Sahil Shoor
Partner
Article
6
In late 2019, the Ontario construction industry welcomed several amendments to the Construction Act,[1] chief among them being the introduction of a prompt payment and adjudication regime to circumvent costly and time-consuming litigation. The prompt payment and adjudication regime is designed to secure a reasonable interim payment direction, while leaving open the ability for parties to revisit the substantive issues in other litigation and adjudication proceedings.
An adjudicator's decision under the Construction Act is an interim binding decision, but it is not final. The Construction Act does not provide for an appeal of an adjudicator's decision, rather judicial review is provided only with leave of the Divisional Court.[2]
Prior to the decision in Anatolia Tile & Stone Inc. v. Flow-Rite Inc., 2023 ONSC 1291 ("Anatolia Tile"), there existed no judicial guidance on the test for leave to apply for judicial review of an adjudicator's decision under the Construction Act. In Anatolia Tile, the Divisional Court denied leave to appeal yet provided rare reasons on such a leave motion, in order to provide guidance as to the proper test for leave to apply for judicial review.
The Divisional Court first specified that the interim nature of an adjudicator's adjudication is "fundamental to the prompt payment scheme of the Construction Act: it is designed to secure a reasonable interim payment direction, following a fast and informal process."[3] In recognition that the prompt payment regime is premised on the purpose of expedited resolution of disputes, leave to apply for judicial review of such an interim decision will be rarely granted — in other words, there exists a high bar for leave being granted. The high bar recognizes that parties are without prejudice to revisit their substantive disagreements in litigation and private arbitration notwithstanding an adjudicator's interim decision.
Second, the Divisional Court provided two key points of clarification:
Third, the Divisional Court set out the test to be satisfied for leave to appeal, which is as follows:
Either:
And either:
Lastly, the Divisional Court clarified the effect of non-payment on a motion for leave to appeal:
The Divisional Court concluded its reasons by emphasizing that the legislature's goal of the prompt payment and adjudication regime is one of "prompt payment" and not just "prompt adjudication."[5]
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