Construction Law: A Comparison of Adjudication Frameworks in the UK and Ontario

Shadi Varkiani, Osgoode Hall Law School

PART 1: INTRODUCTION

The Canadian construction law landscape is undergoing significant reform at both the provincial and federal level. Following years of unchanged legislation, the country is adjusting its laws to reflect the realities of the construction industry. From holdbacks and surety bonds, to prompt payment and adjudication, these reforms address a broad range of issues within construction law. Although Ontario was not the first province to enact its construction reforms, the province’s ability to engage key stakeholders and develop a comprehensive update to the Construction Act (“the Act”) has made Ontario a model for other jurisdictions looking to update their construction legislation. Upon deeper inspection of the Construction Act’s success, it becomes clear that Ontario’s foresight to include stakeholders in discourse and attempt a broad-based overhaul can be attributed to the United Kingdom (“UK”). Given that the UK implemented its adjudication statute in 1998, Ontario legislators have had the advantage of borrowing heavily from their UK counterparts. As such, this paper aims to prove that by modelling the Construction Act after the UK’s long-standing adjudication framework, Ontario has benefitted from the UK’s insight while also responding to its challenges. Adjudication originated in the UK 20 years ago and since then, the UK has worked to perfect this dispute resolution mechanism. The UK was successful in outlining the duties and powers of adjudicators, the adjudication process, and its enforcement strategies. Its challenges involve ambushing, rough justice, “smash and grab” adjudication, and natural justice. Overall, Ontario’s understanding of these strengths and weaknesses in the UK adjudication regime has imbued the Construction Act with wisdom and forethought that is beyond its years.

Theory – What is Adjudication?

In the construction industry, projects are becoming increasingly complex in order to accommodate the sector’s rapid growth. This complexity has given rise to disputes between owners, contractors and subcontractors, whose typical disagreements center around payment and cash flow issues. When these disputes remain unresolved, work may cease altogether and further burden this intricate system. While litigation is an appropriate avenue for settling such matters, the price – both financially and emotionally – can be exhausting. Adjudication was pioneered in the UK as a solution to this dilemma. Since its inception 20 years ago, adjudication has proven to be a successful dispute resolution mechanism and has increased the industry’s efficiency in completing construction projects.

Adjudication is a contractual or statutory process for swift yet flexible dispute resolution.  While adjudication can take on many forms, there are some fundamental principles to the procedure. Adjudication is conducted by a qualified third-party known as the adjudicator. The adjudicator is in charge of conducting an investigation and providing a decision regarding the dispute, within a short period of time. This decision is binding on the parties to the adjudication in the interim while they await litigation or arbitration. Under the adjudication process, litigation or arbitration can only commence once the construction project is complete. This is why adjudication is referred to as a ‘pay first, argue later’ strategy; parties receive an interim adjudication decision in order to maintain cash flow, and can settle the dispute through litigation at the end of the project. If all the parties to the adjudication agree, they may also elect to make the adjudicator’s decision final and forgo further litigation. In certain jurisdictions, parties can establish their own adjudication process in their contract, permitting they abide by the minimum standards detailed in the legislation. This gives parties the flexibility of dealing with the nuances of their specific construction contract as they see fit. Therefore, adjudication can be used to resolve a variety of disputes, with jurisdictions imposing different scopes on what matters may be adjudicated. Overall, adjudication aims to provide a faster and less costly solution than litigation, while also reducing construction work and payment delays. 

United Kingdom – History of Statutory Adjudication

In the early 1990s, the UK construction industry had fallen into a dismal state. The recent recession had impacted the sector more drastically than others. Coupled with the industry’s severe dependence on wider economic stability, this collapse of construction output led to substantial payment delays. Stakeholders complained that their industry should not be used as an economic regulator and demanded government intervention.^[1] In 1994, the UK government commissioned the Latham Report which outlined proposed solutions to the fragmented adversarial system.^[2] As a result of these recommendations, the government introduced statutory adjudication in the Housing Grants, Construction and Regeneration Act 1996 (“HGCRA”).^[3]  The HGCRA received Royal Assent on July 24, 1996 however, its provisions relating to construction were brought into force jointly with The Scheme for Construction Contracts (England and Wales) Regulations 1998 (“the Scheme”) on May 1, 1998.^[4] Concurrently, an exclusion order was implemented to reduce the scope of adjudication in regards to certain statutory provisions, private finance initiative contracts, finance agreements, and development agreements.^[5] Section 108(1) of the HGCRA outlines that any party to a construction contract has “the right to refer a dispute arising under the contract for adjudication.”^[6] Parties cannot contract out of this right and it is often referred to as a ‘pay first, argue later’ mechanism because it maintains cash-flow throughout projects while providing interim resolution to disputes. The Scheme provides an alternative for construction contracts that do not meet all the adjudication requirements of section 108 of the HGCRA. In such cases, the Scheme’s own adjudication procedures are triggered as implied terms to the contract. In 2011, both acts were amended to further address procedural inefficiencies and loopholes.^[7] Ultimately, as the pioneers of interim adjudication, the UK required various statutes and continuous amendments in order to refine their framework and satisfy the realities of the construction industry.

