Since October 1, 2019, a party to a contract or subcontract to which the adjudication provisions in the Construction Act (“Act”) apply,[1] may refer certain matters in dispute to adjudication. These matters include the value of work supplied, and payment under the contract.[2]
Over the past year, many articles have been written about the availability of adjudication. One author aptly wrote that “the legislation does not specifically refer to the proper invoice as the foundation of adjudication … as a result, the jurisdiction is arguably broader than originally envisioned [and] most common disputes arising on a construction project will likely fall within one or more of the listed matters, making adjudication widely available.".[3]
In the coming months and years, many disputes arising at Ontario construction projects will be referred to adjudication, and many adjudicator awards will be issued. Since Ontario courts may be closed for a number of months in 2020 due to the coronavirus pandemic, there may be more adjudications in 2021 and 2022 than were initially anticipated.
Recently, Ontario lawyers have begun to consider what happens after an adjudicator’s determination, including how a successful party will seek to enforce an adjudicator’s determination,[4] and which grounds in the Act an unsuccessful party may invoke to try to set aside a determination.[5] Notably, the Act provides that a judicial review application to set aside an adjudicator’s determination does not operate as a stay, unless the Divisional Court orders otherwise.[6]
This begs the question: What legal test will Ontario courts use to decide whether or not to stay an adjudicator’s determination? This article explores that question, first by setting out the legal principles used in the U.K. to decide whether to grant a stay of an adjudicator’s award, and then by discussing the legal test that Ontario courts may use.
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