A Applicants’ Guide for
Getting Paid Through Construction Adjudication
Quick Links
Understanding Your Rights
Is Adjudication Right for You?
Tips for Effective Submissions
Common Mistakes
Costs in the Adjudication Process
Frequently Asked Questions
Understanding Your Rights
As a claimant under the Alberta Prompt Payment and Construction Lien Act (PPCLA), you have the right to receive timely payment for services and materials provided in construction projects. The Act ensures that if disputes arise regarding payment or contract terms, you can seek resolution through the adjudication process. Familiarizing yourself with your rights under the Act is crucial to protecting your interests and ensuring compliance.
Is Adjudication Right for You?
While amounts owing of under $15K may represent a substantial sum to many contractors, Applicants are cautioned that ARCANA (AB) – (Alberta Adjudication Tribunal) construction adjudication services are not free. ARCANA is the only nominating authority in Alberta authorized to facilitate adjudication.
Adjudicator fees are often initially borne by the Applicant. The Adjudicator may or may not allocate the cost of the adjudication in any one party’s favour.
ARCANA (AB) does not provide enforcement services when debts remain unpaid, which could potentially incur more costs to the applicant.
This is why we want all Applicants to be fully aware of ALL their resolution options:
Prompt Payment Construction Adjudication
Utilize the adjudication services provided by ARCANA (AB). This process is designed to resolve disputes quickly and affordably, typically within 60 days.
Civil Claims Mediation or Litigation
This option allows you to seek resolution with or without legal representation.
However, litigation often takes more time and money in Alberta.
Register a Lien
If necessary, you can register a lien against the property related to your work. Note that liens must be registered within 60 days of the last work performed.
While ARCANA (AB) does not provide guidance on this option, it is a viable route to secure payment.
How to Begin the Adjudication Process
If you are a contractor or party involved in a construction dispute and wish to initiate the adjudication process, follow these steps to submit a Notice of Adjudication:
Prepare Your Notice of Adjudication
Draft the Notice:
Ensure your Notice of Adjudication includes the following essential information:
- Names and addresses of all parties involved (including legal representatives, if applicable).
- A brief description of the nature of the dispute, including how and when it arose.
- The specific redress or remedies you are seeking, along with the amount in dispute.
- The name of the Nominating Authority (ARCANA (AB)) to whom you are submitting the notice.
- Any preferred Adjudicator(s) you wish to suggest or exclude.
Serve the Notice
Send the Notice: Deliver the completed Notice of Adjudication to:
- The other party or parties involved in the dispute.
- ARCANA (AB) as the Nominating Authority.
Method of Delivery: Ensure that the notice is served in a manner that provides proof of delivery, such as via registered mail or email with a read receipt.
Confirm Receipt
Acknowledge Receipt: After sending the notice, confirm that the other party has received it. This is important for maintaining clear communication and ensuring that the adjudication process can proceed without delays.
Appointment of an Adjudicator
Agree on an Adjudicator: After the notice is served, both parties have 4 days to mutually agree on an Adjudicator from the ARCANA (AB) online roster.
Notify ARCANA (AB): If an agreement is reached, complete and submit the application form to ARCANA (AB) along with the required Appointment fee.
Nominating Authority Appointment
If No Agreement: If the parties cannot agree on an Adjudicator within the 4-day window, notify ARCANA (AB) that an agreement could not be reached. ARCANA (AB) will then appoint an Adjudicator on behalf of the parties within 7 days.
Submit Required Materials
Prepare Submissions: Once the Adjudicator is appointed, you must submit the following materials within 5 days:
- A copy of the Notice of Adjudication.
- A copy of the contract or subcontract related to the dispute.
- All documents and supporting information you intend to rely on to prove your claim.
Await Determination
Adjudicator’s Timeline: The Adjudicator will review the submissions and make a determination within 30 days of receiving the Applicant’s submissions, unless an extension is granted.
Follow Up
Monitor the Process: Stay in communication with the Adjudicator and the other party throughout the process to ensure that all timelines are adhered to and that any additional information requested by the Adjudicator is provided promptly.
