Global Director, Growth, Innovation & Insight, AON
  • Rob Carvell, Chief Operating Officer, Trane
  • Charles Caza, Senior Vice President, General Counsel and Corporate Secretary, Bird Construction
  • Nicole Chabot, Vice President, L. Chabot Enterprises Ltd.
  • Leslie Doka, Director of Construction, Wright Construction
  • Trevor Doucette, Vice-President Stakeholder Management, Graham Construction & Engineering
  • Wayne Ferguson, Senior Vice President, EllisDon Corporation
  • John Flemming, President, Ocean Contractors
  • Nadine Fullarton, President, CANB, Moncton Northeast
  • Eric Gaulin, President & CEO, Telecon
  • Quentin Huillery, Chief Operating Officer, Ledcor
  • Russ Kerr, Branch General Manager, Vipond
  • Branden Kotyk, Division Manager, Western Canada, Victaulic
  • Patrick Lafrenière, Director of Projects, Atlantic, JCB Construction Canada
  • John Mollenhauer, President & CEO, Toronto Construction Association
  • Brendan Nobes, Director Major Projects, Rcs
  • Francis Roy, President, Groupe Humaco

CCA thanks these leaders for their generous commitment to the industry and to advance our united vision to Build a better Canada.

New SHCA affinity partner: Shamii

A new partner to the SHCA affinity program is Shamii, a pickup/drop-off full service for your vehicles. By using Shamii, SHCA members can avoid lineups, wait times, arranging pickups, drop-offs or awkward courtesy car rides with strangers. Shamii chauffeurs pick up your vehicle from wherever you are, detail your car with the package you choose and then deliver it back to you.

SHCA members, use the promo code “SHCA21” and receive a 10 per cent discount on all packages.

Changes to the WCB’s Employer Initial Report of Injury (E1) form

To continuously improve its customer service, the Saskatchewan Workers’ Compensation Board (WCB) has made changes to the online E1 form.

The new features of the online E1 form include:

  • A document upload feature – Employers will be able to attach documentation with the E1 form submission. This could include pictures related to the worker’s injury, incident reports or medical notes.
  • Fewer required fields – This will allow users to get the E1 form submitted to the WCB faster so injured workers can get the support they need sooner.
  • Fewer questions – Based on the feedback from users, the E1 form was redesigned so the WCB is not asking questions that did not provide value for an injured worker to receive support.
  • An enhanced dashboard that gives the users a better view of what E1s are submitted and saved.

When you submit your E1 form online, the form is automatically entered into the WCB system, which eliminates delays that can occur if mailed.

Government announces increased funding for channel clearing

Premier Scott Moe recently announced $2 million over two years in funding to expand channel clearing for rural municipalities across Saskatchewan.

“As we work through economic recovery, investments in our communities will help build our future,” said Moe. “Increased funding for water management in rural communities will not only help protect essential infrastructure but also help our producers grow Saskatchewan’s economy.”

The Water Security Agency originally budgeted $600,000 over two years for channel clearing. This increase in funding will allow for the program to grow to $500,000 for the 2020–21 fiscal year. In 2021–22, funding will increase again to $1.5 million for a total investment of $2 million over two years. This is an additional $1.4 million over two years to support RMs with channel clearing activities.

Channel clearing involves removing beaver dams, debris, trees and shrubs, and the removal of silt and blow dirt from and along natural channels, lessening the possibilities of blockages that can cause flooding and damage to infrastructure.

Obstructed creeks and channels cause flooding and erosion problems to many RMs and local landowners. This program supports RMs in the removal of these obstructions.

“Our members welcome the news of this timely additional support for a needed program, especially as we enter the spring season,” said Ray Orb, president of the Saskatchewan Association of Rural Municipalities. “Our communities are concerned not only about proactively dealing with situations like flooding, but also practicing good water management that protects our ratepayers’ investments.”

Clearing dense vegetation can also reduce unwanted nutrients from water bodies and is an essential component of any long-term water management plan.

Channel clearing involves removing beaver dams, debris, trees and shrubs, and the removal of silt and blow dirt from and along natural channels, lessening the possibilities of blockages that can cause flooding and damage to infrastructure.

Melfort STARS heliport project

Redhead Equipment is pleased to announce that it was named the Mission Lead Pilot Donor of the Melfort Heliport Fundraising Campaign with a contribution of $100,000.

“Since acquiring the dealership in Melfort, we have strived to support our customer’s needs and to give back to Melfort and its surrounding communities. The health and safety of our customers, staff and community is of great importance to Redhead Equipment, and we hope this $100,000 donation reflects our commitment to the people of northeastern Saskatchewan,” said Gary Redhead.

The Melfort Hospital serves approximately 12,200 people and previously did not have a heliport. All patient transfers occurred by ground EMS directly or through the Melfort Airport via fixed wing air ambulance or STARS service. The City of Melfort proposed developing a heliport beside the Melfort Hospital. The landing area would be a certified area used by STARS for the transport of patients from the emergency department at the hospital.

The heliport is an important service for the growing community of Melfort and area. The greatest risk for patients being transported is during handover. With STARS service, the care team can come right to the patient, get a report from the team providing care and transfer directly to tertiary care in Saskatoon.

