Jeffrey D Vallis QC
Office:
Centennial Place, East Tower
1900, 520-3rd Ave. S.W.
T2P 0R3
City:
Calgary
State:
Alberta
Country:
Canada
Tel:
+1 403 232 9404
Fax:
+1 403 266 1395

Questions and Answers:

Who's Who Legal Thought Leaders - Construction

Jeffrey Vallis is a partner in BLG’s construction group. Based in Calgary, he practises construction litigation and arbitration, acting on behalf of owners, contractors, subcontractors and engineers in disputes arising from large-scale construction and engineering projects, principally in the infrastructure, industrial and commercial sectors. Mr Vallis is a member of the Bar in Alberta, Manitoba and Saskatchewan. He is a fellow of both the Canadian College of Construction Lawyers and the Chartered Institute of Arbitrators. He was named Queen’s Counsel in 2004.

Why did you decide to specialise in construction?

Like many good decisions in life, my focus on construction law was in large part a function of good luck and happy circumstance. When I was an articling student, I was tasked by a senior partner to assist a Calgary businessman with a minor problem. When that situation resolved itself satisfactorily, that businessman instructed people at his company to engage me on some of their smaller problems. Happily, that businessman was the president and major shareholder of a large Calgary general contractor and, through that involvement, I came to know a number of contract administrators, project managers, estimators, engineers and others involved in the engineering and construction industry. The work provided by them was interesting and challenging, the people that I worked with were pragmatic and results-oriented, and Calgary and the Province of Alberta were in a significant growth phase, generating all kinds of work. As a result, what I had intended to be a commercial litigation practice became increasingly focused on the construction industry which in turn has led to a highly satisfying career of 37 years, to date.

What has been the most memorable moment of your career?

For any lawyer involved in the resolution of complex disputes, the greatest rush of adrenaline is when a client or prospective client calls with a new mandate on a large or complex project. I vividly remember the conversations that have led to our retainer on our most significant files, and the sense of gratification at being hired by contractors or engineers facing a sophisticated dispute process has stayed with me over the years.

Is arbitration the preferred system of dispute resolution for construction disputes in Canada? Why (or why not)?

In my view, arbitration has become the predominant means of dispute resolution. In Western Canada, the court system has become overwhelmed by demands from all quarters, and it lacks the resources to be able to accommodate the significant time and attention required by large-scale construction disputes. While the courts continue to deal with statutory claims such as builders’ liens, it lacks the judges, courtrooms and infrastructure necessary to deal with lengthy, document intensive and expert-laden construction trials.

Are there any particular challenges unique to representing contractors?

Probably the greatest challenge associated with representing contractors is that they tend to be very busy – they are by nature builders, and they are less interested in spending time and energy on past projects. Attempting to keep the attention of an executive or a project manager who is more interested in spending time on preparing an upcoming bid or attending a site meeting is a particular challenge. A related challenge arising out of the healthy state of the Canadian construction industry is the fact that there is a great deal of mobility of key personnel, meaning that when a problem or dispute arises, the primary witnesses who might assist in the preparation of a claim or a defence may no longer be with the client company, and in fact may now be employed by a competitor.

To what extent are ad hoc arbitration proceedings favoured over administrative or institutional arbitrations?

From a domestic perspective, my experience suggests that ad hoc arbitrations are preferred over institutional proceedings. One of the great advantages of arbitration is the ability to select the tribunal, and ad hoc arbitrations allow a great deal of latitude in selecting arbitrators who have particular knowledge or expertise in the industry, without the need for that arbitrator to be on an institutional preferred list. The cost of administration is also frequently seen as an unnecessary expense in the context of a domestic proceeding.

How has the proliferation of document production impacted dispute resolution proceedings? What steps need to be taken to ensure expedient and efficient dispute resolution?

The advent of email has led to an exponential growth in document production and the cost of assembling, reviewing, cataloguing and storing documents that may be relevant to a dispute has become onerous, to the point of being unsustainable. While technology-assisted review and other innovations are attempting to rationalise the scope of this problem, the fact is that as long as parties maintain a traditional North American view toward document production and discovery, the prosecution and management of large-scale claims is going to become increasingly cumbersome and expensive. I expect that in the coming years, the market will recognise that the historical wish for exhaustive discovery, a proverbial turning over of every pebble, is simply too expensive. While I expect that the cultural adjustment to a more European style with no or limited discovery is not likely in the near future, the businessmen who fund arbitrations and other dispute resolution processes are going to need to assert themselves in insisting upon more streamlined, and necessarily more superficial, discovery and document disclosure.

How do you expect changes in the Construction Act in Ontario, introducing adjudication, to impact the market?

Canada is watching with a great deal of interest to see how adjudication impacts the process of dispute resolution in the construction industry in Ontario. As more traditional methods of dispute resolution are becoming bogged down under the weight of document production and extensive discovery, the market is anxious for new and innovative approaches to dealing with disputes in as close to a real-time basis as possible. The introduction of adjudication into the Ontario market is a welcome one, the results of which will be carefully studied in other Canadian jurisdictions.

What advice would you give to younger practitioners hoping to one day be in your position?

Learn the industry which we are all serving. Providing good legal advice is a matter of table stakes. For a sophisticated contractor or engineer looking to hire a lawyer to assist them with a problem, the added value of having a lawyer who has learned what the design and building process entails, who has kept abreast of developments in the local construction market, and who has shown interest in the business and objectives of the particular client, is immeasurable.

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