Ask for a Stop Work Order
Under Alberta legislation, the Adjudicator can issue a stop work order if they find it necessary for the applicant.
The applicant may wish to ask for this order proactively.
A stop work order means work cannot continue with an alternate contractor.
This places additional pressure on the Respondent to issue payment.
The Adjudicator has the power to say yes or no to a request for the stop work order.
How to Collect Your Money
Once you have an order from the adjudicator, you may need assistance in collecting what is owed to you.
If you haven’t received your money after a brief period, you may hire a civil enforcement agency, which will provide you with a Bailiff.
Civil enforcement agencies employ bailiffs to collect on people’s outstanding debts. These include court orders, which are adjudication decisions.
To pay for outstanding debts, bailiffs take away and sell people’s property, such as vehicles, homes, cash, luxury items and jointly-owned possessions.
When bailiffs work, they may be accompanied by sheriffs or police officers as a safety measure.
Tips for Effective Adjudicator Submissions
When preparing your submissions for the adjudication process, it is crucial to present your case clearly and effectively. Here are some tips to help you create strong submissions:
Be Clear and Concise
Use Plain Language: Avoid jargon and overly complex language. Clearly articulate your points to ensure that the Adjudicator can easily understand your position.
Stay Focused: Stick to the relevant issues at hand. Avoid including unnecessary information that may distract from your main arguments.
Organize Your Documents
Logical Structure: Organize your submission in a logical order. Use headings and subheadings to break down sections, making it easier for the Adjudicator to follow your argument.
Chronological Order: Present documents in chronological order where applicable, especially if they relate to the timeline of events in the dispute.
Provide Supporting Evidence
Include Relevant Documents: Attach all necessary documents that support your claims, such as contracts, invoices, correspondence, and any other relevant materials.
Cite Evidence: Reference specific documents in your submission to back up your statements. This adds credibility to your claims.
Be Thorough but Precise
Detail Your Claims: Clearly outline the basis of your claims, including the facts, legal grounds, and any relevant contractual provisions.
Avoid Overloading: While thoroughness is important, avoid overwhelming the Adjudicator with excessive detail. Focus on the most pertinent information.
Address Counterarguments
Anticipate Objections: Consider potential counterarguments from the other party and address them in your submission. This demonstrates that you have thought critically about the dispute.
Rebuttal Evidence: Provide evidence or reasoning that counters any anticipated objections to strengthen your position.
Follow Timelines and Requirements
Adhere to Deadlines: Ensure that all submissions are made within the specified time frames set by the Act and Regulation. Late submissions may not be considered.
Compliance with Format: Follow any specific formatting or submission guidelines provided by ARCANA (AB) or the Adjudicator.
Seek Professional Review
Consider Professional Help: If your dispute is complex or involves significant amounts, consider having your submission reviewed by a legal or industry professional. Their expertise can enhance the quality of your submission.
Proofread and Edit
Check for Errors: Carefully proofread your submission for grammatical errors, typos, and inconsistencies. A polished submission reflects professionalism.
Clarity of Presentation: Ensure that your submission is visually clear, with appropriate spacing, font size, and formatting.
Maintain Professionalism
Respectful Tone: Use a respectful and professional tone throughout your submission. Avoid emotional language or personal attacks against the other party.
Focus on Resolution: Emphasize your desire for a fair resolution to the dispute, which can help foster a more constructive atmosphere.
Common Mistakes to Avoid During Adjudication
When preparing submissions for the adjudication process, it’s important to be aware of common pitfalls that can undermine your case. Here are some mistakes to avoid:
Inadequate Preparation
Failing to Gather Evidence: Not collecting all relevant documents and evidence can weaken your position. Ensure you have all necessary materials ready before submitting.
Lack of Understanding: Not fully understanding the adjudication process, timelines, and requirements can lead to mistakes. Familiarize yourself with the Act and Regulation.
Poorly Structured Submissions
Disorganized Documents: Submissions that lack a clear structure can confuse the Adjudicator. Organize your documents logically and use headings to guide the reader.
Overly Lengthy Submissions: Submitting excessively long documents can dilute your key points. Be concise and focus on the most relevant information.
