ADJUDICATIONS UNDER PART II.1 OF THE ACT

CONTENTS Definitions and Designation 1. Definitions 2. Designation Certification of Adjudicators by Authority 3. Certificate of qualification 4. Requirements for adjudicators 5. Suspension, cancellation of certificate Other Duties and Powers of Authority 6. Adjudicator registry 7. Code of conduct 8. Training programs 9. Fee schedule 10. Payments to Authority, timing 11. Complaints re adjudicators 12. Province-wide availability 13. Breadth of adjudicator expertise 14. Educational materials 15. Annual report 16. Public access to adjudication determinations 17. Accessible format 18. Administrative support Adjudication 19. Availability 20. Notice of adjudication, copy to Authority 21. Selection of private adjudicator 22. Requirement to request adjudicator appointment 23. Payment of adjudicator fees 24. Documents to adjudicator, party under s. 13.11 of the Act 25. Response 26. Consolidation of adjudications if no agreement 27. Application of Part to consolidated adjudications 28. Disclosure of documents 29. Powers of adjudicator 30. Determinations 31. Adjudicator unable to conduct adjudication 32. Failure of adjudicator to complete adjudication 33. Application of Part II.1 to labour and material payment bonds Definitions and Designation Definitions 1. In this Regulation, “adjudicator fee” means the fee payable to an adjudicator under subsection 13.10 (2) or (2.1) of the Act; (“honoraires d’arbitre intérimaire”) “adjudicator registry” means the registry of registry adjudicators established by the Authority under clause 13.3 (1) (c) of the Act; (“registre d’arbitres intérimaires”) “certificate of qualification” means a certificate of qualification issued under section 3 that qualifies a person as a registry adjudicator or as a private adjudicator, as the case may be; (“certificat de qualification”) “code of conduct” means the code of conduct established by the Authority under section 7. (“code de déontologie”) Designation 2. (1) To be eligible to be designated to act as Authorized Nominating Authority, an entity must, (a) submit an application to the Minister in the time and manner specified by the Minister; and (b) agree in writing to abide by any conditions of designation specified by the Minister, including any conditions respecting the term or termination of any such designation. (2) A designation may be terminated at the Minister’s discretion. Certification of Adjudicators by Authority Certificate of qualification 3. (1) The Authority may issue a certificate of qualification as a registry adjudicator or as a private adjudicator to an individual who is eligible under subsection (2) to hold a certificate and who applies to the Authority for the certificate in accordance with its procedures. (2) An individual who meets the following requirements and qualifications is eligible to hold a certificate of qualification, subject to subsection (4): 1. The individual has, in the Authority’s view, at least 10 years of relevant working experience in the construction industry. 2. The individual has successfully completed the applicable training programs provided under clause 8 (a). 3. The individual is not an undischarged bankrupt. 4. The individual has not been convicted of an indictable offence in Canada or of a comparable offence outside Canada. 5. The individual pays to the Authority the required fees, costs or charges for training and qualification as a registry adjudicator or a private adjudicator. 6. The individual agrees in writing to abide by the requirements for holders of certificates set out in section 4. (3) For the purposes of paragraph 1 of subsection (2), examples of relevant working experience in the construction industry may include experience working in the industry as an accountant, architect, engineer, quantity surveyor, project manager, arbitrator or lawyer. (4) An individual may not concurrently hold a certificate of qualification as a registry adjudicator and a certificate of qualification as a private adjudicator, but the holder of one type of certificate may apply to the Authority to exchange it for the other type of certificate, and subsections (1) and (2) apply with necessary modifications for the purpose of the application. (5) A certificate of qualification is valid for the period specified for it by the Authority, subject to section 5, but the Authority may renew it for one or more further periods if the holder continues to be eligible to hold the certificate. (6) Every person who was a holder of a certificate of qualification to adjudicate immediately before the day this subsection came into force is deemed on that day to be the holder of a certificate of qualification as a registry adjudicator. Requirements for adjudicators 4. Every holder of a certificate of qualification shall, (a) comply with the code of conduct; (b) on its request, provide to the Authority proof, in the time and manner specified by the Authority, of the holder’s eligibility to hold the certificate; (c) immediately notify the Authority in writing if the holder ceases to be eligible to hold the certificate; (d) maintain records as required by the Authority and report information respecting the records to the Authority on its request; (e) pay to the Authority the required fees, costs or charges for training and qualification as a registry adjudicator or private adjudicator; (f) successfully complete the continuing training programs provided under clause 8 (b); and (g) comply with the Act and this Regulation, and with any further directions or requirements of the Authority. Suspension, cancellation of certificate 5. (1) The Authority may