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Fairness - Order of Submissions. 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 considered an adjudicator's reversal of the normal sequence of submissions, here as a breach of procedural fairness:(b) Procedural Unfairness: Reversing the Order of Submissions
[84] Sayers argued that the Adjudicator reversed the order of submissions, requiring it to make its submissions first rather than in response to Gay Co.’s submissions. It says this procedural choice put it at a disadvantage and was procedurally unfair.
[85] We do not accept this submission. Aside from details over subcontractors paid directly by Sayers, Gay Co.’s claim was unchallenged in respect to the value of services and materials provided to the improvement. The only substantive issue was Sayers’ defence based on its set-off claim and its argument respecting notice holdbacks, defences for which it bore the burden of proof and argument. Where the substantial issues in dispute are an owner’s affirmative defences, we see no unfairness in requiring the owner to “go first” to establish its affirmative defences. In this regard, we note that Sayers was permitted to deliver reply submissions, which it did (38 pages in length), and it did not seek an extension in its deadline to deliver those reply submissions. It was permitted to deliver further reply submissions – in respect to the Contract addenda – thereafter.
[86] Further, it appears that the order for exchange of submissions was agreed by the parties as part of their agreement on the schedule for delivery of materials. Implementing the parties’ agreed schedule can hardly be procedurally unfair.
[87] Finally, s. 13.18(5) of the Construction Act limits procedural fairness issues on an application for judicial review as follows: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. [88] Sayers has not identified “the procedures to which the adjudication was subject under this Part” which, it says, were breached by the order in which submissions were delivered. In an adjudication, as in other formal hearing processes, the party bearing the burden of proof is usually required to go first – usually the claimant. Where, however, the only significant live issues are questions of an affirmative defence, it may be most convenient to require the party with the burden of proof – the party advancing the affirmative defence – to go first. Deciding how best to proceed, in the circumstances of a particular case, is within an adjudicator’s discretion. We would not give effect to this argument.
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