A heliport will save STARS critical time, in some cases up to 50 minutes from Melfort to Saskatoon’s hospitals.

“When I reached out to Gary Redhead about supporting the Heliport Project in Melfort, there was no hesitation,” said Heliport Fundraising Committee member, Rod Gantefoer. “Redhead Equipment is a proud, active member of all the communities they serve throughout Saskatchewan and is committed to supporting charities and community organizations across the province, through sponsorship, donations and participation.”

Thanks to the support of businesses and families in the Melfort area, the campaign has raised more than $750,000.

Peggy George, chairman of the North Central Health Care Foundation stated, “Raising funds during a pandemic had its own special challenge, but with the support of all our donors, we have been able to exceed our fundraising goal by over $100,000. Excess funds from this campaign will further the work of the foundation. The foundation plays an important role in supporting our local healthcare professionals by providing funding for equipment in the facilities throughout the district.”

As of Dec. 1, 2020, the helipad was completed and certified by Transport Canada, making it operational. Redhead Equipment is happy to know that every time STARS lands in Melfort, their team helped make it happen.

“Redhead Equipment is a proud, active member of all the communities they serve throughout Saskatchewan and is committed to supporting charities and community organizations across the province, through sponsorship, donations and participation.”
– Rod Gantefoer

Municipalities of Saskatchewan elects new president

Municipalities of Saskatchewan delegates recently elected Naicam Mayor Rodger Hayward as their newest president.

“It is an honour to be elected Municipalities of Saskatchewan president,” said Hayward. “I look forward to continuing to work with Municipalities of Saskatchewan’s Board of Directors as president, and our member municipalities, to ensure our hometowns have the resources we need. We are stronger when we work together.”

Hayward has served as Municipalities of Saskatchewan’s vice-president of towns since 2012. He was first elected to the Board of Directors in 2010 as northeast regional director. Hayward has represented the community of Naicam since 1996, and has served six terms as mayor.

Municipalities of Saskatchewan’s towns and villages, resort villages and northern municipal sectors also elected their sector representatives. Nipawin Mayor Rennie Harper will serve as the new vice-president of towns, and incumbent Mike Strachan, Mayor of Torquay, will continue to serve as vice-president of villages, resort villages and northern municipalities.

SGI scam warning

SGI warns the public that scammers could be targeting SGI customers by sending them an email posing as their bank and asking them to provide a photo or scan of their driver’s licence.

If you come across a similar request in your inbox, take steps to verify that the email is coming from a trusted source before providing any personal information. Be sure to use publicly listed contact information, not a phone number or email address included in the suspect email.

SGI warns the public that scammers could be targeting SGI customers by sending them an email posing as their bank and asking them to provide a photo or scan of their driver’s licence.

If you have provided this information to someone who shouldn’t have it, you should contact the police and take steps suggested by the Canadian Anti-Fraud Centre, such as gathering information about the fraudulent activity and contacting your financial institutions and reporting the incident.

SGI asks that customers who suspect they’ve fallen victim to a fraud to please notify SGI of the potential issue. You can have your SGI information password protected – in order to do so, customers will have to go to any SGI motor licence issuing office. 

by Jeremy Harrison, Minister of Trade and Export Development Jeremy Harrison, Minister of Trade and Export Development

Re-Open Saskatchewan Plan

Saskatchewan’s economy has demonstrated incredible resiliency over the past year. Our province was not immune to the effects of the global COVID-19 pandemic, but we have implemented a number of strategies and programs to ensure economic and labour market recovery.

As part of our government’s commitment to stimulate economic recovery, we launched the Re-Open Saskatchewan plan to provide a phased-in and methodical approach to ensure the safe operation of businesses in Saskatchewan. The Business Response Team was established to provide Saskatchewan businesses and organizations with critical information and advice on operating within the current public health orders, as well as the various business support programs available to them. The programs include the Saskatchewan Small Business Emergency Payment, the Re-Open Saskatchewan Training Subsidy and the Strong Recovery Adaptation Rebate.

These programs have shown to be effective, as our province leads Canada’s economic recovery with the strong export growth figures and the lowest unemployment rate among the provinces. Our strong export numbers are a good indication of the huge demand around the world for our products. In addition, as of early March, the Canadian Federation of Independent Businesses (CFIB) Small Business Recovery Dashboard cites Saskatchewan as having 74 per cent of private sector businesses fully open, compared to only 51 per cent nationally.

As we move through and ultimately into a post-COVID-19 world, our government will remain focused on key actions to grow our trade and export infrastructure in support of our Growth Plan over the next decade, including the goal to build and upgrade 10,000 km of highways by 2030. Saskatchewan’s two-year, $2 billion stimulus program is an investment that will help drive economic recovery from the global pandemic.

We are proud to work with the Saskatchewan Heavy Construction Association to a build a strong economy, supporting the growth of our families and our communities. 

by Michael Kram, MP for Regina-Wascana Michael Kram, MP for Regina-Wascana

Ottawa Report

I’m pleased to have this opportunity to report “behind the headlines” Ottawa updates to the members of the Saskatchewan Heavy Construction Association.

Although all Saskatchewan MPs have a role to play in promoting construction in Saskatchewan, I have the duty and privilege to play a particular role. I sit on the House of Commons Standing Committee on Transportation, Infrastructure and Communities, which studies many of the federally funded or regulated infrastructure projects in Saskatchewan and elsewhere.

