Assignment # 6

2) Construction disputes are inevitable no matter how carefully a contract is

written. The parties may place a different interpretation on its terms and
conditions. The performance of the parties to the contract may fall short of the
requirements of the
) The role of the Arbitrator is as follows!
To be certain that a right to arbitrate does e"ist in fact and that the dispute
To ma#e an award within the stipulated time or$ if empowered by the terms
of the submission$ to enlarge upon the time in which to ma#e an award.
The time must be enlarged prior to the e"piration of the originally specified
time. %A To appoint$ if necessary$ a Cler# to assist in the administrative
duties of the arbitration. The parties to the dispute may also To attend all
meetings of the arbitration hearing$ unless the submission indicates
otherwise. Consent of the parties is required to allow an arbitrator to be
absent from a hearing but this is not considered to be good party is denied
the opportunity to present his client&s case an equal denial must be
e"tended to the other party.
To ta#e evidence in each case where consistent with the conditions and
provisions of the submission. 't is important that the evidence of the
parties be given in the presence of each other.
To administer the oath or affirmation to the parties and witnesses. This
must be in a form that is binding upon the consciences of each individual
sworn.
To disclose their personal #nowledge and s#ill related to the sub(ect of a
dispute to both parties in order that the parties may give weight to any
decision. This statement can be made at any time up to and after the
award.
The arbitrator)s tas# is complete when an award is delivered but the
obligation of confidentiality remains in perpetuity.
*) There are basically three types of evidence in arbitration + oral evidence$
documentary evidence and physical evidence.
,ral evidence is that given in person by a witness$ usually as testimony
under oath or affirmation.
-ocumentary evidence is the provision of documents to prove facts. The
documents may be letters or contracts but they can also include sworn
affidavits and$ though it is desirable to have the original documents before
the arbitration$ it is acceptable in many (urisdictions to allow copies to be
entered as e"hibits. This relieves the arbitrator of the responsibility
associated with original documentation upon completion of the arbitration.
.hysical evidence is the production of ob(ects that have a direct
relevance to the issue. 't can also ta#e the form of an ad(ournment to a
site to allow the arbitrator to see physical evidence for himself.

The procedure or ta#ing evidence is as follows!
The party who began the Arbitration$ the plaintiff$ calls his witnesses in
order. /ach witness is first e"amined by the party by whom he is called.
This is called direct e"amination or e"amination+in+chief.
0uch witnesses are liable to be cross+e"amined by the other side.
1inally they may be re+e"amined by the party by whom first called.
2hen the plaintiff)s case is completed$ the other side calls its witnesses
and the foregoing procedure is adopted for the other side.
'n certain circumstances$ such as the introduction of new evidence by the
other side$ the party who began is allowed to bring forward further
evidence as rebuttal
3) The basis of mediation is that it is the settlement of a dispute by the
parties themselves. There is no imposition by another person or authority$
no winner or loss of face and the parties will have retained a relationship
which will in the long run li#ely be more valuable than the costs of a
settlement. The process is relatively very quic# and ine"pensive and what
is very important to many$ it remains private.
4ediation differs from -ispute resolution in the fact that the dispute is
settled only if all the parties agree. Also the mediator cannot impose an
agreement and should not offer one without the agreement of the parties.
6) The steps to handling a mediation process are as follows!
A written outline of each party&s position will enable the mediator to
become familiar with the disputes%s).
1ollowing the appointment of the mediator a conference of the parties
with the mediator and advisors to the parties enables both sides to state
their positions and the mediator to obtain a good outline of the dispute.
This will be followed by the mediator meeting privately with each party in
turn %caucusing) to further e"plore their particular positions$ areas of
strengths and wea#nesses and possible concessions that could be
offered.
1urther conferences with all parties present and caucusing as necessary$
will li#ely provide the mediator with sufficient information to enable the
parties to be swayed to an acceptable agreement.
Agreement is by the parties and should be in writing and signed by the
parties and the mediator. 2here legal representation is present then the
agreement should also be approved by them from a legal standpoint. The
mediator cannot impose an agreement and should not offer one without
the agreement of the parties.
CC-C 2 requires parties to a contract to appoint a pro(ect mediator within
5 days after the contract is awarded or failing that within 63 days after
either party gives notice in writing to the other party that a pro(ect mediator
be appointed.
2here disputes under the contract are not resolved in the specified time
through negotiation then the .ro(ect 4ediator will be requested to assist
the parties to reach agreement. The mediated negotiations should be
conducted in accordance with the latest edition of the 7ules of 4ediation
of CC-C 2 Construction -isputes. 2here the dispute is not resolved
within 65 wor#ing days after the .ro(ect 4ediator was requested to assist
or such further time as the parties may agree then the .ro(ect 4ediator
shall terminate mediated negotiations by giving written notice to the
parties. The contract then provides for the dispute to proceed to
arbitration.
8) The main purpose of the building code is to protect public health$ safety and
welfare$ to protect wor#men engaged in construction rather than to safeguard
financial interests$ trade union privileges$ or traditional building material or
methods.
The need for a national building code or by+law is to set minimum
requirements respecting the safety of buildings with reference to public
health$ fire protection$ and structural sufficiency.

