Our guest today is Kirk Mason of HMC Lawyers, a firm based in Calgary, Alberta. Kirk specializes in construction litigation, condominium property litigation, contract review and negotiation, and other legal matters that affect the construction industry. He fills us in on what we need to know before we start the process and what to do if we run into trouble after the fact.
Born and raised in Calgary, Kirk moved to Nova Scotia for his schooling and back to Calgary to article with a national firm. He soon realized he wasn’t a “national firm guy” and found his place at his current firm, a smaller, boutique-style agency.
The life of a lawyer isn’t anything new to Kirk. Growing up with a father in the industry, Kirk says dinnertime discussions centred around legal topics.
Now, as a lawyer himself who works primarily with construction projects, Kirk has learned a thing or two about how to make smart financial decisions when it comes to owning and building properties.
Get your lawyer involved early on—ideally before you negotiate or review your contract. This will help to protect you from any unforeseen damages that might occur.
It’s also important to hire the right consultants for your project. For instance, Kirk says hiring a building envelope consultant wasn’t common practice 10 years ago, but more people are opting to do so as they realize it’s a minor expense compared to the major expenses that can be avoided.
One of those major expenses might be fixing damage from water ingress, which Kirk says is a big issue in construction projects—particularly in condominiums. You might pay a consultant a few or even several thousand dollars to identify the problem before it manifests, but you could be looking at a multimillion-dollar repair bill if it does.
That goes for hiring other experts on your project, like a mechanical consultant. Kirk gives the example of a 40-storey tower with a mechanical issue on the 38th floor. While it might be a minor issue to start, if it trickles down to the floors beneath it, that’s another hefty fix.
“Rather than hiring a top-end mechanical consultant at the start of the project, some owners have hired those who are more affordable, not necessarily as detailed or providing a quality deliverable as some of the other parties out there,” says Kirk.
When dealing with real estate, you could be making the single-biggest transaction of your life, Kirk explains.
“It’s not a time to be pennywise,” he adds.
While it may be your developer who takes out the insurance policy prior to construction, you’ll want to make sure your interests are covered.
This way, if there’s a problem with the building years down the road, the insurance can save you from paying out of pocket even if your developer is no longer in business. You can add layers of protection to your contract, Kirk explains, naming you as the additional insured and covering beyond what a typical policy might cover.
“One of my biggest grievances with the construction industry right now is people don’t trust each other,” Kirk says, adding that the COVID-19 pandemic has heightened this distrust as there’s a financial pinch in the industry.
When dealing with a problem in the past, those involved would have a discussion and figure out how to fix it. Now, Kirk says, people are quick to take enforcement over issues onsite or file builder’s liens if they aren’t paid promptly.
As for how to regain that trust that was once a given, Kirk says the government has stepped in to help with prompt payment legislation. Since its introduction in Ontario, other provinces have adopted similar legislation to ensure workers are paid within a certain time period.
“It’s resulted in very few disputes,” Kirk says. “I hope that might be because people are talking again.”
What many don’t realize is it can take several years to have a civil construction matter heard by a judge. Kirk encourages discussions over legal proceedings, and says he sees his role moving from a litigator to a mediator in the future.
“I don’t necessarily think that’s a bad thing,” he comments.
To those who see themselves following in Kirk’s footsteps, Kirk’s advice is not to limit your potential. Being in his position offers a unique opportunity to effect change, something Kirk has certainly done well.