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Execution - Administrative. MGW Homes Design Inc. v. Pasqualino
In MGW Homes Design Inc. v. Pasqualino (Div Court, 2024) the Divisional Court allows a JR from an order that apparently permanently voided Construction Act s.13.20 adjudication determination court enforcement steps, here for failure to give notice of this step to the respondent [under CA s.13.20(3)].
The court took the oppourtunity to clarify the status of "sub-judicial decisions" (which I am treating as 'administrative' decisions), filed with courts for enforcement:(a) Enforcement by Court Order is not an “Extraordinary Power”
[14] Many sub-judicial decisions may be enforced by court order. These include arbitral decisions (see Arbitration Act, SO 1991, c. 17, s. 50), administrative decisions (see Statutory Powers and Procedures Act, RSO 1990, c. S.22 (“SPPA”), s.19 and Labour Relations Act, 1995, SO 1995, c. 1, Sch. A, s. 19) and references directed by a court: R. 54 of the Rules of Civil Procedure. The manner in which sub-judicial decisions may be enforced is prescribed in the applicable legislation. One enforcement process is a motion, on notice, for a court order: see, for example, Arbitration Act, s. 50. Reference decisions (including references under the Construction Act) are confirmed automatically and thereby become enforceable as court orders unless a party moves before a judge opposing confirmation of the referee’s report: R. 54.09.
[15] The Legislature’s choice of enforcement procedures determines what is required in a particular circumstance. The provisions at issue in this case are new, but they are a variation on an established range of processes to enforce sub-judicial decisions by court orders, a necessary and common feature of arbitral and administrative decision-making. These provisions are not an “extraordinary power” but rather a necessary feature of the Construction Act adjudication process and should be read within that context. They follow the general Ontario model for enforcement of administrative decisions prescribed in s. 19 of the SPPA.
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[17] The Legislature provided for more expeditious enforcement of Construction Act prompt payment determinations than in respect to some other sub-judicial decisions. The enforcing party does not need to bring a motion on notice. There is no option for a disappointed party to move to oppose enforcement of the payment order. A party may take an adjudicator’s determination to a court office, file it, and thereupon enforce it, all without notice to the other side. Subsection 13.20(1) of the Act provides:A party to an adjudication may… file a certified copy of the determination of an adjudicator with the court and, on filing, the determination is enforceable as if it were an order of the court. Subsection 13.20(3) of the Act states:A party shall, no later than 10 days after filing a determination under subsection (1), notify the other party of the filing. The order is enforceable “on filing” and notice is to be given “no later than 10 days after filing.” On the plain language of these provisions, enforcement may begin before notice is given. The Act is silent on what happens if notice is not given pursuant to s.13.20(3).
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