The Generals - Fall/Winter 2017 - 31

While the use of adjudication is self-evidently linked to overall
construction output, it is now, without doubt, the preferred formal
dispute resolution mechanism for the construction industry.

look at the parliamentary debates on
adjudication legislation in the U.K.
reveals that despite initial industrywide fear of change and concerted
e f f o r t s by some sectors of the construction
industry to exempt themselves from the legislation, adjudication has proven to be a resounding
success in every jurisdiction in which it has been
introduced. A leading judge of the Technology
and Construction Court, the specialized court
that, among other things, deals with adjudication matters, noted that adjudication has been
generally regarded as a blessing by the construction industry.1 It has worked so well that another
judge called for the exceptions to be eliminated,
so that all parties to a construction contract can
enjoy the benefits of adjudication.2
Indeed, the construction industries in the UK
and other jurisdictions which adopted adjudication have, after initial skepticism, embraced
adjudication. As one commentator observed,
while the use of adjudication is self-evidently
linked to overall construction output, it is now,
without doubt, the preferred formal dispute
resolution mechanism for the construction
industry. The fact that very few adjudication
cases get referred to the courts is another
indicator of its success. Though arbitration
cases seem to be on the increase in the UK,
especially for major disputes, there is little sign
that the construction industry has any growing disaffection for adjudication. 3 Similarly,
the consensus among stakeholders across
Australian jurisdictions is that, although underutilized, where the legislation is relied upon
and is used by the intended parties, it has
successfully made a positive impact on the
flow of payments in the industry.4
Adjudication has had a tremendous effect on
the construction industry. Reynolds & Vogel, in

their Expert Review of the Construction Lien Act,
note that adjudication is reported to have had an
unexpectedly transformative effect by encouraging proper and prompt valuation of claims, for
payment or otherwise, even in circumstances
where litigation or arbitration is inevitable. In
addition, adjudication seems to have made
parties to a construction contract think more
carefully before adopting intransigent or unreasonable positions. Adjudication has generally
reduced costs associated with construction
litigation.5 It has partially done away with the
excessive documentation required in traditional
construction litigation since the construction
industry has realized that the absence of what
Lord Justice Dyson once called "the grinding
detail" inherent in the traditional approach to
the resolution of construction disputes does
not mean that the outcome of a broader-based
assessment is regarded by the participants as
any the less satisfactory or fair.6
The effects of adjudication on the legal industry are twofold. On the one hand, adjudication has substantially reduced the workload
of courts; the sheer volume of construction
litigation has clearly reduced as a result of
adjudication.7 The UK Government's plans to
down-size the court service will likely serve to
increase the use of adjudication.8 Less litigation, of course, means fewer lawyers litigating.
On the other hand, lawyers have become one
of the two principal professions who serve as
adjudicators. Roughly ⅓ of all adjudicators are
lawyers, another ⅓ are quantity surveyors. These
are followed at some distance by a group comprising civil engineers and architects.
It can be predicted that the Ontario experience will mirror the trends in these jurisdictions.
After initial skepticism, there will likely be a
sharp uptake during a pilot project. The initial

adjudications will involve trial and error, but are
likely to be met with judicial acceptance in the
first test cases.
The fundamental issue facing the construction industry today is, at its heart, one of the
timing of effective, binding interim dispute resolution. Experience in the UK and elsewhere has
shown that once this issue is addressed, issues
of payment and performance are resolved in
their nascency, and large scale construction
disputes tend to be minimized or eliminated
entirely as a result.
The UK courts have played a large role in making sure that adjudication became the success
it is today, by robustly enforcing adjudicator's
decisions along the parameters provided by
the legislature. If the Ontario courts manage
to do the same, and if the Ontario construction
bar steps up to its role in the process as adjudicators and counsel, the Ontario construction
industry will benefit. The rest of Canada will be
watching closely.
■
1. Severfield (UK) Limited v. Duro Felguera UK Limited,
[2015] EWHC 3352 (TCC).
2. Westfields Construction Limited v. Clive Lewis, [2013]
EWHC 376 (TCC).
3. Kennedy et al., The development of Statutory
Adjudication in the UK and its relationship with construction workload.
4. Economics References Committee, "I just want to be
paid"- Insolvency in the Australian Construction Industry,
The Senate, December 2015.
5. Westfields Construction Limited v. Clive Lewis, [2013]
EWHC 376 (TCC).
6. Fitzroy Robinson Limited v. Mentmore Towers Limited (a
company incorporated in Jersey), [2009] EWHC 3070
(TCC).
7. Gould & Linneman, Ten Years on: Review of Adjudication
in the United Kingdom.
8. Kennedy et al., The development of Statutory
Adjudication in the UK and its relationship with construction workload.