A building code or by+law will accomplish the following!
.ermit the use of any material or method that complies with the minimum
of accepted performance standards related to the material or method.
Adopt$ by reference$ other building codes or nationally accepted
performance standards.
.rovide the right to appeal and obtain legal remedy for any grievance
caused by the requirements of a building code or by+law or the
enforcement of them.
9e sub(ected to periodic review for up+to+date revisions of it.
:) 2hile building codes are enacted to govern the design and construction of
buildings of all types$ ;oning 9y <aws are enacted to regulate the use of land
with respect to the nature of use and occupancy$ height of structures and
building density.
=) =.6) A fire separator is defined as a construction assembly that acts as a
barrier against the spread of fire.
=.2) A fire resistance rating measures the length of time a representative
portion of an assembly is able to withstand the conditions of the standard
test.
=.) 1irewalls are special fire separations that subdivide a building into two or
more entities which may be considered individual buildings for the
purposes of fire protection.
=.*) 1ire stops are elements of building assemblies that are installed at
strategic locations to resist the spread of fire from one space to another.
1ire stops maintain the integrity of a fire separation by filling gaps around
pipe or duct penetrations. They limit the si>e and interconnection of
concealed spaces within wall and floor assemblies$ crawl spaces$ attics
or ceiling spaces.
=.3) ,ccupant load is the number of persons for which a building or part of a
building is designed. The principal application of occupant load is to
determine the number and width of e"it facilities that must be provided$
the determination of the number of sanitary fi"ture required in
washrooms$ whether a fire alarm system should be installed$ and as one
of the parameters used to establish whether a building is sub(ect to the
requirements for high buildings.
65) 2or#er&s Compensation provides a simple and speedy relief for wor#ers
who become disabled to any degree by reason of accidental in(ury arising
out of and in the course of their employment. The system also ma#es
provision$ both directly and indirectly$ for the dependants of in(ured wor#ers.
't provides wor#ers freedom from the costs of litigation$ compensation for
the loss of the capacity to earn owing to disability arising from accidental
in(ury sustained while wor#ing$ and$ in the event of a death from such a
cause$ provides sustenance for the dependants.
The wor#er&s compensation system frees the employer from legal action
which might be otherwise brought by the employees and places
compensation benefits under such control as to ensure fair and proper use
as intended by the Acts.
66) ,bligations of the /mployer

