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Construction - Prompt Payment (2). Blackstone Paving and Construction Ltd. v. Barrie (City of)
In Blackstone Paving and Construction Ltd. v. Barrie (City of) (Div Court, 2024) the Divisional Court dismissed a Construction Act JR of a 'prompt payment' adjudication:Jurisdiction of this Court
[2] The impugned decisions are prompt payment adjudications pursuant to the Construction Act. There is no appeal from these decisions, and judicial review to this court is only available with leave: Construction Act, s. 13.18(1). This court’s jurisdiction to grant judicial review is circumscribed by s. 13.18(5) of the Act, and the only basis for review upon which the applicant relies in this application states as follows (s.13.18(5)5):The determination of an adjudicator may only be set aside on an application for judicial review is the applicant establishes one or more of the following grounds:
... .
5. The procedures followed in the adjudication did not accord with the procedures to which the adjudication was subject under this Part, and the failure to accord prejudiced the applicant’s right to a fair adjudication. . Caledon (Town) v. 2220742 Ont. Ltd. o/a Bronte Construction
In Caledon (Town) v. 2220742 Ont. Ltd. o/a Bronte Construction (Div Court, 2024) the Divisional Court considered a JR of a Construction Act adjudication.
Here the court considers the 'prompt payment' and related JR provisions of Construction Act:Limited Jurisdiction of this Court
[56] As noted by this court in SOTA Dental Studio Inc. v. Andrid Group, 2022 ONSC 2254, para. 9 (Div. Ct.):The whole point of these provisions is to require prompt payment to avoid the consequences of disruptions to construction projects of brinksmanship over disputes that arise. The prompt payment provisions are based on similar provisions introduced in the United Kingdom more than a decade ago. They provide for a quick and relatively informal adjudication, by an adjudicator experienced in construction law disputes. The decision is without prejudice to the parties contesting issues between them at the end of the project. It triggers an obligation on the part of the payee to make its payments to its subcontractors, suppliers and workers. Effective implementation of these provisions is intended to reduce terminations (by payors) and work cessations (by payees) in the midst of construction, either of which can cause cascading losses down the construction pyramid. The obligation to pay, and to pay promptly, when ordered to do so, is fundamental to the scheme of the prompt payment provisions. [57] The bases on which the court may intervene on an application for judicial review reflects the nature of the award made by an adjudicator: it is an interim award, without prejudice to the parties, and is to be made swiftly following a prescribed prompt process. The court affords a high degree of deference to an adjudicator’s decision and will intervene only in limited circumstances.
[58] The complete text of s. 13.18(5) of the Act states:The determination of an adjudicator may only be set aside on an application for judicial review if the applicant establishes one or more of the following grounds:
1. The applicant participated in the adjudication while under a legal incapacity.
2. The contract or subcontract is invalid or has ceased to exist.
3. The determination was of a matter that may not be the subject of adjudication under this Part, or of a matter entirely unrelated to the subject of the adjudication.
4. The adjudication was conducted by someone other than an adjudicator.
5. The procedures followed in the adjudication did not accord with the procedures to which the adjudication was subject under this Part, and the failure to accord prejudiced the applicant’s right to a fair adjudication.
6. There is a reasonable apprehension of bias on the part of the adjudicator.
7. The determination was made as a result of fraud.
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