Can an Adjudicator Resign?
An Adjudicator may resign from an adjudication pursuant to s. 23 of the Construction Act:
23.(1) An adjudicator may at any time resign from an adjudication of a matter if the adjudicator determines that,
(a) the matter is not eligible for adjudication under section 13.5 of the Act; or
(b) he or she is not able or competent to conduct the adjudication.
(2) The adjudicator shall promptly give written notice of the resignation to the parties.
Adjudicators will be deemed resigned following the consolidation of an adjudication, pursuant to s. 19.(2) of Ontario Regulation 306/18.
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.
Table of Contents
Adjudicator’s Fees at Resignation
Pursuant to s. 24.(4) of Ontario Regulation 306/18, an Adjudicator that has resigned (or is deemed resigned) is required to negotiate his or her fee with the parties before asking ODACC to set the fee:
24.(4) If an adjudicator fails to complete an adjudication, other than in the circumstances set out in section 13.14 of the Act, the adjudicator’s entitlement to be paid a fee under section 13.10 of the Act and the amount of any such fee shall be determined,
(a) by agreement between the parties to the adjudication and the adjudicator; or
(b) if no agreement is reached, by the Authority, on the adjudicator’s request.
Communicating the Resignation to the Parties and Negotiating the Adjudication Fee
To communicate the resignation to the Parties and to negotiate the Adjudication Fee, an Adjudicator must complete the Resignation screen on ODACC’s Custom System, as shown at Figure 11. On the resignation screen, an Adjudicator should:
- Select the reason for resignation from the drop-down menu;
- Enter the Final Cost of Adjudication at Resignation;
- Apportion the Adjudication Fee amongst the Parties; and
- Press the “Submit to Parties” button.
After pressing the “Submit to Parties” button, the Parties will receive an email notifying them of the Adjudicator’s resignation and that the Adjudicator has set the Adjudication Fee owing at resignation. The Parties will be asked to log in to ODACC’s Custom System to indicate if they approve the amount.
As Parties approve or reject the amount, the Resignation Chart shown at Figure 12 will be updated:
- If all Parties approve the amount, the Parties will be able to pay outstanding fees. Once all fees have been paid, ODACC will close the adjudication file.
- If a Party rejects the amount, the Adjudicator will receive an email asking him or her to submit a new Adjudication Fee or to ask ODACC to determine the fees.
- If the Adjudicator submits a new Adjudication Fee to the Parties, the Parties will be emailed and asked to indicate if they consent to the fees (as described above).
- If ODACC is asked to set the Adjudication Fee, ODACC will set the fee in accordance with the Schedule of Fees and s. 24.(5) of Ontario Regulation 306/18:
24.(5) In determining the amount of a fee under clause (4) (b), the Authority shall determine an amount that is, in the Authority’s view, appropriate given the work completed by the adjudicator and the circumstances in which the adjudicator failed to complete the adjudication.
After ODACC sets the Adjudication Fee, the Adjudicator and the Parties will be notified via email and asked to log in to ODACC’s Custom System to view the amount. The Parties will be able to pay outstanding fees. Once all fees have been paid, ODACC will close the adjudication file.