Construction Act’s Incorrect Use of Term Creates Confusion for Courts, Complication and Expense for Litigants
When is “judicial review” not judicial review? When it’s judicial review of an adjudicator’s determination under the Construction Act.
Why is it not judicial review? Because the drafters of the Construction Act used the wrong term when they were otherwise borrowing wholesale from the test to set aside an arbitrator’s award under the Arbitration Act.
The result of this sloppy use of language is that, pursuant to the recent Divisional Court case of Gay Co. Ltd. v. Sayers Foods Ltd., 2024 ONSC 6123 (Div. Ct.), parties seeking to set aside an adjudicator’s determination must provide notice to the Attorney General pursuant to the Judicial Review Procedure Act where leave for judicial review is granted.
This will add expense and complication for parties seeking to review an adjudicator’s determination. More importantly, it is the wrong result in law, caused by the use of incorrect terminology which should be corrected by the Legislature at the earliest opportunity.