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It goes without saying that the main goal of any contract in the construction industry is to conduct the project accurately, cost-effective, and in a time-sensitive manner. However, in a considerable number of civil engineering projects, disputes between parties (e.g., consultant, contractor, or owner) occur, and adjudication becomes inevitable. In general, adjudication in relation to the construction process may be defined as a process of dispute resolution that “allows disputants to present their arguments to an independent adjudicator, who then makes a decision that can be filed with the court” (Ontario Society of Professional Engineers). As in Ontario, Canada, the Construction Lien Act was renamed the Construction Act in 2018, the majority of its amendments concerning adjudication along with other processes are currently in force (Ontario Society of Professional Engineers). According to new legislation, adjudication may be applied 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 parties. As of October 2019, the adjudication process becomes mandatory in Ontario. It is enforceable, quick, relatively inexpensive, and available as any party’s right.
According to the Construction Act, adjudications should be started through the Ontario Dispute Adjudication for Construction Contracts (ODACC), the body that is responsible for their administration and qualifying and training adjudicators (Ontario Society of Professional Engineers). The Claimant initially provides the Respondent and ODACC with a Notice of Adjudication, and the Respondent may subsequently provide the Claimant and ODACC with a Response to Notice of Adjudication (ODACC). After this, parties have four days to choose and agree on an Adjudicator and receive his or her consent to adjudicate (ODACC).
The process of choosing an Adjudicator is immeasurably essential, and both the Claimant and the Respondent should be familiar with the candidates’ profile and resume. In general, 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 investigating evidence and facts presented by parties and applying the appropriate and relevant law in order to issue a determination, contract law background is regarded as obligatory. At the same time, the Claimant and the Respondent frequently search for a person who has not only the required core skills in the sphere of legislation but certain experience in the sphere of construction as well to understand its complexities. That is why, a substantial number of construction contract adjudicators have engineering background in addition to legal knowledge. Therefore, the participation of a certified adjudicator who has not only deep law knowledge but professional licensed Civil Engineering background is beneficial for any adjudication case.
According to their experience, a civil engineer adjudicator is able to review a construction project in order to ensure the process meets all the contract and code requirements. He is familiar with all elements of project management, including quality control, cost control, work supervision, claim negotiation, dispute settlement, and contract administration. At the same time, the civil engineer adjudicator knows how to apply his knowledge and experience to decide the responsible party for the defect and problem in the construction dispute. In other words, an adjudicator with profound law knowledge and civil engineering background will understand the peculiarities of the case, construction defects, expert witness reports, and a construction contract better in comparison with an individual who has pure law background and may apply law on the basis of a general standard without thorough professional examination.
In general, adjudication is regarded as a highly essential and mandatory process in the construction industry that has multiple benefits. In the case of an adjudication, both parties should thoroughly choose an adjudicator as his or her professionalism and experience will determine the outcome of the dispute. Despite 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 process. The understanding of the details of the construction process by an adjudicator contributes to his or her just determination.
References
ODACC. “Adjudication Process.”ODACC. n.d. Web.
Ontario Society of Professional Engineers. “Adjudication under Ontario’s Construction Act.”Ontario Society of Professional Engineers, 2020. Web.
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