Fall/Winter 2017

31



Table of Contents for the Digital Edition of The Generals - Fall/Winter 2017

Chairman’s Message
President’s Message
Incoming Chair’s Message
Government Relations Report
Events
The Construction Lien Act Discussion
The New Construction Act: Coming to a Jobsite Near You
Modernizing the Construction Lien Act – Welcome Changes
Bill 142, Construction Lien Act Amendment – A Construction Owner’s Perspective
Bill 142 – Worth the Wait
Legend: Pertinent Acronyms
The Effect of Adjudication on the Construction and Legal Industries
The Proposed New Construction Act: A Dose of Realism
Employer Did Not Discriminate Against Cocaine Addict Who was Dismissed for Cause
COR Safety Certification: It’s Not just for Large Generals
Recent Decision Confirms that Notices of Claims Do Not have a “Standard Form”
Maple Reinders: After 50 Years, their Passion for Building Keeps Growing … and Growing
OGCA Golf Tournament
Associate Partners Program
Index to Advertisers
The Generals - Fall/Winter 2017 - Intro
The Generals - Fall/Winter 2017 - cover1
The Generals - Fall/Winter 2017 - cover2
The Generals - Fall/Winter 2017 - 3
The Generals - Fall/Winter 2017 - 4
The Generals - Fall/Winter 2017 - 5
The Generals - Fall/Winter 2017 - 6
The Generals - Fall/Winter 2017 - Chairman’s Message
The Generals - Fall/Winter 2017 - 8
The Generals - Fall/Winter 2017 - President’s Message
The Generals - Fall/Winter 2017 - 10
The Generals - Fall/Winter 2017 - Incoming Chair’s Message
The Generals - Fall/Winter 2017 - 12
The Generals - Fall/Winter 2017 - Government Relations Report
The Generals - Fall/Winter 2017 - 14
The Generals - Fall/Winter 2017 - Events
The Generals - Fall/Winter 2017 - The Construction Lien Act Discussion
The Generals - Fall/Winter 2017 - 17
The Generals - Fall/Winter 2017 - 18
The Generals - Fall/Winter 2017 - The New Construction Act: Coming to a Jobsite Near You
The Generals - Fall/Winter 2017 - Modernizing the Construction Lien Act – Welcome Changes
The Generals - Fall/Winter 2017 - 21
The Generals - Fall/Winter 2017 - 22
The Generals - Fall/Winter 2017 - 23
The Generals - Fall/Winter 2017 - Bill 142, Construction Lien Act Amendment – A Construction Owner’s Perspective
The Generals - Fall/Winter 2017 - 25
The Generals - Fall/Winter 2017 - Bill 142 – Worth the Wait
The Generals - Fall/Winter 2017 - 27
The Generals - Fall/Winter 2017 - 28
The Generals - Fall/Winter 2017 - Legend: Pertinent Acronyms
The Generals - Fall/Winter 2017 - The Effect of Adjudication on the Construction and Legal Industries
The Generals - Fall/Winter 2017 - 31
The Generals - Fall/Winter 2017 - The Proposed New Construction Act: A Dose of Realism
The Generals - Fall/Winter 2017 - 33
The Generals - Fall/Winter 2017 - Employer Did Not Discriminate Against Cocaine Addict Who was Dismissed for Cause
The Generals - Fall/Winter 2017 - 35
The Generals - Fall/Winter 2017 - 36
The Generals - Fall/Winter 2017 - COR Safety Certification: It’s Not just for Large Generals
The Generals - Fall/Winter 2017 - 38
The Generals - Fall/Winter 2017 - 39
The Generals - Fall/Winter 2017 - Recent Decision Confirms that Notices of Claims Do Not have a “Standard Form”
The Generals - Fall/Winter 2017 - 41
The Generals - Fall/Winter 2017 - Maple Reinders: After 50 Years, their Passion for Building Keeps Growing … and Growing
The Generals - Fall/Winter 2017 - 43
The Generals - Fall/Winter 2017 - 44
The Generals - Fall/Winter 2017 - 45
The Generals - Fall/Winter 2017 - OGCA Golf Tournament
The Generals - Fall/Winter 2017 - 47
The Generals - Fall/Winter 2017 - Associate Partners Program
The Generals - Fall/Winter 2017 - 49
The Generals - Fall/Winter 2017 - 50
The Generals - Fall/Winter 2017 - 51
The Generals - Fall/Winter 2017 - 52
The Generals - Fall/Winter 2017 - 53
The Generals - Fall/Winter 2017 - Index to Advertisers
The Generals - Fall/Winter 2017 - cover3
The Generals - Fall/Winter 2017 - cover4
The Generals - Fall/Winter 2017 - outsert1
The Generals - Fall/Winter 2017 - outsert2
The Generals - Fall/Winter 2017 - outsert3
The Generals - Fall/Winter 2017 - outsert4
The Generals - Fall/Winter 2017 - outsert5
The Generals - Fall/Winter 2017 - outsert6
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