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O. Reg. 306/18: ADJUDICATIONS UNDER PART II.1 OF THE ACT

under Construction Act, R.S.O. 1990, c. C.30

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current April 23, 2018 (e-Laws currency date)

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Construction Act

ONTARIO REGULATION 306/18

ADJUDICATIONS UNDER PART II.1 OF THE ACT

Consolidation Period: From April 23, 2018 to the e-Laws currency date.

Note: THIS REGULATION IS NOT YET IN FORCE. It comes into force on October 1, 2019, the day subsection 62 (2) of the Construction Lien Amendment Act, 2017 comes into force.

No amendments.

This is the English version of a bilingual regulation.

CONTENTS

Definitions and Designation

1.

Definitions

2.

Designation

Adjudicators

3.

Certificate of qualification to adjudicate

4.

Requirements for holders of certificates

5.

Suspension, cancellation of certificate

Other Duties of Authority

6.

Adjudicator registry

7.

Code of conduct

8.

Training programs

9.

Fee schedule

10.

Complaints re adjudicators

11.

Province-wide availability

12.

Breadth of adjudicator expertise

13.

Educational materials

14.

Annual report

15.

Public availability

Adjudication

16.

Notice of adjudication, copy to Authority

17.

Response

18.

Consolidation of adjudications, if required by contractor

19.

Application of Part to consolidated adjudications

20.

Disclosure of documents

21.

Powers of adjudicator

22.

Determinations

23.

Adjudicator unable to conduct adjudication

24.

Failure of adjudicator to complete adjudication

25.

Application of Part II.1 to labour and material payment bonds

 

Definitions and Designation

Definitions

1. In this Regulation,

“adjudicator registry” means the registry established by the Authority under clause 13.3 (1) (c) of the Act; (“registre d’arbitres intérimaires”)

“code of conduct” means the code of conduct established by the Authority under section 7; (“code de déontologie”)

“Minister” means the Minister responsible for the administration of the Act. (“ministre”)

Designation

2. (1) To be eligible to be designated to act as Authorized Nominating Authority, an entity must,

(a) submit an application to the Minister in the time and manner specified by the Minister; and

(b) agree in writing to abide by any conditions of designation specified by the Minister, including any conditions respecting the term or termination of any such designation.

(2) A designation may be terminated at the Minister’s discretion.

Adjudicators

Certificate of qualification to adjudicate

3. (1) The Authority may issue a certificate of qualification to adjudicate to an individual who meets the requirements and qualifications set out in subsection (2) and who applies to the Authority in accordance with its procedures.

(2) An individual who meets the following requirements and qualifications is eligible to hold a certificate of qualification to adjudicate:

1. The individual has, in the Authority’s view, at least 10 years of relevant working experience in the construction industry.

2. The individual has successfully completed the training programs provided under clause 8 (a), subject to subsection (4) of this section.

3. The individual is not an undischarged bankrupt.

4. The individual has not been convicted of an indictable offence in Canada or of a comparable offence outside Canada.

5. The individual pays to the Authority any applicable fees for training and qualification as an adjudicator listed in the schedule of fees under section 9.

6. The individual agrees in writing to abide by the requirements for holders of certificates set out in section 4.

(3) For the purposes of paragraph 1 of subsection (2), examples of relevant working experience in the construction industry may include experience working in the industry as an accountant, architect, engineer, quantity surveyor, project manager, arbitrator or lawyer.

(4) In the case of an application made to the Authority on or before the first anniversary of the coming into force of this Regulation, the Authority may waive the requirement in paragraph 2 of subsection (2) if, in the Authority’s view, the applicant has experience or education qualifications that are at least equivalent to the successful completion of the training programs referred to in that paragraph.

(5) A certificate of qualification to adjudicate is valid for the period specified for it by the Authority, but the Authority may renew it for one or more further periods if the holder continues to be eligible to hold the certificate.

(6) Subsection (5) is subject to the suspension or cancellation of the holder’s certificate by the Authority under section 5.

(7) The holder of a certificate of qualification to adjudicate is an adjudicator for the purposes of Part II.1 of the Act.

