Jurisdiction and Powers

ODACC will not administratively decide whether a matter was properly referred to adjudication. A Claimant may commence an adjudication, and, as part of the adjudication process, request that the Adjudicator determine whether the Adjudicator has jurisdiction to decide the issue. A Respondent may also ask an Adjudicator to decide whether the Adjudicator has jurisdiction to decide the issue.

What follows is a non-exhaustive list of provisions that outline Adjudicators’ jurisdiction to conduct adjudications pursuant to the Construction Act, and Ontario Regulation 264/25.

Disputes that can be Referred to Adjudication

Section 13.5 of the Construction Act and s.19 of Ontario Regulation 264/25 lists the types of construction disputes that can be the subject matter of an adjudication.

13.5 (1) Subject to subsection (3), a party to a contract may refer a dispute with the other party to the contract respecting any prescribed matter or any matter agreed to by the parties to adjudication.

Subcontract

(2) Subject to subsection (3), a party to a subcontract may refer a dispute with the other party to the subcontract respecting any prescribed matter or any matter agreed to by the parties to adjudication.

Expiry of adjudication period, contract

(3) An adjudication in respect of a contract may not be commenced if the notice of adjudication is given more than 90 days after the date on which the contract is completed, abandoned or terminated, unless the parties to the adjudication agree otherwise.

Expiry of adjudication period, subcontract

(3.1) An adjudication in respect of a subcontract may not be commenced if the notice of adjudication is given more than 90 days after the earliest of,

(a) the date referred to in subsection (3);

(b) the date on which the subcontract is certified to be completed under section 33; and

(c) the date on which the subcontractor last supplies services or materials to the improvement. 2024, c. 20, Sched. 4, s. 12.(1).

Other disputes

(3.2) If the regulations so provide, a party to a contract or subcontract may, subject to any conditions or restrictions that may be specified by the regulations, refer a dispute with a party to another contract or subcontract for the same improvement respecting any prescribed matter to adjudication, in accordance with the regulations

Multiple matters

(4) An adjudication may only address a single dispute, unless the parties to the adjudication and the adjudicator agree otherwise.

Application despite other proceeding

(5) A party may refer a dispute to adjudication under this Part even if the dispute is the subject of a court action or of an arbitration under the Arbitration Act, 1991, unless the action or arbitration has been finally determined.

Section 19.(1) of Ontario Regulation 264/25 prescribes the following matters for the purposes of s. 13.5 (1) of the Construction Act:

The valuation of services or materials provided under the contract.
Payment under the contract, including in respect of a change order, whether approved or not, or a proposed change order.
A dispute that is the subject of a notice of non-payment under Part I.1 of the Act.
Amounts retained under section 12 of the Act (set-off by trustee) or under subsection 17.(3) of the Act (lien set-off).
Payment of a holdback under section 26 of the Act.
Any of the following matters, if it is reasonably necessary to resolve a dispute respecting the matter in order to make a determination on any other matter that may be adjudicated:

i. The scope of work required to be performed under the contract.

ii. A request for a change in the contract price.

iii. A request for an extension of time in the completion of work required to be performed under the contract.

Labour and Material Payment Bonds

A person to whom payment is guaranteed under a labour and material payment bond may start an adjudication pursuant to s. 33 of Ontario Regulation 264/25. Section 33.(1) of Ontario Regulation 264/25 states:

(1) A person to whom payment is guaranteed under a labour and material payment bond required under subsection 85.1 (4) of the Act may refer to adjudication under Part II.1 of the Act any dispute with the principal and the surety in relation to the payment guaranteed under the bond.

A Claimant wishing to commence an adjudication against a principal and the surety, pursuant to s. 33.(1) of Ontario Regulation 264/25, must commence two separate adjudications and then consolidate the two adjudications. For further information on consolidation, please visit the following link: Consolidations.

Relationship between the Construction Act, Ontario Regulation 264/25, the Code of Conduct and Contractual Provisions Pertaining to Adjudication

An adjudication must be conducted in accordance with the adjudication procedures set out in the Construction Act, Ontario Regulation 264/25, the Adjudicator’s Code of Conduct, and any additional adjudication procedures that may be set out in the Parties’ contract. Section 13.6(2) of the Construction Act states:

13.6(1) An adjudication shall be conducted in accordance with the adjudication procedures set out in this Part, the regulations, and, subject to subsection (2), any additional adjudication procedures that may be set out in the contract or subcontract.

(2) Adjudication procedures set out in a contract or subcontract apply only to the extent that they do not conflict with this Part and the regulations, and their application is subject to the exercise of the adjudicator’s powers under section 13.12.

Statutory Powers Procedure Act

The Statutory Powers Procedure Act does not apply to adjudications (13.12(6) of the Construction Act).

Powers of Adjudicators

The powers of Adjudicators are outlined in s. 13.12 of the Construction Act:

13.12 (1) In conducting an adjudication, an Adjudicator may exercise the following powers and any other power of an Adjudicator that may be specified in the contract or subcontract:

1. 1. Issuing directions respecting the conduct of the adjudication.
  2. Taking the initiative in ascertaining the relevant facts and law.
  3. Drawing inferences based on the conduct of the parties to adjudication.
  4. Subject to subsection (2), conducting an on-site inspection of the improvement that is the subject of the contract or subcontract.
  5. Obtaining the assistance of a merchant, accountant, actuary, building contractor, architect, engineer or other person in such a way as the Adjudicator considers fit, as is reasonably necessary to enable him or her to determine better any matter of fact in question.
  6. Making a determination in the adjudication, which may include a determination as to whether a matter may be the subject of an adjudication, whether the adjudicator has jurisdiction to conduct the adjudication or whether the adjudicator has exceeded their jurisdiction in the conduct of the adjudication.
  7. Any other power that may be prescribed.

An Adjudicator may exercise his or her powers even if a Party has failed to comply with a direction of the Adjudicator (s. 29 of Ontario Regulation 264/25).

Consequences for Adjudicators Who Act Outside their Jurisdiction

If an Adjudicator acts outside his or her jurisdiction, his or her Determination may be set aside on judicial review. Section 13.18(5)3 of the Construction Act states:

13.18 (5) The determination of an adjudicator may only be set aside on an application for judicial review if the applicant establishes one or more of the following grounds:

3. The determination was of a matter that may not be the subject of adjudication under this Part, or of a matter entirely unrelated to the subject of the adjudication.

An Adjudicator acting outside his or her jurisdiction may also lead to a determination by ODACC that the Adjudicator is incompetent or unsuitable to conduct adjudications. This is one type of behaviour that may lead to ODACC suspending or cancelling the Adjudicator’s Certificate of qualification to adjudicate. Pursuant to s. 5.(1) of Ontario Regulation 264/25,

5.(1)The Authority may suspend or cancel a holder’s certificate of qualification to adjudicate if it is reasonably satisfied that,

1. 1. the holder has ceased to be eligible to hold the certificate under section 3, or has failed to comply with the code of conduct or to meet any other requirement of section 4;
  2. the holder is incompetent or unsuitable to conduct adjudications; or
  3. the certificate was issued or renewed on the basis of a false or misleading representation or declaration.