RC113 JulyAugust 2024 - Magazine - Page 20
LEGAL
rushed nature of adjudication may hamper a stakeholder’s ability to
present a robust case. In prompt payment disputes, claims relating
to set-o昀昀 or withholding rights arising from delay claims, illegality,
fraud, negligence, or property damage may require signi昀椀cant evidence, expert opinions, complex damage quanti昀椀cation and intricate
legal argument.
Respondents face considerable prejudice in these circumstances.
The claimant chooses when to commence an adjudication.
Accordingly, a claimant may carefully prepare its evidence, before
ambushing a respondent with a case that must be countered, often
in mere days or weeks. The compressed timelines of adjudication
leave little room for thorough investigation, witness preparation,
or expert analysis, potentially compromising the quality of
evidence presented.
Moreover, the hearing may be too short, and the adjudicator may
have too little time to properly consider the evidence and prepare an
informed decision due to the fast-track process required.
A rushed case preparation process, followed by a rushed hearing
and a rushed decision may not produce a good decision. For example, to avoid engaging with detailed evidence or complex issues in
the time available, an adjudicator’s hastily prepared decision may
make broad-brush statements about witness or expert credibility.
Such a damaging decision will surely weigh on the mind of a subsequent decision maker considering the same issues.
Given these challenges, options should be carefully considered.
For example, steps to avoid adjudication in the 昀椀rst place may
be advisable (such as initiating a court action in Alberta or
agreeing to appoint an arbitrator).
If adjudication cannot be avoided, instead of leading rushed
evidence, unprepared witnesses and experts, or overwhelming
the adjudicator with volumes of evidence and argument, prejudicing the case, a party may also wish to consider intentionally
circumscribing adjudication evidence or taking a “participation-under-protest” approach. In this regard, parties may elect
to strategically risk “losing the battle” in an adjudication to
preserve their position and ultimately “win the war” in a subsequent court or arbitral process. Such an approach may also
allow a party to avoid the signi昀椀cant expense associated with a
fast-track adjudication, particularly in a complex matter.
Navigating with confidence
The wave of prompt payment legislation sweeping across
Canada o昀昀ers construction stakeholders adjudication, a new
dispute resolution that comes with its own advantages and disadvantages. As parties chart their course through the maze of
dispute resolution options, one thing is clear: strategic decisions
made before, during and after the adjudication process can
have far-reaching implications. By understanding the nuances
of each mechanism and embracing a proactive approach, parties
can navigate
with con昀椀dence.
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