Ignoring Deadlines
Missing Submission Deadlines: Failing to submit documents within the required time frames can result in your submissions being disregarded. Keep track of all deadlines and plan accordingly.
Delaying Responses: Not responding promptly to requests for additional information or clarifications from the Adjudicator can hinder the process.
Neglecting Counterarguments
Ignoring the Other Party’s Position: Failing to address potential counterarguments can leave your submission vulnerable. Anticipate objections and provide rebuttals to strengthen your case.
Underestimating the Opposition: Assuming the other party will not present a strong case can be a mistake. Prepare thoroughly to counter their arguments.
Lack of Clarity
Using Jargon or Complex Language: Overly technical language or jargon can confuse the Adjudicator. Use clear and straightforward language to convey your points.
Vague Claims: Being vague about your claims or the relief sought can weaken your submission. Clearly articulate your position and the specific remedies you are seeking.
Failing to Follow Guidelines
Not Adhering to Format Requirements: Ignoring specific formatting or submission guidelines set by ARCANA (AB) can lead to complications. Ensure compliance with all requirements.
Omitting Required Information: Failing to include all necessary information in your Notice of Adjudication can result in delays or rejection. Double-check that all required elements are present.
Emotional Language
Using Emotional or Aggressive Tone: Submissions that contain emotional language or personal attacks can undermine your professionalism. Maintain a respectful and objective tone throughout.
Focusing on Grievances: Concentrating on grievances rather than the facts of the case can detract from your argument. Stick to the relevant issues at hand.
Neglecting Professional Help
Going It Alone: Attempting to navigate the adjudication process without professional support can be risky, especially in complex cases. Consider seeking advice from legal or industry professionals.
Not Reviewing Submissions: Failing to have your submission reviewed for errors or clarity can lead to mistakes. Always proofread and consider a second opinion.
Assuming Compliance
Not Confirming Receipt: Assuming that the other party has received your Notice of Adjudication without confirmation can lead to misunderstandings. Always verify receipt to ensure the process can proceed smoothly.
Ignoring Follow-Up: Failing to follow up on the status of your submission or the appointment of an Adjudicator can result in unnecessary delays.
Costs Involved for an Applicant in the Adjudication Process
When initiating the adjudication process under the ATCC Prompt Pay Act, applicants should be aware of several associated costs. These include the appointment fee charged by ARCANA (AB), the Adjudicator’s professional fees based on the amount in dispute, and any additional expenses incurred during the process, such as travel or expert advice. Below is a detailed fee table outlining the specific costs involved for applicants.
Appointment Fee
If the Adjudicator has Been Agreed Upon
(Includes Certification of the determination and order) See Note 1
$250 +gst
Appointment Fee
If the Adjudicator has NOT Been Agreed Upon
(Includes Certification of the determination and order) See Notes 2 & 3
$500 +gst
Adjudicator Max Hourly Rate
See Note 4
$200 +gst
Adjudicator Fee Cap
See Note 4
$2,500 +gst
Adjudicator % of Total Fee Paid to NA
10%
Appointment Fee
If the Adjudicator has Been Agreed Upon
(Includes Certification of the determination and order) See Note 1
$500 +gst
Appointment Fee
If the Adjudicator has NOT Been Agreed Upon
(Includes Certification of the determination and order) See Notes 2 & 3
$1,000 +gst
Adjudicator Max Hourly Rate
See Note 4
$300 +gst
Adjudicator Fee Cap
See Note 4
$5,000 +gst
Adjudicator % of Total Fee Paid to NA
15%
Appointment Fee
If the Adjudicator has Been Agreed Upon
(Includes Certification of the determination and order) See Note 1
$1,250 +gst
Appointment Fee
If the Adjudicator has NOT Been Agreed Upon
(Includes Certification of the determination and order) See Notes 2 & 3
$2,500 +gst
Adjudicator Max Hourly Rate
See Note 4
$400 +gst
Adjudicator Fee Cap
See Note 4
No Cap
Adjudicator % of Total Fee Paid to NA
20%
Appointment Fee
If the Adjudicator has Been Agreed Upon
(Includes Certification of the determination and order) See Note 1
$3,500 +gst
Appointment Fee
If the Adjudicator has NOT Been Agreed Upon
(Includes Certification of the determination and order) See Notes 2 & 3
$7,000 +gst
Adjudicator Max Hourly Rate
See Note 4
As negotiated with the Adjudicator
Adjudicator Fee Cap
See Note 4
No Cap
Adjudicator % of Total Fee Paid to NA
20%
Appointment Fee
If the Adjudicator has Been Agreed Upon
(Includes Certification of the determination and order) See Note 1
$5,000 +gst
Appointment Fee
If the Adjudicator has NOT Been Agreed Upon
(Includes Certification of the determination and order) See Notes 2 & 3
$10,000 +gst
Adjudicator Max Hourly Rate
See Note 4
As negotiated with the Adjudicator
Adjudicator Fee Cap
See Note 4
No Cap
Adjudicator % of Total Fee Paid to NA
20%
Notes
- Appointment Fee: The appointment fee is non-refundable.