In this report, I’ll try to bring you the latest news on construction-related discussions going on in our nation’s capital.

Coming up in the transportation and infrastructure committee

Since the new year, much of the time of the transportation and infrastructure committee has been taken up with transportation issues, as we have grilled the transportation minister over pandemic threats to many of Canada’s airports, including Regina’s.

In March, the committee moved on to examine the Canada Infrastructure Bank (CIB), a Crown corporation mandated to manage federal infrastructure investments. This is actually the second time the Trudeau Liberals have attempted to start the CIB. They previously announced it in 2017 and gave it a budget of $35 billion. But, like many Liberal initiatives, it was long on press releases but short on actual accomplishments. After three years in operation, it had spent only $1.7 billion. With CIB 2.0, the Liberals have promised a more streamlined, less bureaucratic decision-making process. We’ll see how that turns out – the Liberals, after all, don’t have much of a track record for reducing bureaucracy.

A negative sign for the prospects of the new CIB is that the Liberals have given it a mandate to pursue a number of their favourite boutique issues, such as renewable energy. One mandated area of potential interest to Saskatchewan heavy construction is a priority to invest in large-scale agricultural irrigation projects. But again, we will have to wait to see if that goal gets beyond an announcement and into actual shovels in the ground.

In April, the committee will be studying the potential for targeted infrastructure investments in underserved or disadvantaged communities. At the moment, this is quite broadly defined although there is some talk that Liberal members will focus mainly on Eastern priorities, such as extending subway lines in Toronto. For my part, I’ll be advocating for projects that produce benefits for Saskatchewan, such as improving transportation connections to tidewater.

Pipelines

When I ran for office in 2019, I campaigned on three principles – pipelines, balanced budgets and an end to the carbon tax. It’s looking like I’ll be able to recycle those slogans in the next campaign, considering that the federal deficit is out of control, the carbon tax has gone up and the federal Liberals have failed to get pipelines built. In fact, pipelines are being shut down under their watch.

We all remember the ill-fated Transmountain Pipeline, which the Liberals bought for $4.5 billion after the previous developer pulled out due to never-ending protests and court challenges. Two years later, the project continues to be plagued with protests and delays as well as a near-doubling of its estimated construction costs.

In the two leaders’ first virtual state visit, officials familiar with the meeting said Biden told the prime minister that he understood the hardship the Keystone cancellation caused Canada but that he was simply fulfilling an election promise. In other words, “tough luck, Justin.”

Michael Kram, MP for Regina-Wascana

There was, for a time, great hopes for advancement of the Keystone XL Pipeline after it was approved by the previous U.S administration. Unfortunately, one of President Biden’s first acts in office was to cancel it. Despite Trudeau’s cozy relationship with Biden, there is little evidence that Trudeau is having much influence on this topic nor even that he’s making much of an effort. In the two leaders’ first virtual state visit, officials familiar with the meeting said Biden told the prime minister that he understood the hardship the Keystone cancellation caused Canada but that he was simply fulfilling an election promise. In other words, “tough luck, Justin.”

Much the same pattern has played out with the Enbridge Line 5 Pipeline in Eastern Canada. This pipeline, which ships oil and natural gas from Western Canada to Ontario, has been operating safely for over half a century. Recently, Michigan’s environmental activist governor ordered the line closed, causing a diplomatic furor not only between Canada and the U.S. but even among U.S. states. In response, the natural resources minister delivered chest-thumping rhetoric that sounded almost identical to the language the Liberals used with regards to Keystone…and we know how that turned out.

Given the Liberals affection for renewable energy projects, it’s easy to see why their efforts to defend pipelines are failing. They want them to fail and are paying only lip-service to efforts to save them.

Airports

Although it doesn’t directly relate to construction, I would like to close by touching on my campaign to save Regina’s airport. Like airports all over, the Regina Airport Authority has seen its revenues drop nearly to zero during the pandemic. Unlike other G7 countries, Canada has offered virtually no sector-specific aid to help the nation’s air infrastructure survive. As well, NavCanada, the agency that regulates air traffic, appears poised to close Regina’s air traffic control tower. Combined, these assaults on the airport could threaten southern Saskatchewan’s capacity for business travel and cargo shipment, which would hurt businesses in every sector including construction. To help with my campaign, visit saveyqr.ca. 

by Tracy Slywka, Injury Solutions Canada Tracy Slywka, Injury Solutions Canada

WCB Claims and Seasonal Layoffs

I often get asked what an employer should do if they are laying off a worker and they are currently are on a Workers’ Compensation Board (WCB) claim. The reality is that the heavy construction industry, for the most part, is a seasonal industry. Most companies lay off their workers at the end of the season and then re-hire people in the spring again. What people do in their layoff time varies from collecting employment insurance to working for another industry or maybe they vacation somewhere warmer. It varies from worker to worker.

If a worker on a WCB claim when the normal season layoff comes it can be a real pain for employers. The real issue is the worker is not medically fit to return to work, the WCB may pay them if the injury and layoff would preclude them from working somewhere else during the layoff period.

