What is Consolidation?
Consolidation is the joining of two or more adjudications into one adjudication. Features of consolidated adjudications may include:
- multiple Parties;
- a single Adjudicator; and
- the adjudication of multiple disputes of the same matter or related matters in respect of an Improvement.
A consolidated adjudication is treated as a new adjudication.
What Happens to the Original Adjudication When the adjudication is Consolidated?
Pursuant to s 19.(2) of Ontario Regulation 306/18, when adjudications are consolidated, the Adjudicators of the original adjudications are deemed to have resigned :
19. (2) An adjudicator of an adjudication that is consolidated under subsection 13.8 (1) or (2) of the Act is deemed to have resigned from the adjudication,
(a) on the day on which the adjudicator receives notice that the parties to the adjudication have agreed to consolidation under subsection 13.8 (1) of the Act; or
(b) on the day on which the adjudicator receives a notice of consolidation in accordance with subsection 18 (1) of this Regulation.
Parties are responsible for notifying the Adjudicator when an adjudication is consolidated. After being notified of the consolidation, Adjudicators will be required to fill in the information on the Resignation page on ODACC’s Custom System, as outlined at Resignation. The adjudications that were consolidated will be closed, following payment of the Adjudicators’ fees (s. 24(4) of Ontario Regulation 306/18).
How are Adjudications Consolidated?
Adjudications can be consolidated in one of two ways: (a) by a Contractor via a Notice of Consolidation; or (b) by an Agreement to Consolidate.
1. Notice of Consolidation (Contractors)
A Contractor may consolidate adjudications pursuant to s. 13.8(2) of the Construction Act, which states:
13.8(2) If the same matter or related matters in respect of an improvement are the subject of disputes to be adjudicated in separate adjudications under subsections 13.5 (1) and (2) but the parties to each of the adjudications do not agree to consolidated adjudication, the contractor may, in accordance with the regulations, nevertheless require the consolidation of the adjudications.
To consolidate adjudications, a Contractor must complete a Notice of Consolidation, available at the following link: Notice of Consolidation Form. The information required to be entered on a Notice of Consolidation Form and the requirement to notify the Adjudicator of the consolidation are listed in s. 18.(1) of Ontario Regulation 306/18:
18. (1) A contractor who wishes to require the consolidation of two or more adjudications under subsection 13.8 (2) of the Act shall give to the parties to each of the adjudications to be consolidated and to the adjudicator, if any, of each such adjudication, a written notice of consolidation that includes,
(a) with respect to each adjudication,
(i) the names and addresses of the parties,
(ii) the nature and a brief description of the dispute that is the subject of the adjudication, including details respecting how and when the dispute arose,
(iii) the nature of the redress sought, and
(iv) a copy of the notice of adjudication; and
(b) the name of a proposed adjudicator to conduct the consolidated adjudication.
Contractors will provide the Notice of Consolidation to ODACC via email, in accordance with s. 18.(2) of Ontario Regulation 306/18. Within two business days after ODACC receives a Notice of Consolidation, ODACC will create a new (consolidated) adjudication in ODACC’s Custom System and invite all the Parties.
FAQ: Can a Party File a Response to Notice of Consolidation?
A Party who is served with a Notice of Consolidation may prepare a Response to Notice of Consolidation. After accessing the consolidated adjudication on ODACC’s Custom System, the Party will upload the Response to Notice of Consolidation Form through the documents tab, as outlined at Supporting Documents. All Parties to the consolidated adjudication will be notified via email that a new document has been uploaded on ODACC’s Custom System.
FAQ: Is there a timeline by which a Contractor should provide the Notice of Consolidation?
Yes. Pursuant to s. 18.(3) of Ontario Regulation 306/18:
18.(3) Notice under subsection (1) in respect of an adjudication may not be given later than the fifth day after the adjudicator in the adjudication receives the documents required by section 13.11 of the Act.
2. Agreement to Consolidate (Parties)
Parties to adjudications may agree to consolidate adjudications, pursuant to section 13.8(1) of the Construction Act:
13.8 (1) If the same matter or related matters in respect of an improvement are the subject of disputes to be adjudicated in separate adjudications under subsections 13.5 (1) and (2), the parties to each of the adjudications may agree to the adjudication of the disputes together by a single adjudicator as a consolidated adjudication.
To consolidate adjudications, all of the Parties of the adjudications being consolidated must sign an Agreement to Consolidate.
After all the Parties have signed the Agreement to Consolidate:
- The Claimant of each original adjudication must notify the original Adjudicator (if one has been appointed) that the adjudication has been consolidated; and
- The Party responsible for notifying ODACC of the consolidation (see page 5, item 7 of the Agreement to Consolidate) must send ODACC the Agreement to Consolidate via email at email@example.com.
What Happens After ODACC Receives a Notice of Consolidation or an Agreement to Consolidate?
1. A New Adjudication is Created
After ODACC receives a Notice of Consolidation or an Agreement to Consolidate, ODACC will create a new adjudication on ODACC’s Custom System.
2. An Adjudicator is Appointed
After an adjudication is consolidated, the Adjudicator who is deemed to have resigned may be selected or appointed to conduct the consolidated adjudication. The Parties may also choose another Adjudicator for the matter. Section 19.(3) of the Regulations states:
19. (3) An adjudicator who is deemed to have resigned under subsection (2) may be selected or appointed under section 13.9 of the Act to conduct the consolidated adjudication, subject to the requirements of that section.
On a Notice of Consolidation, a Contractor must indicate the name of a proposed Adjudicator. After the consolidated adjudication is created on ODACC’s Custom System, the Parties to the consolidation will engage in the Adjudicator Selection Process.
On an Agreement to Consolidate, the Parties may indicate the name of an Adjudicator selected to conduct the consolidated adjudication, or they may ask ODACC to appoint an Adjudicator.
If all Parties agree on an Adjudicator, the proposed Adjudicator will receive an email asking the Adjudicator whether he or she consents to conduct the adjudication. Further details about obtaining an Adjudicator’s consent are outlined at: Obtaining an Adjudicator’s Consent.
If ODACC is asked to appoint an Adjudicator, ODACC will appoint an Adjudicator and obtain the Adjudicator’s consent within seven days of receiving the request to make the appointment (as required by s. 13.9(4) of the Construction Act). Further details about ODACC’s appointment process are outlined at: ODACC Appointed Adjudicator.
3. The Adjudicator will Contact the Parties to Negotiate a Fee and Set the Process
After an Adjudicator consents to adjudicate, the Adjudicator must contact the Parties to negotiate the Adjudication Fee and set the process, as outlined in the following sections Adjudication Process and Fees, Retainers and Payments. If there is no agreement on the Adjudication Fee, the Adjudication Fee will be set by ODACC.
FAQ: Will ODACC collect retainers for consolidated adjudications?
Yes. After the fee is negotiated (or set by ODACC), ODACC will collect a deposit (a “retainer”) at the beginning of the consolidated adjudication to cover expected adjudication costs, as described at Fees, Retainers and Payments. If the Adjudicator believes that an equal division of the retainer among the Parties would not be appropriate for a consolidated adjudication, the Adjudicator may decide to apportion the retainer in a manner that he or she determines is appropriate.
FAQ: When must the Parties of a consolidated adjudication submit supporting documents?
For the answer to this question, please refer to s. 19.(5) of Ontario Regulation 306/18, which states:
“The requirement under section 13.11 of the Act, as modified by subsection 13.8 (3) of the Act, to provide documents to the adjudicator and to every other party applies with respect to each of the parties who gave the notice of adjudication in each adjudication being consolidated.”