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Construction - Ontario Dispute Adjudication for Construction Contracts (ODACC). 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].
Here the court considers the JR standing of the 'ODACC' ('Ontario Dispute Adjudication for Construction Contracts'), which it's website characterizes as being: "the Authorized Nominating Authority (“ANA”) under the Construction Act. As the ANA, ODACC is responsible for administering construction-related adjudications and for training and qualifying Adjudicators.":(b) Ontario Dispute Adjudication for Construction Contracts (“ODACC”)
[133] This court directed (at 2024 ONSC 6123) that notice be given in this case to ODACC to consider:(a) whether ODACC is entitled to notice and/or to be heard on applications for judicial review of prompt payment determinations under the Act; and
(b) whether ODACC should be required to devise and implement a policy for public release of adjudication decisions in the future. (i) Notice to ODACC
[134] ODACC submits that it is not a statutory tribunal operating under the purview of the provincial government, but rather a “private corporation designated by the [Ontario Ministry of the Attorney General] through a contractual relationship as the Authorized Nominating Authority” pursuant to the Act. ODACC describes itself as having “unique status in the justice system.” Based on this analysis, ODACC argues that it should not be viewed as under the auspices of the Attorney General, but as an “arm’s length party” entitled to notice of court proceedings involving decisions of adjudicators made under its auspices. It argues that natural justice requires that a party with a sufficient interest in a matter has a right to be given notice and to be heard: Telecommunications Workers Union v. Canada (Radio-television and Telecommunications Commission), 1995 CanLII 102 (SCC), [1995] 2 SCR 781. It asks that the court find that it is entitled to notice of motions for leave to seek judicial review from an adjudicator’s determination and, where leave is granted, notice of any application for judicial review of an adjudicator’s determination under the Act.
[135] Subsection 9(2) of the JRPA provides that a person who exercises or refuses to exercise a statutory power of decision may be a made a party to an application for judicial review. In Children’s Lawyer for Ontario v. Goodis (2005), 2005 CanLII 11786 (ON CA), 75 OR (3d) 309, the Court of Appeal interpreted this provision to entitle a tribunal to be added as a party:The ordinary meaning of this provision gives the administrative tribunal the right to be a party to the proceeding if it chooses to do so. It leaves to the tribunal, rather than the court the decision of whether to become a party to the application for judicial review.[15] [136] There is no statutory provision requiring that ODACC be given notice of leave motions or applications for judicial review brought under the Construction Act. ODACC requires parties to adjudications to enter into agreements respecting the adjudication. It would be open to ODACC to include a provision in the adjudication agreements requiring parties to give notice to ODACC of motions for leave to appeal or applications for judicial review. There is no evidence before this court that such a provision is included in ODACC’s adjudication agreements.
[137] On the law, ODACC is a “proper” party, but may not be a “necessary” party to an application for judicial review: r. 5.03 of the Rules of Civil Procedure. ODACC argues that it has a heightened interest in receiving notice, relative to statutory tribunals, since the Attorney General is at “arm’s length” from it and should not be taken to address its interests and concerns.
[138] ODACC’s status as a “private corporation” that is “under contract” with the Ministry of the Attorney General, raises interesting questions, but we do not find it necessary to address them for the purpose of deciding the notice issue. There is no law to support the argument that ODACC should be entitled to notice of a motion for leave to apply for judicial review, and we do not see how ODACC’s interests would be prejudiced if it was not able to participate at the leave stage. If we are wrong about that, it would be a simple matter for a notice requirement to be included in the Construction Act’s regulations.
[139] There is law to support the argument that ODACC should get notice of any applications for judicial review brought from decisions of adjudicators acting under its auspices. ODACC is a “proper” party to those applications and cannot exercise its rights if it is unaware that an application has been brought. We accept that notice on the Attorney General would not constitute notice on ODACC. We conclude that a party bringing an application for judicial review should serve that notice on ODACC so that ODACC may exercise its rights to be added as a party.
[140] For this notice requirement to be effective and efficient, ODACC should make parties to adjudications aware that they should serve notices of application on ODACC and should establish a means by which parties may do so efficiently (such as, for example, a service portal). Failure to take these steps could affect the exercise of the court’s discretion in a case where a party fails to serve ODACC.
(ii) Publication of ODACC Determinations
[141] This court has expressed concerns that ODACC prompt payment decisions have not been released to legal databases such as CanLII.
[142] On November 6, 2024, “Bill 216” received Royal Assent. Section 88(1)(j.1) of that Bill provides:The Lieutenant Governor in Council may make regulations respecting any matter necessary or advisable to carry out effectively the intent and purpose of this Act, including regulations,
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(j.1) requiring that the Authorized Nominating Authority make adjudication determinations publicly available, subject to the removal of identifying information, and governing the making of determinations publicly available and the removal of identifying information for that purpose; [143] As of the hearing in this application (June 4, 2025), Bill 216 had not yet been proclaimed in force and no regulation had been promulgated pursuant to s. 88(1)(j.1). ODACC argued at the hearing that this court should not intervene in respect to this issue in light of this new legislation.
[144] This provision was proclaimed in force effective January 1, 2026, and the following provision was enacted as part of O. Reg. 264/25, s. 16:(1) The Authority shall publish a copy of every adjudication determination on its website.
(2) Before publishing a copy of an adjudication determination, the Authority shall ask each party to the adjudication whether, in the party’s view, the determination should be anonymized, and if any party answers in the affirmative, the Authority shall,
(a) request that each party indicate, in the time and manner specified by the Authority, any portions of the determination that, in the party’s view, may identify either of the parties; and
(b) ensure that every portion indicated by a party in response to the request does not appear in the published version of the determination.
(3) This section applies with respect to an adjudication determination if the notice of adjudication is given on or after the first anniversary of the day this Regulation comes into force. [145] In light of these enactments coming into force, it would not be appropriate for the court to address this issue in this case.[16]
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