Requirements for holders of certificates

4. Every holder of a certificate of qualification to adjudicate shall,

(a) successfully complete the continuing training programs provided under clause 8 (b);

(b) comply with the code of conduct;

(c) on its request, provide to the Authority proof, in the time and manner specified by the Authority, of the holder’s eligibility to hold the certificate;

(d) immediately notify the Authority in writing if he or she ceases to be eligible to hold the certificate;

(e) maintain records as required by the Authority and report information respecting the records to the Authority on its request;

(f) pay to the Authority any applicable fees for training and qualification as an adjudicator listed in the schedule of fees under section 9; and

(g) comply with the Act and this Regulation, and with any further directions or requirements of the Authority.

Suspension, cancellation of certificate

5. (1) The Authority may suspend or cancel a holder’s certificate of qualification to adjudicate if it is reasonably satisfied that,

(a) the holder has ceased to be eligible to hold the certificate under section 3, or has failed to comply with the code of conduct or to meet any other requirement of section 4;

(b) the holder is incompetent or unsuitable to conduct adjudications; or

(c) the certificate was issued or renewed on the basis of a false or misleading representation or declaration.

(2) The Authority may lift the suspension of a certificate of qualification to adjudicate if the Authority is reasonably satisfied that the circumstances giving rise to the suspension no longer exist and the holder is eligible to hold the certificate.

(3) The Authority may re-issue a cancelled certificate of qualification to adjudicate if the Authority is reasonably satisfied that the circumstances giving rise to the cancellation no longer exist and the holder is eligible to hold the certificate.

(4) A holder whose certificate of qualification is suspended or cancelled ceases, for the duration of the suspension or cancellation, to be authorized to conduct adjudications or to continue to conduct any ongoing adjudication.

Other Duties of Authority

Adjudicator registry

6. (1) The Authority shall make the adjudicator registry publicly available on its website.

(2) The Authority shall ensure that the adjudicator registry includes every holder of a certificate of qualification to adjudicate and, in relation to each listed holder, includes,

(a) the holder’s contact information;

(b) the period of validity of the holder’s certificate;

(c) the holder’s areas of expertise for the purposes of adjudication, number of years of relevant working experience in the construction industry and every professional body of which the holder is a member in good standing;

(d) the geographical areas in which the holder conducts adjudications; and

(e) any other information that the Minister directs be included in order to assist persons in selecting an adjudicator.

Code of conduct

7. (1) The Authority shall, subject to the approval of the Minister, establish and maintain a code of conduct for adjudicators, and shall make the code of conduct publicly available on its website.

(2) The code of conduct shall address, at a minimum, the following matters:

1. Conflicts of interest and related procedural matters.

2. Principles of proportionality in the conduct of an adjudication, and the need to avoid excess expense.

3. Principles of civility, procedural fairness, competence and integrity in the conduct of an adjudication.

4. The confidentiality of information disclosed in relation to an adjudication.

5. Procedures for ensuring the accuracy and completeness of information in the adjudicator registry.

(3) The Minister may, on written notice, require the Authority to make such changes to the code of conduct as are specified by the Minister, in the time and manner specified by the Minister.

(4) The Authority may not make changes to the code of conduct, except,

(a) with the prior written approval of the Minister; or

(b) in order to comply with a notice given under subsection (3).

(5) The Authority shall indicate on its website the effective date of every change made to the code of conduct.

(6) Subsections (4) and (5) do not apply with respect to changes of a typographical or similar nature.

(7) The Authority shall maintain an archive of all previous versions of the code of conduct, indicating the period during which each version applied, and shall ensure that the versions are publicly accessible.

Training programs

8. In developing and overseeing training programs for the purposes of clause 13.3 (1) (a) of the Act, the Authority shall ensure that training programs are provided,

(a) to individuals who apply for the issuance of a certificate of qualification to adjudicate; and

(b) to holders of a certificate, on a continuing basis.

Fee schedule

9. (1) The Authority shall, subject to the approval of the Minister, establish and maintain a schedule of fees listing the following items, and shall make the schedule publicly available on its website:

1. Any fees set by the Authority under clause 13.3 (2) (a) of the Act.

2. Amounts or rates determined by the Authority for the purposes of clause 13.10 (2) (b) of the Act with respect to the fee payable to an adjudicator.

(2) Subject to clause 24 (4) (b), the Authority shall not charge a fee under clause 13.3 (2) (a) of the Act or authorize the payment of a fee under clause 13.10 (2) (b) of the Act unless it is included in and accords with the schedule of fees.

