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So You Want to be an Adjudicator?: Update on Ontario’s Construction Act Adjudication Process

Sep 26, 2019

By: Marta O. Lewycky, Partner, Commercial Real Estate and Leasing, and Joshua Hersh, Student-at-Law

Image: Marta Lewycky, Commercial ​Leasing Lawyer

Do you want to be a Construction Act adjudicator?

Adjudication is the new “quick justice” mandatory process for Ontario construction payment disputes that, along with prompt payment, comes into force on October 1, 2019.

For those of you interested in applying, the application package was recently released with details of the selection process, the fees, and recommended pre-designed processes.

Here’s what applicants need to know:

  • On October 1, 2019, Ontario Dispute Adjudication for Construction (“ODACC”) will operate as the Authorized Nominating Authority under the Act.
  • ODACC is responsible for overseeing and administering the adjudication regime, and the training and evaluation of interested applicants.
  • Adjudicators must hold a valid Certificate of Qualification to Adjudicate issued by ODACC.
  • Application package can be found on ODACC’s website (https://adrchambers.com/odacc)
  • Applicants must meet certain criteria, such as:
    1. A minimum of 10 years of relevant construction industry experience, such as quantity surveyors, engineers, consultants, lawyers, accountants, project managers, and architects.
    2. Cannot be an undischarged bankrupt.
    3. Cannot have been convicted of an indictable offence in Canada or of a comparable offence outside of Canada.
    4. Must agree to abide by a Code of Conduct (currently a draft), on matters such as conflict of interest, confidentiality, harassment, and procedural fairness.
    5. Pay the applicable fees for training and qualification.

Applicants are required to complete the following application process:

  • Complete the Construction Adjudication and ODACC Orientation Program, which has both an on-line and a two-day in-person component. The in-person training is limited to 40 people for each session. It will be offered in Ottawa on November 12th-13th, 2019, and in Toronto on November 27th-28th, 2019, and on February 12th-13th, 2020. The program is open to anyone, including those that simply wish to learn more about the new adjudication regime, but is mandatory for anyone wanting to become an adjudicator. More information can be found at: https://sfhgroup.com/odacc-program/
  • Upon successful completion of this program, the applicant submits:
    • A completed application form (found on the website)
    • Adjudicator Declarations (statements confirming the applicant’s qualifications)
    • A resume
    • A letter of reference confirming applicant’s experience in the construction industry.

The application package also sets out:

  • 5 pre-designed adjudication processes (from adjudication in writing only, to adjudications with oral presentations, to adjudications where the parties establish case-specific processes and timelines).
  • Recommended adjudication timelines: intent is to complete the entire process within 30 days of receiving documents from the claimant. This can be extended by agreement of the parties and the adjudicator.
  • Fees: there are two fees:
    • Adjudication fee payable by the parties to the adjudicator. This fee can be agreed upon by the parties and the adjudicator, or if not agreed, will be set by ODACC (fees are set out in a table and range from a fixed fee of $800 total to a fee based on an hourly rate of $750).
    • Administration fee payable by the adjudicator to ODACC. This fee ranges from 50% of the amount billed when the adjudication fee is < or =$3,000, to 40% when the adjudication fee is > $3,000.
    • The application package also has recommended adjudication fees for each of the pre-designed adjudication processes.

If you have the experience, consider applying to be an adjudicator.

We will update you on the Construction Act, including the adjudication process and prompt payment, as they further develop. For further information or if we can be of assistance, please contact Marta O. Lewycky at mlewycky@mindengross.com.

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