Construction Dispute Adjudication Update

Some time ago, the government of Ontario announced that ADR Chambers was selected to serve as the Authorized Nominating Authority (ANA) under the Construction Act. The Act states that the role of the ANA is to:

“(a) develop and oversee programs for the training of persons as adjudicators;

(b) qualify persons who meet the prescribed requirements as adjudicators;

(c) establish and maintain a publicly available registry of adjudicators;

(d) appoint adjudicators for the purposes of subsection 13.9 (5); and

(e) perform any other duties of the Authority set out in this Part or that may be prescribed for the purposes of this Part. 2017, c. 24, s. 11 (1).”

ADR Chambers, a highly respected organization whose website states that it is “the world’s dispute resolution leader” that has “administered over 55,000 mediations and arbitrations over the last seven years” that is “not only the biggest – also the best” and that has “Canada’s top mediators and arbitrators” has formed an organization called the Ontario Dispute Adjudication for Construction Contracts (ODACC) to serve as the ANA. 

Although we understand that more than 80 people have taken the prescribed adjudicator training, today ODACC’s website only lists 16 adjudicators.  They are described as lawyers, lawyer/arbitrator, engineer, quantity surveyor. Their hourly rates range from $250 to $750 of which ODACC will take 40% or 50% depending upon the size of the dispute.  Among the names listed is Matt Ainley, well known to many in construction association circles, retired executive from Van Bots and Bird, former OGCA chair and current chair of the national GC’s organization. We expect the list to grow quickly as disputes begin to come to the fore in 2020. 

For the list of adjudicators, click on the following link   https://odacc.ca/en/adjudicator-registry/

 

Congratulations to Prompt Payment Ontario

Prompt Payment Ontario (PPO) is a non-profit corporation founded in 2015 with the singular purpose of securing prompt payment legislation for construction projects in the province of Ontario. 

Its membership is made up of 42 construction employer associations (including COCA and many COCA member associations) and construction trade unions. 

PPO was an important and very active participant in the processes that led to Bill 69 (the second prompt payment Private Members Bill sponsored by the Liberal backbench MPP Steven Del Duca) , the Reynolds-Vogel Review and Bill 142. Bill 142 passed third reading and received Royal Assent in December 2017 and its provisions that modernize the Construction Lien Act took effect on July 1, 2018 and the prompt payment and dispute resolution provisions came into force on October 1, 2019. 

PPO’s final initiative will be the publication and distribution of a very practical guidebook to the Construction Act which has been written by construction lawyer Geza Banfi of McMillan LLP and which is currently being finalized.  

PPO’s work is done and the organization is about to be wound up. Congratulations to PPO for its enormous success and especially to its leaders and driving forces Sandra Skivsky and Ron Johnson. 

The Provincial Committee at Work

The construction industry’s Provincial Labour Management Health and Safety Committee (PLMHSC) was formed under Section 21 of the Occupational Health and Safety Act “to assist or advise the Minister on any matter arising under this Act or to enquire into and report to the Minister on any matter that the Minister considers advisable.” 

The PLMHSC is comprised of equal numbers of management and labour representatives from all aspects of our industry. Representatives from the Ministry of Labour’s Operations and Policy Branches and Prevention Office and a representative from the Workplace Safety and Insurance Board (WSIB) attend all meetings to deliver reports and provide advice. 

The Committee is administered and supported by staff members from the Infrastructure Health and Safety Association (IHSA) although it the PLMHSC is distinctly separate and apart from the IHSA. The PLMHSC meets monthly and participation is exceptionally strong; the Committee always achieves quorum and its members rarely miss a meeting. There is an active network of regional and trade committees and another one called the Construction Legislative Review Committee that exist under the PLMHSC umbrella.

There are two initiatives currently underway under the auspices of the PLMHSC that may be of particular interest to you. First, the Committee has initiated a strategic planning process to identify two or three key priorities. The process is being very capably managed by Meredith Low, a professional strategic planning facilitator and consultant. The product of this process will help the PLMHSC focus its efforts on the issues that offer the greatest opportunity to improve the performance of the province’s workplace health and safety system. 

The second initiative is the development of a fit for duty guide. A special PLMHSC subcommittee was struck to work on the development of the guide. The Committee has reviewed many existing policies and is selecting the best from the bunch and editing and improving them for guide format. Once completed, construction organizations will be able to adapt the guide for their own use. 

Our industry’s Provincial Committee and its network are alive and well and working for the betterment of our industry.