On November 4, 2024, the Minister of Service put forward Bill 30 (the “Bill”) which, among other aspects will revise the adjudication process of the Prompt Payment and Construction Lien Act (PPCLA).

The adjudication deadline is now the “date of final payment”

Adjudication is the PPCLA’s expedited dispute resolution process. Presently, an adjudication can be commenced only until the contract or subcontract is completed, unless the parties agree otherwise (s.33.4(1)). This raises a problem: when is the contract “complete”? Is it when the work is completed, when the final payment is made, or when the warranty concludes? Case law has defined completion as when “all of the work is done” (CANA Management Ltd v Condominium Corporation No. 0513341, 2021 ABQB 470, para 44).

Bill 30 will instead make the deadline for commencing an adjudication as 30 days from the “date of final payment.” The “date of final payment” will mean the earlier of (i) the date on which complete payment of the amount set out in the construction agreement is made, or (ii) the date on which complete payment of the amount set out in the construction agreement is required in accordance with the statutory prompt payment deadlines (i.e. the 28-day window). “Final payment” excludes payment of the major lien fund, minor lien fund and payment for work done after a certificate of substantial completion is issued (or the conditions of substantial completion have been met).

Putting all these together, “final payment” will generally mean payment of the proper invoice for contract work issued after issuance of the certificate of substantial completion. The notice of adjudication is required within 30 days thereafter:

Posting of certificate of substantial completion → Proper Invoice → 28-day payment deadline → 30-day notice of adjudication deadline

How does this timing interact with construction liens?

A lien claimant can both register a lien and commence an adjudication. The deadline for a lien remains 60 days from the date of “completion” of the contract, that is, when all the work is done. This means that, outside of exceptional cases, the deadline for registering a lien will fall after the deadline to commence an adjudication. Put another way, a party who misses the deadline to commence an adjudication may still have time to register a lien.

How do court actions affect commencing an adjudication?

Presently, a party can commence an adjudication as long as no party has commenced a court action about the same dispute. If the court action is commenced on the same day as the adjudication about the same dispute, the adjudication will be discontinued, and the court action will proceed (s.33.3(1) and (3)). This creates a problem: parties could attempt to prevent adjudications by filing a court action about the dispute on the same day they receive a notice of adjudication.

The amended provisions delete that limitation on adjudications. In the amendments, if a party commences a court action on the same day or after the commencement of an adjudication on the same dispute, both the court action and the adjudication can proceed. The court can decide otherwise, either upon a party’s court application, or the court’s own decision: 

33.4(1) A party to a contract or subcontract may refer to adjudication a dispute with the other party to the contract or subcontract, as the case may be, respecting any prescribed matter in accordance with this section and the regulations or the procedures established by the Nominating Authority responsible for that matter.

33.4(5) If a party commences an action in court with respect to a dispute on or after the day the dispute is referred to adjudication under subsection (1), the adjudication and the action in court may both proceed unless, on the application of a party or on the court’s own motion, the court directs otherwise [emphasis added].

How does judicial review affect enforcement of an adjudicator’s determination?

A party can apply to court for judicial review, that is, court re-evaluation of an adjudicator’s determination. If a party does apply for judicial review, does that application stay (that is, pause) the adjudicator’s determination? Presently, the legislation is ambiguous. Bill 30 will confirm that an application for judicial review does not stay the adjudicator’s determination (s.33.7(3)). This means that the adjudicator’s determination is in force, and can be filed in court, whether or not a party applies for judicial review. If the judicial review application overturns the adjudicator’s decision, then the court will have to decide how to “wind back the clock” on the determination. 

Conclusion: How might this play out

These amendments represent a strengthening of adjudication. The filing of a court action about the same dispute now no longer automatically forces the adjudication to cease. The court action and adjudication can proceed concurrently, or the court can even pause the court action in favour of adjudication. The filing of a court application for judicial review will similarly no longer stay enforcement of an adjudicator’s determination. The determination must be followed by the parties even if a party files an application for judicial review.