An example of this is Sam’s case. Sam works in the heavy construction industry driving heavy equipment until layoff but was injured at work. In the wintertime, Sam works doing snow removal for another company but due to his injury, this year during layoff cannot do his snow removal job. Sam’s wages would continue to be paid by the WCB unless the employer can find a job for Sam to do until he is fully recovered. Where possible, it is in the employer’s best interest to keep workers employed so the employer isn’t incurring WCB costs for the claim during layoff. Keeping people employed during a layoff season is not always possible for some employers, but if possible, it is a way to reduce WCB costs.

If you are able or can find something for an injured worker to do during layoff, it can be financially beneficial to keep that person working as long as possible to reduce your WCB costs.

In the past, if a worker was on WCB they would often make more than they would working their normal season in a seasonal industry. The Saskatchewan WCB brought in Section 70, recognizing that some workers were making more on WCB than they normally would make in a year. Section 70 states that a review will take place within 24 weeks of the claim’s acceptance to review the wage loss to see what that person would normally make in 52 weeks. If the person only ever works 26 weeks a year, then their WCB wage loss should reflect that and their wage loss may stay the same or get reduced. All claims are reviewed at the WCB for Section 70.4.

It is good to remember any cost that is put through the Saskatchewan WCB will affect an employer’s WCB premiums. In simple terms, less WCB costs equals less WCB premiums. If you are able or can find something for an injured worker to do during layoff, it can be financially beneficial to keep that person working as long as possible to reduce your WCB costs. I recognize that it may require some creative thinking to come up with some ideas for jobs during a layoff period, but it is worth it financially! Ideally, you hope you never have an injured worker still on the books during the seasonal layoff time, but sometimes it cannot be helped and you may have to bite the bullet and find something for them to do and hope it is short term.

WCB policies that can be referred to for more information are POL02/2018: Benefits Return to Work Interrupted; and Section 70.4: establishing a wage-base for seasonal workers. 

by Charles W. Bois, Rachel Haack and Kayla Romanow, Miller Thomson LLP Charles W. Bois, Rachel Haack and Kayla Romanow, Miller Thomson LLP

Chandos Construction v. Deloitte Restructuring

How to draft construction contracts to avoid the anti-deprivation rule

In Chandos Construction Ltd v. Deloitte Restructuring Inc1 [“Chandos”], the majority of the Supreme Court of Canada (SCC) reaffirmed the common law anti-deprivation rule in Canada. The anti-deprivation rule voids contractual terms that apply upon a party’s insolvency and bankruptcy where the clause removes value from an insolvent person’s estate that would otherwise have been available for the insolvent person’s creditors. Anyone entering into construction contracts should avoid contractual provisions that may trigger the anti-deprivation rule and understand that if they are already in a contract, they may not be enforceable. However, despite the anti-deprivation rule, there are contractual provisions that can be used to protect parties where their contracting counterpart becomes insolvent or bankrupt.

Factual background

Chandos Construction Ltd. (Chandos) was a general contractor that entered into a subcontract with Capital Steel Inc. (Capital Steel). The subcontract provided that in the event of Capital Steel’s insolvency or bankruptcy, Capital Steel would forfeit 10 per cent of the contract price to Chandos “as a fee for the inconvenience of completing the work using alternate means and/or for monitoring the work during the warranty period” (the “Insolvency Clause”).

Capital Steel filed an assignment in bankruptcy prior to completing the subcontract work. Chandos argued that it was entitled to rely upon the Insolvency Clause and set-off 10 per cent of the subcontract price as a fee. The Trustee in Bankruptcy for Capital Steel applied to the Alberta Court of Queen’s Bench to determine whether the Insolvency Clause was valid.

Parties can also protect themselves in the event of an insolvency or bankruptcy by their contractual counterparts by taking security, acquiring insurance or requiring third-party guarantees when the contract is executed.

Trial and appellate judgments

In Chandos, the Alberta Court of Queen’s Bench found the Insolvency Clause was valid because the Insolvency Clause was not an attempt to avoid the effect of bankruptcy laws.2 The majority of the Alberta Court of Appeal reversed this decision, finding the Insolvency Clause to be invalid based on the common law anti-deprivation rule.3

The SCC agreed the Insolvency Clause violated the anti-deprivation rule and was void. The court articulated a two part test for invalidating a contractual provision based on the anti-deprivation rule as follows:

  1. The relevant clause must be triggered by an event of insolvency or bankruptcy; and
  2. The effect of the clause must be to remove value from the insolvent’s estate.

The SCC stated the test for the anti-deprivation rule was an effects-based test, meaning the ultimate effect of the clause should be examined in assessing the above criteria.

The SCC affirmed that set-off is generally allowed during the bankruptcy of a contracting party due to section 97(3) of the Bankruptcy and Insolvency Act.4 Set-off reduces the value of assets that are transferred to the insolvent’s estate, but it only applies to enforceable debts or claims. Since the anti-deprivation rule voided the Insolvency Clause, Chandos was unable to apply set-off against Capital Steel for the 10 per cent amount.

Key takeaways

Chandos urges parties entering into construction contracts to avoid clauses that are triggered by insolvency or bankruptcy and that remove value from the insolvent party’s estate. These clauses are invalid and unenforceable. Some contractual terms that are prohibited by the anti-deprivation rule include clauses where a party forfeits some or all of the contract price due to their insolvency or bankruptcy, or clauses where fees, charges or other amounts are payable solely upon insolvency or bankruptcy.

