2020 Construction Adjudication Symposium – Prairies region: an effervescent interaction

2020 Construction Adjudication Symposium

Prairies region: an effervescent interaction Prompt payment, lien reform, and adjudication current overview

The Construction Adjudication Symposium was jointly held by CIQS Prairies & NWT Chapter and the RICS on February 27, 2020 at the Best Western Premier Calgary Plaza Hotel, with 136 registered participants in attendance .

This event brought together over 20 leading experts, construction stakeholders and industry participants for a day-long discussion about prompt payment and adjudication and the emerging trends and implications facing the new construction landscape .

There were six diverse topic workshops held throughout the day and a guest speaker dinner event .

Jerry Crawford, President, CIQS Prairies & NWT Chapter, opened the conference with recognition of the sponsors, First Nations representatives and reference to the importance of the Professional Quantity Surveyor going forward in the future .

During the opening remarks, the May 2019 Toronto Construction Adjudication Symposium was cited as a key factor in the vision for hosting the 2020 event in Calgary . Encouragement from several industry stakeholders was an important factor in planning this event . Stakeholders included Bill Black, President, Calgary Construction Association; and the Prairies & NWT Chapter Board .

Another theme touched on during the initial delivery to the stakeholders in attendance was the importance of lateral thinking and drawing upon experience in multiple construction theatres to be effective in the future .

The introduction of Event Chair (Laura Cundari, Blake, Cassels & Graydon LLP) was then given by Jerry Crawford, KGC Consulting Ltd . Laura Cundari, FCIArb, is a Partner at the firm’s Vancouver office and has extensive experience in Litigation and Arbitration . The audience was advised that the construction industry was at a critical transition point regarding several imminent changes .

The first workshop speaker, Bruce Thompson, Wood PLC, addressed emerging trends, with a focus on his industry experience working with the UK Model . He shared how the Canadian Adjudication system is closely based on the United Kingdom (UK) model, with a strong and active role for the

Jerry Crawford giving his introduction message and opening remarks to the Event and Programme Chair Professional Quantity Surveyor working closely with the legal profession .

Bruce Thompson emphasized that the adjudicator will have an important inquisitorial role in the Canadian environment . The behaviour of parties leading up to dispute could be a factor in the adjudicator’s determination . He noted that abusive behaviour might prove counter-productive, no matter how right the position of the abuser party might be . Ethics and jurisdictional factors can have a significant determination on the outcome of any dispute going into adjudication .

The second panel on Worldwide Trends Towards Prompt Payment & Adjudication was moderated by Jane Sidnell, Rose LLP, with Ali Fard, Driver Trett; and Gerald McEniry, Revay and Associates Limited . Several insightful experiences were provided, including references to the practical constraints and limitations on adjudication .

Gerald McEniry spoke of the pilot project approach adopted in Quebec . The approach seems to be receiving favourable acceptance on a couple of the infrastructure projects into which it has been incorporated in the process .

Some disputes are so complicated that traditional arbitration may be a preferred course of action due to the timeline constraints of the adjudication period . The theme of unethical ambush tactics was again emphasized as a tempting behaviour practice to avoid, however grievous the historical chronology of the circumstances .

The next workshop was on Prompt Payment Reforms & Lien Reform Momentum Across Canada, moderated by Jane Sidnell, with Matt Ainley as the feature speaker representing the General Contractors Alliance of Canada .

2020 Construction Adjudication Symposium

Using the UK experience as a guide, Matt Ainley indicated that, with approximately 1,500 adjudications per year (based on UK population statistics), Canada might see 700 adjudications conducted . The federal legislation Bill C97, yet to be legislated in law, is following the Ontario Construction Act Template .

The third workshop, Implications of Prompt Payment for Construction (Legal Perspective), was moderated by William Kenny, Miller Thomson LLP, with panelists David Wahl, Bennett Jones LLP; Philip Biggar, Goodfellow & Schuett Law; and Sean Ralph of Dentons LLP .

