Can an Adjudicator Resign?
An Adjudicator may resign from an adjudication pursuant to s. 23 of Ontario Regulation 306/18.
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 to have 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.
Negotiating the Adjudication Fee
Pursuant to s. 24.(4) of Ontario Regulation 306/18, an Adjudicator who has resigned (or is deemed to have resigned) is required to negotiate the Adjudication Fee with the Parties.
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.
If the Parties and the Adjudicator do not agree on an Adjudication Fee, the Adjudicator can ask ODACC to set the Adjudication Fee (for instructions, refer to Completing the Resignation Page). ODACC will set the Adjudication Fee in accordance with the Schedule of Fees and s. 24.(5) of Ontario Regulation 306/18, which states:
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.
Completing the Resignation Page
After an Adjudicator negotiates the Adjudication Fee with the Parties, the Adjudicator must complete the Resignation page on ODACC’s Custom System, as shown at Figure 11. The Resignation page contains two charts that display the Adjudication Fee, disbursements, Referral Fee and Certification Fee that (a) were approved and/or paid to date, and (b) are owing at resignation. On the Resignation page, an Adjudicator should:
- Select the reason for resignation from the drop-down menu;
- On the first row of the chart to the left of the page, enter the Adjudication Fee negotiated between the Adjudicator and the Parties, or, if no agreement could be reached, leave the amount at $0;
- Apportion the Adjudication Fee among the Parties;
- Enter any comments; and
- Press the “Submit to Parties” or “Ask ODACC to Set Fees” button.
If the Adjudicator clicks on the “Submit to Parties” button, the Parties will receive an email notifying them 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 their consent to the Adjudication Fee amount. Once all Parties confirm the Adjudication Fee amount, the Resignation Chart (shown at Figure 12) will be updated and the Parties will be required to pay the fee. Once the fee has been paid, ODACC will close the file.
If the Adjudicator clicks on “Ask ODACC to Set Fees”, ODACC will set the Adjudication Fee and the Adjudicator and the Parties will be notified via email. They will be asked to log in to ODACC’s Custom System to view the amount of the Adjudication Fee. The Parties will be required to pay the fee. Once the fee has been paid, ODACC will close the file.
Adjudicating Following an Adjudicator’s Resignation
If an Adjudicator fails to complete an adjudication pursuant to s. 23.(1)(b) of Ontario Regulation 306/18, the Party who gave the Notice of Adjudication may give to the other Party a fresh Notice of Adjudication (s. 24.(1) of Ontario Regulation 306/18).
In order to obtain a fresh Notice of Adjudication, the Claimant will need to commence a new adjudication on ODACC’s Custom System. A new case number will be provided when the Notice of Adjudication is created on ODACC’s Custom System.
For further information regarding the failure of an Adjudicator to complete an adjudication, please review Ontario Regulation 306/18.
FAQ: After an Adjudicator resigns, can a new Adjudicator be appointed to the initial adjudication?
No. If an Adjudicator resigns, the adjudication will be closed. In order to move the adjudication forward, a fresh Notice of Adjudication must be created by commencing a new adjudication on ODACC’s Custom System.