Ontario Construction Report staff writer
Construction adjudicators working under the new Ontario Construction Act are expected to comply with a Code of Conduct, with rules designed to ensure impartiality and protect confidentiality.
These rules will restrict communications with the media – both news and social media outlets – says the most recent version of the Code of Conduct posted by Ontario Dispute Adjudication for Construction Contracts (ODACC) on Dec. 16.
At present (as of last Wednesday), there are 32 adjudicators listed in the ODACC roster, though the agency expects there will be many more qualified to resolve disputes as the new adjudication system is implemented.
The code of conduct says adjudicators shall uphold principles of civility, procedural fairness, competence, proportionality, and integrity.
Other obligations include conducting “him or herself with decorum”, ensuring the parties are informed of the adjudication process’s procedural aspects, listening “carefully and with respect to, and read carefully the views and submissions expressed by, the parties and their representatives”, making determinations “on the merits of the case, based on justice, the law then in effect, and the evidence,” and writing determinations in accordance with the ODACC Determination Guidelines.
“Adjudicators shall ensure that the costs and the time required for the adjudication are proportionate to the value of the claim and the parties’ expectations, ODACC says in its Code of Conduct. “Adjudicators shall ensure the procedure adopted for an adjudication is appropriate for the nature and value of the claim.”
The code states that adjudicators should not either have or be perceived to have conflicts of interest.
Communications rules restrict the nature and format of communication between the adjudicators, the parties to the dispute and the public.
“Adjudicators must communicate in an appropriate and professional manner with the Parties, their representatives and any witnesses or other third parties involved in the adjudication,” the Code of Conduct says.
“All communications, direct or indirect, oral or in writing, with a party, witness, witness representative, or a party representative, must be done in the presence of all parties and their representatives. Email and written communications to a party, witness, witness representative, or a representative of another party must be copied to all parties and their representatives.”
“Any communication by adjudicators that is related in any way to ODACC business or related in any way to an adjudication shall only be conducted in a way that is pre-approved by ODACC as appropriate and secure.”
Adjudicators are instructed not to “contact any party, party’s representative or other person for the purpose of being selected as the adjudicator for a dispute or adjudication.”
“An adjudicator shall not make public comment or communicate with the media in any form, about ODACC, or any adjudication, without first obtaining the written approval of ODACC.”
Adjudicators are required to protect and secure confidential information, while conducting their work both competently and fairly.
“Adjudicators should only accept selections or appointments to perform adjudications if they are confident that they possess the necessary experience and skill to perform their functions competently and fairly,” the Code of Conduct says. “Adjudicators shall not make representations, whether orally or in writing, or engage in any other course of conduct, that is misleading or deceptive or likely to mislead or deceive ODACC, the parties, or the parties’ representatives about the adjudicator’s experience or expertise.”
There are guidelines to avoid harassment, not vary from standard fees unless all parties agree, and to properly notify ODACC of any changes in the adjudicator’s status.
ODACC has established a complaints procedure if there are problems with the adjudication.
Failure to adhere to the Code of Conduct could result in the adjudicator having “his/her certificate suspended or cancelled or may be required to complete additional training or education, as deemed appropriate by ODACC.”