Prompt Payment & Adjudication Symposium

Impending reforms and what to expect

With the new Prompt Payment and Adjudication legislation set to take effect on October 1, 2019, the Royal Institution of Chartered Surveyors (RICS) and Chartered Institute of Arbitrators (CIArb) hosted the Prompt Payment & Adjudication Symposium at Vantage Venues in downtown Toronto on May 29, 2019 . 170 construction professionals and stakeholders attended the symposium, which sold out weeks in advance .

With the new Prompt Payment and Adjudication legislation set to take effect on October 1, 2019, the Royal Institution of Chartered Surveyors (RICS) and Chartered Institute of Arbitrators (CIArb) hosted the Prompt Payment & Adjudication Symposium at Vantage Venues in downtown Toronto on May 29, 2019 . 170 construction professionals and stakeholders attended the symposium, which sold out weeks in advance .

The symposium started with opening remarks from Dr. Paul Tichauer (Chair, CIArb Canada) who thanked Arif Ghaffur (President, Lakeland Consulting Inc . and Editor of the Construction Economist) for his dedication as the Chair of the Symposium Organizing Committee in enabling opportunity to knowledge share . Dr . Tichauer introduced the Chair for the morning session, Geza R. Banfai (Counsel, McMillan LLP) who touched on the ‘Background and Changes’ relating to prompt payment and adjudication, the morning session theme .

Following the introduction of the symposium, Sharon C. Vogel (Partner, Singleton, Urquhart, Reynolds, Vogel LLP) and Brendan Bowles (Partner, Glaholt LLP) collaborated to present the first topic of the day, ‘Prompt Payment Reforms Gather Momentum Across Canada’ . Takeaways from this presentation included the historical context that led to the new legislation, the ‘profound cultural changes’ to impact the construction industry, and federal reforms .

The next topic was ‘Worldwide Trend Towards Prompt Payment and Interim Dispute Resolution’, presented by Dr. John Fletcher (Head of the RICS Dispute Resolution Service) . Dr . Fletcher provided lessons learned from around the world, specifically in the UK, underscoring the context

of adjudication . He explained that adjudication should not be treated as another ‘quasi-legal’ process, but rather, a form of dispute resolution with the intention to resolve cash flow issues through ‘quick and affordable’ means .

After interacting with fellow professionals during a short networking break, Sandra Astolfo (Partner, WeirFoulds LLP) and Matthew Alter (Partner, Cassels Brock & Blackwell LLP) resumed the Symposium by discussing the ‘Implications of Prompt Payment for the Construction Industry’ in a fireside chat setting . The discussion highlighted the importance of a proper invoice, and included disputed invoices, non-payment, partial payment, and holdback .

Next was Howard Wise (Partner, Goodmans LLP), who spoke about ‘Construction Disputes & ‘Nuts & Bolts’ of Statutory Adjudication’ . Mr . Wise covered the types of disputes that can be adjudicated, costs of adjudication, the purpose of the Authorised Nominating Authority, and enforcement/ appeal of the adjudicator’s decision .

The final morning session was a moderated panel comprised of the moderator, Marcia J. Oliver (Partner, Advocates LLP) and panelists, Geza R. Banfai, Andrew, J. Heal (Partner, Heal & Co . LLP), Raymond Bassett (VP, Chief Underwriting Officer, Travelers), and Clive Thurston (President, OGCA) provided their thoughts on the topic of ‘Significance of Prompt Payment & Adjudication Reforms’, each sharing a different perspective . Recurring themes were ‘fixing cultural issues in the construction industry’ and maintaining relationships in the supply chain .

During lunch, Mr. David Dooks (National Chair, CIQS), provided a brief introduction to the CIQS, on behalf of the Lunch Sponsor (the Canadian Institute of Quantity Surveyors) and then introduced the lunchtime speaker, Bruce Reynolds (Partner, Singleton Urquhart Reynolds, Vogel LLP), who provided a lighthearted yet informative presentation on ‘The Right Stuff & The Adjudicator’. Mr . Reynolds identified the key characteristics of an effective adjudicator, including technical and interpersonal skills .

The afternoon session commenced with opening remarks by Neil Shah (Managing Director, RICS Americas) who introduced Glenn W. Ackerley (Partner & Chair of the Construction Practice Group, WeirFoulds LLP), as the Chair for the afternoon session . Mr . Ackerley announced the theme for the afternoon: ‘Compliance and Implementation’ .

The first afternoon session was a joint presentation between Howard Krupat (Partner, DLA Piper (Canada) LLP) and Kenneth W. Movat (Partner, Fogler Rubinoff LLP) who spoke about the ‘Interaction between Lien Provisions & Adjudication’ . Mr . Movat commenced by providing context to liens and the updated definitions . Mr . Krupat outlined

key interactions between liens and adjudication and strategic considerations in the pursuit of liens and adjudication .

