Consolidation
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.
When adjudications are consolidated, the Adjudicators of the original adjudications are deemed to have resigned, and the original adjudications are closed following payment of Adjudicators’ fees (s. 24.(4) of Ontario Regulation 306/18).
A consolidated adjudication is treated as a new adjudication.
How to Consolidate Adjudications?
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.
A. Notice of Consolidation (Contractors)
Step 1: Complete a Notice of Consolidation
A Contractor may consolidate two or more 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 Form. The information required to be entered on a Notice of Consolidation is listed in s. 18.(1) of Ontario Regulation 306/18.
FAQ: How can a Contractor consolidate four or more adjudications?
The Notice of Consolidation Form allows a Contractor to enter information on three adjudications. To consolidate four or more adjudications, a Contractor should attach an Attachment to Notice of Consolidation Form to the Notice of Consolidation (for each additional adjudication).
FAQ: Can a subcontractor consolidate adjudications using a Notice of Consolidation Form?
Please consult a construction lawyer for assistance determining if a subcontractor can consolidate adjudications using a Notice of Consolidation Form.
Step 2: Provide the Notice of Consolidation to the Parties and the Adjudicators
Section 18.1 of Ontario Regulation 306/18 lists the individuals that must be provided with a Notice of Consolidation:
Consolidation of adjudications, if required by contractor
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.
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.
Step 3: Provide a Copy of the Notice of Adjudication to ODACC
Section 18.(2) of Ontario Regulation 306/18 states:
18.(2) The contractor shall, as soon as possible after giving the last of the notices of consolidation under subsection (1), provide a copy of the notice in electronic format to the Authority. O. Reg. 109/19, s. 10.
To provide a Notice of Consolidation to ODACC, a Contractor should send it via email to authority@odacc.ca. 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.
Step 4: 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 Response to Notice of Consolidation Form can be uploaded 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.
B. Agreement to Consolidate (Parties)
Step 1: Complete an Agreement to Consolidate
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 the Parties of the adjudications being consolidated must sign an Agreement to Consolidate.
FAQ: Can four or more adjudications be consolidated?
Yes. The Agreement to Consolidate Form allows information to be entered for up to three adjudications. To consolidate four or more adjudications, attach an Attachment to Agreement to Consolidate Form to the Agreement to Consolidate (for each additional adjudication).
Step 2: Provide a copy of the Agreement to Consolidate to the Adjudicators
After all of 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.
Step 3: Provide a copy of the Agreement to Consolidate to ODACC
After all the Parties have signed the Agreement to Consolidate, 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 authority@odacc.ca. The Agreement to Consolidate should be a single PDF, containing all counterparts.
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. The parties of the consolidated adjudication will receive an email from communications@odacc.ca with an invitation to access the consolidated adjudication.
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.
The Adjudicator selection process for consolidated adjudications is outlined below.
a. Notice of Consolidation
On the Notice of Consolidation, a Contractor must indicate the name of 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. As Parties log in to ODACC’s Custom System and access the new consolidated adjudication, they will be re-directed to the Adjudicator Selection page, a screenshot of which is available below (at Figure 10).
On the Adjudicator Selection page, the Parties can select one of the following three options:
1. “I agree to the Adjudicator suggested by [Name of Party] to conduct the adjudication.”
- 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.
2. “I request ODACC to appoint an Adjudicator to conduct the adjudication.”
- If a Party requests that ODACC appoint an Adjudicator, ODACC will then appoint an Adjudicator within seven days (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. “I would like to suggest a different Adjudicator to conduct the adjudication.”
- A Party may suggest a different Adjudicator from the one proposed by the Contractor (or by another Party). All the Parties, including the Contractor, will be notified of the new proposed Adjudicator and will be asked to log in to ODACC’s Custom System to view the name of the proposed Adjudicator.
b. Agreement to Consolidate
On an Agreement to Consolidate, the Parties may indicate the name of an Adjudicator selected to conduct the consolidate adjudication, or they may ask ODACC to appoint an Adjudicator.
If the Parties agreed on an Adjudicator, ODACC will contact that Adjudicator requesting that he or she consent to conduct the adjudication. If the Adjudicator consents to conduct the adjudication, the Parties will receive an email advising them that the Adjudicator has consented to conduct the adjudication. If the Adjudicator does not consent to conduct the adjudication, the Parties must contact ODACC with the name of a new Adjudicator, or to ask ODACC to appoint an Adjudicator.
If ODACC is asked to appoint an Adjudicator, ODACC will select an Adjudicator and obtain the Adjudicator’s consent within seven days of receiving the request to make the appointment. Once the Adjudicator is appointed, the Parties will be notified of the appointment. Further information on ODACC’s appointment process are available 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 will 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.”
What Happens to the Original Adjudication After an Adjudication Case is Consolidated?
After an adjudication is consolidated (whether by a Contractor or by an Agreement to Consolidate) the Adjudicator of the original adjudication is deemed to have resigned. Section 19.(2) of Ontario Regulation 306/18 (the “Regulations”) states:
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.
The Adjudicator will begin the resignation process 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).
