Howard Wise heads the construction and infrastructure practice group at Goodmans LLP. He specialises in the areas of construction law and commercial litigation, and has represented clients in complex multiparty disputes across Canada. He has extensive trial, appellate and arbitration experience. He is also involved in negotiating and drafting complex construction contracts. Howard is the author of the Manual of Construction Law and co-author of Bristow, Glaholt, Reynolds and Wise on Construction, Builders’ and Mechanics’ Liens in Canada (seventh edition).
What attracted you to a career as a construction lawyer?
When I began my legal training I worked for a law firm that specialised in construction and commercial litigation. I had the good fortune of working with many of the best construction litigators in the country, who provided not only a supportive environment for learning, but also a great opportunity to assume responsibility for managing my own files and develop expertise in construction law.
What do you enjoy most about your current role?
Exposure to innovative clients. As the practice has evolved and expanded, I have benefited from working with some of the most creative business executives in the construction industry. I have worked with owners, contractors and subcontractors who continually strive to find better and more creative ways to meet their commitments. Whether it is product development, or changes to project delivery, it is the clients who force us to reevaluate our approaches to both contract methodology, such as P3 and design-build, as well as dispute resolution.
What impact do you think the movement towards prompt payment and an English-based adjudication model in Canada, in construction disputes, will have on the market?
We are in the process of seeing a monumental shift in how construction issues are addressed. We are moving from an “after the fact” dispute resolution model to an interim “real time” dispute resolution model. While there will be no shortage of significant disputes that cannot be resolved during the course of the project, the hope is that many issues can be addressed earlier in the construction process to ensure that parties will be less impacted by delay in having issues resolved, and have greater certainty as to the outcome.
How do construction litigation and arbitration proceedings differ? Which do you prefer?
The obvious difference is that arbitration is flexible enough to suit the desires of the parties. Having said that, we have seen the courts’ willingness to embrace more creative ways to have cases proceed through to trial. For example, it is no longer unusual to have affidavits filed as evidence in chief at trial. This has been implemented in the arbitration process for many years. In today’s world, one method for dispute resolution does not necessarily fit all. In my view, the most important aspect of dispute resolution is ensuring the parties can have their issues determined at the earliest opportunity. In that respect, arbitration is often preferable. Again, I should note that, over the past several years, I have encountered situations where judges have done their utmost to get cases listed for trial, which has greatly assisted in the dispute resolution process.
You are the author of several books on construction law. How does the discipline of authorship benefit you in your day-to-day practice?
As advocates, we have two ways of expressing ourselves: the first is through oral advocacy, and the second is through written advocacy. Authoring several books in the area of construction law necessitates a discipline in both analysing case law and writing about cases and legal principles. As such, authoring several books has both ensured that I stay current on legal developments, and assisted me in refining my written advocacy.
How does Goodmans distinguish itself from competition in the market?
Goodmans prides itself on providing sound, practical legal advice. However, I believe the greatest distinguishing feature of our construction law practice is the fact that our legal advice is based on our extensive experience at trial and at arbitration. Our dispute resolution group has vast and extensive trial and arbitration experience. Over the past two years, for example, we collectively spent hundreds of days at trial and in arbitration. This allows us to provide our clients with advice based on actual experience, rather than theoretical arguments, about the benefits of, and risks associated with, having cases proceed to trial or arbitration. Our clients know that when we advise them of risks associated with trial and arbitration, it is based on being on the frontline.
What advice would you give younger practitioners hoping to one day be in your position?
Understand your clients. That means understanding their needs and providing them with your best advice, even if it may not be what they want to hear. Realise that your clients are looking to their legal advisers to provide them with creative solutions to complex problems. It also helps to work “contractor hours”. That means making yourself available when your client is available.
What has been your proudest achievement in the practice of construction law?
I am most proud that while we are often retained to handle the largest and most complex construction claims, we have managed to build and maintain enduring business relationships with our clients, irrespective of their size or scope.