On behalf of the Platinum Sponsor, Dominic Leadsom (Director) from Turner & Townsend introduced Robert Pattison (SVP Commercial Resolutions, Infrastructure Ontario) who presented on ‘P3’s and Interim Dispute Resolution’ . Mr . Pattison stressed the importance of getting internal processes and procedures up to date and the requirement for the independent certifier to act as an adjudicator .

The second networking break provided an opportunity for reflection on the topics discussed in the day . Following this, Yonni Fushman (EVP, Chief Legal Officer & Secretary, Aecon Group Inc .) and Christopher Moran (Independent Contractor) discussed the ‘Potential Challenges for Adjudication’ . Both presenters highlighted concerns about the new legislation from a contractor perspective such as resource availability, time periods, etc . and the need for ‘commercially savvy’ quantity surveyors .

The next presentation was a joint presentation between Matt Ainley (Chair, General Contractors Alliance of Canada (GCAC) and John Mollenhauer (President & CEO, the Toronto Construction Association) on ‘Preparing to Comply’ . Key points included preparation for adjudication to “have a game plan before you are given a game plan” and suggested priorities that contractors and subcontractors need to address before October 1, 2019 .

Similar to the morning session, the afternoon session concluded with a moderated panel . The moderator, Richard Wong (Partner & Chair, National Construction & Infrastructure Group, Osler, Hoskin & Harcourt LLP) and panelists, Glenn Ackerley, Sandra Skivsky (Chair, National Trade Contractors Coalition of Canada), Richard H. Morris (Head of Expert Services, Systech), and Paul Raboud (Past Chair, OGCA) discussed the ‘Implications of Prompt Payment & Adjudication’. The group shared their opinions, specifically on the workload shift from legal to an operational level and the importance of records .

The Symposium portion of the event, came to an end following closing remarks by John Hughes (Immediate Past President, RICS Global) . This was followed by a reception and dinner . Neil Shah gave opening remarks and invited Dr. Paul Tichauer to the podium . Dr . Tichauer introduced The Honourable Barry Leon (Independent Arbitrator and Mediator) who recognized the Future Leaders in attendance, specifically Sophia Chin You (Membership Manager, CIQS), Weger Barwari (Quantity Surveyor, AW Hooker), Izak Rosenfeld (Member of the Board, CIArb Canada Branch), Margaret McBride (Project Director, CIMA+), Nicolas Serge (Senior Cost Consultant, Turner & Townsend), Saad Minhas (Legal Counsel, RBC), and Ricardo Raymond (Senior Contracts and Commercial Specialist, Lakeland Consulting Inc .) .

The Honourable Barry Leon then introduced the evening’s guest speaker, Mr. Yasi Naqvi (CEO, Institute for Canadian Citizenship and the Former Attorney General of Ontario) . Mr . Naqvi spoke about the development of the Construction Act from his perspective as the Attorney General of Ontario . He mentioned that the reforms proposed by Bill 142 received near universal parliamentary consensus and spoke about the importance of construction law experts in the formulation of the Bill . Mr . Naqvi also spoke about his current role as CEO for the Institute for Canadian Citizenship and the importance and impact of new Canadians .

Following Mr . Naqvi’s speech, The Honourable Barry Leon presented Mr . Naqvi with a gift of appreciation and invited Marcia J. Oliver to the podium who presented awards of recognition to Bruce Reynolds, Sharon Vogel, and James Little for their contributions to Construction Law in Canada . Mr . Tichauer provided closing comments and concluded this informative, well received, and successful event . I thoroughly enjoyed attending the symposium, reception, and dinner .

Sponsors

Diamond: Singleton Urquhart

Reynolds Vogel LLP . Lunch Sponsor: Canadian Institute of

Quantity Surveyors Platinum: Adjudico Inc ., Turner &

Townsend WiFi Sponsor: Altus Group Gold: A .W . Hooker, CIMA+, KGC

Consulting Services Ltd ., Mortazavi

Construction Consulting Inc ., Mark

G . Anderson Consultants Inc ., York

Excavating & Grading, Silver: Atrium Consultants, Bisceglia & Associates, Intellect Dispute

Experts Advisory (IDEA), Lakeland

Consulting Inc ., O’Keefe &

Associates Limited, Network Break Sponsor: Systech

International Event Supporters: ADR Institute of

Ontario, BPL Events, Construction

Economist, PMI Toronto Chapter (Construction of Construction Law

North America, Vantage Venues .

About the author

Daniel Josiah, PgDip, PQS, MRICS, ACIArb, GSC, is Director of Commercial & Contracts with Lakeland Consulting Inc ., where he provides services to a wide range of clients in the private and public sectors on pre-contract, delivery, and contract closeouts .

Daniel has a particular expertise in issues around scope, schedule, and cost and has prepared expert reports for the purposes of negotiation, alternative dispute resolution, and litigation .

Daniel is a Professional Quantity Surveyor (PQS), Chartered Quantity Surveyor (MRICS), Associate Member of the Chartered Institute of Arbitrators (ACIArb), and is Gold Seal Certified . Daniel has a Post Graduate Diploma in Quantity Surveying and a BSc Honours in Commercial Management .