Adjudication Process
Once an Adjudicator is appointed and has received the Claimant’s documents, the Adjudicator will inform each Party, in writing, of the steps to be followed in the adjudication process. The Adjudicator will conduct the adjudication in the manner the Adjudicator determines appropriate, in accordance with s. 6(1) of the Federal Prompt Payment for Construction Work Regulations (Dispute Resolution). Some adjudications may require a hearing by videoconference, some may involve a site visit, inspection, test or experiment, and some may proceed only with documents. Factors Adjudicators may consider when deciding on the appropriate process include:
- the amount in dispute;
- whether an oral hearing is necessary to determine facts; and
- whether a site visit is necessary.
Pre-Designed Adjudication Processes
Even though the Adjudicator will set the process, the Parties may want to suggest a process to the Adjudicator. To assist the Parties, CanDACC has set out two Pre-Designed Adjudication Processes that the Parties may choose to recommend to the Adjudicator and/or that the Adjudicator may choose to set. One of the two Pre-Designed Adjudication Processes take place in-writing only, while the second provides Parties with an oral hearing (by videoconference or teleconference).
The Claimant may indicate a preferred process in the Notice of Adjudication. Similarly, the Respondent may indicate a preferred process on the Response to Notice of Adjudication or at an earlier time by proposing a process on the Messages tab of the system.
When recommending a process to the Adjudicator, the Claimant and Respondent should consider the amount claimed to ensure that the cost of the adjudication will be proportionate to the amount in dispute. They should also consider the complexity of the issue in dispute. Disputes involving lower amounts or less complicated issues, for example, may be able to be resolved using a Pre-designed Adjudication Process.
The Parties may also recommend that the Adjudicator design the adjudication process without being guided by the Pre-Designed Adjudication Processes.
Fees for Pre-Designed Adjudication Processes
The Adjudication Fee for the Pre-Designed Adjudication Processes will be set in accordance with the Schedule of Fees unless the Parties and the Adjudicator mutually agree to another fixed or hourly fee and notify CanDACC in writing within two days of the Adjudicator consenting to adjudicate the matter. If there is no agreement on the Adjudication fee, the Adjudication fee will be as set out in the Schedule of Fees.
The two Pre-Designed Adjudication Processes are as follows:
Step 1: Claimant files Notice of Adjudication.
Step 2: Adjudicator is jointly appointed by the Parties or appointed by CanDACC.
Step 3: The Adjudicator convenes a teleconference with the Parties to discuss the adjudication process and submission of the Parties’ materials.
Step 4: Claimant files its written statement of facts and copies of all documents on which it intends to rely, including if, applicable, all relevant extracts from the construction contract limited to 10 pages in total (the “Claimant’s Documents”). Upon receipt of the Claimant’s Documents the Adjudicator will inform each Party, in writing, of the steps to be followed in the adjudication process.
Step 5: Respondent delivers its written statement of the facts it intends to rely and copies of any material it wishes the Adjudicator to consider (the “Response to Notice of Adjudication”) which is limited to 10 pages in total.
Step 6: Adjudicator provides the Determination no later than 20 days after the day on which the Respondent has provided its Response to Notice of Adjudication or if there is no Response to Notice of Adjudication, no later than 20 days after the day on which it was to be provided.
Step 7: CanDACC provides a Certified Determination to the Parties.
Step 1: Claimant files Notice of Adjudication.
Step 2: Adjudicator is jointly appointed by the Parties or appointed by CanDACC.
Step 3: Adjudicator convenes a teleconference with the Parties to discuss the adjudication, process and submission of the Parties’ materials.
Step 4: Claimant files its written statement of facts and copies of all documents on which it intends to rely, including if, applicable, all relevant extracts from the construction contract limited to 20 pages in total (the “Claimant’s Documents”). Upon receipt of the Claimant’s Documents the Adjudicator will inform each Party, in writing, of the steps to be followed in the adjudication process.
Step 5: Respondent delivers its statement of facts it intends to rely and copies of any material it wishes the Adjudicator to consider (the “Response to Notice of Adjudication”) which is limited to 20 pages in total.
