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of law, termination for prolonged suspension
and stop-work orders, in addition
to the usual force majeure clauses.
Alternative dispute resolution processes
like mediation and arbitration, which
were already popular pre-COVID-19,
are likely gaining even more traction
with parties, given they can largely proceed
remotely and likely offer a timelier
resolution than the courts.
Time to embrace adjudication?
Ontario has yet to see a significant
uptake of adjudication. In October,
Ontario Dispute Adjudication for
Construction Contracts released its first
annual report, which highlights that 32
adjudications have been commenced
since the adjudication provisions of the
Construction Act came into force. This
may be because only contracts entered
into after Oct. 1, 2019, subject to certain
grandfathering rules, are subject
to the prompt payment and adjudication
regime under the Construction Act.
It may also be that there is still a lack
of familiarity or comfort with the process.
While Ontario has yet to see a
significant uptake of adjudication in the
province, given how quickly adjudications
proceed and the swift response
timelines, it may be that more parties
are interested in adjudication in a post-
COVID-19 era. However, parties should
remember that decisions are only interim
and dissatisfied parties may pursue
future arbitration or litigation – so
legal counsel should be involved from
the outset. n
In addition to being a lawyer, Elliot Smith
is a professional engineer. Smith specializes
in providing legal advice on all aspects
of major infrastructure projects, including
project development, procurement, contract
negotiation and administration issues.
Lia Bruschetta is a construction and
commercial infrastructure litigator with
experience litigating, arbitrating and
mediating disputes arising out of construction
and infrastructure projects for owners
and contractors across Canada.
This article was originally published
in the Quarter 4 2020 issue of Piling
Canada magazine. It is reprinted here
with permission.
C O N S T R U C T I O N L AW
Elliot Smith Lia Bruschetta
A flood of project disputes
relating to delays, cost overruns
and other COVID-19-related
claims is inevitable.
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