The employer must ensure that employees have a safe place in which to
wor# and must employ competent wor#ers. ?e must issue rules$
regulations and warnings where ha>ardous wor#ing conditions do e"ist.
An employer is required to pay an employee according to the minimum
wage rates of the .rovince in which the employee is wor#ing. /ach
.rovince has enacted legislation establishing minimum wages$ rates of
pay$ for wor#ers in factories$ shops$ hotels$ restaurants$ etc. /mployees
cannot waive or forego any provision of such Acts. Also included in most
of these Acts are provisions prohibiting employers from intimidation$ or
threatening to discharge employees for assisting in the enforcement of the
4inimum 2age Acts. 4ost of these Acts ma#e provision for an employee
to recover the difference between the minimum wage and what was
actually paid$ should the employee have been paid less than the statutory
minimum wage.
'n addition to being required to pay minimum wages according to 4inimum
2age Acts$ an employer is also required to pay fair minimum wages
according to 'ndustrial 0tandards Acts$ where such are applicable. 0uch
'ndustrial 0tandards Acts fi" fair minimum wages as distinguished from
minimum wages set by other statutes and apply$ generally$ to those
particular industries described in the Acts.
1inally$ the employer must comply with legal requirements as to hours of
wor#$ holidays with pay$ or pay in lieu of holidays as set out in the various
statutes.

,bligations of the /mployee
An employee is e"pected to use reasonable care and s#ill in the
performance of wor#. 'f any employee is engaged because of a special
s#ill the employee alleges to possess$ he or she is e"pected to e"ercise
that alleged s#ill.
An employee is e"pected to be punctual as to the attendance at wor#$
honest$ courteous to the employer and obey instructions given to him.
An employee must wor# daily$ unless there is an e"press or implied
agreements to the contrary.
1lagrant violations of any of the above obligations may be grounds for the
dismissal of an employee and$ in certain circumstances$ the employee
could be liable for damages$ such as a stoppage in pay for lateness.
62) The basic principal of collective bargaining means that a union spea#s for
all its members in the employ of an employer with whom it is bargaining.
6) An in(unction is a court order restraining persons named in it from doing
particular acts.
6*) A <ien$ at Common <aw$ is the right to hold another&s property as security
for debt. 't is also the right to charge property in another&s possession with
the payment of a debt or performance of a duty. A <ien$ is the right to retain
%hold)$ but not to ta#e possession of$ the debtor&s goods until paid.
'n common law$ only those party to a contract acquire rights under that
contract. Therefore subcontractors$ suppliers and wor#men who have
provided valuable services to an owner to add value to the owner&s property
have no corresponding rights to compel the owner pay them if the contractor
is either unwilling or unable. The subcontractors$ suppliers and wor#men
acquire personal rights against the contractor or subcontractor they have
contracted with but acquire no interest in the land which they have
improved.
To correct this inequitable result that can result from common law Canadian
provinces have adopted what was originally an American concept$ the
construction$ builders& or mechanics& lien. 2hile the legislation differs widely
form province to province the basic premise is that certain specified persons
who have performed wor# or supplied services or materials for the benefit of
the owner of the land$ whether under direct contract or under a subcontract$
obtain some measure of security for payment by enabling them to register a
lien against the owner&s land.
63) The amount of holdbac# retained in ,ntario is 65@ and in Alberta it is 63@.
66)The various provincial 7egistration Acts establish the basic principle that as
between registered documents the priority of registration must prevail. 'n
other words the first lien registered ta#es precedent over all others that
follow.
68)To e"ercise the right to register a lien the following steps are necessary!
Complete a claim form
The claim must be verified by an affidavit of the person claiming the
lien$ or his agent or his assignee % the person to whom the claim has
been assigned)
7egister the claim and file copies of it in the appropriate land registry
office$ this is often referred to as preserving the lien.
The registration may be made any time before the e"piration of *3
days after the end of wor#
A preserved lien will e"pire unless it is perfected. This is
accomplished by commencing an action to enforce the lien within the
time period specified in the act.
A lien will e"pire if an action to enforce the lien has not been
commenced within the time periods specified.
6:)The owner is only liable for A655$555. The owner is not required to pay
more than the contract price.
6=)The owner will have to clear the property of liens before he can sell the
property.
25),ne of the basic obligations of the Architect to their client is the certainty that
actual construction complies with the design drawings and specifications
comprising the construction contract.
'f an independent testing company is used the role of the Architect as related
to the verification of quality and performance efficiency is limited to indicating
when$ how and to what e"tent such inspection is done by the 'TC.