REUTERS | /Hyungwon Kang

Training adjudicators in Canada

It is almost four years to the day that I blogged about Ontario’s plans to introduce prompt payment and adjudication provisions to construction contracts.

I can’t believe how time flies and that, not only did Ontario enact its Construction Lien Amendment Act (which amended the Construction Lien Act and introduced new prompt payment rules and adjudication to resolve payment disputes “faster”), I’m now in the middle of teaching an adjudication training programme to budding Canadian adjudicators.

Interested? Then read on to find out more.

Adjudication in Canada

It is fair to say that adjudication is coming to (or should that be going to?) Canada and that it has already arrived in Ontario. Although I don’t know all of the details, I know it looks likely that, eventually, it will be introduced across all provinces and at the federal level.

Consequently, the ADR Institute of Canada (ADRIC) and its provincial affiliates have been working with RICS on a Model Framework and training programme to “set the standard” and to try and avoid Canada having a fragmented approach to adjudication, which:

“… would be to the detriment of the adjudication mechanism itself, the parties seeking relief via adjudication, and the construction industry.”

The idea is to develop a:

“… comprehensive framework for construction adjudication based on a consistent level of construction adjudicator training, and a consistent approach, within the parameters of provincial and federal legislation, to panel creation, appointments and quality assurance.”

As I said at the start, I’m currently involved in helping deliver the first training programme. We started last week with module 1, have module 2 this week and module 3 starts next week. By the end of July, those signed up for all three modules will have spent 49 hours on training and taken two exams.

As you might imagine, I’m basically sharing my experiences from more than 20 years of adjudicating here in the UK and, more recently, in Ireland. One of my key messages is that the skillsets required to conduct adjudications are common across the differing legislations. Think of it like adjudications conducted in the UK under different rules, whether that is the Scheme for Construction Contracts 1998 or one of the others, like TeCSA or NEC. You need to know the nuances of each set of rules but the adjudicator’s job is pretty much the same – to decide the dispute and make a decision.

Adjudication training programme

Each module has been designed for a slightly different audience, to ensure that all those involved in construction and might get involved in adjudication can get something out of the programme. For example:

  • Module 1 provides a crash-course in understanding how adjudication works and is designed for everyone – those working in construction firms, property developers, lawyers, quantity surveyors, architects, engineers, project managers and “anyone who would benefit from a clear understanding of adjudication”.  Looking at the topics we covered over the day, you could say there was a lot of information to convey and a lot to take in. It was like trying to condense Sir Peter’s book into a few hours.
  • Module 2 provides participants with a two-day intensive look at the procedure and law of adjudication. It is designed for party representatives and advocates and “legal and built environment professionals”. In other words, it is for those who would benefit from knowing more so they can better advise their clients, so they can explain what the process is and advise on whether the matter is appropriate for adjudication, what the next steps are and how to go about dealing with a notice, complying with the adjudicator’s directions and preparing submissions. We also look at hearings with the adjudicator and what to do once you’ve got the adjudicator’s decision.
  • Module 3 is really for those who want to practice as an adjudicator and is being delivered over a number of weeks, with time for people to prepare, take two exams and take part in a decision-writing exercise. The focus is entirely on the law and decision writing. Someone taking part will not qualify as an ADRIC-RICS adjudicator (there are other courses to complete), but they will be on their way to obtaining the relevant designation.

I think this training programme is a great idea and I hope it is a success. I particularly like the fact that it has been structured so that someone who just wants to know a bit about adjudication can stop after module 1 or 2, but if they want to practice as an adjudicator, they have to go through and pass module 3.

Ensuring there is something for everyone means everyone can get up to speed on what might be a totally new way of resolving disputes for them. With hindsight, it would have been great to have had something like this when I started. However, when I first started adjudicating everyone was in the same boat, testing the limits of what they could or couldn’t do within the confines of the process and creating a wealth of case law along the way. We didn’t have the advantage of being able to consider what had been happening elsewhere and decide which bits worked well and we would like to adopt, and which bits should be left well alone. We just had to suck it and see!

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