Determinations
An Adjudicator must render a written Notice of Determination with reasons and issue an Order within 30 days after the day on which the Claimant’s Notice of Adjudication, a copy of the contract or subcontract and copies of all documents which it intends to rely on in the adjudication (the “Claimant’s Documents”) are received, pursuant to section 33.6(4) the Prompt Payment and Construction Lien Act and section 26(1) of the Prompt Payment and Adjudication Regulation.
Pursuant to section 26(2) of the Regulation, the Adjudicator may make an Order directing a Party to make payment due to the other Party or Parties in the dispute within a time specified in the Order and allowing the other Party or Parties to stop providing services or materials under the contract or subcontract, as the case may be, if the time for payment specified in the Order expires.
FAQ: Does ADACC have a template form of Determinations?
Yes, ADACC has a template form of Determinations. The template will be shared with certified ADACC Adjudicators.
Pursuant to section 33.6(5) of the Prompt Payment and Construction Lien Act, a Determination is binding on the Parties to the dispute except where
a court order is made in respect of the matter,
a Party applies for judicial review of the decision under s. 33.7 of the Prompt Payment and Construction Lien Act,
the Parties have entered into a written agreement to appoint an arbitrator under the Arbitration Act, or
the Parties have entered into a written agreement that resolves the matter.
The Adjudicator will render a written Notice of Determination with reasons and issue an Order within 30 days after the day on which the Claimant’s Notice of Adjudication, a copy of the contract or subcontract and copies of all documents which it intends to rely on in the adjudication (the “Claimant’s Documents”) are received.
The deadline to make a determination may be extended by the Adjudicator, one or more times, to a maximum of 10 calendar days if the Adjudicator considers it necessary, or if the Parties agree and the Adjudicator consents, in accordance with section 25(3) of the Prompt Payment and Adjudication Regulation.
The Adjudicator must inform ADACC of any extensions of any deadlines in the adjudication process by emailing authority@adacc.ca on the day the extension has been confirmed.
Finalizing the Determination
Step 1: Set the Final Cost of Adjudication
Before submitting the Determination to the Parties, an Adjudicator must confirm the Final Cost of Adjudication, which is calculated after the Determination is rendered, and will include:
The Adjudication Fee;
If an hourly rate was negotiated, the Adjudication Fee will be based on the total number of hours worked by the Adjudicator, multiplied by the hourly rate of the Adjudicator, plus disbursements;
A Filing Fee (please refer to the Schedule of Fees for further information). The Filing Fee is payable by the Claimant;
A Certification Fee (please refer to the Schedule of Fees for further information). Each Party will pay half of the Certification Fee; and
Taxes.
The Final Cost of Adjudication details must be completed on the Final Cost of Adjudication and Information for Reporting Purposes Form.
Step 2: Complete the Information Required for Reporting Purposes
The Information Required for Reporting Purposes information must be completed on the Final Cost of Adjudication and Information for Reporting Purposes Form. The information required includes, among other things:
The location of the construction project; and
The amount required to be paid under the Order.
Step 3: Send the Notice of Determination and Order to ADACC for Review
ADACC asks Adjudicators to send a draft Notice of Determination and Order (the “Determination”) to ADACC no later than five days before the Determination due date so that ADACC can review the Determination and let the Adjudicator know if the reviewer thinks the Determination is unclear or if there are typographical and grammatical errors that could be corrected. The Adjudicators are free to accept or reject any of the suggestions made by ADACC.
The draft Determination and the Final Cost of Adjudication and Information Required for Reporting Purposes Form must be submitted to ADACC via email at authority@adacc.ca.
Step 4: Send the Determination to the Parties
Following review by ADACC, Adjudicators will be able to submit the Determination to the Parties.
Step 5: Certified Copy of the Order
A certified Order is a certified copy of the Adjudicator’s Order that a Party can register in court to enforce as if it were an order of the court. Pursuant section 33.61(1) of the Prompt Payment and Construction Lien Act, a certified Order can be registered with the court 30 days after receiving the Order. A Party is also required to serve written notice on the other Party no later than 10 days after the Order has been registered.
ADACC does not provide any assistance with registration and enforcement of an Adjudicator’s Order.
Certification Fee
Pursuant to section 26(3) of the Prompt Payment and Adjudication Regulation, ADACC will certify an Adjudicator’s Order, ADACC will provide a certified copy of the Order to the Parties. The fee charged by ADACC for the certification (the “Certification Fee”) will be as follows:
$0 where the amount claimed in the Notice of Adjudication is less than $50,000; or
$100 (plus applicable taxes) where the amount claimed in the Notice of Adjudication is $50,000 or more.
Only one Certification Fee is payable for each Order and the Parties to the adjudication will split the Certification Fee equally, unless the Adjudicator orders otherwise.
There will be no additional cost for certifying Determinations that are amended pursuant to section 26(4) of the Prompt Payment and Adjudication Regulation.
Correcting Determinations
Adjudicators can make changes to a Determination to correct typographical errors. Corrections to Determinations must be made no later than four days after the day on which the Determination is provided to the Parties. A copy of the corrected Determination will be provided to the Parties the same day that the correction is made, and a certified copy will be provided within three days after the correction is made.
For further information on correcting Determinations, please refer to section 26(4) of the Prompt Payment and Adjudication Regulation.