Overtime the UK’s commitment to adjudication as an interim solution to construction disputes has paid off. In the first five years since the HGCRA’s enactment, the region experienced 15,000 adjudications.^[8] During the HGCRA’s first decade, adjudication was actively adopted with growing frequency. The statute’s success dispelled initial skepticism that the legislation would not measure up to the industry’s practical complexities, and that the supply of adjudicators would not meet the demand for it. In reality, adjudication has managed the dynamic disputes of the industry and has been “fully supported” by the judiciary.^[9] The UK’s ability to conduct timely adjudication while maintaining steady workflow on projects sites has been heralded as a tremendous solution to a global problem. Since being founded in the UK, adjudication has been adopted in numerous countries around the world such as Australia, New Zealand, Malaysia, Singapore, and Ireland.^[10] As these jurisdictions benefit from the efficiencies of adjudication, it becomes clear why Ontario would also choose to model its adjudication statutes upon those of the UK. 

Ontario – Establishing the Construction Act

Since its enactment in 1983, the Construction Lien Act has seen very few changes. Conversely, over the past 35 years, Ontario’s construction industry has persistently grown in size and complexity. Moreover, protracted industry payment cycles have persisted as a consequence of the increased intricacy of construction projects and their payment schedules. Between 2002 and 2013, the construction industry’s average collection period rose from 57.3 days to 71.1 days.^[11] The government’s decision to modernize the Act was therefore a welcomed change to address the industry’s current needs. Beginning in 2015, various consultation meetings were held with stakeholder to ascertain the pressing matters affecting Ontario’s construction industry. This research culminated in the Striking the Balance: Expert Review of Ontario’s Construction Lien Act report in 2016.^[12] 98 of the report’s 101 recommendations were then incorporated into Bill 142^[13] which ultimately resulted in the updated Construction Act.^[14]  The Construction Act codifies adjudication in addition to other matters such as prompt payment and construction trusts. The updates are being rolled out in two distinct phases. The first phase came into effect on July 1, 2018 and modernized construction lien and holdback rules while the second phase will come into force on October 1, 2019 and focuses on interim adjudication and prompt payment measures.^[15] Ontario purposefully delayed the introduction of adjudication and prompt payment to allow the industry time to engage with the material and develop an understanding of their processes. The province’s due diligence in establishing these provisions has provided the construction community with an added sense of relief; the Construction Act has been carefully adopted to pragmatically address the industry’s dynamic needs.

Throughout Ontario’s research, report, and reform process, continuous reference was made to the UK’s adjudication legislation. In establishing substantive elements of the Construction Act, Ontario made a conscious effort to review international legislation in order to anticipate the advantages and potential consequences of statutory adjudication. Given the UK’s continued success with statutory adjudication, it is understandable that Ontario would draw heavily from their experiences. This paper will now examine the parallels between the UK’s adjudication framework and Ontario’s Construction Act to illustrate how Ontario has improved upon the UK’s provisions regarding adjudicator duties, the adjudication process, and its enforcement strategies.

PART 2: COMPARING ADJUDICATION SYSTEMS OF THE UK AND ONTARIO

In developing Ontario’s adjudication scheme, legislators jointly examined the UK’s statutes and common law. Taking such a broad-based approach allowed Ontario to deliberate upon alternative execution strategies. Since Ontario did not have adjudication legislation prior to the Construction Act, the province had the daunting challenge of establishing this system from scratch. This blank slate allowed Ontario to benefit from the successful aspects of the UK’s framework while also resolving the challenges that impeded further growth in the system.

The achievements of the UK’s interim adjudication have been widely recognized. In Ten Years on: Review of Adjudication in the United Kingdom, it was noted that adjudication “has substantially reduced the workload in court” and that the “volume of construction litigation [has] clearly reduced as a result of adjudication.”^[16] The HGCRA’s implementation has therefore reduced inefficiencies for both the judiciary and the parties to construction contracts.  As Ontario looked to build upon the UK’s adjudication scheme, three distinct benefits of the HGCRA were incorporated into the Construction Act: the duties and powers of adjudicators; the structure of the adjudication procedure; and its enforcement policies. Although the UK’s accomplishments in these areas is clear, Ontario legislators concurrently adjusted the Construction Act to resolve some of the UK’s remaining challenges. The difficulties with the UK system include: ambush adjudication, rough justice, ‘smash and grab’ adjudication, and natural justice. By modelling its system after the UK’s, Ontario was able to account for both the strengths and weaknesses of the UK adjudication legislation in order to develop an act that is even more successful at managing adjudication matters. 

