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 set the process, the Parties may want to suggest a process to the Adjudicator. To assist the Parties, ODACC has set out four samples of Suggested Pre-Designed Adjudication Processes that the Parties may choose to recommend to the Adjudicator (and/or the Adjudicator may choose to set). Three of the Pre-Designed Adjudication Processes take place in-writing only, while the fourth provides Parties with an oral hearing (by videoconference or teleconference).

The Claimant may indicate a preferred process in the Notice of Adjudication. Similarly, the Respondent may indicate a preferred process in the Response to Notice of Adjudication.

When recommending a process to the Adjudicator, the Claimant and Respondent should consider the amount claimed to ensure that the cost of the adjudication will be proportionate to the amount in dispute. They should also consider the complexity of the issue in dispute. Disputes involving lower amounts or less complicated issues, for example, may be able to be resolved using a Pre-designed Adjudication Process.

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. If there is no agreement on the Adjudication fee, the Adjudication 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:

Sample of a Suggested Pre-Designed Adjudication Process 1

Adjudication in writing only;
Submission of Parties’ arguments is limited to two pages per Party not including a copy of the construction contract or subcontract (which must be submitted) and a copy of the disputed invoice (which may also be submitted) and any documents the party intends to rely on during the adjudication; and
Determination is expected to be approximately five pages.

Suggested Adjudication Timeline

Step 1: Claimant files Notice of Adjudication.

Step 2: Adjudicator is jointly appointed by the Parties or appointed by ODACC.

Step 3: Adjudicator convenes a teleconference with the Parties to discuss the adjudication process and submission of the Parties’ Documents.

Step 4: Claimant provides the Adjudicator and the other Party a copy of the contract or subcontract and any documents and arguments the Claimant intends to rely on during the adjudication to a maximum of two pages (not including the contract or subcontract and if there is one, an invoice).

Step 5: The Adjudicator shall provide confirmation to the Parties of the date on which the Claimant’s documents were received.

Step 6: Respondent delivers its Response to Notice of Adjudication and any documents and arguments it wishes the Adjudicator to consider. The Respondent’s arguments are limited to two pages in total. The Response to Notice of Adjudication and the documents shall be provided no later than such day as the Adjudicator may specify.

Step 7: Adjudicator provides the Determination no later than 30 days after receiving the Claimant’s Documents.

Step 8: ODACC provides a Certified Determination to the Parties.

Suggested Adjudication Fee: $1,100 (plus HST). If there is no agreement on the fee between the Parties and the Adjudicator the fee will be set by ODACC in accordance to the Schedule of Fees.

Sample of a Suggested Pre-Designed Adjudication Process 2

Adjudication in writing only;
Submission of Parties’ arguments is limited to five pages per Party not including a copy of the construction contract or subcontract (which must be submitted) and a copy of the disputed invoice (which may also be submitted) and any documents the party intends to rely on during the adjudication; and
Determination is expected to be approximately five pages.

Suggested Adjudication Timeline

Step 1: Claimant files Notice of Adjudication.

Step 2: Adjudicator is jointly appointed by the Parties or appointed by ODACC.

Step 3: Adjudicator convenes a teleconference with the Parties to discuss the adjudication, process and submission of the Parties’ materials.

Step 4: Claimant provides the Adjudicator and the other Party a copy of the contract or subcontract and any documents and arguments the Claimant intends to rely on during the adjudication to a maximum of five pages (not including the contract or subcontract and if there is one, an invoice).

Step 5: The Adjudicator shall provide confirmation to the Parties of the date on which the Claimant’s documents were received.

Step 6: Respondent delivers its Response to Notice of Adjudication and any documents and arguments it wishes the Adjudicator to consider which arguments are limited to five pages in total. The Response to Notice of Adjudication and the documents shall be provided no later than such day as the Adjudicator may specify.

Step 7: Adjudicator provides the Determination no later than 30 days after receiving the Claimant’s Documents.

Step 8: ODACC provides a Certified Determination to the Parties.

Suggested Adjudication Fee: $1,300 (plus HST). If there is no agreement on the fee between the Parties and the Adjudicator the fee will be set by ODACC in accordance to the Schedule of Fees.

