Disputes

Courts and tribunals

Are there any specialised tribunals that are dedicated to resolving construction disputes?

There are no specialist courts in British Columbia to hear construction disputes, although in Ontario there are some construction lien masters (although currently only in Toronto).

Dispute review boards

Are dispute review boards (DRBs) used? Are their decisions treated as mandatory, advisory, final or interim?

Contracting parties are increasingly using dispute review boards to efficiently resolve disputes on an advisory, mandatory and interim basis.

Mediation

Has the practice of voluntary participation in professionally organised mediation gained acceptance and, if so, how prevalent is the practice and where are the mediators coming from? If not, why not?

Mediation has been widely used for resolution of disputes in the construction industry since the early 1990s. It has been highly successful and continues to have broad application today. In fact, mediation is often mandated in complex construction cases. Although mediators have a wide range of experience, many are retired judges, senior lawyers and other professionals.

Confidentiality in mediation

Are statements made in mediation confidential?

Yes, mediation is commonly held on a without prejudice basis.

Arbitration of private disputes

What is the prevailing attitude towards arbitration of construction disputes? Is it preferred over litigation in the local courts?

Arbitration is frequently used to resolve construction disputes in both British Columbia and Ontario. The courts tend not to be equipped or have the desire to hear complex commercial disputes in the construction and infrastructure industries, so mediation and arbitration have largely occupied this field.

Governing law and arbitration providers

If a foreign contractor wanted to pursue work and insisted by contract upon international arbitration as the dispute resolution mechanism, which of the customary international arbitration providers is preferred and why?

Although many international arbitration providers are regularly used in Canada, the most common are: the International Chamber of Commerce, the International Centre for the Settlement of Investment Disputes, ADR Chambers and the ADR Institute of Canada.

Dispute resolution with government entities

May government agencies participate in private arbitration and be bound by the arbitrators’ award?

In Canada, it is common for government agencies to participate in private arbitration. All arbitration proceedings, including those involving government agencies, are subject to arbitration legislation that is enacted in each province.

Arbitral award

Is there any basis upon which an arbitral award issued by a foreign or international tribunal may be rejected by your local courts?

In Canada, the enforcement of foreign arbitral awards is governed by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (the New York Convention) and the UNCITRAL Model Law On International Commercial Arbitration (the Model Law). Canadian courts may refuse to enforce a foreign arbitral award in limited circumstances, as outlined in article V of the New York Convention and article 36 of the Model Law.

Limitation periods

Are there any statutory limitation periods within which lawsuits must be commenced for construction work or design services and are there any statutory preconditions for commencing or maintaining such proceedings?

The limitations statutes in British Columbia and Ontario provide for a two-year period from the date of discovery of a cause of action, with an ultimate limitation period of 15 years from the date of the wrongful act in question.

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16 June 2020