Procedural Unfairness results in New Adjudication Hearing

In this case¹, Jamrik sought judicial review of an adjudication determination ordering it to pay the amount of $564,812.87 under the prompt payment regime.

The Divisional Court held that the Adjudicator did not make the factual findings needed to determine whether the contract was complete and consequently whether the Adjudicator had jurisdiction to hear the dispute. The Divisional Court quashed the decision and remitted it back to be heard by a new adjudicator.

The Divisional Court held that the Adjudicator erred in law because the “price of completion” in s. 2(3) of the Construction Act refers to the value of the uncompleted work, and not the quantum of disputed payment claims. The adjudicator had made the finding based on the value of the uncompleted work, which neither party had made submissions on.

This finding was important because an adjudicator does not have jurisdiction if a contract is complete.

Ultimately, while an adjudicator can decide a point on a basis not before him, procedural fairness requires that the adjudicator raise the issue to the parties and seek submissions on the material point. For those that are commencing adjudications, consider whether the contract is complete and whether the adjudicator has jurisdiction for the matter in dispute.

¹Jamrik v. 2688126 Ont. Inc., 2024 ONSC 2854 (CanLII), retrieved on 2024-08-04