Other contractual terms can be employed to protect a party in the event of insolvency or bankruptcy by their contractual counterpart. For example, any clause triggered by events other than bankruptcy or insolvency are valid, including penalties that arise upon default of the contract.

Contracting parties can consider using clauses where property is removed from the insolvent party’s estate but no value is eliminated from the estate. For example, the anti-deprivation rule does not apply if a third party’s assets are forfeited upon bankruptcy or insolvency, since this term would not reduce the value of the insolvent party’s estate. Additionally, parties may be able to modify their security interests or enter into a credit default swap agreement (amending the nature or type of security) upon the insolvency or bankruptcy of their contractual counterpart without offending the anti-deprivation rule, provided these clauses do not increase the amount of security held over the insolvent party.5

Parties can also protect themselves in the event of an insolvency or bankruptcy by their contractual counterparts by taking security, acquiring insurance or requiring third-party guarantees when the contract is executed.6 Before entering into a security agreement, parties should verify whether any creditors already have priority charges against the assets which comprise of the security. In the case of guarantees, suitable guarantors may include a parent company, directors or officers of the contracting party. A guarantee causes the guarantor to become personally liable for the debts or contractual breaches of the subcontractor.

Suppliers and subcontractors can require a labour and materials payment bond at the time of entering into a contract.7 This bond guarantees that suppliers and subcontractors are paid for the work and materials that they supply, up to a specified amount. Additionally, parties may require a performance bond, which provides payment up to a specified amount if the contractor is unable to complete the project work or is in default of the construction contract. For the most project security (but usually at an additional cost to the price of the work), a contractor would have both a labour and materials payment bond and a performance bond in place for at least 50 per cent of the value of the contract.

Overall, when entering into construction contracts, contracting parties should consider contacting legal counsel to ensure their contracts are drafted with enforceable terms that do not offend the anti-deprivation rule. When drafting construction contracts, parties should also consider if they are appropriately protected should their counterparty become bankrupt or insolvent. 

Charles W. Bois is a partner in the Vancouver office of Miller Thomson LLP. Rachel Haack and Kayla Romanow are associates in the Regina office of Miller Thomson LLP. For inquiries, contact Charles at cbois@millerthomson.com, or for any Saskatchewan construction inquiries, please contact Rachel at rhaack@millerthomson.com, or Kayla at kromanow@millerthomson.com.

References

  1. 2020 SCC 25.
  2. Alta Q.B., Edmonton, 242169632, 17 March 2017.
  3. 2019 ABCA 32.
  4. RSC, 1985, c B-3. Set-off allows a creditor (who happens to also be a debtor) to reduce the amount they owe to the bankrupt by the amount they (as debtor) are owed by the bankrupt.
  5. Belmont Park Investments Pty Ltd v. BNY Corporate Trustee Services Ltd, [2011] UKSC 38.
  6. Supra note 1 at para 40.
  7. See s. 81 of The Builders’ Lien Act, S.S. 1984-85-86, c. B-7.1 and s. 69 of The Construction Lien Act, R.S.O. 1990, c. C.30;
by Paul Forer, B. Comm., RBC Dominion Securities Paul Forer, B. Comm., RBC Dominion Securities

One Way to Retain and Take Care of Your Employees

How to boost your employees’ retirement fund without additional company costs

If 2020 has taught us anything, it’s that amazing and resilient employees are the backbone of great companies and it’s important to retain them. So how can you acknowledge that and help enable the retirement that your employees deserve, without breaking the bank?

Now more than ever, the key is to dive in and engage your retirement benefit provider to bring their horsepower to the table.

The real path to retirement success lies in “hands-on” financial planning that grows with you. No single message or plan will resonate with every person across their various life stages. Someone who is just starting their career in their 20s needs a certain type of advice, and as an employee moves through their career, that advice must change accordingly. A cookie-cutter approach is never going to add the value that employees truly need to achieve their best retirement. The problem? Many providers of retirement benefits in Canada specialize in that cookie-cutter approach, under the guise of simplifying administration or lowering costs, leaving employees to secure a proper retirement almost by accident, at best.

Employers can focus on a few key areas to increase value for employees and demonstrate that the long-term financial success of staff is a priority for the company:

1. Invest in small amounts of time to provide exponential employee benefits

Many organizations invest three, four or five per cent or more of an employee’s pay into a retirement savings plan for employees but are hesitant to allocate time for a single one-hour meeting per year to have staff meet with a retirement professional. For an employee who works 2,000 hours per year, this represents only 0.05 per cent of that same employee’s wage – but it adds significant benefit to their retirement. Furthermore, if the employer takes the lead on this activity, it shows employees that the company cares and is willing to explore multiple avenues to help enable the best outcome for that employee, increasing their goodwill. According to Ipsos Reid’s 2011 Value of Financial Advice Study, folks who have the chance to meet with an advisor regularly have up to four times more investable assets, save more regularly for retirement and retain greater discipline during more volatile markets.

