Federal Prompt Payment for Construction Work Regulations (Dispute Resolution) (SOR/2023-271)

The Minister of Public Works and Government Services, under section 22 of the Federal Prompt Payment for Construction Work ActFootnote ^a, makes the annexed Federal Prompt Payment for Construction Work Regulations (Dispute Resolution).

• Return to footnote ^aS.C. 2019, c. 29, s. 387

Gatineau, November 10, 2023

Le ministre des Travaux publics et des Services gouvernementaux Jean-Yves Duclos Minister of Public Works and Government Services

Definitions

Marginal note:Definitions

1 The following definitions apply in these Regulations.

Act

Act means the Federal Prompt Payment for Construction Work Act. (Loi)

party

party means a party to a dispute. (partie)

Proper Invoice and Notice of Non-Payment

Marginal note:Proper invoice

2 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.

Marginal note:Notice of non-payment

3 A notice of non-payment must indicate, in addition to the information set out in section 13 of the Act, the amount to be paid that is not in dispute.

Adjudicators

Marginal note:Adjudicator Authority — powers, duties and functions

4 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.

Marginal note:Adjudicator — eligibility and qualifications

5 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.

Marginal note:Adjudicator — powers, duties and functions

• 6 (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.

• Marginal note:Other powers

  (2) If a party does not comply with any request or direction issued by the adjudicator, the adjudicator may continue the adjudication in the absence of that party and make a decision on the basis of any available information or evidence.

Marginal note:Single adjudicator

7 A single adjudicator is to be appointed to determine each dispute.

Adjudication Process

General

Marginal note:Computation of time

8 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.

Marginal note:Electronic provision of documents

9 Any document required by these Regulations must be provided by electronic means.

Marginal note:One matter per adjudication

10 Subject to section 11, each adjudication must address only one matter.

Marginal note:Consolidated adjudication

• 11 (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.

• Marginal note:Consolidation required by contractor

  (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.

• Marginal note:Appointment of adjudicator

  (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.

Marginal note:Representation

12 A party may act in person or be represented by legal counsel or by another representative.

Dispute Resolution

Marginal note:Joint appointment of adjudicator

• 13 (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.

• Marginal note:Consent or refusal

  (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.

Marginal note:New adjudicator

• 14 (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.

• Marginal note:Consent or refusal

  (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.

Marginal note:Appointment by Adjudicator Authority

• 15 (1) If the parties cannot jointly appoint an adjudicator, either party may request, in writing, that the Adjudicator Authority appoint one.

• Marginal note:Appointment of adjudicator

  (2) The Adjudicator Authority has five days after the day on which the appointment request is received to appoint an adjudicator.

• Marginal note:Informing parties

  (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.

Marginal note:Documents sent to adjudicator

16 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.

Marginal note:Steps to follow

17 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.

Marginal note:Response

18 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.

Marginal note:Appointment of new adjudicator

19 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.

Marginal note:Termination of dispute

20 The parties may, upon agreement, at any time following the notice of adjudication but before the adjudicator makes a determination, terminate the dispute.

Determination

Marginal note:Information considered

21 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.

Marginal note:Time limit for determination

• 22 (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.

• Marginal note:Extension

  (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.

Marginal note:Format and content

23 The adjudicator must render a written determination with reasons.

Marginal note:Provision of determination

24 The adjudicator must, without delay after a determination is made, provide a copy of it to all the parties.

Marginal note:Certified copy

25 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.

Marginal note:Minor corrections

• 26 (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.

• Marginal note:Provision of corrected determination

  (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

Marginal note:S.C. 2019, c. 29

Footnote ^*27 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.

• Return to footnote ^*[Note: Regulations in force December 9, 2023, see SI/2023-77.]