“Claimant: Mr. Adjudicator, half of my building foundation has not been completed!”
Adjudicator: What’s a foundation?
Claimant: I see…, I mean the thing that supports my building.
Adjudicator: Support ??”
It goes without saying the primary goal of any contract in the construction industry is to conduct the project accurately, within the budget, and within the planned time frame. Considering the nature of civil engineering construction projects and considerable number of contract items, disputes between contract parties (e.g., consultant, contractor, or owner) occur, so a kind of dispute resolution becomes inevitable. Adjudication, as one of the dispute resolution methods, can be defined as a process that “allows disputants to present their arguments to an independent adjudicator, who then makes a decision that can be filed with the court”1.
In Ontario, the Construction Lien Act was renamed the Construction Act in 2018, most of its amendments concerning adjudication along with other processes are currently in force1. According to the new legislation, adjudication applies to particular disputes that include the validation of materials or services, notices of non-payment, payments under contracts, holdbacks, and any other issue agreed to by the parties. As of October 2019, the adjudication process has become mandatory in all Ontario construction contract related disputes. It is enforceable, quick, relatively inexpensive, and available as any party’s right. According to the Construction Act, any party can start the process through the Ontario Dispute Adjudication for Construction Contracts (ODACC), the body that is responsible for the administration, qualifying and training adjudicators1. First, the Claimant provides the Respondent and ODACC with a Notice of Adjudication, and the Respondent may subsequently provide the Claimant and ODACC with a response to the notice2. After this, parties have four days to choose and agree on an Adjudicator, from the official registry of the certified members, and receive the adjudicator’s consent to adjudicate.
Choosing an adjudicator is immeasurably essential, and both the Claimant and the Respondent should be familiar with the candidate’s profile and resume. A competent adjudicator should have excellent experience and profound knowledge of alternative dispute resolution in relation to construction contracts. As the adjudicator has a crucial role in reviewing evidence and facts presented by the parties and applying the appropriate and relevant law in order to issue a determination, contract law background is obligatory. Besides having core skills in the sphere of legislation, certain civil engineering experience in construction, as well to understand its complexities, can be beneficial for a construction disputes adjudicator to hearing a case. That is why a substantial number of construction contract disputes adjudicators have an engineering background in addition to legal knowledge. An adjudicator with specialized knowledge and expertise has some latitude to apply his/her own scientific knowledge or understanding of professional standards and guidelines to making a decision3. According to their experience, civil engineer adjudicators are able to review a construction project in order to ensure the process meets all the contract and code requirements. They are familiar with all the elements of the project management, including quality control, cost control, work supervision, claim negotiation, dispute settlement, and contract administration. The civil engineer adjudicator knows how to apply their knowledge and experience to determine the responsible party for the defect and problem in a construction dispute, without retaining an expert witness review and testimony. This may result in a faster, more accurate, and more cost-effective dispute resolution.
In conclusion, adjudication is regarded as a highly essential and mandatory process in the Ontario construction industry that has multiple benefits, such as the ability to select the adjudicator by the parties. In addition to the fact that deep construction contract law knowledge is obligatory for this position, additional civil engineering background is preferable as a civil engineering adjudicator has knowledge necessary for the understanding of the construction contract and process. Therefore, both parties should carefully research and choose their adjudicator, as his/her legal knowledge and engineering expertise can benefit the dispute resolution.
Next time, when you are a party to a construction contract dispute, our civil engineer certified adjudicator, who knows how a building is supported, can hear your case.
- Ontario Society of Professional Engineers, “Adjudication under Ontario’s Construction Act.”, on.ca/career-services/adjudication-under-ontarios-construction-act/.
- Ontario Dispute Adjudication for Construction Contracts, “Adjudication Process.” ODACC, ca/en/adjudication-process/
- Society of Ontario Adjudicators and Regulators, “A Manual for Ontario Adjudicators”, 2015 edition, p. 28