Adjudication under the Construction Act
Section 13.5(1) of the Construction Act provides for six issues that are available for adjudication:
- Valuation of services;
- Payments under a contract;
- Disputes related to notices of non-payment;
- Holdback payment; and,
- Non-payment of holdback.
Adjudication is intended to be a rapid process that allows for quick resolutions on discrete issues. Adjudication is used during the course of a construction project, so decisions must be made sufficiently fast enough to not disrupt the project too much. As a result, it is vital that owners, contractors and/or subcontractors have all the documents required for adjudication at their fingertips.
Tips for Document Readiness
Documents must be given to their lawyer as soon as the adjudication dispute arises. Lawyers may have as little as five days to prepare document briefs for the opposing party and adjudicator before the adjudication decision is made. As such, it is vital that the owner, contractor and/or subcontractor’s documents are accessible, searchable, readable and exportable.
Documents should be saved in a secure document database and backed up onto a cloud server. If documents are still be generated on paper without electronic backups, there is a risk that the paper may be lost, destroyed or misplaced.
Documents should be electronically stored, indexed, and made “word searchable” so that they can be located by searching for words in the content of the documents. Otherwise, relevant documents may not be located and made available for the adjudication.
Documents should be visibly legible and readable through available technology. It is important to consider what technology is currently available and the risk that such software may become unavailable in the future.
Documents should be able to be moved into and out of database systems and software without damaging the files or making them inaccessible, unreadable or unsearchable. This should be balanced with security concerns.
Documents That Should Be Maintained
It is also vital that documents be saved in separate databases for each project to avoid intermingling. Contractors and subcontractors should ensure that they:
- Maintain proper and descriptive daily site reports;
- Take well-labelled and described photographs and videos;
- Document instructions in writing;
- Take meeting minutes;
- Save all email correspondence in a project specific folder (both sent and received);
- Enter into written contracts that are drafted and reviewed by a construction lawyer; and,
- Complete proper and approved Change Orders in accordance with the contract.
Following this advice may prevent monetary loss, legal expense and organizational disruption and ensure a successful adjudication. If you have an adjudication or construction dispute, speak to one of our construction lawyers today to see how they can help.