Contents
The Minister of Public Works and Government Services, under section 22 of the Federal Prompt Payment for Construction Work Act, makes the annexed Federal Prompt Payment for Construction Work Regulations (Dispute Resolution).noteGatineau, November 10, 2023Le ministre des Travaux publics et des Services gouvernementauxJean-Yves DuclosMinister of Public Works and Government Services
Definitions
Proper Invoice and Notice of Non-Payment
2Proper invoice#
In addition to meeting any requirements under the Act or set in the contract, a proper invoice must include the following information:
(a)the date of the invoice and the name, street and mailing address, telephone number and email address of the contractor that performed the construction work;
(b)the period during which the materials or services were supplied;
(c)the contract number or other authorization under which the materials or services were supplied;
(d)a description, including the quantity, if applicable, of the materials or services supplied;
(e)the amount payable for the services or materials supplied and the payment terms; and
(f)the name, title, street and mailing address, telephone number and email address of the person to which payment must be made.
Adjudicators
4Adjudicator Authority — powers, duties and functions#
The Adjudicator Authority has the following powers, duties and functions:
(a)develop and provide initial training and continuing education for adjudicators;
(b)issue, renew, suspend or cancel certifications for adjudicators;
(c)ensure that adjudicators meet all eligibility and criteria set out in these Regulations;
(d)maintain a publicly accessible list of adjudicators, including their qualifications;
(e)establish and maintain a fee schedule that reflects the experience of the adjudicator and the complexity of the dispute;
(f)regulate the conduct of adjudicators, including by establishing a code of conduct;
(g)address complaints against adjudicators respecting breaches of the code of conduct, including by establishing a complaints procedure;
(h)consider the circumstances in which an adjudicator is not required to determine a dispute under paragraph 5(d) of the Federal Prompt Payment for Construction Work Regulations (Criteria, Time Limits, Interest and Circumstances); and
(i)if an adjudicator can no longer determine a dispute for one of the circumstances set out in section 5 of the Federal Prompt Payment for Construction Work Regulations (Criteria, Time Limits, Interest and Circumstances), appoint their replacement.
5Adjudicator — eligibility and qualifications#
An individual must meet the following eligibility criteria in order to be designated as an adjudicator:
(a)they must be an accredited member in good standing with the Adjudicator Authority;
(b)they must have at least 10 years of relevant working experience in the construction industry;
(c)they must not have been convicted of an indictable offence in Canada or of a comparable offence outside of Canada;
(d)they must not be an undischarged bankrupt; and
(e)they must have the appropriate level of security clearance to address the dispute.
6Adjudicator — powers, duties and functions#
(1)An adjudicator has the following powers, duties and functions:
(a)determine matters in the dispute in an impartial and independent manner;
(b)not have any conflicts of interest in the dispute or with the parties;
(c)ascertain the relevant facts and law;
(d)issue directions respecting the scheduling of the conduct of the adjudication;
(e)issue directions respecting any restrictions on the length of written or oral submissions;
(f)request that any party provide any documents supporting or supplementing the notice of adjudication;
(g)meet and question any of the parties and their representatives;
(h)on consent of the parties and subject to any third-party consents, make any site visits or inspections;
(i)on consent of the parties and subject to any third-party consents, carry out any tests or experiments;
(j)on consent of the parties, appoint any experts or assessors necessary to better determine any fact or issue in the dispute;
(k)draw inferences based on the conduct of the parties prior to and during the adjudication; and
(l)issue any other directions so as to promote the expeditious resolution of the adjudication.
Adjudication Process
General
8Computation of time#
The following periods are excluded from the computation of time in these Regulations:
(a)any holiday as defined in subsection 35(1) of the Interpretation Act;
(b)Saturdays;
(c)the nine-day period beginning on December 24 and ending on January 1; and
(d)any construction holiday that is recognized by any provincial government.
9Electronic provision of documents#
Any document required by these Regulations must be provided by electronic means.
10One matter per adjudication#
Subject to section 11, each adjudication must address only one matter.
11Consolidated adjudication#
(1)If related disputes are the subject of separate adjudications, the parties may agree to have those adjudications consolidated and determined by a single adjudicator in which case they must inform the adjudicators concerned.
(2)Despite subsection (1), if the parties to each of the adjudications do not agree to consolidated adjudication, a contractor may require the consolidation of disputes by informing the parties and the adjudicators concerned.
