Don Marston

Osler, Hoskin & Harcourt LLP

1973 Joined Firm

1977-2004 Partner

The Osler ADR Centre

2005 to 2009

Marston International ADR

Since 2009

Don Marston’s Canadian and international ADR practice as an arbitrator, mediator, and project neutral is particularly focused on construction, engineering and infrastructure project disputes, as well as commercial disputes. Prior to establishing his ADR practice in 2005, Don was a partner (from 1977 to 2004) in the Canadian law firm Osler, Hoskin & Harcourt LLP. He was the founder and Chair of its Construction Law and Infrastructure Projects Group and a member of its International Commercial Arbitration Group. A graduate of Queen’s University in both engineering (1963) and law (1971), Don has been a registered Professional Engineer since 1965 and a barrister and solicitor since his call to the Ontario Bar in 1973. He is a Fellow of both the American College of Construction Lawyers and the Canadian College of Construction lawyers and a former Chair of the International Construction Projects Committee of the International Bar Association.

Don’s international appointments as an arbitrator have included ICC, ICDR and AAA arbitrations. He is a member of the AAA/ICDR’s international panel of neutrals and the international panel of arbitrators of the Hong Kong International Arbitration Centre. He has more than ten years experience chairing Dispute Resolution Boards in eastern Europe and in Canada.

Don has very broad experience on a wide range of major projects. Prior to his full-time ADR practice, he acted as legal counsel for owners, contractors, developers, consultants, lenders, and government agencies. His experience includes major infrastructure projects, build-operate-transfer (“BOT”) projects, public-private partnerships, toll highways, airports, subways and other transportation facilities, commercial high-rise building and civil works construction, equipment procurement and industrial facilities, cogeneration and nuclear energy projects, water and waste treatment facilities, natural resource projects, pipelines, and environmental systems and technologies. Areas of focus included risk assessment analysis, contract negotiation and drafting, joint venturing, corporate aspects, financing, concession agreements, international business issues, claims and dispute resolution, including advising on litigation matters and acting as an arbitrator, mediator and dispute resolution board member.

Don has also acted as counsel on professional liability matters before governing associations of both professional engineers and architects. He also taught engineering law and professional liability courses at the University of Toronto for more than twenty years and is the author of the text, “Law for Professional Engineers, Canadian and Global Insights.”

A graduate in Metallurgical Engineering, his engineering practice, prior to his law career, included experience in both the steel and construction industries.

Professional Associations

• Fellow of the American College of Construction Lawyers (ACCL); former member of the Board of Governors of the ACCL and former Chair of its International Construction Law Committee
• Fellow of the Canadian College of Construction Lawyers
• Former Council Member, Section on Business Law (International Bar Association)
• International Bar Association (former Chair of the International Construction Projects Committee; former Chair of the IBA’s Performance Bonds Subcommittee)
• Law Society of Upper Canada
• Canadian Bar Association (former Chair of the Construction Law Section, Ontario)
• American Bar Association (former Steering Committee Member of the International Division, Forum Committee on the Construction Industry)
• American Arbitration Association (ICDR International Panel)
• Hong Kong International Arbitration Centre (Panel of Arbitrators)
• Canadian Correspondent to The International Construction Law Review
• The Dispute Resolution Board Foundation
• Inter-Pacific Bar Association
• Professional Engineers Ontario
• Toronto Commercial Arbitration Society
• The ADR Institute of Canada

Representative Work

Some examples of representative matters on which Don Marston has been appointed include:

• Arbitrator on international pipeline dispute
• Arbitrator on Middle East airport project
• Mediator on middle East process plant dispute
• Arbitrator on American windpower project dispute
• Arbitrator on Canadian windpower project dispute
• Arbitrator on Canadian project tendering dispute
• Arbitrator on AAA/ICDR arbitration relating to international equipment supply
• chair of dispute resolution board since 2002 on major water infrastructure project under a long term concession agreement in Bulgaria
• dispute resolution board chair on two major highway construction projects in New Brunswick, Canada
• arbitrator on ICC administered arbitration relating to international distributorship agreement
• arbitrator on ICDR administered arbitration relating to power project in Pakistan
• arbitrator on dispute in Canada relating to plant construction
• counsel on arbitration relating to construction of dam in Caribbean island
• counsel to Canadian Highways International Consortium in connection with its toll highway projects and initiatives in Ontario (407 all electronic toll highway), Nova Scotia (toll highway 104), and Israel (The Cross-Israel Highway Project
• counsel to the Greater Toronto Airports Authority in connection with its major terminal construction at Lester B. Pearson International Airport
• counsel to the Toronto Transit Commission in connection with claims and litigation relating to its Eglinton and Sheppard subway construction (including geotechnical design issues and dispute review board matters)
• counsel to contractor re nuclear power plant facility in Eastern Europe (including performance guarantee issues)
• counsel to consortium bidding on water treatment project in Ontario
• counsel to developer of cogeneration plant in Northern Ontario
• counsel on litigation relating to waste treatment facility for Ontario municipality
• counsel to constructor of power plant in Nova Scotia in connection with contract issues on major construction litigation
• counsel to developers of major Casino project in Niagara Falls
• counsel to owner-developers of major office tower projects in Toronto (BCE Place, Bay-Adelaide Centre, First Canadian Place) and in Calgary (Petro-Canada Centre)
• counsel for professional engineers on negligence and disciplinary issues; also examiner in law to Professional Engineers Ontario (since 1981)
• Architectural services contract re Prague International Airport project
• Major electrical installation project in Libya
• U.S.A.
  • consultant to U.S. counsel with respect to claims matters on major industrial installation in northern U.S.
  • licensing agreement for a Canadian engineering manufacturing company
  • licensing coal liquification technology in California and elsewhere
  • advising various U.S. Contractors with respect to project matters in Canada
  • Switzerland – joint venture agreement for a Canadian engineering manufacturing company
• U.K. – joint venture and licensing agreement for a Canadian engineering manufacturing company

