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JR - Transcript. Sayers Foods Ltd. v. Gay Company Ltd.
In Sayers Foods Ltd. v. Gay Company Ltd. (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a statutory JR, this brought against an adjudicator's order for "the Applicant to pay $685,574.91, plus interest .... pursuant to the prompt payment regime in the Construction Act" [under Part II.1 - Construction Dispute Interim Adjudication].
The court considers the unavailability of a transcript, here as a bias issue:[115] Different tribunals take different approaches to transcript/recording issues. Some, like many labour arbitrators, do not record evidence, let alone argument. Others, such as the Landlord Tenant Board, record their hearings, including argument. And in many contexts, courts and tribunals record some proceedings solely to protect the decisionmaker from wanton allegations of misconduct (a primary reason, for example, that some judges record family case conferences).
[116] There is no obligation on an adjudicator to record argument. If the adjudicator does record argument, it is in the adjudicator’s discretion whether to keep the recording. If the recording is kept, it is in the adjudicator’s discretion whether to release it to the parties. No inference of bias is available from an adjudicator’s exercise of discretion not to release the recording of argument.
[117] This said, adjudicators might bear in mind the position in which this court will find itself if there is no record for us to check. This case illustrates one such instance.
[118] The Adjudicator states, in his reasons, that Sayers’ counsel acknowledged that no written notice of lien was given by subcontractor lien claimants to Sayers, and that consequently, Sayers had no “notice holdback” obligations under the Act. Before us, Sayers acknowledges that it did not receive written notice from lien subcontractors, but it denies that its counsel ever conceded its argument based on “actual notice.” We have no way to check what Sayers said to the Adjudicator on this point because we do not have the recording or a transcript from it.
[119] One way an Adjudicator may address this situation during a hearing is to release a mid-hearing ruling memorializing a concession that has been made, or to request that the party making the concession file it in writing during the hearing. Not everything that is said during oral argument can be addressed in this way, of course, but for an important point that effectively concedes one of the major issues before an adjudicator, it would be very helpful for this court to have something, on the record of the hearing, confirming the concession.
[120] At para. 111 of its Factum, Gay Co. submits that counsel on both sides consented to the Adjudicator’s request to record the proceedings “for his personal use only” and that the Adjudicator advised “that he would delete the recording shortly after the conclusion of the hearing, likely before the parties received the Determination.” Sayers did not address this point in its Factum (which was delivered before Gay Co.’s Factum) and we do not recall that Sayers addressed this point in oral argument. Taking the most favourable argument available to Sayers on this issue (if Gay Co.’s submission on this point is so), Sayers would argue that, notwithstanding what the Adjudicator may have said, once Sayers advised that it was seeking the recording, the Adjudicator should have preserved it and provided it.
[121] From the perspective of a court responsible for hearing appeals and reviews, a record is helpful when an issue is raised in respect to which a transcript could assist. When a request is made for release of a recording or transcript, a clear response, with any reasons an adjudicator wishes to provide for that response, would be helpful to this court’s consideration about what to do when an issue arises that can only be resolved by knowing what was said at the hearing. However, to be clear, there is no obligation to keep a record of argument, and there is no obligation on an adjudicator to release a recording that may have been made. Of course, if a recording has been made, and may still exist, it would be open to this court to direct that it be provided to the court.
[122] In the circumstances of this case, we would not make an order for production of the recording. We would accept Sayers’ argument that it conceded that no written notice of lien was given by lien claimants to Sayers, but that it did not concede its argument based on actual notice of registered liens. The Adjudicator’s Determination and reasons adequately addressed this position, and as we have explained above, the Adjudicator did not error in his reasoning or conclusion on this point.
[123] There being no requirement for an Adjudicator to record oral argument, to keep any recording that is made of oral argument, or to release any recording that has been retained, it follows that no inference arises of “bias at play” when an adjudicator does not release a recording of oral argument when asked by a party to do so.
[124] In respect to the arguments based on procedural rulings, this court has not found that any of the material grounds of alleged procedural unfairness have been made out. Where there has been no demonstrated prejudicial unfairness, there can hardly be a procedural basis for a finding of reasonable apprehension of bias. Further, it would take a lot more than the procedural issues argued by Sayers to overcome the strong presumption of neutrality.
[125] In respect to the reasons themselves, we see no basis for the argument that they reflect bias. They are well-crafted and address the issues raised by the parties. Reasons are not supposed to set out the intellectual journey of the decision-maker. They are not a chronicle of the hearing. They are a decision, supported by reasons. They should read as if the decision-maker had “made their mind up” by the time they set out to write the decision. Good decision-writing follows a point-first model, setting out the conclusion, and then supporting that conclusion. In structure and logic, a well written decision generally follows the model of an academic thesis and not a bedtime story.
[126] With respect, this is not a close call on the issue of bias. The Adjudicator’s findings are reasonable, there was no prejudicial procedural unfairness, and the Adjudicator’s reasons fully explain how he reached his conclusions. We would not give effect to this ground of review.
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