An Adjudicator must make a Determination within thirty days from the day the Claimant submits its documents, pursuant to s.13.13(1) of the Construction Act, which states:
13.13 (1) Subject to subsection (2), an adjudicator shall make a determination of the matter that is the subject of an adjudication no later than 30 days after receiving the documents required by section 13.11.
The Adjudicator’s Determination will be in writing and will include reasons for the Determination (s. 13.13(6) of the Construction Act).
FAQ: Does ODACC have a template form of Determinations?
Yes, ODACC has a template form of Determinations. The template will be shared with certified Adjudicators.
Effect of Determination
A Determination is binding on the Parties to the adjudication until:
- a court orders otherwise;
- an arbitration orders otherwise; or
- the Parties agree to otherwise (s. 13.15 of the Construction Act).
Pursuant to s. 13.13(7) of the Construction Act, “the determination and reasons of an adjudicator are admissible as evidence in court.”
Extending the Deadline to Make a Determination
The Adjudicator will make a Determination within thirty days from the day the Claimant submits its documents (the “Due Date”). The Due Date may be extended with the consent of all the Parties and the Adjudicator. Any of the Parties or the Adjudicator may request a Due Date extension in accordance with s. 13.13(2) of the Construction Act, which states:
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13.13(2) The deadline for an adjudicator’s determination may be extended, at any time before its expiry and after the provision of documents to the adjudicator under section 13.11,
a. on the adjudicator’s request, with the written consent of the parties to the adjudication, for a period of no more than 14 days; or
b. on the written agreement of the parties to the adjudication, subject to the adjudicator’s consent, for the period specified in the agreement.
To request a Due Date extension (a “Request”), the Parties or the Adjudicator must click on the “Request Determination Extension” button below the case information on ODACC’s Custom System (see Figure 8 below). This button will be available after the Claimant submits its supporting documents.
After a Request is submitted, the Parties and the Adjudicator will receive an email asking them to respond to the Request. If everyone agrees to the Request, the Due Date will be extended by the number of days that was indicated in the Request. If the Request is rejected, another Request may be submitted through ODACC’s Custom System.
Finalizing the Determination
Step 1: Enter the Final Cost of Adjudication
Before submitting the Determination to the Parties, an Adjudicator must confirm the Final Cost of Adjudication, which is calculated after the Determination is rendered, and will include:
- the Adjudication Fee that was negotiated between the Adjudicator and the Parties;
- If an hourly rate was negotiated, the Final Cost of Adjudication will be based on the total hours worked times the hourly rate of the Adjudicator, plus disbursements;
- A Referral Fee (please refer to the Schedule of Fees for further information). The Referral Fee is payable by the Claimant;
- A Certification Fee (please refer to the Schedule of Fees for further information). Each Party will pay half of the Certification Fee; and
On the Determination page of ODACC’s Custom System, a screenshot of which is available below (at Figure 9), an Adjudicator must enter the Adjudication Fee and Disbursements in the Final Cost of Adjudication chart. After clicking on the “Save and Calculate” button, the Final Cost of Adjudication will be apportioned between the Parties. An Adjudicator can modify the chart “Apportionment of Final Cost of Adjudication”, to match the split of fees that the Adjudicator will order in the Determination. When the Determination is submitted to the Parties, ODACC will issue a final invoice (if an amount is owing by a Party).
Step 2: Enter the Information Required for Reporting Purposes
On the Determination page of ODACC’s Custom System, an Adjudicator must complete the “Information Required for Reporting Purposes.” The information required includes:
- The type of matter as listed in s. 13.5(1) of the Construction Act;
- The location of the construction project; and
- The amount required to be paid under the determination.
Step 3: Send the Determination to ODACC for Review
ODACC asks Adjudicators to send a draft Determination to ODACC five days before the Determination due date, so that ODACC can review the Determination, and let the Adjudicator know if the reviewer thinks the Determination is unclear or if there are typographical and grammatical errors that could be corrected. The Adjudicators are free to accept or reject any of the suggestions made by ODACC.
To submit a draft Determination to ODACC for review, an Adjudicator should:
- Open the “Determination” page (see Figure 9 above);
- Select and upload the file at the bottom of the Determination page; and
- Click on “Submit to ODACC for Review”.
ODACC will receive the Determination and review it for clarity. ODACC’s comments will be available at the bottom of the Determination page.
Step 4: Send the Determination to the Parties
Adjudicators will be able to submit the Determination to the Parties by clicking on the second step of the progress bar “Submit to Parties” and pressing the “Submit to Parties” button (Refer to Figure 10 below). The Parties will receive an email advising them that the Determination is available on ODACC’s Custom System.
The Determination can be downloaded from the Determination page by clicking on the link that appears in the box called “Link to Determination” (as shown at Figure 9 above).
Step 5: Certified Copy of Determination
A certified Determination is a certified copy of the Determination that a Party can file in court to enforce the Determination as if it were an order of the court. Section 13.20(1) of the Construction Act states:
13.20 (1) A party to an adjudication may, no later than the date referred to in subsection (2), file a certified copy of the determination of an adjudicator with the court and, on filing, the determination is enforceable as if it were an order of the court.
ODACC will provide a certified Determination to the Adjudicator and the Parties, through the Determination page on ODACC’s Custom System, within seven days following the making of a Determination in accordance with s. 22.(1)(b) of Ontario Regulation 306/18. The Adjudicator and the Parties will receive an email once the certified Determination is available on ODACC’s Custom System. The certified Determination can be downloaded from the Determination page by clicking on the link that appears in the box called “Certified Determination”.
Pursuant to ss. 22(1)(b) and 22(3)(b) of Ontario Regulation 306/18, ODACC will certify Determinations. The fee charged by ODACC to the Parties for the certification (the “Certification Fee”) will be as follows:
- $0 where the amount claimed in the Notice of Adjudication is less than $50,000; and
- $100 (plus HST), where the amount claimed in the Notice of Adjudication is over or equal to $50,000.
Only one Certification Fee is payable for each Determination and the Parties to the adjudication will split the cost of the Certification Fee equally, unless the Adjudicator orders otherwise. Every Party to the adjudication will receive a certified copy of the Determination. There will be no additional cost for certifying Determinations that are amended pursuant to s. 22 of Ontario Regulation 306/18.
Adjudicators can make changes to a Determination to correct typographical errors (or errors of a similar nature). Parties may also suggest corrections to the Adjudicator. Corrections to Determinations must be made no later than seven days following the making of a Determination.
If an Adjudicator corrects a Determination, the Adjudicator should upload the corrected version on the Documents page of ODACC’s Custom System. For further information on the Documents page, please refer to the following link: Supporting Documents.
The Adjudicator should also advise ODACC of the correction. ODACC will provide a certified copy of the corrected Determination within five days of the changes being made.
For further information on correcting Determinations, please refer to ss. 22.(2) and (3) of Ontario Regulation 306/18.