Duties and Powers of Adjudicators

Properly outlining the duties and powers of adjudicators is fundamental to establishing a comprehensive adjudication framework. In order for the parties to a construction contract to have faith in the interim adjudication process, they must understand the adjudicator as being impartial, and the decision as binding until the dispute concludes through litigation, arbitration, or agreement. Conversely, barring any issues of bad faith, adjudicators need immunity from liability in order to appropriately exercise their adjudicatory functions.[^17] Balancing these competing interests can be complex, however, because Ontario assessed the UK’s approach, the province was able to not only incorporate the UK’s provisions on adjudicator duties but also, enhance them. Section 108(2) of the HGCRA^[18] outlines adjudicators’ duties and powers by explaining that: an adjudicator must reach a decision within 28 days of referral, or longer if the parties agree; enable the adjudicator to extend this 28-day time period by 14 days with the permission of the parties to the adjudication; and, an adjudicator must act impartially and take the initiative to ascertain the facts and the law. Ontario’s Construction Act has adopted all of these provisions with the minor adjustment of extending the 28-day timeline to 30 days.^[19] The Construction Act further addresses adjudicators’ conduct in section 13.12 by adding that adjudicators can exercises the following powers: issue directions with respect to the conduct of adjudication; draw inferences based on parties’ conduct; potential ability to conduct on-site inspections; get assistance of experts to ascertain matters of fact; and, conduct the adjudication as they see fit.^[20] Ontario legislators also saw the advantage in giving adjudicators immunity from liability, as is the case in the UK. Section 13.21 of the Act states that no action will be commenced against an adjudicator for any act done in good faith.^[21] These provisions clearly outline the scope of adjudicators’ roles in order to ensure that adjudications are conducted responsibly and with all relevant information on hand. Overall, the province has chosen to mirror most of the UK’s provisions in regards to adjudicator powers. Ontario examined the UK’s success in outlining these duties and emulated them within the Construction Act to fortify the province’s own adjudication system.

Having ascertained the role of adjudicators, it becomes pertinent to determine who can adjudicate a dispute within the construction law context. In this regard, Ontario has significantly improved upon the UK’s approach. When the UK’s adjudication system was founded, the jurisdiction established a roster of adjudicators. This roster was composed of adjudicators from construction-related backgrounds, such as quantity surveyors, engineers, architects, and lawyers, with the majority having transitioned over from arbitration roles. As explained in Carillion Construction Ltd v Devonport Royal Dockyard Ltd, adjudicators are not selected for their legal expertise, but rather, their “skills are likely (if not more likely) to lie in other disciplines.”^[22] This technical proficiency enables adjudicators to make knowledgeable decisions on highly specified matters within the time constraints of adjudication. Once the initial roster of adjudicators was established, Adjudicator Nominating Bodies (“ANBs”) oversaw the training of prospective adjudicators. Once training was completed, these individuals were added to their specific ANB’s roster.^[23]  Beyond this training requirement, the UK does not prescribe any other conditions to becoming an adjudicator.

In contrast, other jurisdictions that have enacted adjudication legislation have codified multiple requirements for becoming an adjudicator. These qualifications include training certifications, professional qualifications, and years of experience.^[24] As such, when structuring Ontario’s statutory adjudication, the province was inclined to clarify the process by incorporating distinct criteria in hiring adjudicators. Section 3 of O. Reg. 306/18 states that in order to be an adjudicator in Ontario, the individual must: have at least 10 years of relevant experience in the construction industry; successfully complete the relevant training programs; not be bankrupt; not have been convicted of an indictable offence in Canada or a comparable offence outside of Canada; pay fees for training and qualification as an adjudicator; and agree in writing to abide by section 4 of this Regulation.^[25] Since adjudication was new to Ontario, the province recognized the value in the UK’s early approach of compiling an initial pool of qualified adjudicators. Ontario decided to adopt a similar roster program, after which the nominating body would be able to train more adjudicators to meet Ontario’s adjudication requirements. Mirroring the UK’s strategy of who can adjudicate a dispute has been vital to Ontario’s realization of the Construction Act however, the province has taken a markedly different approach to its nominating body.

While Ontario modelled its nominating body off that of the UK, the province aimed to mitigate the UK’s inconsistencies with quality and standardization. The UK has over 20 ANBs which each have their own roster of adjudicators. These ANBs vary both in sizes and management which may seem unconventional, however this variety allows nominating bodies to be flexible enough to receive funding from the private sector.^[26] Although private funding may appear to have negative policy implications with respect to adverse private sector influence on the adjudication system, such concerns have not been raised in the UK. Coupling this variety in ANBs with the UK’s lack of explicit requirements for its adjudicators, resulted in issues of quality and standardization within the system. In order to avoid these difficulties, Ontario has elected to only have one such body: the Authorized Naming Authority (“ANA”).^[27] By having a single authority entity, Ontario hopes to uniformly train adjudicators in order to eliminate concerns of real or perceived procedural fairness. Under section 2 of O. Reg. 306/18, the Minister has the right to designate other ANAs as well. ^[28] In doing so, the province has given itself the flexibility of incorporating more ANAs in the future, if the need arises. By defining the ANA in this manner, the province is taking the best of the UK’s adjudication framework while filling in the gaps and therefore, developing a more comprehensive and practical adjudication legislation.