2. Take advantage of your plan provider’s different service levels

A plan provider should offer guidance and value to all of the different employees in your diverse organization – not just the owners, and not just the newbies. This is where that one-size, cookie-cutter approach is not recommended. Booklets and websites may help get employees to opt into a plan (even that is debatable), but human beings are typically needed to properly guide a person’s financial journey. Someone who is just starting their savings journey will require a tailored conversation that possibly incorporates other financial concerns, such as debt and budgeting. Whereas someone who is nearing retirement may need more income planning information that warrants a different advisor trained in those financial areas. And it seems every company has that select group of employees who – for any number of reasons – know more about investing than you do.

Finding the right fit for financial advice isn’t always about the amount of an employee’s income, or the hypothetical colour of their collar. Your service provider needs to have the resources and diversity in their staff to handle all of your different employees. And don’t shy away from offering that higher level of service to your key employees who may have more complex needs – the numbers are only part of their retirement picture. As an employer, taking advantage of a comprehensive, full-service approach won’t cost extra, but has meaningful benefits for your employees.

3. Get SMarT

We frequently ask companies, “Are your employees saving enough for retirement?” It’s a trick question: almost always, they aren’t. Most of us aren’t. The easiest way to change that is to offer them an out-of-this-world match on their contributions, enticing them to save more. But who can afford to do that in 2020 and stay competitive (or heck, keep the doors open)? The good news: there is a way to encourage employees to save more and achieve a better-funded retirement, without costing you a penny.

The concept is called “Save More Tomorrow” (SMarT) and was developed by behavioral economics researchers in the U.S., Shlomo Benartzi and Richard Thaler. To summarize their research, knowing that folks are hardwired to make decisions in a certain way that doesn’t necessarily drive the best retirement outcome, Benartzi and Thaler created a type of SMarT savings plan, where employees were able to opt into a program that allowed them to split their future cost-of-living raises in half, putting half to work in the company retirement savings plan (passively increasing their contributions annually), and taking the other half as a pay increase (so their pay would never decrease).

A Regina employer implemented just this type of plan. Of the staff who were offered the program, 40 per cent accepted and zero opted out after the first annual pay increase – resulting in a large number of employees automatically increasing their retirement savings while feeling none of the pain and costing the company nothing extra in the end. The research also shows that blue collar folks are likely to get more out of a program like this and stay opted in for the long haul, increasing their retirement savings rates by up to triple the amount.

You as a company can offer this simple SMarT solution to help your employees get around the hardwiring, and it’s also applicable to those who think their plan is doing “just fine” right now. A simple but brilliant way to kick-start growth of an otherwise average plan and realize better outcomes. 

Paul Forer, B. Comm., is a vice-president, portfolio manager and investment advisor at RBC Dominion Securities. This information is not investment advice and should be used only in conjunction with a discussion with your RBC Dominion Securities Inc. investment advisor. This will ensure that your own circumstances have been considered properly and that action is taken on the latest available information. The strategies and advice in this report are provided for general guidance. Readers should consult their own investment advisor when planning to implement a strategy. Interest rates, market conditions, special offers, tax rulings and other investment factors are subject to change. The information contained herein has been obtained from sources believed to be reliable at the time obtained but neither RBC Dominion Securities Inc. nor its employees, agents or information suppliers can guarantee its accuracy or completeness. This report is not and under no circumstances is to be construed as an offer to sell or the solicitation of an offer to buy any securities. This report is furnished on the basis and understanding that neither RBC Dominion Securities Inc. nor its employees, agents or information suppliers is to be under any responsibility or liability whatsoever in respect thereof. The inventories of RBC Dominion Securities Inc. may from time to time include securities mentioned herein. RBC Dominion Securities Inc.* and Royal Bank of Canada are separate corporate entities which are affiliated. *Member – Canadian Investor Protection Fund. RBC Dominion Securities Inc. is a member company of RBC Wealth Management, a business segment of Royal Bank of Canada. ® / TM Trademark(s) of Royal Bank of Canada. Used under licence. © 2020 RBC Dominion Securities Inc. All rights reserved.

by Jeff Ritter, Saskatchewan Apprenticeship and Trade Certification Commission Jeff Ritter, Saskatchewan Apprenticeship and Trade Certification Commission

Saskatchewan Apprenticeship Launching New IT System This Spring

The Saskatchewan Apprenticeship and Trade Certification Commission (SATCC) is getting ready to launch a new, client-facing IT system that will provide Saskatchewan apprentices and employers with faster, more efficient service. It will transform the way we serve our clients and we’re excited to launch it.

It’s called MyATC.

Apprentices will be able to self-register for training and employers will be able to monitor and track their apprentices’ training status. Rather than requesting information from SATCC staff members, clients will be able to access their information online when it’s convenient for them.

The launch date is tentatively set for spring 2021.

Clients have been asking for the ability to self-serve and more easily access information. This system will meet that demand.

According to the SATCC’s 2019 Employer and Apprentice Satisfaction Survey data, the majority of employer respondents would like to complete all services with the SATCC online and at least half of apprentice respondents would like to complete all services online.

Right now, the apprenticeship system in Saskatchewan is primarily a paper-based system. MyATC will modernize the SATCC’s processes, allowing customers to register apprenticeship contracts, pay fees and tuition for technical training, update personal or business information and submit trade time hours online.

With the introduction of this new system, the SATCC will strive to maintain the highest levels of service.

