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Fees, Retainers and Payments

Negotiating the Adjudication Fee

After an Adjudicator consents to adjudicate a dispute, the Adjudicator will contact the Parties to negotiate the Adjudication Fee. The Adjudication Fee may consist of a flat fee, or an hourly rate (times the number of hours spent by the Adjudicator, plus disbursements).

Once the Parties and the Adjudicator have agreed on an Adjudication Fee, the Adjudicator will enter the amount on the “Adjudication Fees” page of ODACC’s Custom System, a screenshot of which is available below (at Figure 8). The Parties will receive an email asking them to visit the Adjudication Fees page to view the Adjudication Fee and confirm the fee agreement by clicking the “Consent to Fees” button.


FAQ: What happens if the Adjudicator and the Parties cannot agree on an Adjudication Fee?

If the Adjudicator and the Parties cannot agree on an Adjudication Fee, the Adjudicator may ask ODACC to set the fee. ODACC will set the fee in accordance with the Schedule of Fees approved by the Attorney General for Ontario. After the Adjudication Fee is set, the Parties will receive an email inviting them to visit the Adjudication Fees page to view the Adjudication Fee (and other costs).

FAQ: Who is responsible for paying the cost of adjudications?

The Parties to an adjudication are responsible for an equal share of the adjudication fees unless the Adjudicator orders otherwise (s. 13.10(3) of the Construction Act).  Each Party to an adjudication will be responsible for their own costs, regardless of the outcome (s. 13.16 of the Construction Act). Pursuant to s. 13.17 of the Construction Act, an Adjudicator has the discretion to order a party to pay all or a portion of the other Party’s costs where the Party acted in a manner that was “frivolous, vexatious, an abuse of process or other than in good faith”.

Figure 8: Adjudication Fees Page

Retainer

ODACC will collect a deposit (a “retainer”) at the beginning of an adjudication to cover expected adjudication costs. The Adjudication Fees page (at Figure 7 above) contains information about the retainer required for the adjudication (see the retainer chart at the bottom of the Adjudication Fees page). After each Party clicks on the “Consent to Fees” button at the bottom of the Adjudication Fees page, a link stating “Pay Retainer” will appear. Each Party must click on the link and pay the retainer. The retainer must be paid within seven days after ODACC sends the email to the Parties asking them to consent to the fees through ODACC’s Custom System.

FAQ: How are Retainers Calculated?

The retainer is calculated to cover the following fees and taxes:

  • The Adjudication Fee that was negotiated with the Adjudicator or set by ODACC;
      • If a fixed fee is being charged, the Adjudication Fee will be the fixed fee;
      • If an hourly rate is being charged, the amount required for the retainer for the Adjudication Fee will be based on an estimate of the time to be spent by the Adjudicator and expected disbursements (often in the range of about 60 hours);
      • Each Party will pay half of the retainer.
  • 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
  • Estimated taxes.

FAQ: What happens if a Party does not pay its share of the retainer?

If the retainer is not paid, the Adjudicator may resign and not release a Determination. If the Respondent does not pay its share of the retainer, the Claimant may advance the Respondent’s share of the retainer in order to allow the adjudication to proceed. The Adjudicator will apportion the costs of the adjudication in the Determination, and if fees are owning by the Respondent, the Adjudicator will order that the fees advanced by the Claimant be reimbursed by the Respondent.

Additional Retainers

In some cases, where the Adjudicator is of the view that the standard amount usually requested for a retainer will not cover the expected costs of the adjudication, the Adjudicator may request an additional amount for the retainer.

For example, where the retainer is calculated based on the Adjudicator’s hourly rate times sixty hours, if the Adjudicator believes that he or she will spend over sixty hours on the adjudication, then the Adjudicator may wish to request (and collect) an additional amount for the retainer. As another example, where the Adjudicator had set a Pre-Designed Adjudication Process for the adjudication, and where the Adjudicator and the Parties later determined that the process requires more work than was contemplated, the Parties and Adjudicator may agree to a higher fee, requiring a higher amount for the retainer.

Final Cost of Adjudication

The Final Cost of Adjudication (calculated after the Determination is rendered) will include:

  • the Adjudication Fee;
    • If an hourly rate was negotiated, the Final Cost of Adjudication will be based on the total number of hours worked by the Adjudicator, times the hourly rate of the Adjudicator;
  • 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
  • Disbursements and taxes.

The Final Cost of Adjudication will be apportioned among the Parties by the Adjudicator. The “Determination” page of ODACC’s Custom System (see Figure 9 below) will set out the Final Cost of Adjudication and the amount each Party was required to contribute to the Final Cost of Adjudication.

Figure 9: Determination Page

Insufficient Retainers

If the amount of the retainer paid by a Party was not sufficient to cover the amount allocated in the Final Cost of Adjudication, then an invoice and a link to pay the balance owing will be generated on the Financials page. The amount in the invoice must be paid fourteen days after it is issued.

Payments by Cheque or Electronic Fund Transfer (“EFT”)

Payments of retainers and invoices may be made by credit card (on ODACC’s Custom System as outlined above), cheque or Electronic Fund Transfer (“EFT”).

Payment by cheque or EFT may be made as follows.

Payment by Cheque:

Mail to:

ODACC

Finance Department

180 Duncan Mill Road, 4th Floor

Toronto, Ontario

M3B 1Z6

Please include the invoice number and adjudication file number on the cheque.

Payment by EFT:

Payable to:                   ODACC

Account Number:         0620 5296794

Transit Number:           19922

Institution Number:       004

Please include the invoice number and adjudication file number as a reference.

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