Much of the conversation focused around various scenarios that could arise after the adjudicator makes a written determination, such as the way the adjudicator’s decision could be treated in a formal litigation proceeding; and, if contested, how the decision could be treated on jurisdictional grounds within the legal framework process .

A key point raised in this panel and in other panels was the importance of correctly identifying and crystalizing the exact nature of dispute . Failure to address the dispute correctly by the adjudicator would lead to a problematic outcome .

A period of participant and stakeholder networking was engaged in before the start of the later afternoon session . This event presented the symposium delegates with the chance to greet old friends and make new ones over cocktails and tasty appetizers .

Immediately after the break, the CIQS Prairies & NWT Chapter and the RICS announced Wellspring as their charity of choice for the donation of this event’s proceeds . Bill Black delivered the charity selection message and also spoke of the significance of the event as it pertains to helping achieve enhanced collaboration with the Builders Owners & Consultants (BOC) .

The first late afternoon session examined the implications of prompt payment from the general and trade contractors’ perspective, again moderated by William Kenny, Miller Thomson LLP .

The panel consisted of Terry Milot, Executive Vice President, Chemco Electrical Contractors; and Weston Rudd, General Counsel, Graham Group . Both stakeholders spoke extensively of the need for prompt payment and the financial pain encountered working with elongated payment cycles . Weston Rudd spoke of the preference for consistency in provincial harmonization regarding the standardization of the process .

The final moderator, Leanna Olson, Miller Thomson LLP, was then introduced to oversee the two final workshop sessions, beginning with a Surety Bonding Perspective session by Sean Marchant, Intact Insurance . Reference was made to the New Form 32 under Section 85 .1 of the Ontario Construction Act .

Section 12 of the accompanying General regulation, requires that all “public contracts” with a contract price of $500,000 or more require the contractor to furnish both a performance bond and a labour and materials bond that, in each case, must be in the prescribed forms and have coverage limits of at least 50% of the contract price .

The Act defines a “public contract” as a contract where the owner is the Crown, a municipality, or a broader public sector organization, but excludes contracts where the contractor is an architect or engineer from the application of that section Thus, the provision is meant to capture all government-procured construction contracts with a contract price of $500,000 or more .

The final workshop, focused on the Owners Perspective, was moderated by Leanna Olson, panelled by Nico Duursema, Cerilon Group Inc .; Sarah Heppinstall, First Capital Realty; and Mark Scharf, University of Calgary . Clarity of invoicing content and increase in staffing resources in the accounting department to pay promptly would be a challenge and a change in cultural behaviour for many organizations .

An extended networking and dinner session preceded Barrie Marshall, ADR Institute of Canada and ADR Institute of Alberta, who delivered a riveting talk on the Alberta perspective and position in prompt payment initiatives thus far, and initiatives currently underway in the following of federal legislation progress .

The feature dinner and keynote speaker, Bruce Reynolds, Senior Partner, Singleton Urquhart Reynolds Vogel, LLP of Toronto, capped the evening with a robust, wide-reaching, intellectual and practical perspective of the Canadian prompt payment scenario .

In summary Bruce talked about four key areas in the emerging trends and considerations of adjudication in Canada; these are: 1 . There must be fairness in the adjudication process . 2 . Adjudicator training is mission critical, and is required in the adjudication process as a whole . 3 . The Adjudicator must answer the right question in the matter that is being adjudicated . 4 . Risk associated with ethics and future behaviour of procurement purchasing authorities around exercising the

“bitter exclusion provision” and debarring contractors and vendors if an adjudication process is triggered . The evening wrapped up with photographs and brief interactions . The CIQS Prairies NWT Chapter thanks the sponsors, moderators, speakers and the CIQS National office for a roundly well-organized Construction Adjudication Symposium .

About the author

Joshua Ikubor is a senior consultant with Turner and Townsend . He has over 20 years of experience in leading teams, projects and individuals . As a Professional Quantity Surveyor and Chartered member of the RICS his passion is to educate professionals on emerging trends .