It’s not fair! Or is it? The Divisional Court Consider Procedural Fairness of Adjudication Determination in Blackstone Paving and Construction Ltd. v. Barrie (City of).

While there is no appeal from adjudicator's determinations under the Construction Act (the "Act"), the court's jurisdiction to grant judicial review is set out in s. 13.18(5) of the Act.

In Blackstone Paving and Construction Ltd. v. Barrie (City of)[1], the Divisional Court considers procedural fairness when considering a judicial review under s. 13.18.(5)5 of the Act.

The test for procedural fairness is conjunctive:   

1. The first question is whether the procedures followed in the adjudication accord with the procedures to which the adjudication was subject under the applicable Part of the Act. 
2.  If the answer to this question is "no" then the second question is whether the failure to follow the prescribed procedures prejudiced the applicant's right to a fair adjudication. 

The requirement of procedural fairness, considering the facts as found (on a reasonableness standard) is assessed on a "correctness" or "fairness" standard.

In this decision, the Divisional Court considered

1. whether the responding party had raised issues and arguments in the adjudication that were not included in its Notices of Non-Payment;
2. whether typographical errors in the Notices of Non-Payment vitiated the said notices; and
3. whether the process was unfair because the adjudicators refused to permit the applicant to make reply submissions.

The Divisional Court found that:

1. it was satisfied that the implicit findings on the Notices of Non-Payment were included in the determinations and the court deferred to findings of the adjudicators with respect to whether the respondent raised new issues at the hearing;
2. there was no basis to interfere with the adjudicators findings with respect to the typographical errors and the applicant did not establish any prejudice; and finally
3. the Act does not provide for reply submissions.  The parties agree to exchange of the adjudicator materials and the adjudicators appropriately considered and rejected the request to make reply submissions.

Takeaways

1. Carefully consider the procedure that you are agreeing to at the start of the adjudication process. If you want to be able to make reply submissions, make sure it is part of the agreed upon process!
2. Deference will be given to factual findings of the adjudicator. Make your case at the adjudication and not at the judicial review.

[1] 2024 ONSC 4556 (CanLII), <https://canlii.ca/t/k6gtq>