(3)When disputes are consolidated, the following rules apply to the appointment of an adjudicator:
(a)an adjudicator appointed to adjudicate a dispute that is consolidated is considered to have resigned from the adjudication as of the date on which they are informed that it is consolidated; and
(b)an adjudicator who is considered to have resigned under paragraph (a) may be appointed or another adjudicator may be appointed under section 13, 14 or 15 as the adjudicator for the consolidated adjudication.
Dispute Resolution
13Joint appointment of adjudicator#
(1)The parties seeking to jointly appoint an adjudicator to request that they determine a dispute must communicate, in writing, with that adjudicator within four days after the day on which the notice of adjudication referred to in subsection 16(2) of the Act is received.
(2)The adjudicator must provide their consent or refusal to the parties, in writing, within four days after the day on which the request for adjudication referred to in subsection (1) is received.
14New adjudicator#
(1)If an adjudicator refuses their joint appointment under subsection 13(2), the parties may agree to make a request, in writing, to another adjudicator that they determine the dispute.
(2)The new adjudicator must provide their consent or refusal to the parties, in writing, within four days after the day on which the request for adjudication referred to in subsection (1) is received.
15Appointment by Adjudicator Authority#
(1)If the parties cannot jointly appoint an adjudicator, either party may request, in writing, that the Adjudicator Authority appoint one.
(2)The Adjudicator Authority has five days after the day on which the appointment request is received to appoint an adjudicator.
(3)The Adjudicator Authority must, within two days after the day on which the adjudicator is appointed, inform the parties of the date of that adjudicator’s consent to their appointment, as well as their name, street and mailing address, telephone number and email address.
16Documents sent to adjudicator#
Within the five days after the day on which consent referred to in subsections 13(2), 14(2) or 15(3) is received, the party that provided the notice of adjudication must send the following documents to the adjudicator and to the other parties:
(a)a copy of the notice of adjudication;
(b)a written statement of the facts on which it intends to rely; and
(c)copies of all documents on which it intends to rely, including if, applicable, all relevant extracts from the construction contract.
17Steps to follow#
On receipt of the documents referred to in section 16, the adjudicator must inform each party, in writing, of the steps to be followed in the adjudication process.
18Response#
The party to which the notice of adjudication was provided and that intends to respond has 20 days after the day on which the documents referred to in section 16 are received to send to the adjudicator and every other party
(a)a written statement of the facts on which it intends to rely; and
(b)copies of any material it wishes the adjudicator to consider.
19Appointment of new adjudicator#
If the adjudicator can no longer determine the dispute for any of the circumstances set out in section 5 of the Federal Prompt Payment for Construction Work Regulations (Criteria, Time Limits, Interest and Circumstances), a new adjudicator must be appointed in accordance with the procedure established under section 13, 14 or 15 of these Regulations.
Determination
21Information considered#
The adjudicator must consider any relevant information submitted by the parties and must make available to them any other information that the adjudicator considers in making a determination.
22Time limit for determination#
(1)Subject to subsection (2), the adjudicator must make a determination no later than 20 days after the day on which the response referred to in section 18 is received or, if there is no response, no later than 20 days after the day on which it was to be provided under that section.
(2)The time limit referred to in subsection (1) may be extended for up to five days by the adjudicator, or for a longer period with the consent of all parties and of the adjudicator.
24Provision of determination#
The adjudicator must, without delay after a determination is made, provide a copy of it to all the parties.
25Certified copy#
The adjudicator must also, no later than five days after the day on which a determination is made, provide a certified copy of it to all parties.
26Minor corrections#
(1)Within five days after the day on which the determination is provided, an adjudicator may, on their own or on the written request of a party, make any changes to the determination as may be necessary to correct a typographical or similar error.
(2)An adjudicator who makes a change to a determination under subsection (1) must
(a)provide the parties with a copy of the corrected determination on the day the change is made; and
(b)provide the parties with a certified copy of the corrected determination no later than five days after the making of the change.
Coming into Force
*27S.C. 2019, c. 29#
These Regulations come into force on the day on which section 387 of the Budget Implementation Act, 2019, No. 1 comes into force, but if they are registered after that day, they come into force on the day on which they are registered.
Federal laws of Canada reproduced under the Reproduction of Federal Law Order (SI/97-5); not the official version. Source: Justice Laws Website.