Gerald R. (Jerry) Genge
B.A.Sc., LL.M., Q.Med., C.Arb., P.Eng., BDS, BSS, ODACC Adjudicator
Occasionally I get a call from a contractor or an owner who has seen my name online and asks if I can recommend a lawyer. I usually say I would recommend a construction law expert, and, at about that point, I ask what they think the value of the claim would be. Often they will say, “Oh, it’s high, possibly $200,000”. That is followed by an audible sigh from me. I don’t wish to minimize the merits of a $200,000 claim. It is not a small amount. But many people have no concept of the time, cost, or anxiety they will wear as their case moves through the court process.
Direct legal fees are only a part of those costs we all bear. I have heard some lawyers argue that more courts and more judges would solve the current poor access to justice. But, frankly, society cannot afford to plough more money into an already heavily process-driven system. But take heart, there are alternatives to years in court. What that caller really wants is fast, fair, and affordable resolution. The current legal system is anything but fast or affordable (for most), and, to be fair, it tends to push the duration and thus the costs of obtaining ‘justice’ to disproportionate amounts.
Yes, the revisions to the Ontario Construction Act allow for “expert” payment adjudication. I won’t delve into that process. It is described in section 13 of the Act and there have been more than five years of seminars about it. Besides, it and other facets of the Act are under revision as I write this. Despite its benefits, s. 13-style payment adjudication may not always be the right process for your claim. It has serious limitations on jurisdiction and scope that I know have deflected valid claims and defences.
It has tight time constraints and may prevent a thorough digestion of necessary evidence. Moreover, if the parties do not agree on an adjudicator, you do not know what the qualifications of the appointed adjudicator might be.
Of course, there is always the settlement option, but that may not be fast or cost-effective either and many don’t see settlement so much as justice as they do “compromise”.
Perhaps what might be more appropriate is contractually mandated arbitration using a subject matter expert arbitrator. But what is an “expert”? That depends on the facts of the case. If it is a payment set-off for defects not cited in the Notice of Non-Payment or if delays arise (by the contractor or the payor) that cannot be fully evaluated within the payment certification and payment process, or if technical disputes arise from insufficient specifications that may or may not indicate extras, a s. 13.5 to 13.17 payment adjudication may not be the right pathway to a cost-effective, technically mature decision on payment.
That is where the subject matter expert arbitrator should take the reins. A subject matter expert with adjudicative training who is also versed in the hierarchy of obligations, the choice and application of appropriate materials, the design needs, the forensic analysis of documents and existing conditions, and/or the cost for contracted elements is probably a good choice.
In particular, it fits within the finality offered by s. 13.15 of the Act which allows an arbitration conducted under the Arbitration Act, 1991, to replace a potentially bad payment adjudication and finally decide the issues that may not have previously been as thoroughly assessed as necessary.
Yes, it is different. But not so different as to be fatal to its use. It would make room in the courts for more complicated claims. It would significantly speed up the process and, win or lose, it would reduce the time. cost, and anxiety experienced by the parties. Most importantly, it would (as they say) allow the parties to “fit the forum to the fuss”. It is worth a try.
Gerald is a qualified ODACC Adjudicator and a professional engineer specializing in buildings and civil works with more than 50 years of experience evaluating building claims and construction. In addition to his engineering career, he has a Master of Laws and is currently pursuing a doctorate in online education, specializing in adult learning, ethical practices, and cost-effective dispute resolution. His practice at Genge Construction Adjudications and Consulting includes expert adjudication in addition to conventional mediation and arbitration. More information is available at gengeadjudicator.com