Adjudication Process
Once an Adjudicator is appointed for an adjudication, the Adjudicator will contact the Parties to discuss the adjudication process. The Adjudicator will conduct the adjudication in the manner he or she determines appropriate in the circumstances, in accordance with s. 13.12(4) of the Construction Act. Some adjudications may include a hearing by video conference, some may require an in-person hearing, and some may require a site visit. Some factors Adjudicators may consider (when deciding on the appropriate process) may include:
- the amount in dispute;
- whether an oral hearing is necessary to determine facts;
- whether a site visit is necessary; and
- how long the contract is.
Pre-Designed Adjudication Processes
Even though the Adjudicator will decide on the process, the Parties may want to suggest a process to the Adjudicator. To assist the Parties, ODACC has set out four Pre-Designed Adjudication Processes that the Parties may choose to recommend (and/or the Adjudicator may decide to set). Three of the Pre-Designed Adjudication Processes take place in writing only, while the fourth will provide Parties with an oral presentation (by videoconference or teleconference).
The Claimant can indicate a preferred process in the Notice of Adjudication. Similarly, the Respondent can indicate a preferred process in the Response to Notice of Adjudication.
The Parties may also recommend that the Adjudicator design the adjudication process without being guided by the Pre-Designed Adjudication Processes.
Fees for Pre-Designed Adjudication Processes
The Adjudication Fee for the Pre-Designed Adjudication Processes are negotiated between the Parties and the Adjudicator. When setting a process, the Adjudicator should consider the amount claimed to ensure that the cost is proportionate to the amount in dispute, and should consider the complexity of the issue. Disputes involving lower amounts on less complicated issues, for example, may be able to be resolved using a Pre-designed Adjudication Process.
If there is no agreement on the Adjudication fee, the Adjudicator fee will be set by ODACC.
ODACC has also provided suggested Adjudication Fees for each Pre-designed Process.
The four Pre-Designed Adjudication Processes are as follows:
- Adjudication in writing only;
- Submission of Parties’ arguments (and photographs) is limited to two Pages per Party (not including a copy of the construction contract (which must be submitted) and a copy of the disputed invoices (which may also be submitted)); and
- Determination is expected to be approximately one to two Pages.
Suggested Adjudication Timeline
Day 1: Adjudicator selected by the Parties or appointed by ODACC.
Day 5: Claimant submits a copy of the construction contract and, if there is an invoice that the Claimant submits is unpaid, the Claimant may also provide a copy of that invoice. Claimant submits its arguments (and photographs), to a maximum of two Pages.
Day 7: The Adjudicator communicates the balance of the adjudication process to the Parties. The balance of the adjudication process is the timing for the Respondent to submit its two Pages of arguments (and photographs).
Day 12: Respondent submits its arguments (and photographs), to a maximum of two Pages.
Day 30:Draft Determination is provided to ODACC.
Day 35: Final Determination is released to the Parties.
ODACC’s Suggested Adjudication Fee for Pre-Designed Adjudication
Suggested Adjudication Fee: $800 (plus HST)
- Adjudication in writing only;
- Submission of Parties’ arguments (and photographs) is limited to five Pages per Party (not including a copy of the construction contract (which must be submitted) and a copy of the disputed invoices (which may also be submitted)); and
- Determination is expected to be approximately one to two Pages.
Suggested Adjudication Timeline
Day 1: Adjudicator selected by the Parties or appointed by ODACC.
Day 5: Claimant submits a copy of the construction contract and, if there is an invoice that the Claimant submits is unpaid, the Claimant may also provide a copy of that invoice. Claimant submits its arguments (and photographs), to a maximum of five pages.
Day 7: The Adjudicator communicates the balance of the adjudication process to the Parties. The balance of the adjudication process is the timing for the Respondent to submit its five Pages of arguments (and photographs).
Day 12: Respondent submits its arguments (and photographs), to a maximum of five pages.
Day 30: Draft Determination is provided to ODACC.
Day 35: Final Determination is released to the Parties.
ODACC’s Suggested Adjudication Fee for Pre-Designed Adjudication
Suggested Adjudication Fee: $1,000 (plus HST)
- Adjudication in writing only;
- Submission of Parties’ arguments (and photographs) is limited to five Pages per Party (not including a copy of the construction contract (which must be submitted) and a copy of the disputed invoices (which may also be submitted));
- Each Party may submit additional documents, parts of documents and witness statements to a maximum of ten Pages; and
- Determination is expected to be approximately five pages.
Suggested Adjudication Timeline
Day 1: Adjudicator selected by the Parties or appointed by ODACC.
Day 5: Claimant submits a copy of the construction contract and, if there is an invoice that the Claimant submits is unpaid, the Claimant may also provide a copy of that invoice. Claimant submits its arguments (and photographs), to a maximum of five Pages. Claimant further submits its documents, parts of documents, and witness statements, to a maximum of ten pages (in total).
Day 7: The Adjudicator communicates the balance of the adjudication process to the Parties. The balance of the adjudication process should include the timing for the Respondent to submit its five pages of arguments (and photographs) and its ten pages of documents, parts of documents, and witness statements.
Day 12: Respondent submits its arguments (and photographs) to a maximum of five pages. Respondent also submits its documents, parts of documents, and witness statements, to a maximum of ten pages (in total).
Day 30: Draft Determination is provided to ODACC.
Day 35: Final Determination is released to the Parties.