In 2019, 92 per cent of apprentices who responded to the SATCC’s Satisfaction Survey agreed staff members are friendly and courteous, while 96 per cent of employer respondents agreed. Eighty-nine per cent of apprentices agreed that staff are helpful and 94 per cent of employers agreed.

The new IT system will provide faster, on-demand service, but the warm, personalized service that our staff members provide won’t go away once the system is introduced. Our clients will still be able to call us or walk into one of our offices, and we are still going to have staff members visiting employers.

Closer to launch, the SATCC will share more details with apprentices and employers regarding how to get set up in the new system. 

If you have questions about MyATC, please contact project director Curtis Leung at 306-531-4903 or curtis.leung@gov.sk.ca.

by Rebecca Gotto, SRC Communications Rebecca Gotto, SRC Communications

New Rare Earth Processing Facility in Saskatchewan to Secure North American Supply Chain

New facility scheduled for completion in 2022

In the coming decade, the need for rare earth elements (REEs) will increase many-fold due to their importance in high-growth technology areas such as wind turbines and electric cars. Canadian rock formations hold 12 per cent of the world’s REE measured resources. But currently, no REEs are being processed in Canada due to both a Chinese monopoly as supplier and end user, as well as the lack of a fully developed supply chain in North America.

The Saskatchewan Research Council (SRC) is looking to change that by securing an early and important piece of the supply chain for industry – a Rare Earth Processing Facility. The $35 million dollar facility was announced in the summer of 2020 by the Government of Saskatchewan. The facility will be located in Saskatoon, Sask., and completion is slated for the fall of 2022.

The facility, a first-of-its-kind in North America, will begin to establish a REE technology hub in Saskatchewan, forming an industry model for future commercial REE initiatives and supply chain development.

A key element of the facility is a commercial processing plant, which will include concentration and separation stages and treat monazite sands at approximately 60 per cent concentration. Monazite is a source of mainly so called “light” REEs (especially cerium, lanthanum, praseodymium, neodymium) which are some of the critical elements for the permanent magnets used in clean technologies. SRC will work with the mining industry to secure this feed stock from across Saskatchewan, Canada and internationally.

The $35 million dollar facility was announced in the summer of 2020 by the Government of Saskatchewan. The facility will be located in Saskatoon, Sask., and completion is slated for the fall of 2022.

An intermediate concentrate of mixed rare earth carbonates will be produced from the concentration plant and further processed in a separation plant to produce separated rare earth oxides, as the market requires. These will be sold by SRC and further refined and processed to provide the inputs that original equipment manufacturers (OEMs) require.

The treatment capacity of the plant will be 3,000 tonnes per year, producing an initial product: mixed rare earth carbonate. Part of the mixed rare earth carbonate will be fed to the separation plant to produce approximately 500 tonnes of separated, individual rare earth oxides, excluding cerium.

SRC’s Rare Earth Processing Facility will follow the most stringent operating standards. To minimize the risk for the environment, the plant will be designed to have zero liquid discharge, which means that there will be no solution waste streams that are released into the environment. All solid waste will be handled and disposed of properly following regulations and procedures, as SRC and mining companies in Saskatchewan currently do.

SRC has decades of experience in testing and development of concentration and separation technologies of REEs from various minerals, as well as operational experience. With mining clients in Canada and across the world, SRC has developed and piloted many REE concentration and separation processes. This experience, combined with being located within Saskatchewan’s world-class mining jurisdiction that has a vibrant and sustainable uranium industry, are key assets to future success. The uranium industry also produces a REE-rich solution waste stream (containing mainly so called “heavy” REEs) that can be an additional feed source for the plant, as markets require.

SRC currently offers a large variety of REE services through existing service lines and facilities. These include:

  • Rare earth processing technology development and commercialization
  • Uranium tailings processing and treatment; recovery of thorium and uranium
  • Validation and demonstration of rare earth processing technologies in bench, pilot and semi-commercial scale
  • Rare earth production from bastnaesite, apatite and uranium processing waste

Once the facility is operational, SRC will be able to offer a number of other services to industry including potential toll separation of individual rare earth elements and potential toll processing of monazite. This will mean that mining companies around the world will have the option to sell their feedstock to a North American Rare Earth Processing Facility for the first time.

In the future, SRC plans to use this facility as a starting point for the creation of an REE technology hub, which will likely include developing downstream and upstream aspects of the REE supply chain. Future development also includes new applications for lanthanum and cerium. In order to do this, SRC is currently developing capabilities for downstream rare earth product development and the production of magnets and alloys.

The future certainly looks bright for the rare earth elements industry in North America and this facility and the proposed REE technology hub will play a key part in securing a supply chain right within Canada.  

For more information, please visit www.src.sk.ca/ree.

by SHCA SHCA

Engineering Our Nation

After entering the Saskatchewan market in 1953, Associated Engineering has become a fixture at major infrastructure projects

Plenty has changed in the world over the last 70 years, but one thing that has remained constant is the stable existence of consulting firm Associated Engineering. Founded in Edmonton, Alta., following the Second World War, Associated Engineering has grown to become one of the Canada’s most significant long-serving engineering consulting firms with 21 offices across Canada and employing more than 1,000 staff. The company is the largest of the privately held, employee-owned engineering firms in the country, working with public and private sector clients here and internationally.