Ontario further examined the UK’s approach to how it nominates its adjudicators, and applied a narrower strategy in the Construction Act. In the UK, adjudicators can be nominated in a variety of ways. The appointment could be made prior to the construction contract, or during the project but prior to the dispute arising. The appointment could also develop from a dispute arising by agreement. Finally, a party to the construction contract may unilaterally appoint an adjudicator by referring the dispute to an adjudicator nominated by an ANB.^[29] Ontario legislators decided that appointing an adjudicator when the dispute actually commences is more appropriate and efficient. Nominating an adjudicator at the beginning of a dispute enables the parties to find an adjudicator who is not only capable of addressing the specific dispute issues but also, available to oversee the matter as quickly as possible. Had the parties agreed on an adjudicator in their construction contract, there would be no guarantees that the adjudicator would be well-equipped or available to oversee the adjudication when the need arose. Dealing with the nomination once the parties actually require the service allows for the dispute resolution mechanism to proceed more smoothly and efficiently. Section 2(2) of the Scheme^[30] outlines that an adjudicator has two days to respond to a party’s request for adjudication, and section 5(1)^[31] states that the ANB has five days, from the date of receiving the request, to notify the referring party of their adjudicator. Ontario’s Construction Act states that adjudicators have four days to respond to a party’s request for adjudication^[32] and the ANA has seven days, from the date of receiving the request, to appoint an adjudicator.^[33] Therefore, Ontario’s nomination framework maintains significant parallels to that of the UK, while increasing the timeframe for nominating an adjudicator.

This timeline extension was likely determined through a thorough analysis of the province’s adjudicatory resources and its adjudication demand. Given that Ontario is only implementing a single ANA, it will be important to manage everyone’s expectations, especially in the initial years. If the construction community sees that the ANA and adjudicators are falling behind on their deadlines, this will give the impression that these timelines are not definitive or serious. Such negative impressions would be detrimental to the establishment of the adjudication system and thus, the enactment of conservative timeframes can be seen as a strategic move by Ontario legislators to mitigate future difficulties. With respect to adjudicator appointments, Ontario has therefore drawn heavily from their UK counterparts while also implementing added safety measures to address the province’s own circumstances.

One of the greatest challenges facing the UK’s adjudication procedure is ‘ambush’ adjudication. ‘Ambush’ adjudication refers to the idea that a party to a construction contract may wait a significantly long time and prepare its case before commencing the adjudication process. In doing so, this party would be ambushing the other party to the contract and leaving them with very little time to respond appropriately. Originally, there were many successful appeals of adjudicators’ decisions with regards to ambush.^[34] Today however, the right of parties to commence a dispute “at any time”^[35] overrides the detrimental impacts of ambushing. While English courts have recognized the disadvantage that ambushing can place on opposing parties, the need for adjudication remains the primary objective. In London & Amsterdam Properties Ltd v Waterman Partnership Ltd, the Technology and Construction Court (“TCC”) explained its stance on ambushing. The TCC held that “mere ambush however unattractive does not necessarily amount to procedural unfairness.”^[36] In Bovis Lend Lease Ltd v The Trustees of the London Clinic, the TCC stated that in the case of an ambush “an adjudicator can in effect decline to accept the appointment on the grounds that justice cannot be done” or can declare to the parties to the adjudication that “unless you agree to an extension of time I will not be able to produce my decision within 28 days.”^[37] In reality, although such recourse is available to UK adjudicators, case law has shown that adjudicators are hesitant or unlikely to adopt such hard line measures. This hesitance is due to the fact that it is difficult for UK adjudicators to ascertain if the party is indeed ambushing the other, or if the party was simply delayed in bringing forth the dispute. Once again, since parties may bring forth a dispute at any time, adjudicators are cautious of usurping this right.

The UK’s harsh system has thus led commentators to refer to the adjudication scheme as “unrestricted warfare.”^[38] In light of such criticisms, Ontario has chosen to limit the rights of adjudication to disputes which are likely to delay payment. Section 13.5(1) of the Construction Act outlines that a party may only refer a dispute to adjudication if it falls under the following matters: the valuation of services or materials provided under the contract; payment under the contract; disputes that are subject of a notice of non-payment; amounts retained for set-off; non-payment of holdback; or any other matter that the parties to the adjudication agree to.^[39] This narrow scope mirrors the adjudication method in Hong Kong where improving payment practices and reducing payment disputes are held as the primary objectives.^[40] Limiting what disputes can be adjudicated not only focuses adjudicatory efforts on improving payment cycles, but also reduces the likelihood of ambush. Since payment matters are time sensitive, parties will not be able to bring forward a dispute at any time, like in the UK. Rather, they will have to act within the payment’s timeframe, or shortly thereafter, to settle the dispute and receive payment. Therefore, Ontario is able to maintain its scope while avoiding the perils of ambush and as such, has overcome significant challenges of the UK scheme.

The Adjudication Process

As the pioneers of the adjudication process, the UK has offered Ontario substantial insight into the advantages and disadvantages of its procedures. To initiate adjudication in the UK, the referring party must provide a notice of adjudication to every other party to the contract. The Scheme states that “any party to a construction contract may give written notice of his intention to refer any dispute arising under the contract, to adjudication.”^[41] This notice of adjudication must contain: the nature and a brief description of the dispute and the parties involved; details of when and where the dispute arose; the nature of the redress being sought; and the names and addresses of the parties to the contract.^[42] The Construction Act’s provisions on notice of adjudication are almost identical. The only difference is that the Construction Act requires that the notice of adjudication contain the name of a proposed adjudicator to conduct the adjudication.^[43] This modification is logical considering that Ontario decided to only permit adjudicator appointments once a dispute has begun (whereas the UK permits adjudicator appointments prior to the dispute arising).

