On-Demand Seminar: Bill 142 – Adjudication (Video)

About this seminar Louis-Pierre Grégoire, partner in Gowling WLG's Ottawa office, provides an in depth summary of adjudication including how it works, comparison to the UK's model and its limitations.

Video Full transcript Louis-Pierre Grégoire

Good morning everyone. I'm going to take a stab at that question about where you have, possibly, your subcontracts are going to be entered into after the Act comes into force and you have the general contractor signing the prime contract before. What do you do in that situation? I come from the different perspective from Ted where as I'm a litigator at heart. I get in the trenches and try to solve problems like that when they arise. My first reflex there is to go look at the actual language that was used in the Act and they use the language "entered into". When the contract was entered into. So, what does that mean? As a litigator I'm going to get creative and I'm going to suggest, well, what does the contract say? Most contracts are very careful to say, "This contract was entered into on this day". As opposed to when the contract was signed. When the contract was signed can become problematic when you have party A signing it on the first of June and the Act comes into force on the second of June and then party B signs it on the third of June. What do you do, right? I think as a prudent practice there, for your contracts, would be just to set out at the beginning this contract was entered into on this date. I think, prudently, you'd go with the date of the RFP, how it was structured and so on so forth and you'll have the prime contract entered into the date before the Act comes into force. Then I think by then on a tendered process most of your subs will be locked in or you will have had some discussions with them before that process came into place. It will be fair to say that those contracts with the sub you can say they were entered into before the Act came into force. That's my creative spin on this as a litigator and until we see the regulations, because there might be some added information in the regulations that deals with this, that's my suggestion for you on that. Very good question. Thank you.

I'm a partner in the Gowling WLG office. I'm also a civil engineer by training so I have a, I like to say, that I have a particular way of looking at problems and I spend most of my days solving what I call complex problems that straddle the construction world and the legal world. I practice in both languages, in French and in English and I act for pretty much everybody in the construction pyramid. From contractors, subcontractors, trades, owners, developers, insurance companies, engineers and architects. So today my topic is adjudication and that's something that's been near and dear to my heart for almost 10 years now. I heard that there was this model, a different way of doing construction litigation in the UK, and 10 years ago I just said, "Oh wow. This is a great model." and I just happened to have a project that would lend itself to that type of resolution. I tried it. I was able to convince my opposing counsel and we customized the UK adjudication for our particular project. It worked really well and we've been replicating it ever since. I can say, practically speaking, it works. And now it's going to be legislated and it's going to be mandatory in Ontario.

So, what is adjudication? Bottom line is that it is a new mechanism that's going to, or is designed to, free up cash flow and resources on a project. It's going to empower that cash flow and hopefully productivity on construction projects. The effect is going to be swift resolution and the dates that have been proposed, or the timelines that have been proposed so far, they're not in the Act per say, they'll hopefully appear in the regulations, provides for very, very tight timelines within which to adjudicate or...