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LEGAL
Interim adjudication
In addition to the prompt payment
provisions is the Construction
Dispute Interim Adjudication
(Interim Adjudication). Interim
Adjudication is a forum that provides
prompt adjudication of disputes that
may delay payment down the construction
pyramid. Though, under
the Ontario Act, parties can refer
almost any dispute for Interim
Adjudication, even if it does not
necessarily relate to the giving of a
Notice of Non-Payment.
The whole process is intended to
be very quick and easy, with a significant
portion taking place online
via www.odacc.ca. It can take anywhere
from 30 to 44 days from start
to finish.
Furthermore, parties can choose
an adjudicator with expertise for
the relevant issue in dispute as
adjudicators are architects, engineers,
lawyers, quantity surveyors,
project managers, accountants or
others with experience in the construction
industry. For instance, if
the issue in dispute relates to the
volume of cubic metres of concrete
poured on a project, it may be
worthwhile to appoint a quantity
surveyor as the adjudicator.
Inherent in the term Interim
Adjudication, while a determination
by an adjudicator is binding,
a party may still register a construction
lien and/or commence
an ordinary court proceeding or
arbitration regarding the same
issue in dispute. Accordingly, lawyers
will often advise their clients
to preserve and perfect their construction
liens notwithstanding a
parallel Interim Adjudication.
Conclusions
The existence of prompt payment
and Interim Adjudication are relatively
new in Ontario, and across
Canada, and there are still many
questions. Notwithstanding the
uncertainty, prompt payment and
Interim Adjudication are welcome
additions to construction statutes
to satisfy the intended purpose
of ensuring timely payments and
interim resolution of disputes to
avoid project delays.
Maria Ruberto is a partner at Pallett
Valo LLP. Kyle L. Kuczynski is a
lawyer with Pallett Valo LLP.
References
1. Bruce Reynolds & Sharon Vogel,
“Striking the Balance: Expert
Review of Ontario’s Construction
Lien Act” Report Prepared
for the Attorney General and
the Ministry of Economic
Development, Employment and
Infrastructure, April 30, 2016.
2. Construction Act, RSO 1990, c
C30.
3. Federal Prompt Payment for
Construction Work Act, being
Division 26 of Part 4 of the
Budget Implementation Act,
2019, No. 1, SC 2019, c 29, s 387.
PILING CANADA 53
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