Since the UK has multiple avenues through which to nominate an adjudicator, these options are separately considered after the notice of adjudication has been delivered. In the UK, once the notice of adjudication is delivered, a referral notice must be submitted to the adjudicator to indicate that they have been selected to manage the adjudication.^[44] In Ontario, the referral notice is comprised of the notice of adjudication, the contract between the parties, and any documents the parties intend to rely on during the adjudication. These documents must be delivered to the adjudicator by the referring party within five days of the adjudicator agreeing to oversee the dispute.^[45] Parties to a contract can also establish their own adjudication procedures within their construction contract, however, both the Scheme and the Construction Act state that if these procedures do not comply with legislative requirements, the dispute will be conducted according to the respective legislation. These parties must therefore be cautious and explicitly outline their dispute resolution procedures if they wish to deviate from the statutory adjudication framework. Ultimately, unless there are specific issues to a construction contract, parties will be best protected by using the standard legislative adjudication process. Regardless of which adjudication procedures parties employ, the process must begin with a notice of adjudication and a referral notice. These documents provide all concerned parties with the clarity of understanding that an adjudication will commence shortly and as such, is a pragmatic first-step in both the UK and Ontario adjudication processes.

Ontario has also chosen to model its adjudication consolidation provisions on those of the UK. Typically in adjudication, a single dispute is resolved through the guidance of an adjudicator who specializes in that area. Construction conflicts however, can be convoluted and touch upon multiple matters at once. It therefore becomes crucial for legislators to establish contingencies for these intricate disputes. The HGCRA refers to disputes in the singular form throughout section 108. Therefore, on a plain reading of the provision, only a single dispute can be addressed during an adjudication. ^[46] In Fastrack Contractors Ltd v Morrison Construction Ltd, the TCC defined ‘dispute’ as “whatever claims, heads of claim, issues, contentions or causes of action […] are then in dispute which the referring party has chosen to crystallise into an adjudication reference.”^[47] The court further stated that if multiple disputes are being referred, they must be subject to separate references. Upon evaluation of these references, the relevant ANB would determine whether the same adjudicator could conduct all the adjudications, or if different adjudicators would be required.^[48] Section 8 of the Scheme stipulates that if all the parties to the dispute consent, the adjudicator may combine disputes.^[49] In Pring & St Hill Ltd v Hafner (t/a Southern Erectors), an adjudicator was assigned to two separate adjudications between parties to a contract, and refused to resign even though the parties objected. ^[50] The court declined to enforce the adjudicator’s decision, stating that there was a “real risk” that the adjudicator could have carried forward his feelings from the first adjudication over to the next.^[51] The UK has thus held firm in its definition of what disputes can be adjudicated and who may oversee them. The advantage of such definitive legislation and supporting case law is evident: future parties to a dispute will have clear guidelines of how to commence an adjudication.

Ontario has witnessed the benefit of this legislation and decided to use the singular form of ‘dispute’ throughout the Construction Act. The Act also includes the right of parties to consolidate adjudications. Similar to section 8 of the Scheme, the Construction Act states that “the parties to each of the adjudications may agree to the adjudication of the disputes together by a single adjudicator as a consolidated adjudication.”^[52] As with the Scheme’s provision, the Construction Act requires that all parties to the adjudication consent to combining disputes. Different from the UK’s framework however, section 13.8(2) of the Construction Act states that if the parties do not agree to combine disputes, the contractor may nevertheless require this consolidation.^[53] This is a clever addition from Ontario legislators who recognize the unequal bargaining powers between owners and contractors of construction projects. While an owner may have the financial resources to manage multiple adjudications, a contractor may not. This inequality is therefore taken into consideration when determining if disputes can be consolidated. In the end, each adjudication should ideally evaluate a single dispute. The realities of the construction industry however, do not always lend themselves to these rules and as such, consolidation of disputes is available. By evaluating the UK’s legislation and case law, Ontario was able to benefit from their well-defined provisions on these matters while also accounting for imbalances in bargaining power.

While adjudication reduces work and payment delays for the construction industry, the mechanism does not come without its own procedural challenges. Adjudication has been criticized for being ‘rough justice’ and leading to unfair outcomes. Ontario legislators have evaluated the UK’s attempt to grapple with rough justice and have opted not to address the issue in the Construction Act. Rough justice represents the idea that because adjudication is more condensed than a full trial, justice is not always as “pure” or as well-prepared for as with cases that proceed to litigation.^[54] In these tight timelines, adjudicators “may have to make a ‘rough and ready’ decision – on matters of considerable legal or factual complexity – which may lead to injustice.”^[55] In light of such effects, UK courts have been steadfast in prioritizing the overall adjudication process over a party’s unfavourable interim verdict. The result for affected parties is that adjudicator decisions are exceedingly difficult to set aside. English courts refuse to correct errors of fact or law in adjudication matters. If the adjudicator has addressed the proper issue in the wrong way, the court will not intercede in his decision; decisions will only be set aside if the adjudicator answered the wrong issue.^[56] Therefore, the victims of rough justice are left with few remedies and must hope that litigation or arbitration proceedings, upon the completion of the project, overturn the adjudicator’s decision. The Construction Act similarly states that adjudication decisions are binding until a final determination by a court or arbitrator.^[57] Similar to the UK, losing parties in Ontario will have to wait until the project is complete to commence an action to set aside the adjudicator’s decision. The province’s choice to forgo additional measures is due to the fact that injured parties can recoup their losses through subsequent litigation or arbitration; if the mistake is one of issue, the court will catch the error and remedy the party at this later stage. Ontario has chosen to maintain the UK’s ‘pay first, argue later’ philosophy and leave issues of rough justice unresolved, potentially to give courts a chance to address these challenges on a case-by-case basis. 