Step 6: Oral hearing takes place by teleconference or videoconference.
Step 7: Adjudicator provides the Determination no later than 20 days after the day on which the Respondent has provided its Response to Notice of Adjudication or, if there is no Response to Notice of Adjudication, no later than 20 days after the day on which it was to be provided.
Step 8: CanDACC provides a Certified Determination to the Parties.
If the Adjudicator chooses not to use a Pre-Designed Adjudication Process, the Adjudicator may set a customized process. A sample customized process is as follows:
Step 1: Claimant files Notice of Adjudication.
Step 2: Adjudicator is jointly appointed by the Parties or appointed by CanDACC.
Step 3: Adjudicator convenes a teleconference with the Parties to discuss the adjudication process and submission of the Parties’ materials.
Step 4: Claimant provides its written statement of facts and copies of all documents on which it intends to rely, including if, applicable, all relevant extracts from the construction contract (the “Claimant’s Documents”). Upon receipt of the Claimant’s Documents the Adjudicator will inform each Party, in writing, of the steps to be followed in the adjudication process including any other particulars in the adjudication process including page limits (if any) of Parties’ submissions. The adjudication process may include: a site visit or inspection, a test or experiment, the appointment of an expert or assessor, and/or an oral hearing by teleconference or videoconference.
Step 5: Respondent delivers its statement of facts it intends to rely and copies of any material it wishes the Adjudicator to consider (the “Response to Notice of Adjudication”) in compliance with any page limits directed by the Adjudicator.
Step 6: Steps in the process set by the Adjudicator take place (for example, an oral hearing, inspection, test or experiment).
Step 7: Adjudicator provides the Determination no later than 20 days after the day on which the Respondent has provided its Response to Notice of Adjudication or, if there is no Response to Notice of Adjudication, no later than 20 days after the day on which it was to be provided.
Step 8: CanDACC provides a Certified Determination to the Parties.
Adjudication Process Tab
The Adjudicator will communicate the adjudication process and timeline to the Parties, through the “Adjudication Process” tab on CanDACC’s Custom System.
The Claimant and the Respondent may indicate that they have viewed the adjudication process and timeline by checking the box next to “I acknowledge that I have read the adjudication process and timeline as set out above by the Adjudicator”.
Powers, Duties and Functions of Adjudicator
Pursuant to s. 6(1) of the Federal Prompt Payment for Construction Work Regulations (Dispute Resolution), the Adjudicator has the following powers, duties, and functions:
a) determine matters in the dispute in an impartial and independent manner;
b) not have any conflicts of interest in the dispute or with the parties;
c) ascertain the relevant facts and law;
d) issue directions respecting the scheduling of the conduct of the adjudication;
e) issue directions respecting any restrictions on the length of written or oral submissions;
f) request that any party provide any documents supporting or supplementing the notice of adjudication;
g) meet and question any of the parties and their representatives;
h) on consent of the parties and subject to any third-party consents, make any site visits or inspections;
i) on consent of the parties and subject to any third-party consents, carry out any tests or experiments;
j) on consent of the parties, appoint any experts or assessors necessary to better determine any fact or issue in the dispute;
k) draw inferences based on the conduct of the parties prior to and during the adjudication; and
l) issue any other directions so as to promote the expeditious resolution of the adjudication.
Adjudicators may set an oral hearing (by videoconference or by teleconference). The Adjudicator will organize the oral hearing and provide the Parties with the required information.
Adjudicators may, on consent of the Parties and subject to any third-party consents, make any site visits or inspections (s. 6(1)(h) of the Federal Prompt Payment for Construction Work Regulations (Dispute Resolution)).
Adjudicators may, on consent of the Parties and subject to any third-party consents, carry out any tests or experiments (s. 6(1)(i) of the Federal Prompt Payment for Construction Work Regulations (Dispute Resolution)).
The Adjudicator may, on consent of the Parties, appoint any experts or assessors necessary to better determine any fact or issue in the dispute (s. 6(1)(j) of the Federal Prompt Payment for Construction Work Regulations (Dispute Resolution)).
