Canadian Lawyer InHouse

SEPTEMBER 2017 52 INHOUSE principles. You can modify the applica- tion of the principles," he says. The new payment timelines are going to require some adjustment, sug- gests Drazen Bulat, national leader of con- struction and infrastructure law at Miller Thomson LLP. "A lot of owners pay after 45 days or 60 days," he notes. "I thought there might be a government carve out," adds Bulat, given that the public sector is often slower to pay. For private owners, the timelines will be a factor in financing. "Bor - rowers will have to make sure it is very clear in their financing arrangements," he says. Along with the prompt payment require- ments, the proposed change that received some of the most attention during the re- view process is the mandatory interim dis- pute resolution process. Contractors' orga- nizations were generally in favour of some form of adjudication. A number of public sector entities were more wary, especially when a public-private partnership is used for a project. The bill introduced by the Ontario gov - ernment permits parties to a contract or sub-contract to seek adjudication of vari- ous matters, including payments, value of services or materials and the release of any holdback funds. The parties can also con- tract to resolve disputes over other issues in this manner. Adjudicators will be selected from a provincial registry of qualified in- dividuals. They will be appointed no later than seven days after a "notice of adjudica- tion" has been filed. An adjudicator then has 30 days to make a decision after receiv- ing documents from the party making the claim. That deadline can be extended by 14 days at the request of the adjudicator, if the parties consent. The decision of the adjudi- cator is binding unless there is a subsequent decision by a court or an arbitrator. The adjudication process is based on the system that has been in place since 1998 in the United Kingdom, with some differences for the Ontario market. "The goal is to pre - vent projects from getting gridlocked," says Vogel. "You give people the opportunity to go to an experienced adjudicator. Payments can flow," she says. The terms "rough justice" and "pay now, argue later" have been used to refer to the U.K. model. However, the most recent data available indicates a very small percentage of decisions there are being appealed. As well, the review report says that as of 2010, only about five per cent of rulings by adju - I n d u s t r y S p o t l i g h t For general counsel, they are going to have to be ready along the way for any claim that might come up. The documentation will have to be carefully prepared right from the beginning of any project. ROGER GILLOTT, Osler Hoskin & Harcourt LLP CORPORATE COUNSEL Connect with Find almost 4,000 corporate counsel and over 1,500 organizations along with fresh editorial content, information on deals and links to important resources. Lexpert.ca/ccca

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