The UK’s adjudication procedure faces the added challenge of ‘smash and grab’ adjudication. Since Ontario’s interim adjudication legislation is modelled off the UK’s regime, Ontario courts will have to be prudent in addressing issues of ‘smash and grab’ adjudication. ‘Smash and grab’ adjudication arises when a payer does not give the payee a notice of non-payment or a pay less notice when the payer is unable to fulfill its payment obligations. If notice is not provided to the payee within the prescribed time, and the payment is not made in full by the deadline, the payee may commence an adjudication to recover this sum. The payee states this sum in the notice of adjudication and does not need to provide supporting documentation to confirm that the amount is correct. In these cases, if the amount is incorrect, the payer does not have a defence because they did not fulfill their payments in the first place which forced the court to intervene. As such, the payer is obliged to pay the notified sum dictated by the payee; regardless of whether the amount is factually correct, the payer cannot argue it any further. The payer cannot commence a secondary adjudication on the issue because the HGCRA and the Scheme do not include such protocols. Once the adjudicator has made their determination, the matter can only be changed in litigation or arbitration at the end of the construction project.

As such, ‘smash and grab’ adjudication has plagued the UK construction industry and resulted in further litigation or arbitration to correct any such errors. After years of inaction by legislators and the TCC, the case of Grove Developments Ltd v S&T (UK) Ltd has shed new light on the matter. In this case, Justice Coulson held that the payer was entitled to a separate adjudication to determine the “true value” of the adjudication sum outlined by the payee.^[58] Breaking from the previous line of judgments, Justice Coulson showed an intolerance for ‘smash and grab’ adjudication and parties who try to abuse the law. While this decision may be perceived as a disadvantage to contractors, or payees, Justice Coulson reassured them that there is no threat to cash-flow as the payee will still receive the sum through adjudication.^[59] The only cause for concern is to those who have attempted to misuse this system to their advantage because the awarded sum can be reduced through secondary adjudication. Ultimately, it will be important to see the decisions in future ‘smash and grab’ adjudication cases and whether they follow the reasoning in Grove Developments. Given that Ontario’s notice of non-payment provisions mirror those of the UK, the province must be cautious in addressing issues of ‘smash and grab’ adjudication. Since Canadian courts generally rely on English cases as persuasive precedent, the application of these matters in both UK and Ontario courts will be crucial to monitor in order to determine whether ‘smash and grab’ adjudication can be eradicated.

Enforcement of Adjudication Decisions

In addition to borrowing heavily from the UK’s provisions on adjudicator responsibilities and the adjudication procedure, Ontario has also followed the UK’s enforcement strategy. To ensure optimal efficiency and trust in the adjudication process, parties to construction contracts must view adjudicators’ decisions as binding and enforceable. Section 23(2) of the Scheme provides that adjudicator determinations are binding on the parties to the dispute.^[60] These parties must comply with the decision until the dispute is settled through litigation, arbitration, or agreement. Successful enforcement of these decisions is vital to maintaining the public’s faith in the adjudication process. In the UK, local courts are enlisted to enforce these decisions on an interim basis.^[61] Furthermore, the TCC outlined its own enforcement proceedings in The Technical and Construction Court Guide. By filing a claim form, application notice and accompanying documents, parties can seek relief through the TCC’s enforcement procedure.^[62] Once a TCC judge provides the relevant parties with a direction, the hearing begins within 28 days. As such, the TCC’s hearings aim to resolve enforcement dilemmas promptly in order to remedy the parties to the dispute. Generally, judges “respect and enforce the adjudicator’s decision unless it is plain that the question referred to him or the manner in which he has gone about his task is obviously unfair.”^[63] This high threshold gives parties minimal margin for overturning adjudicator decisions and deters parties from flagrantly disobeying determinations.

