Ontario updates ODACC construction adjudication rules

The rules governing Ontario’s statutory adjudication process for construction disputes are changing¹. After a few years working through the nuts and bolts of ODACC’s first of its kind in Canada adjudication regime², project owners, contractors and construction lawyers will have both minor adjustments and more significant developments to grapple with in 2025.

There are eight key changes that industry stakeholders in Ontario should be aware of:

1. Expiry of Adjudication Rights: To date, the right to submit a dispute to adjudication expires on completion of the contract the dispute relates to³. This has led to jurisdiction fights, often argued as a preliminary issue, about whether and when a contract has, in fact, been “completed” – for example, arguably termination of a contract by either party is not the same as “completion” for adjudication purposes. Now there are new rules and deadlines to be aware of:
   1. Parties are getting more time to decide whether to start an adjudication over end-of-project disputes – 90 days after their work on the project is effectively completed;
   2. The 90-day deadline for a contractor (or owner) to start adjudication runs from the earliest date on which the contract was i) completed, ii) abandoned or iii) terminated.⁴
   3. For subcontracts, the same triggers mentioned above apply,⁵ but there are two more possible triggers for the 90-day deadline – the date the subcontract is certified as complete or the date the subcontractor last supplied services or materials to the project.⁶
2. Availability of Adjudication: The Construction Act provisions around the kinds of disputes that can be adjudicated are changing. There is currently a list of contract issues that can be adjudicated.⁷ Those rules are moving to the regulations. The legislation now simply says that parties to a construction contract or subcontract can adjudicate the kinds of disputes specified in the regulations, or any matter they agree to – not just those disputes that fit into one of the prescribed buckets.⁸ This is more of a change in form than substance, but does make it clearer that the list of prescribed disputes is not closed.

3. Public Precedents: Adjudication determinations issued through ODACC will now be publicly available, with identifying information removed, and can be used as precedent in unrelated disputes.⁹ The ability to rely on previous adjudication decisions has been difficult and uncertain, often dependent on the preference of the particular adjudicator hearing a dispute. Without decisions being publicly available, parties and lawyers only become aware of potentially helpful or challenging adjudication determinations through word of mouth. This is a significant, and likely welcomed, development for consistency’s sake, and should allow parties to be more strategic about which issues to adjudicate. However, this may also add extra complexity to the determination of disputes.

4. Adjudicator Selection: It is now more clear that parties to construction disputes can agree to appoint private adjudicators, not only the ones listed in ODACC’s adjudicator registry.¹⁰ While the option of choosing an adjudicator not on ODACC’s list gives parties more leeway to pick their own decision-makers to decide their disputes, the practical effect of this clarification may be limited. To be an adjudicator a person chosen by the parties will still need to be qualified by ODACC, and the consent of both parties is required.¹¹

5. Jurisdiction Disputes: The new rules require parties to make jurisdiction objections immediately once an issue allegedly outside the adjudicator's jurisdiction has been raised. This will restrict the ability of parties responding to an adjudication to raise a new jurisdiction defence in later written submissions or at a hearing.¹² The amendments also clarify that it is adjudicators who have the power to determine whether they have jurisdiction.¹³

6. Disclosure of Relevant Determinations: Parties must now disclose any past adjudication determinations under their contract(s) to the adjudicator of any subsequent dispute under the same agreement.¹⁴ This also might be a change without much practical effect – if there has been a prior adjudication decision under a contract, it is likely one of the parties will raise it in a subsequent adjudication if the earlier decision was helpful for its position. However, it is now mandatory to do so.

7. Corrections to Determinations: Adjudicators can now correct any determination within five days of making it, and this is not limited to copy-editing. Adjudicators can issue corrections to the entire substance of their determinations, as long as they do so within five days of the determination being made.¹⁵

8. Consolidation: The new rules allow parties involved in more than one dispute under the same contract to require all disputes to be consolidated in one adjudication.¹⁶ The current rules only require this in some cases, mainly where a subcontractor starts an adjudication against the contractor who then claims against the owner in another adjudication. Parties can also refer disputes between them under different contracts or subcontracts to the same adjudication, so long as they relate to the same “improvement” and the referral complies with any restrictions or conditions specified in the regulations.¹⁷ This may be a helpful change in circumstances where, for example, a contractor has to adjudicate against an owner for release of holdback owed to multiple subcontractors.

Altogether, these changes to the ODACC adjudication process will likely bring more flexibility, allowing for a wider range of adjudicators and matters, and additional procedural safeguards, including a clearer deadline for commencing adjudication and more concrete direction about jurisdiction challenges. 

The author would like to thank Andrei Ruiulescu, articling student, for his contribution to preparing this legal update.