RC113 JulyAugust 2024 - Magazine - Page 18
LEGAL
RIDING THE WAVE
Navigating prompt payment adjudication’s intersection
with court and arbitration by Brian Reid, Vasilis Pappas, Chris Petrucci and Chris Abtosway
Despite its admirable aims, adjudication should
be approached strategically. Pitfalls may await
those navigating the intersection of adjudication,
court, and arbitral processes.
Brian Reid is a partner at
Bennett Jones in Calgary. He
has a diverse commercial
litigation practice with
a strong emphasis on
construction and energy
related disputes.
Vasilis Pappas is a partner at
Bennett Jones, and Co-Head
of the firm’s International
Arbitration Practice Group
and a member of the firm’s
Construction Group. He works
in the firm’s Vancouver and
Calgary offices.
Chris Abtosway is an Associate
at Bennett Jones. He practises
in the areas of commercial
litigation, construction
litigation and professional
liability and works in the firm’s
Vancouver and Calgary offices.
18
N CONSTRUCTION, delayed payments can be devastating
to contractors, suppliers, and overall project success.
Recovering payments through traditional litigation or
arbitration processes can add further delays. In answer,
prompt payment legislation has been sweeping across
Canada.
Prompt payment legislation o昀昀ers two solutions: (i) a
prescribed invoicing framework, requiring timely invoicing and either prompt payment or dispute of invoices;
and (ii) a fast-track adjudication process to expeditiously
resolve such disputes. This article considers the adjudication process.
Adjudication o昀昀ers third-party ‘adjudicators’ who determine construction disputes separate from typical court
and arbitration processes. Adjudication has ambitious
aims—seeking to award fair compensation, while promoting speedy resolution of disputes. In most jurisdictions,
for example, unless agreed otherwise, the adjudicator’s de-
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cision is required within 30 days following the claimant’s
submissions. Rough-but-fast justice is the goal to ensure
construction projects continue with e昀케ciency.
Despite its admirable aims, adjudication should be
approached strategically. Pitfalls may await those navigating the intersection of adjudication, court, and arbitral
processes. Adjudication has many bene昀椀ts but may not
always be the best answer.
Before and during adjudication
Traditionally, court or arbitral processes have been employed to determine construction disputes. Adjudication
o昀昀ers a third option for some disputes. But what happens
if a court or arbitral process is already underway before an
adjudication is commenced? What happens if, during an
ongoing adjudication, a parallel court or arbitral proceeding is commenced? Di昀昀erent jurisdictions o昀昀er di昀昀erent
answers, with two approaches having developed.
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Chris Petrucci is a partner
at Bennett Jones in Calgary.
He practices corporate
and commercial litigation
across Canada in a variety
of industries, including
with construction and
infrastructure.
