ccdc 2 dispute resolution

CCDC 2: Dispute Resolution

Gerald R. Genge, P.Eng., C.Eng., BDS, BSSO, C.Arb. Q.Med.

Principal – Arbitech ADR

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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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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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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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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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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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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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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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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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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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. ArbiTECH

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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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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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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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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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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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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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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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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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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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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CCDC 2: Dispute Resolution

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