Sample of a Suggested Pre-Designed Adjudication Process 3

Adjudication in writing only;
Submission of Parties’ arguments is limited to ten pages per Party not including a copy of the construction contract or subcontract (which must be submitted) and a copy of the disputed invoice (which may also be submitted) and any documents the party intends to rely on during the adjudication; and
Determination is expected to be approximately seven pages.

Suggested Adjudication Timeline

Step 1: Claimant files Notice of Adjudication.

Step 2: Adjudicator is jointly appointed by the Parties or appointed by ODACC.

Step 3: Adjudicator convenes a teleconference with the Parties to discuss the adjudication, process and submission of the Parties’ materials.

Step 4: Claimant provides the Adjudicator and the other Party a copy of the contract or subcontract and any documents and arguments the Claimant intends to rely on during the adjudication to a maximum of ten pages (not including the contract or subcontract and if there is one, an invoice).

Step 5: The Adjudicator shall provide confirmation to the Parties of the date on which the Claimant’s documents were received.

Step 6: Respondent delivers its Response to Notice of Adjudication and any documents and arguments it wishes the Adjudicator to consider which arguments are limited to ten pages. The Response to Notice of Adjudication and the documents shall be provided no later than such day as the Adjudicator may specify.

Step 7: Adjudicator provides the Determination no later than 30 days after receiving the Claimant’s documents.

Step 8: ODACC provides a Certified Determination to the Parties.

Suggested Adjudication Fee: $2,300 (plus HST). If there is no agreement on the fee between the Parties and the Adjudicator the fee will be set by ODACC in accordance to the Schedule of Fees.

Sample of a Suggested Pre-Designed Adjudication Process 4

Submission of Parties’ arguments is limited to twenty-five pages per Party not including a copy of the construction contract or subcontract (which must be submitted) and a copy of the disputed invoice (which may also be submitted) and any documents the party intends to rely on during the adjudication;

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 seven pages.

Suggested Adjudication Timeline

Step 1: Claimant files Notice of Adjudication.

Step 2: Adjudicator is jointly appointed by the Parties or appointed by ODACC.

Step 3: Adjudicator convenes a teleconference with the Parties to discuss the adjudication, process and submission of the Parties’ materials.

Step 4: Claimant provides the Adjudicator and the other Party a copy of the contract or subcontract and any documents and arguments the Claimant intends to rely on during the adjudication to a maximum of twenty-five pages (not including the contract or subcontract and if there is one, an invoice).

Step 5: The Adjudicator shall provide confirmation to the Parties of the date on which the Claimant’s documents were received.

Step 6: Respondent delivers its Response to Notice of Adjudication and any documents and arguments it wishes the Adjudicator to consider which arguments are limited to twenty-five pages. The Response to Notice of Adjudication and the Documents shall be provided no later than such day as the Adjudicator may specify.

Step 7: Oral hearing takes place by teleconference or videoconference.

Step 8: Adjudicator provides the Determination no later than 30 days after receiving the Claimant’s Documents.

Step 9: ODACC provides a Certified Determination to the Parties.

Suggested Adjudication Fee: $3,300 (plus HST). If there is no agreement on the fee between the Parties and the Adjudicator the fee will be set by ODACC in accordance to the Schedule of Fees.

Sample Customized Process

If the Adjudicator chooses not to use a Pre-Designed process, the Adjudicator will design a customized process. A sample customized process is set out below.

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

Step 1: Claimant files Notice of Adjudication.

Step 2: Adjudicator is jointly appointed by the Parties or appointed by ODACC.

Step 3: Adjudicator convenes a teleconference with the Parties to discuss the adjudication, process and submission of the Parties’ materials.

Step 5: The Adjudicator shall provide confirmation to the Parties of the date on which the Claimant’s documents were received.

Step 6: Respondent delivers its Response to Notice of Adjudication and any copies of documents and arguments it wishes the Adjudicator to consider. The Response to Notice of Adjudication and the documents and arguments shall be provided no later than such day as the Adjudicator may specify.

Step 7: Oral hearing takes place by teleconference or videoconference.

Step 8: Adjudicator provides the Determination no later than 30 days after receiving the Claimant’s Documents.

Step 9: ODACC provides a Certified Determination to the 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).