INTRODUCTION
Ontario’s adjudication regime under the Construction Act was designed to provide rapid, interim resolution of payment disputes in the construction industry. Since the onset of statutory adjudication in 2019, the Divisional Court has been called upon with increasing frequency to delineate the boundaries of judicial oversight of adjudicators’ determinations. Sayers Foods Ltd. v. Gay Company Ltd., 2026 ONSC 918, is not only the latest notable Divisional Court pronouncement on statutory adjudication, but it also addresses matters of general importance beyond the Construction Act: allegations of fraud, delay claims, adjudicator bias and the treatment of evidence on judicial review.
BACKGROUND
Sayers Foods Ltd. (“Sayers”) hired Gay Company Ltd. (“Gay”) under a CCDC 2 Stipulated Price Contract to construct a replacement grocery store after the original building had been destroyed by fire.
Sayers alleged that Gay caused project delays and delivered Notices of Non-Payment under the Construction Act for two of Gay’s invoices notwithstanding the Consultant had certified the disputed invoices. Gay then commenced two statutory adjudication processes under the Construction Act which the parties agreed to consolidate into a single adjudication. The adjudication process included a hearing conducted on Zoom.
The Adjudicator ordered Sayers to pay $685,574.91, plus interest (the “Determination”). The quantum of Gay’s invoices was undisputed; the central issue was whether Sayers had established any basis to withhold payment of the certified invoices.