ICDR Panel of Arbitrators,The Dispute Resolution Board Foundation

Don Marston has participated in numerous presentations and publications on legal aspects of the construction industry and on contract law and professional liability matters. Some of his initiatives include:

• Author of textbook”Law for Professional Engineers, Canadian and Global Insights”, Fourth Edition, 2008, published by McGraw-Hill Ryerson
• Articles on Dispute Resolution Boards as creative ADR for Infrastructure Projects (2009 and 2010)
• Speaker at ICDR international dispute resolution conference, Toronto (2007)
• Panelist on international construction arbitration- American College of Construction Lawyers (2006)
• Panelist on dispute resolution boards at international DRBF conference, Budapest, Hungary (2006)
• Presentation on “The Rise of Dispute Resolution Boards” to the ADR Institute of Canada (2005)
• Presentation on Construction Arbitration to Canadian College of Construction Lawyers (2005)
• Presentation on contract law differences between common law and civil law jurisdictions (American College of Construction Lawyers, 2005)
• Presentation on the Internationalization of ADR (Centre for International Legal Studies, Austria, 2004)
• Presentation to Law Society of Upper Canada on Dispute Review Boards (Toronto, 2002)
• Arbitrator at International Commercial Arbitration Competition (Vienna, Austria, 2002)
• Presentation on Effective Strategies to Deal With Disputes, including ADR Techniques on Canadian and International Projects (Toronto, 2002)
• Program Chair and presentation on Dispute Review Boards in the Construction Industry, International Bar Association (Mexico, 2001)
• Presentation and paper on Expert Determination as an ADR Technique, International Arbitration Conference, Centre for International Legal Studies (Salzburg, Austria, 2000)
• Presentation and paper on Project-Based Dispute Resolution: ADR Momentum Increases Into The Millennium, Canadian College of Construction Lawyers (Montebello, Quebec, 1999)
• Programme Chair of “Differences Between Initial and Final Price in Large Infrastructure Projects: The Hazardous Consequences of Unbalanced Allocation of Risks in the Contract”, International Bar Association Annual Conference (Vancouver, 1998)
• Speaker on Worldwide Infrastructure Partnerships (San Francisco, 1997)
• Chair and speaker on Assurance of Performance on International Construction Projects (Berlin, 1996)
• International Performance Guarantees – Dealing with the Risk of Abusive Calls (Toronto, 1996)
• Speaker on Risks in Construction on Canadian and International Infrastructure Projects (Toronto, 1995)
• Speaker on NAFTA and the U.S. Contractor in Canada (Phoenix, Arizona, 1995)
• Chair and speaker on Risks in International BOT Infrastructure Projects (New York, 1995)
• Speaker on Mediation and Dispute Review Boards (Project Management Institute, 1994)
• Co-Chair – Seminar on Infrastructure and Development Initiatives in Vietnam (Ho Chi Minh City, Vietnam, 1994)
• Speaker on Emerging Trends in Dispute Resolution on Large International Infrastructure Projects (Toronto, 1994)
• Presentations on International Bar Association’s Illustrative Forms of Performance Guarantee and Counter Guarantee Security for International Construction Projects (Hong Kong, 1991; Sydney, Australia, 1992; Washington, 1992 and Tokyo, Japan, 1993)
• Special Lecturer in Engineering Law and Professional Liability courses at the University of Toronto, 1978 – 1999
• Chair and Speaker at numerous conferences on Claims and Disputes

Ontario, Canada

Law Society of Upper Canada

• Don Marston is a former President of the Toronto Lawn Tennis Club.
• He is also a Fellow of the Ontario Society of Camp Directors; and a Director of Camp Hurontario (a long established boys’ camp featuring outdoor activities for boys. Camp Hurontario is owned by Don’s family, and is located on the islands of Georgian Bay, Ontario).
• He is a former Chair of the Board of Directors of Rosedale United Church, Toronto, Canada
• He is a member of the Thornhill Golf & Country Club
• Don’s sporting activities include tennis; canoeing; skiing; and golf.