- Payment Requirements: Full payment of the Column B Appointment Fee is required at the time of application unless the parties have agreed on an adjudicator OR are confident that they will be able to agree on an adjudicator within 4 days. Should the applicant elect to pay the lesser amount (Column A) at the time of application, and if the parties are not able to agree on an adjudicator within 4 days, then the balance owing for Column B is required on day 4.
- Refunds: If the applicant has paid in accordance with Column B and the parties then mutually agree on an adjudicator within the 4 days allotted, a 50% refund will be issued.
- Maximum Hourly Rates and Fee Caps: Maximum hourly rates and fee caps are binding unless both parties and the adjudicator agree to change them.
- Retainer Fee: The adjudicator may request a reasonable retainer fee at the outset. Note that the adjudicator has the authority to allocate the total cost of the adjudication equally or unequally between the parties as part of the final Determination & Order, regardless of which party or parties paid the Appointment Fee and/or retainer.
FAQs
What is adjudication?
Adjudication is a form of expedited dispute resolution specifically designed for the construction industry. It allows parties to resolve disputes quickly and cost-effectively, typically within 30 to 60 days.
What is a Notice of Adjudication?
A Notice of Adjudication is a formal document that you submit to initiate the adjudication process. It outlines the nature of the dispute, the claims you are making, and the relief you are seeking.
How do I prepare a Notice of Adjudication?
Your Notice should include the names and addresses of all parties involved, a brief description of the dispute, the specific remedies sought, and any preferred Adjudicator(s). Ensure that it complies with the requirements set out in the Act and Regulation.
What is the timeline for submitting a Notice of Adjudication?
You can submit a Notice of Adjudication at any time, provided that court proceedings have not been initiated regarding the dispute. However, it is advisable to act promptly to avoid delays in resolution.
What happens after I submit a Notice of Adjudication?
Once submitted, the other party will have 4 days to respond and agree on an Adjudicator. If an agreement cannot be reached, ARCANA (AB) will appoint an Adjudicator on behalf of the parties.
What are the costs involved in the adjudication process?
Costs may include appointment fees charged by ARCANA (AB) and the Adjudicator’s professional fees based on the amount in dispute. Refer to the pricing table for a detailed breakdown of these costs.
What documents should I include with my Notice of Adjudication?
Along with your Notice, you should include any relevant supporting documents that substantiate your claims, such as contracts, invoices, and correspondence related to the dispute.
Can I seek professional help when preparing my Notice of Adjudication?
Yes, it is advisable to seek professional assistance, especially if the dispute is complex. Legal or industry professionals can provide valuable guidance and help strengthen your submission.
What if the other party does not respond to my Notice of Adjudication?
If the other party fails to respond, you can proceed with the adjudication process by notifying ARCANA (AB) to appoint an Adjudicator.
What can I expect from the Adjudicator's determination?
The Adjudicator will issue a written Notice of Determination, which will include their decision regarding the dispute and any orders for payment or actions to be taken. This determination is binding unless challenged in court.