Statutory adjudication of construction disputes in Ontario is in its early stages. Because of the section 87.3(4) transition provisions of the Construction Act (the “Act”), adjudication does not apply to most current contracts and subcontracts; but as new projects are bid, adjudication will gradually become the norm in the province. Before that happens, the provincial government and the statutory adjudication authority should take this opportunity to review three aspects of adjudication procedure, two of which are at variance with the statutory adjudication scheme, and the other of which threatens to undermine its purpose.
First, the Authorized Nominating Authority for adjudications, Ontario Dispute Adjudication for Construction Contracts (“ODACC”), sets out four suggested pre-designed adjudication processes, all of which include a precondition that that parties submit a disputed invoice to the adjudicator, something which is not required under the Act.
Second, ODACC’s suggested adjudication processes all include a requirement that the adjudicator submit a draft determination to ODACC ahead of releasing the final determination to the parties. Nothing in the Act or its regulations gives ODACC a role as a reviewer or repository of adjudication awards.
Third, ODACC has established an administrative fee which results in excessive fees payable by adjudicators to ODACC (which is owned by ADR Chambers Inc.). The fee schedule will have the effect of either increasing fees charged by adjudicators, lessening the availability of adjudicators willing to work, or both.
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