Ontario’s lawyers need to be at the ready for a new, swift process
Ontario’s lawyers need to be at the ready for a new, swift process of dealing with construction disputes, says Sharon Vogel, a partner at Singleton Urquhart Reynolds Vogel LLP.
“The choice about when to launch an adjudication is in the hands of the party launching the adjudication,” she says. “And then the party responding to the adjudication needs to be able to respond appropriately and in a fulsome way, within a very tight timeframe. I think that that task of a responding party will be quite challenging for some lawyers who are retained and don’t have knowledge of the project . . . . I think that that the speed of the process is something to be taken into account by the legal community.”
The new adjudication regime, which began Oct. 1, will be a blueprint for other provinces considering adopting a similar system, says Vogel. Alongside colleague Bruce Reynolds, Vogel helped the Ontario government modernize the province’s construction law and was also retained as co-counsel by the federal government to assist in the introduction of new legislation on prompt payment and adjudication.
Ontario’s new system, similar to the one used in the United Kingdom, strives to resolve disputes in one to two months and gives adjudicators wide-ranging powers to keep public and private sector construction projects moving and payments flowing, she says.
“It is meant to be swift justice. Some would call it rough justice, because it It happens pretty quickly. So, you don't have all the same procedural protections that many lawyers would be used to through a traditional arbitration or litigation process,” she says. “And lawyers will need to prepare to launch adjudication and also will need to prepare to defend their clients against adjudication. And in that regard, once a notice of adjudication is delivered over the course of a construction project. It then becomes a process that the parties are required to participate in . . . . it's not an optional process.”
Vogel says that one consideration for lawyers who get a notice is choosing an adjudicator. The process takes place over only a few days, she says. While it is possible to pursue further litigation on decisions that are binding on an interim basis, the grounds for judicial review are narrow, she says.
Lawyers, alongside architects, engineers and construction project managers, may also consider getting trained as an adjudicator, she says. Those certified must have a decade of experience or more.
“We know that some disputes in the construction context can be document intensive, so the adjudicator has pretty broad powers under the Act to conduct an adjudication in a manner that he or she deems appropriate. And there's a fairly wide-ranging set of powers given to an adjudicator, including issuing directions respecting the conduct of the adjudication, taking the initiative and ascertaining the relevant facts and law and doing things like conducting an on-site inspection,” she says. “But all of that is intended to take place within quite a tight timeframe.”