Ontario has proceeded accordingly with its enforcement legislation.  Section 13.15 of the Construction Act provides that adjudicator decisions are binding in the interim.^[64] Rather than waiting for Ontario courts to implement their own enforcement strategy however, the Construction Act includes an additional section explaining when payment is due. Section 13.19(1) of the Act states that a party who must make payment under an adjudicator’s decision must “pay the amount no later than 10 days after the determination has been communicated to the parties to the adjudication.”^[65] The provision’s explicit wording makes it easy for courts to hold a party accountable for violating enforcement procedures. The Act has improved upon the UK’s enforcement legislation by further implementing provisions that allow the unpaid party to receive interest on late payments^[66] and to suspend further work under the contract until payment is received.^[67] If an amount payable is still outstanding, the unpaid party may file the adjudicator’s decision with the court, thus making the determination enforceable “as if it were an order of the court.”^[68]  This provision is intended to further dissuade violations of adjudicators’ determinations by increasing the decisions’ judicial strength and thus, their consequences for inaction. Ontario’s enforcement provisions are therefore more stringent than those of the UK and are meant to deter payment delays. Ontario’s strict enforcement strategy ultimately serves to enhance the efficiency of adjudication as a binding dispute resolution mechanism. Ultimately, it is reassuring to know that the province has seriously considered different remedies for unpaid parties and provided them with effective legal recourse.

In the past, UK enforcement measures have been impeded by parties contending that their adjudicators failed to comply with natural justice requirements. Natural justice is therefore an issue that Ontario must consider when operating its enforcement strategy. Natural justice imposes two requirements on the adjudication process: parties have the right to be heard by an impartial tribunal and the right to a fair hearing.^[69] These criteria ensure that the dispute is conducted without bias or apparent bias, and give parties the right to bring their arguments forward. This duty to act fairly has long existed in the UK’s judicial system and was adopted into the adjudication framework upon its enactment. Section 12(a) of the Scheme outlines that adjudicators must act impartially in carrying out their duties.^[70] Typically, courts do not find breaches of natural justice in adjudication cases, however, the UK has seen successful challenges to adjudicator decisions where the adjudicator: communicated separately with parties; failed to consult with the parties; formed a preliminary view on issues in the dispute prior to hearing the evidence; and, used their knowledge and experience to make a decision not based on the evidence presented.^[71]

Ontario tackles this issue by explicitly stating the causes for which a determination may be set aside. An adjudicator’s decision may only be set aside by judicial review if: the applicant was under legal incapacity; the contract or subcontract was invalid and ceased to exist; the dispute was not subject to adjudication; the adjudication was conducted by someone other than the adjudicator; the determination was made as a matter of fraud; the procedures followed in the adjudication did not comply with the legislation, and this failure to comply inhibited the party’s right to a fair adjudication; and, there is reasonable apprehension of bias of the adjudicator.^[72] Only these matters give parties the right to appeal an adjudicator’s decision and set it aside. The last two options outline issues of natural justice to ensure that parties receive unbiased and fair hearings. Therefore, Ontario attempts to mitigate any enforcement issues by stating what issues are worth appealing, and details the repercussions parties may face for violating adjudicator determinations. While this area of jurisprudence is still developing, it will be interesting to see Ontario courts’ positions on future cases. A balance must be found between ensuring parties’ rights to natural justice while maintaining an enforcement strategy that cannot be circumnavigated or abused by parties. By enacting a single ANA, Ontario is uniformly training its adjudicators to avoid such concerns. Furthermore, the province’s robust adjudication legislation equips both the parties to the dispute and the adjudicator with a clear understanding of their roles and responsibilities throughout the adjudication process. As such, it is likely that the province will be better prepared to manage breach of natural justice claims, and thus uphold the enforcement scheme. Therefore, Ontario legislators’ evaluation of the UK approach has given the Construction Act a clear and detailed enforcement structure while also resolving the UK's remaining challenges.

PART 3: CONCLUSION

In conclusion, by modelling the Construction Act after the United Kingdom’s long-standing adjudication framework, Ontario has benefitted from the UK’s insight while also responding to its challenges. The province emulated the UK’s strength in defining adjudicators’ roles and responsibilities, the adjudication process, and its enforcement strategies. Although these advantages formed the foundation of the Construction Act, Ontario’s ability to resolve significant issues in the UK adjudication framework has led to the Act’s success. These challenges include ambushing, rough justice, ‘smash and grab’ adjudication and breaches in natural justice. The province evaluated the UK’s strategies to these problems and developed a robust framework for mitigating their impact on the adjudication process. Overall, Ontario has greatly benefitted from the UK’s 20 years of experience in construction adjudication. With Ontario’s adjudication legislation coming into force on October 1, 2019, it will be fascinating to see how this framework affects the construction industry. By mirroring the UK adjudication system and engaging with key industry stakeholder’s, the province has developed a comprehensive framework that is anticipated to significantly improve work and payment delays. Since its announcement, the Construction Act has brought excitement to the Ontario construction industry. After 35 years of stagnant construction legislation, the Construction Act will breathe new air into a growing and dynamic industry. With the implementation of statutory adjudication, Ontario is meeting the demands of its construction industry and pre-emptively solving the challenges of the UK to ensure optimal performance.