“The fact that we are a private firm means we take complete ownership of the work that we do, the relationships that we have with our clients and the products that we produce,” said Paul Pinder, a professional engineer and vice president and general manager of Associated Engineering for Saskatchewan and Manitoba.

During the past 12 years, the firm has been awarded one of Canada’s Best Managed Companies, earning Platinum membership status in the respected national program. It has also been a carbon neutral company since 2009.

Associated Engineering provides community planning and engineering services for water and wastewater, transportation, municipal and industrial infrastructure, buildings and environmental projects. Beyond this, the company also provides infrastructure management and certified operational training and support to many clients, in the interest of public health and safety, through its ATAP subsidiary.

The firm also provides in-depth environmental science and management services for bridges, roads and highways, community and industrial development, infrastructure rehabilitation and airports. Other services include solid waste management, landfill design, composting, odour control and environmental impact assessment.

Entering Saskatchewan

The company entered the Saskatchewan market in 1953, opening an office in Regina to service clients in southern Saskatchewan. It quickly established itself by providing the engineering work for the initial Buffalo Pound project, which would supply water to Regina and Moose Jaw.

The company later expanded to offices in Saskatoon and Prince Albert with the Saskatchewan head office situated in Saskatoon. Pinder oversees all three offices, as well as the Winnipeg office and the ATAP subsidiary.

In Saskatchewan, Associated Engineering focuses on projects in the transportation, municipal infrastructure, water, wastewater, intakes, bridges, environmental, buildings and asset management sectors. The Saskatchewan employee complement currently sits at 140 staff across the three offices. Much of the firm’s work in the province is done in small communities, Indigenous communities and smaller cities, complemented by projects within bigger centres, such as Saskatoon and Regina.

“Many communities in the province are in need of an effective water treatment plant or have an existing facility that is inadequate, have insufficient capacity for the community’s size, are unable to consistently meet drinking water requirements or may be so dated that they simply need replacing,” said Pinder.

“Smaller communities and smaller cities are often in greater need of engineering assistance from firms like ours as they don’t have the tax base of the bigger cities like Regina and Saskatoon who are large enough to have in-house engineering departments. This is where we come in. We provide many small communities, or even cities like Moose Jaw or North Battleford, with the engineering expertise they need when they need it without being a continuous financial load on their operating budget. The same can be said of highly specialized and complex projects in the larger cities as well, where our extensive experience and specific expertise, such as water and wastewater treatment, can really be brought to bear.”

Associated Engineering also does a significant amount of work with the Saskatchewan Ministry of Highways and Infrastructure on transportation infrastructure design and construction.

“Everything that we do in this sector is engineer-based, either design engineering or construction administration. When we are commissioned for transportation infrastructure by the Ministry, we do an in-depth review of what is required and come up with a detailed design solution and a tender package. Then we also provide service in construction management and operational assistance,” explained Pinder, a transportation engineering specialist.

Associated Engineering also has a strong partnership with SHCA to assist them in the work that they undertake.

“We work with SHCA with many contractors all the time. So not only do they support us, but they are also a part of the process,” said Pinder.

Current projects

Currently, Associated Engineering is doing a significant amount of work in Langham, a small community west of Saskatoon, including sewage pump station upgrades, a lagoon upgrade and infrastructure assessment.

Another larger project Associated Engineering has been contracted for in Saskatchewan is the development of The Greens on Gardiner, a major residential subdivision located in southeast Regina. Associated Engineering also led the design and construction of upgrades for the La Ronge and Air Ronge municipal utilities to provide back-up systems to keep tap water flowing during power outages – an issue many northern communities face.

Associated Engineering has also been involved with the City of Martensville Athletic Pavilion, snow management facility, the Avenue H Reservoir, Raw Water Intake and Pump Station in Saskatoon, the Regina Bypass, Chief Mistawasis Bridge and environmental site assessment for the Town of Lumsden’s landfill. A listing of Saskatchewan projects can be found on the company’s website at www.ae.ca.

Projects and overall work load has continued for the firm across Canada despite COVID-19. Fortunately none of the offices have had to be shut down yet; however, many of the employees started working from home when the pandemic started. Any staff who remained in the offices, or have returned to the offices since, follow health guidelines, contact and cleaning protocols stringently.

“Work never really slowed down for us because provinces and municipalities confirmed engineering as an essential service. A community that is in need of a critical infrastructure project, like a new water plant, cannot put something like that on hold, so we have kept most projects moving through the pandemic,” said Pinder.

Despite COVID-19, Associated Engineering assures its clients that its project delivery remains the same. Staff are available by phone, email, teleconference or videoconference. Project managers will continue to reach out to clients about project updates and reviews and answer any questions.

“Our goal is to keep building better communities; we do that in three ways. The first is more obvious with building better infrastructure that supports the health and economic wellbeing of our towns and cities; the second is contributing to important local charities – we believe in our social responsibility to the communities in which we work; and the third is developing and training our staff to provide them career growth and opportunities while creating a great culture within our firm. What we do is all in the service of public protection, environmental stewardship and fiscal responsibility. In this way, we shape a better future for all of us.” 

Photos courtesy of Associated Engineering