You may consider adjudication if you’re looking for a faster and more flexible way to resolve a construction dispute in Ontario. Adjudication is an excellent option for many common construction law disputes, and this legal process can provide a great alternative to a traditional court hearing in some instances.
In this post, we’ll briefly cover what adjudication is before diving into the adjudication process as outlined in the Ontario Construction Act, RSO 1990, c C.30 and the Ontario Dispute Adjudication for Construction Contracts (ODACC)’s Adjudication Process guide.
What Is Adjudication?
Adjudication is an alternative dispute resolution process. In adjudication, a neutral third party (called an “adjudicator”) reviews the parties’ submissions and decides the case. Adjudication tends to be less formal and more flexible than a court hearing, as discussed further below.
Adjudication as an Alternative to a Court Hearing
Adjudication is a popular alternative dispute resolution method. Primarily, adjudication can be much faster than waiting to schedule a court hearing or receive a judgment. Another benefit of adjudication is that claimants can still bring an action in court – the adjudicator’s decision is only binding until a decision is made in a subsequent court or arbitration proceeding. Adjudication also tends to be more flexible, allowing the adjudicator to change or adopt rules to suit the needs of the case.
What Types of Claims Can Be Adjudicated under the Construction Act?
Under s. 13.5 of the Construction Act, RSO 1990, c C.30, the following types of disputes can be adjudicated:
- Disputes regarding the values of services or materials provided in a contract.
- Payment disputes regarding construction contracts (including non-payment).
- Payment or non-payment of holdbacks.
- Disputes relating to lien set-off or set-off by trustees.
- Any other disputes under the Construction Act, where the parties agree to proceed with adjudication.
Overview of the Construction Act Adjudication Process in Ontario
Below, we’ve provided a bird’s eye view of Ontario’s construction act adjudication process.
Note that ODACC administers Construction Act adjudications in Ontario. ODACC uses an online portal for submissions and correspondence, so it’s crucial to have some familiarity with technology (or the assistance of someone who does) while navigating the adjudication process.
If a party is satisfied that they can seek adjudication under the Construction Act, they initiate their claim by providing the other party or parties with a Notice of Adjudication. The Notice of Adjudication is submitted through ODACC’s online portal and will be sent to the responding party.
Once the responding party receives the Notice of Adjudication, they can submit a Response to the Notice of Adjudication through ODACC’s online portal.
Selecting an Adjudicator
The parties can select an adjudicator from ODACC’s list of adjudicators. Alternatively, the parties can ask ODACC to appoint an adjudicator.
The Adjudication Process
Once an adjudicator is appointed, they will reach out to the parties to determine the adjudication process. As noted above, adjudications can be much more flexible than a traditional courtroom hearing, and the adjudicator will work with the parties to determine what works best for them. ODACC provides several pre-designed adjudication processes for parties to consider.
The Adjudication Fee
While determining the appropriate adjudication process, the parties will also determine an adjudication fee (or, if the parties and adjudicator cannot decide on a fee, ODACC will set the fee). Note that the parties involved will split the adjudication fee unless the adjudicator orders otherwise.
The Submissions Process
While determining the appropriate adjudication process, the adjudicator will also identify which documents they will need from the claimant to decide the case. The claimant will submit their documents through ODACC’s portal within five days of the adjudicator’s appointment. Once the claimant has submitted their documents, the respondent will also submit their documents through ODACC’s portal. However, the deadline for the respondent will vary depending on the adjudication process selected.
Once the adjudicator provides their decision to the parties, they will receive a certified copy within seven days. If the adjudicator orders any party to make a payment to the other party, that payment must be made no later than 10 days after the determination is provided to the parties.
The Adjudication Hearing
After receiving the parties’ submissions, the adjudicator will begin their investigation. Depending on the circumstances, the adjudicator may set up an in-person or virtual hearing with the parties, visit the construction site, or take other necessary steps to determine the issue.
Regardless of the process followed, the adjudicator must make their determination within 30 days of the date that the claimant provides their submissions unless the parties agree to extend the deadline.
What Happens After a Construction Act Adjudication in Ontario?
While we have covered the process for a Construction Act adjudication in Ontario above, you might have remaining questions. For example, what happens if the adjudicator orders the other party to make a payment and they don’t pay you in the 10 days specified?
Once the determination is certified, you can enforce it as though it was a court order. This means that, hypothetically, you can bring a court application to compel the other party to pay you if the other party does not pay you.
Furthermore, parties can still apply to Ontario’s Divisional Court for judicial review if they disagree with the determination. Under the Construction Act, you must bring an application for judicial review of the adjudicator’s decision within 30 days of the date that the adjudicator provides their determination.
A Final Note on Construction Act Adjudications in Ontario
While adjudication is an excellent way to resolve disputes more quickly and flexibly than a traditional courtroom hearing, there are short and strict deadlines for many of the processes involved. Suppose you are pursuing a Construction Act adjudication in Ontario. In that case, you need to be prepared to stay on top of deadlines and understand which events trigger which deadlines (for example, several deadlines begin running after the adjudicator has communicated their determination to the parties, even if a certified copy of the adjudication has not been provided).
For further information on the adjudication process for Construction Act disputes in Ontario, consult ODACC’s Adjudication Process guide. Consulting an experienced construction law lawyer is also recommended for guidance on navigating the adjudication process.
Contact Tierney Stauffer LLP in Ottawa, Arnprior, Cornwall, Kingston, and North Bay for Trusted Advice on Construction Law Claims
The skilled construction lawyers at Tierney Stauffer LLP provide practical solutions to construction disputes that protect our client’s financial interests. We represent clients at all levels of the construction pyramid in all legal forums, including litigation and alternative dispute resolution. For advice on your construction project, including issues relating to liens and construction contracts, contact us online or at 1-888-799-8057.