The staple of most construction contracts has embedded dispute resolution provisions. Learn what these are and how to apply these to expedite resolution of your dispute.

1. CCDC 2: Dispute Resolution
Gerald R. Genge,
P.Eng., C.Eng., BDS, BSSO, C.Arb. Q.Med.
Principal – Arbitech ADR

2. Topics
• Contract Interpretation
• CCDC 2 Dispute Resolution
• Objection to a Finding and Reply
• Project Mediator
• What if Mediation Fails?
• CCDC 40 – Rules
• Arbitration
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3. Contract Interpretation
• Often if there is a dispute as to the fulfillment of a
Contract the courts will usually try to interpret the
expressed intention of the terms.
• If the terms are vague, the court will likely look at
the overall intent of the Contract to interpret the
matter.
• If the Contract is too one-sided or unfair, the court
may interpret against the party that drafted the
Contract.
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4. Contract Disputes
• Disputes are common and manageable
• Initiation of a dispute resolution process is often best
handled before there is a dispute.
• Do not assume that you’ll be able to “work it out”
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5. Business is Business
• Contracts exist to set out clearly, the rules of
engagement.
• Dispute resolution processes are now common in
contracts.
• The more explicit the resolution terms, the more likely
the business relationship will survive the dispute.
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6. CCDC 2 Dispute Resolution
• GC 8 – sets out the “Rules”
• GC 8.1 – Consultant as “first arbiter of the Contract”
gives a “finding” (per GC 2.2) except financing issues
(GC 5.1)*
• GC 8.2 – Either party has 15 working days to object
or has deemed to accept the Consultant’s finding.
• CLA Review provides numerous recommendations
for an Ontario Adjudicator role to deal with PP
disputes.
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7. Objection to a Finding
• GC 8.2.2
• Within 15 working days of a “finding” the objecting
party must send the other party and the Consultant
written notice of the particulars in dispute and the
provision of the Contract relied upon in support of
the dispute.
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8. Reply to Objection
• GC 8.2.2
• Within 10 working days of an “objection notice” the
responding party must send the other party and
the Consultant written notice of the particulars in
dispute and the provision of the Contract relied
upon in support of the dispute.
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9. The Project Mediator
• GC 8.2.1
• Supposed to be appointed within 30 days of the
award of the Contract.
• Failing that…. Within 15 days of a request by
either party to appoint a Project Mediator
• What would you think if such a request were made?
……..Maybe you should start to make the appointment
anyway.
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10. The Role of Project Mediator
• GC 8.2.4
• 10 working days after receipt of the “response” to
the “objection” to the Consultant’s “Finding”, the
parties are to request that the Project Mediator
assist in negotiating an agreement.
• GC 8.2.3
• All negotiations are to be conducted amicably,
without prejudice, and providing timely disclosure
of all facts.
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11. Mediation Period
• GC 8.2.5
• The Project Mediator is given 10 working days (or
any additional agreed period) to settle the dispute.
• Anxiety and disclosure will often extend the 10 day
period unless the dispute is very simple – in which
case it may not go to mediation but be otherwise
settled or deferred by agreement of the parties.
Nonetheless, a mediator can “temper” feelings of
hostility and entitlement against future costs and
lost opportunities.
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12. If Mediation Fails…
• GC 8.2.5
• The mediator gives notice in writing to the parties
and
• GC 8.2.6
• Either party may within the next 10 days request
arbitration to finally resolve the dispute.
• GC 8.2.7
• If no request for arbitration is given (in the 10 days)
the requirement for arbitration is not binding on the
parties
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13. Then What?…
• GC 8.2.7
• Unresolved disputes can be referred to court or
any other agreed form of dispute resolution.
• GC 8.2.8
• If arbitration is not required (by notice), all disputes
shall be held in abeyance and consolidated.
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14. Abeyance?…
• GC 8.2.8
• Unresolved disputes can be held in
abeyance and consolidated into a single
dispute upon:
• Substantial Performance,
• The Contract is terminated, or
• The Contract is abandoned
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15. Alternative Dispute
Resolution Rules - CCDC 40
• Parties must have “Authority to Settle”
• Legal counsel may be present
• Project mediator shall not provide legal advice
• Parties shall be candid and make reasonable
effort to resolve the dispute
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16. Alternative Dispute
Resolution Rules - CCDC 40
(Cont’d)
• Oral Statements from each party to start- briefly
explaining the position and reasons
• Each party has a private caucus with Project
Mediator (if it will assist or is requested by the party)
• Project Mediator aides by pointing out points of
agreement and exploring alternative solutions to
disagreements
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17. Alternative Dispute
Resolution Rules - CCDC 40
(Cont’d)• Time may be extended with agreement of the parties
• Any settlement is to be recorded explaining the:
• Issue resolved
• Obligations assumed and criteria for and test for
meeting criteria
• Consequences of failure to comply with the
agreement
• Time frame for compliance
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18. Alternative Dispute
Resolution Rules - CCDC 40
(Cont’d)
• Termination of mediation may be initiated by either
party without reason
• The Project Mediator then provides written notice of
the Termination and the date of termination.
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19. Benefits of Arbitration
• Courts unlikely to intervene if an Arbitration
agreement is in place.
• Select the Arbitrator from qualified experts
• Can expedite the resolution
• Gives reasons for award
• Is final and binding (or not worth doing)
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20. Alternative Dispute
Resolution Summary
• CCDC Contracts anticipate disputes and
provide a framework for resolution
• Follow the rules to retain credibility
• Maintain complete project records to support
your claim and understand opponents’ reply
• Seeks legal and/or professional advise when
appropriate
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21. Appeals on Arbitration
• Appeal of a decision to court is with “leave” only
• Courts unlikely to decline appeal unless the
arbitration was incorrect in process.
• Court may appeal on a question of:
• Law
• Fact (if the arbitration agreement allows)
• Mixed fact and law (if the arbitration agreement
allows)
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22. CCDC 2: Dispute Resolution
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