The adjudication process commences when the Claimant delivers a written Notice of Adjudication to the Respondent as well as the Ontario Dispute Adjudication for Construction Contracts (ODACC). The Respondent may then provide the Claimant and ODACC with a Response to Notice of Adjudication.
After the Respondent receives the Notice of Adjudication, the Claimant and the Respondent have four (4) days to select an Adjudicator and obtain the Adjudicator’s consent to act as per s. 13.9(6) of the Construction Act.
If the Parties cannot agree on an Adjudicator, either Party can ask the ODACC to appoint an Adjudicator. The ODACC will then appoint an Adjudicator within seven (7) days of receiving the appointment request.
The Adjudicator will conduct the adjudication in the manner he or she determines appropriate in the circumstances, in accordance with s. 13.12(4) of the Construction Act. Some adjudications may include a hearing by videoconference, some may have an in-person hearing, some may require a site visit, and some may proceed only with documents.
After an Adjudicator consents to adjudicate a dispute, the Adjudicator will contact the Parties to negotiate the Adjudication Fee. The Adjudication Fee may consist of a flat fee, or an hourly rate (plus disbursements). If the Adjudicator and the Parties cannot agree on an Adjudication Fee, the Adjudicator may ask the ODACC to set the fee. The ODACC will set the fee in accordance with the Schedule of Fees approved by the Attorney General for Ontario.
The parties to an adjudication are responsible for an equal share of the adjudication fees unless the Adjudicator orders otherwise (s. 13.10(3) of the Construction Act). Each Party to an adjudication will be responsible for their own costs, regardless of the outcome (s. 13.16 of the Construction Act). Pursuant to s. 13.17 of the Construction Act, an Adjudicator has the discretion to order a party to pay all or a portion of the other Party’s costs where the Party acted in a manner that was “frivolous, vexatious, an abuse of process or other than in good faith”.
When the Adjudicator communicates the adjudication process to the Parties, the Adjudicator will specify the supporting documents (and number of pages) that each Party may submit to the Adjudicator for consideration. The Claimant’s supporting documents are due within five (5) days of the appointment of the Adjudicator. The Adjudicator will notify the Respondent as to when it must submit its supporting documents.
The Adjudicator will make a Determination within thirty (30) days from the day the Claimant submits its documents (the “Due Date”). The Due Date may be extended with the consent of all the Parties and the Adjudicator.
The ODACC will certify the Determination within seven (7) days of the Determination being sent to the Parties, which is available on the ODACC website.
Once the Parties have received the certified copy of the Determination and wish to move forward with enforcement, the following procedural steps are required:
- The Certified Copy, along with two additional copies, is filed at the Civil Intake Office of the Superior Court of Justice (Please note the hours of operations at the Civil Intake Office may vary due to COVID-19);
- The court will return a stamped and certified copy of the Determination;
- A court-stamped copy must be delivered to the opposing party within ten (10) days of receipt; and
- A party may proceed with enforcement proceedings if the opposing party refuses to pay by way of writ of execution or garnishment.
For more information and the Glaholt Bowles Guide to the Conduct and Enforcement of Adjudication in Ontario, please visit the Publications page on our website at https://www.glaholt.com/resources/publications.