(3) The Authority may not make changes to the schedule of fees, except with the prior written approval of the Minister.

(4) The Authority shall indicate on its website the effective date of every change made to the schedule of fees.

(5) Subsections (3) and (4) do not apply with respect to changes of a typographical or similar nature.

(6) The Authority shall maintain an archive of all previous versions of the schedule of fees, indicating the period during which each version applied, and shall ensure that the versions are publicly accessible.

Complaints re adjudicators

10. The Authority shall establish a complaints process for accepting and dealing with complaints against adjudicators from persons involved in adjudications, and shall make the complaints process publicly available on its website.

Province-wide availability

11. The Authority shall develop procedures and take other reasonable steps to ensure that adjudication is available to parties throughout Ontario.

Breadth of adjudicator expertise

12. The Authority shall develop procedures and take other reasonable steps to ensure that the aggregate breadth of expertise and working experience of the holders of certificates of qualification to adjudicate is sufficient to account for the industry sectors in which parties refer matters to adjudication and the nature of the matters in dispute.

Educational materials

13. The Authority shall develop and make publicly available on its website educational materials respecting the adjudication process.

Annual report

14. (1) The Authority shall, no later than 90 days after the end of each of its fiscal years, issue and make publicly available on its website an annual report for the fiscal year, containing aggregated information respecting adjudication in Ontario, including, at a minimum, information respecting,

(a) the number of adjudications completed during the fiscal year, and the geographical area in which the adjudications were completed;

(b) the number of adjudications completed during the fiscal year, broken down by each matter listed under paragraphs 1 to 7 of subsection 13.5 (1) of the Act;

(c) the total amount claimed in all notices of adjudication given during the fiscal year, and the average of the amounts claimed during that year;

(d) the total amount and the average amount required to be paid under determinations made during the fiscal year;

(e) the percentage of adjudications completed during the fiscal year in which the adjudicator made a determination within the timeline specified in subsection 13.13 (1) of the Act;

(f) the total number of adjudications that were terminated under section 13.14 of the Act during the fiscal year;

(g) the total amount of fees paid during the fiscal year to the Authority; and

(h) the total amount of fees paid during the fiscal year to adjudicators.

(2) Information under each of clauses (1) (a), (c) and (d) shall be reported for Ontario as a whole and in respect of each of the following industry sectors:

1. Residential.

2. Commercial.

3. Industrial.

4. Public buildings.

5. Transportation and infrastructure.

6. Any other industry sectors the Authority considers to be relevant.

(3) The Authority shall collect from holders of a certificate of qualification to adjudicate such information as may be reasonably required to meet the reporting requirements of this section.

Public availability

15. The Authority shall, on the request of any person, provide information that is published on the Authority’s website to the person in a format accessible to that person.

Adjudication

Notice of adjudication, copy to Authority

16. A party to a contract or subcontract who gives a notice of adjudication under subsection 13.7 (1) of the Act shall, on the same day, provide a copy of the notice in electronic format to the Authority.

Response

17. The right of a party to respond to a notice of adjudication is subject to any directions of the adjudicator as to the time and manner of the delivery of the response.

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.

(2) A contractor who gives a notice of consolidation under subsection (1) shall, on the same day, provide a copy of the notice in electronic format to the Authority.

(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. 

Application of Part to consolidated adjudications

19. (1) This section applies for the purposes of subsection 13.8 (3) of the Act with respect to adjudications consolidated under subsection 13.8 (1) or (2) of the Act.

(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.

(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.

(4) For the purposes of subsection 13.9 (4) of the Act, the reference to the day on which the notice of adjudication was given shall be read as a reference to the day referred to in clause (2) (a) or (b) of this section, as the case may be.

(5) For greater certainty, section 13.11 of the Act applies with respect to a consolidated adjudication, and the requirement under that section to give documents to the adjudicator applies to the parties who gave the notice of adjudication in each of the adjudications that have been consolidated.

Disclosure of documents

20. (1) An adjudicator may issue directions respecting the disclosure of documents on which a party intends to rely in an adjudication.

(2) An adjudicator shall exercise the power to issue directions under subsection (1) to the extent and in a manner that ensures that each party to the adjudication has an opportunity to review any documents on which a party to the adjudication intends to rely.