Looking Forward

Although Ontario was not the first province to update its construction legislation, it has now become the model for other provinces looking to enact interim adjudication regimes.  Ontario’s due diligence in establishing its statutory adjudication framework has not gone unnoticed. Other provinces are hoping to capitalize on Ontario’s forethought and also benefit from its robust legislation. Rather than attempt to envision a new adjudication scheme, these provinces can simply adjust Ontario’s adjudication provisions to suit their own unique needs. Since Ontario has already incorporated the strengths of the UK approach and resolved many of its challenges, the Construction Act is prepared to manage the industry’s dynamic and complex needs. As more countries look to implement adjudication as a dispute resolution mechanism, it is likely that Ontario will become a global model as well. Having built upon the UK adjudication framework gives Ontario a unique advantage that many nations will be interested in employing. Understanding why Ontario included certain provisions of the UK system and chose to adjust others, is extremely useful insight for these other jurisdictions looking to follow suit. Ultimately, the province’s continued success as a model for future adjudication legislation will become clear once the adjudication provisions come into force; statutory adjudication’s success at reducing dispute and payment delays in Ontario’s construction industry will ensure that the province’s accomplishments are applied elsewhere. Evaluating Ontario’s adjudication legislation is therefore crucial to understanding its importance. As Ontario improves upon the UK adjudication framework, it is not only providing a benefit to Ontario’s construction community but also, establishing a new adjudication benchmark for other jurisdictions.

BIBLIOGRAPHY

LEGISLATION

Construction Act, RSO 1990, c C 30.

Housing Grants, Construction and Regeneration Act 1996, RSUK 1996, c 53.

O Reg 306/18.

The Scheme for Construction Contracts (England and Wales) Regulations 1998, RSUK 1998, No. 649.

JURISPRUDENCE

Bouygues UK Ltd v Dahl-Jensen UK Ltd (2000), GBR [2001] C.L.C. 927, [2000] 7 WLUK 948.

Bovis Lend Lease Ltd v London Clinic (Trustees of), GBR [2009] EWHC 64 (TCC), 2009 WL 6544.

Carillion Construction Ltd v Devonport Royal Dockyard Ltd, GBR [2005] EWCA Civ 1358, Jackson J (UK).

Connex South Eastern Ltd v MJ Building Services Group Plc, GBR [2004] EWHC 1518 (TCC), 2004 WL 1372514.

Fastrack Contractors Ltd v Morrison Construction Ltd, GBR [2000] B.L.R. 168, [2000] 1 WLUK 44.

Grove Developments Ltd v S&T (UK) Limited, GBR [2018] EWHC 123 (TCC), 2018 WL 01056062.

London & Amsterdam Properties Ltd v Waterman Partnership Ltd, GBR [2003] EWHC 3059 (TCC), 2003 WL 23014713.

Pring & St Hill Ltd v Hafner (t/a Southern Erectors), GBR [2002] EWHC 1775 (TCC), 2002 WL 32067891.

SECONDARY MATERIAL

“Adjudication Coming to a Construction Project Near You – Lessons Learned from the English Experience” (20 December 2017), Gowling WLG, online: <https://gowlingwlg.com/en/insights-resources/articles/2017/adjudication-lessons-from-the-english-experience/>.

Adjudication Society & Chartered Institute of Arbitrators. “Guidance Note: The Scheme for Construction Contracts” (April 2013), online: <https://www.adjudication.org/sites/default/files/4125-1157-1200%20v%206,%20The%20Scheme%20Guidance%20Note.pdf>.

Cannon, Steven. “Statutory Adjudication” Eversheds LLP, online: <https://www.eversheds-sutherland.com/documents/services/construction/04020%20-%20Construction%20Article%20-%20December_V7.pdf>.

Gould, Nicholas. “Adjudication and ADR: An Overview” (20 February 2007), Fenwick Elliott, online: <https://www.fenwickelliott.com/sites/default/files/nick_gould_-_adjudication_and_adr_-_an_overview_matrics_paper.indd_.pdf>.       

Latham, Michael. Constructing the Team, (1994) online: <http://constructingexcellence.org.uk/wp-content/uploads/2014/10/Constructing-the-team-The-Latham-Report.pdf>.

Lee, Andrea & Lena Wang. “Liening under the new Construction Act”, Glaholt LLP (Spring 2018) online: <https://www.glaholt.com/files/spring_2018_issue_3.pdf>.

Reynolds, Bruce & Sharon Vogel. “Overview Briefing: ‘Striking the Balance’” (1 September 2016), online: <https://www.oswca.org/uploads/1-construction-lien-act-powerpoint-summary-of-key-items.pdf>.

Reynolds, Bruce & Sharon Vogel. “Striking the Balance: Expert Review of Ontario’s Construction Lien Act” (30 April 2016), online: <http://www.constructionlienactreview.com/wp-content/uploads/2015/07/Striking-the-Balance-Expert-Review-of-Ontarios-Construction-Lien-Act.pdf>.

Russell, Victoria. “Adjudication and its Development in the United Kingdom” (11 September 2003), Fenwick Elliott, online: <https://www.fenwickelliott.com/sites/default/files/Adjudication%203%20-%20Adjudication%20and%20Its%20Development%20in%20the%20UK.pdf>.

“Sharon Vogel” Singleton Reynolds, online: <https://www.singleton.com/people/sharon-vogel/>.

“The Technology and Construction Court Guide” (3 March 2014), HM Courts & Tribunal Service, online: <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/448256/technology-and-construction-court-guide.pdf>.

Endnotes