By David Debenham
Special report
As an adjudicator, I frequently see clients and their representatives misled by their experiences with traditional construction dispute resolution methods. Adjudication, however, is a very different process and should be approached accordingly. The mantra often associated with arbitration—“fast, cheap, good… pick two”—does not apply here. Adjudications are designed to be both fast and cost-effective. Whether they are good, however, often depends on how well you prepare.
What do you need to do differently for adjudications?
First, discard the idea of “work first, fight later.” Adjudication is designed to allow parties to resolve disputes while the work is still ongoing. Once the work is completed, adjudication may no longer be an option in many cases.
Second, keep your documentation up to date. In adjudication, it’s critical to “paper” your files in real time with texts, emails, and other communications. This ensures you have the necessary documentation when the time comes to adjudicate—usually within days, not weeks, months, or years.
Third, understand the adjudication rules. You need to determine whether federal or provincial adjudication applies—or both. You must also ensure you’ve provided a “proper invoice” and understand the consequences of not doing so. Additionally, the status of the project (whether it is complete or not) can affect your claim, so it’s important to have a clear understanding of these issues. Professional legal advice is often necessary to navigate these questions.
Fourth, appoint an internal adjudication leader to oversee the process from the Notice of Adjudication to the Adjudicator’s determination. This person will coordinate your team and ensure all tasks are completed on time.
Fifth, preparing your witnesses and documentation should be your first priority once the issues are identified. Witness statements often replace testimony at hearings, so ensure these are thorough and submitted promptly. Gather and organize your key documents, particularly the contract documents, as soon as possible. Documents should be scanned and ready for submission.
Sixth, prepare a multimedia presentation. Since submissions are typically limited in adjudication, a visual presentation can be much more effective than lengthy documents. Use visuals to clearly demonstrate your case, linking each point to supporting evidence. This can make a significant impact in a time-limited process.
To ensure your adjudication does not stall, impose penalties for lateness—documents submitted after deadlines should not be admissible—and minimize unnecessary procedural delays. For example, an extra page of written submission or a few more minutes in oral presentation can significantly hinder the process.
Finally, make your submissions concise. Think of them as “dart throws,” not “pasta pitches.” Get to the point, link it directly to supporting evidence, and move on.
Don’t hesitate to appeal
Remember that adjudication is an interim remedy designed to prevent parties from withholding payments unfairly while waiting for a full trial. It is meant to supplement, not replace, the litigation process. If necessary, do not hesitate to appeal an adjudicator’s decision. In many cases, the adjudicator’s determination is not final and can be reviewed.
David Debenham is a registered adjudicator under Ontario’s Construction Act and the Federal Prompt Payment for Construction Work Act. He is recognized as a specialist in construction law by the Law Society of Ontario and is a fellow of the Construction Lawyers Society of America. He currently serves on the Board of the Canadian Bar Association’s Construction & Infrastructure Executive. David is also a Certified Public Accountant (CPA) and regularly applies his accounting expertise in adjudications.