Powers of adjudicator

21. An adjudicator may exercise a power under subsection 13.12 (1) of the Act despite any failure of a party to the adjudication to comply with a direction or other requirement of the adjudicator.

Determinations

22. (1) An adjudicator who makes a determination shall,

(a) communicate the determination to the parties to the adjudication by providing each of them with an electronic copy of the determination on the day it is made; and

(b) give a certified copy of the determination to the parties to the adjudication no later than five days following the making of a determination.

(2) An adjudicator who makes a determination may, on the written request of a party or on his or her own initiative, make such changes to the determination as may be necessary to correct an error that is of a typographical or similar nature.

(3) An adjudicator who changes a determination under subsection (2) shall,

(a) provide to the parties an electronic copy of the corrected determination on the day the change is made; and

(b) give a certified copy of the corrected determination to the parties no later than five days following the making of the change.

Adjudicator unable to conduct adjudication

23. (1) An adjudicator may at any time resign from an adjudication of a matter if the adjudicator determines that,

(a) the matter is not eligible for adjudication under section 13.5 of the Act; or

(b) he or she is not able or competent to conduct the adjudication.

(2) The adjudicator shall promptly give written notice of the resignation to the parties.

Failure of adjudicator to complete adjudication

24. (1) If an adjudicator fails to complete an adjudication, the party who gave the notice of adjudication may give to the other party a fresh notice of adjudication under section 13.7 of the Act.

(2) For greater certainty, subsection (1) does not permit a matter to be adjudicated that could not otherwise be adjudicated under Part II.1 of the Act.

(3) If a fresh notice of adjudication is given, the parties shall, if requested by the adjudicator in the new adjudication and to the extent that it is reasonably practicable to do so, give to the adjudicator copies of any documents that they made available to the adjudicator in the adjudication that was not completed.

(4) If an adjudicator fails to complete an adjudication, other than in the circumstances set out in section 13.14 of the Act, the adjudicator’s entitlement to be paid a fee under section 13.10 of the Act and the amount of any such fee shall be determined,

(a) by agreement between the parties to the adjudication and the adjudicator; or

(b) if no agreement is reached, by the Authority, on the adjudicator’s request. 

(5) In determining the amount of a fee under clause (4) (b), the Authority shall determine an amount that is, in the Authority’s view, appropriate given the work completed by the adjudicator and the circumstances in which the adjudicator failed to complete the adjudication.

(6) For the purposes of clause (4) (b), a party to the adjudication shall give to the Authority, on its request, any information in the party’s possession relating to the adjudication that is reasonably required by the Authority to assist it in making a determination under that clause.

(7) This section, other than subsections (1) and (2), applies with respect to a failure of an adjudicator to complete an adjudication because it is consolidated under section 13.8 of the Act.

Application of Part II.1 to labour and material payment bonds

25. (1) A person to whom payment is guaranteed under a labour and material payment bond required under subsection 85.1 (4) of the Act may refer to adjudication under Part II.1 of the Act any dispute with the principal and the surety in relation to the payment guaranteed under the bond.

(2) For the purposes of subsection (1), Part II.1 of the Act and this Regulation apply with the following and any other necessary modifications:

1. Subsection (1) applies instead of subsections 13.5 (1) and (2) of the Act.

2. Except as otherwise provided by this subsection, a reference in Part II.1 of the Act and this Regulation to a contract shall be read as a reference to the public contract in relation to which the labour and material payment bond was furnished.

3. In section 13.6 of the Act, a reference to adjudication procedures that are or may be set out in the contract shall be read as a reference to adjudication procedures that are or may be set out in the subcontract with respect to which the dispute relates. Any such adjudication procedures, if applicable under section 13.6 of the Act, apply with necessary modifications.

4. In section 13.7 of the Act, a reference to a contract shall be read as a reference to the labour and material payment bond, and a reference to the parties to a contract shall be read as a reference to the person to whom payment is guaranteed under the bond, the principal and the surety.

5. The reference in subsection 13.12 (1) of the Act to any other power of an adjudicator that may be specified in the contract shall be read as a reference to any other power of an adjudicator that may be specified in the subcontract with respect to which the dispute relates.

6. Subsections 13.8 (2) and 13.19 (1), (5) and (6) of the Act do not apply.

26. Omitted (provides for coming into force of provisions of this Regulation).

 

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