ODACC’s Suggested Adjudication Fee for Pre-Designed Adjudication
Suggested Adjudication Fee: $2,000 (plus HST)
- Submission of Parties’ arguments (and photographs) is limited to ten pages per Party (not including a copy of the construction contract (which must be submitted) and a copy of the disputed invoices (which may also be submitted));
- Each Party may submit additional documents, parts of documents, and witness statements to a maximum of 25 pages (in total);
- Each Party has half an hour to make an oral presentation;
- Presentation can be conducted by videoconference or teleconference (but will not be in person); and
- Determination is expected to be approximately five pages.
Suggested Adjudication Timeline
Day 1: Adjudicator selected by the parties or appointed by ODACC.
Day 5: Claimant submits a copy of the construction contract and, if there is an invoice that the Claimant submits is unpaid, the Claimant may also provide a copy of that invoice. Claimant submits its arguments (and photographs) to a maximum of ten pages. Claimant further submits its documents, parts of documents, and witness statements, to a maximum of 25 pages (in total).
Day 7: The Adjudicator communicates the balance of the adjudication process to the Parties. The balance of the adjudication process should include the timing for the Respondent to submit its arguments (and photographs) to a maximum of ten pages, and its 25 pages of documents, parts of documents and witness statements. The process may also include the mechanism (videoconference or teleconference) for the oral presentation.
Day 12: Respondent submits its arguments (and photographs), to a maximum of ten pages. Respondent also submits its documents, parts of documents and witness statements to a maximum of 25 pages (in total).
Day 18 or earlier: Oral presentations (by videoconference or teleconference).
Day 30: Draft Determination is sent to ODACC.
Day 35: Final Determination is released to the Parties.
ODACC’s Suggested Adjudication Fee for Pre-Designed Adjudication
Suggested Adjudication Fee: $3,000 (plus HST)
If the Adjudicator chooses not to use a Pre-Designed process, the Adjudicator will need to design a customized process. A sample customized process follows.
If the Adjudicator chooses not to use a Pre-Designed process, the Adjudicator will need to design a customized process. A sample customized process follows.
- The Adjudicator convenes a teleconference with the Parties to establish the process and rules for the adjudication and sets a timeline (such as the one in the example set out below).
Suggested Adjudication Timeline
Day 1: Adjudicator is selected by the Parties or appointed by ODACC.
Day 5: Claimant submits a copy of the construction contract and, if there is an invoice that the Claimant submits is unpaid, the Claimant may also provide a copy of that invoice. The Claimant also submits any documents it intends to rely on, including its arguments, witness statements, and photographs.
Day 7: The Adjudicator convenes a teleconference and communicates the balance of the adjudication process to Parties. The balance of the adjudication process should include the timing for the Respondent submitting its documents. The process may include a site visit and an oral hearing (either in-person or using technology).
Day 12: Respondent submits its documents including its arguments, witness statements and photographs.
Day 17 or earlier: Site visit, if necessary.
Day 20 or earlier: Oral hearing, if necessary.
Day 22 or earlier: The appointment of an assistant, if necessary.
Day 30: Draft Determination is provided to ODACC.
Day 35: Final Determination is released to Parties.
Communicating the Process to the Parties on ODACC’s Custom System
After an adjudication is added to an Adjudicator’s “My Cases”, the Adjudicator will receive the following notification on ODACC’s Custom System: “Adjudication Process and Timeline: Please click here to communicate the adjudication process and timeline to the Parties.” After clicking on the link in the notification, the Adjudicator will be redirected to the “Process” page on ODACC’s Custom System, a screenshot of which is available below (at Figure 3).
An Adjudicator must communicate the adjudication process to the Parties by entering the process on the space provided. If an Adjudicator starts entering the process and wants to exit the page, the Adjudicator can save the information by clicking on the “Save to Submit Later” button. Once the Adjudicator is ready to send the process to the Parties, the Adjudicator must click on the “Submit to Parties” button.
The Parties will receive an email from ODACC’s Custom System notifying them that the Adjudicator communicated the process to the Parties. Once the Parties indicate that they have viewed the adjudication process and timeline, the chart on the top of the Process page will be updated to show which Party has read the process screen.
If an Adjudicator needs to modify the adjudication process mid-way an adjudication, the Adjudicator can add new information on the Process page and submit the update to the Parties.
Powers of Adjudicator
During the adjudication process, the Adjudicator may issue directions with respect to the conduct of the adjudication and may:
- take the initiative in ascertaining the relevant facts and law; and
- draw inferences based on the parties’ conduct.
The Adjudicator may also request an oral hearing, a site visit, and/or the assistance of a person to determine better any matter of fact in question, details of which are outlined below:
Oral Hearings
Adjudicators may request an oral hearing (in person, by videoconference or by teleconference) (s. 13.12 (1) of the Construction Act). The Adjudicator will organize the oral hearing and provide the Parties with further information.
Site Visits
Adjudicators may need to conduct site visits of the Improvement. Adjudicators will arrange with the Parties to conduct the site visit (subject to the owner’s consent). For further information, refer to s.13.12(2) of the Construction Act.
Adjudicator Assistance
The Adjudicator may obtain the assistance of an expert, including “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 better determine any matter of fact in question” (s. 13.12(1) 5. of the Construction Act).
The Adjudicator is able to order that one or both parties pay the expert’s fees (s. 13.12(3) of the Construction Act).