suspend or cancel a holder’s certificate of qualification if it is reasonably satisfied that, (a) the holder has ceased to be eligible to hold the certificate under section 3, or has failed to comply with the code of conduct or to meet any other requirement of section 4; (b) the holder is incompetent or unsuitable to conduct adjudications; or (c) the certificate was issued or renewed on the basis of a false or misleading representation or declaration. (2) The Authority may lift a suspension if it is reasonably satisfied that the circumstances giving rise to the suspension no longer exist and the holder is eligible to hold the certificate. (3) The Authority may re-issue a cancelled certificate of qualification if it is reasonably satisfied that the circumstances giving rise to the cancellation no longer exist and the holder is eligible to hold the certificate. (4) A holder whose certificate of qualification is suspended or cancelled ceases, for the duration of the suspension or cancellation, to be authorized to conduct adjudications or continue to conduct any ongoing adjudication. Other Duties and Powers of Authority Adjudicator registry 6. (1) The Authority shall make the adjudicator registry publicly available on its website. (2) The Authority shall ensure that the adjudicator registry includes the following information respecting every registry adjudicator: 1. The adjudicator’s name and contact information. 2. The period of validity of the adjudicator’s certificate. 3. The adjudicator’s areas of expertise for the purposes of adjudication, number of years of relevant working experience in the construction industry and every professional body of which the adjudicator is a member in good standing. 4. The geographical areas in which the adjudicator conducts adjudications. 5. Any other information that the Minister directs be included in order to assist in the selection of a registry adjudicator. Code of conduct 7. (1) The Authority shall establish and maintain a code of conduct for adjudicators and shall make the code of conduct publicly available on its website. (2) The code of conduct shall address, at a minimum, the following matters: 1. Conflicts of interest and related procedural matters. 2. Principles of proportionality in the conduct of an adjudication and the need to avoid excess expense. 3. Principles of civility, procedural fairness, competence and integrity in the conduct of an adjudication. 4. The confidentiality of information disclosed in relation to an adjudication. 5. Procedures for ensuring the accuracy and completeness of information in the adjudicator registry. (3) The Authority shall indicate on its website the effective date of every change it makes to the code of conduct, other than changes of a typographical or similar nature. (4) The Authority shall maintain an archive of all previous versions of the code of conduct, indicating the period during which each version applied, and shall ensure that the versions are publicly accessible. Training programs 8. In developing and overseeing training programs for the purposes of clause 13.3 (1) (a) of the Act, the Authority shall ensure that training programs are provided, (a) to individuals who apply for the issuance of a certificate of qualification; and (b) to holders of a certificate of qualification, on a continuing basis. Fee schedule 9. (1) The Authority shall, subject to the prior written approval of the Minister, establish a schedule of fees listing the following items and shall make the schedule publicly available on its website: 1. Fees, costs or other charges set by the Authority under clause 13.3 (2) (a) of the Act. 2. Amounts or rates to be used by the Authority for the purposes of determining adjudicator fees payable to a registry adjudicator under clause 13.10 (2) (b) of the Act. (2) A fee or other amount referred to in paragraph 1 or 2 of subsection (1) is not payable unless it is included in or accords with the schedule of fees, except where clause 31 (4) (b) applies. (3) Subsections (1) and (2) do not apply with respect to fees, costs or charges connected to the training programs described in section 8. (4) The Authority may not make changes to the schedule of fees, except with the prior written approval of the Minister. (5) The Authority shall indicate on its website the effective date of every change made to the schedule of fees. (6) Subsections (4) and (5) do not apply with respect to changes of a typographical or similar nature. (7) The Authority shall maintain an archive of all previous versions of the schedule of fees, indicating the period during which each version applied, and shall ensure that the versions are publicly accessible. Payments to Authority, timing 10. An amount payable to the Authority under the Act shall be paid no later than, (a) five days after it becomes due; or (b) such later date as the Authority may agree to in writing. Complaints re adjudicators 11. The Authority shall establish a complaints process for accepting and dealing with complaints from persons involved in adjudications against adjudicators or the Authority and shall make the complaints process publicly available on its website. Province-wide availability 12. The Authority shall develop procedures and take other reasonable steps to ensure that adjudication is available to parties throughout Ontario. Breadth of adjudicator expertise 13. The Authority shall develop procedures and take other reasonable steps to ensure that the aggregate breadth of expertise and working experience of the holders of certificates of qualification is sufficient to account for the industry sectors in which parties refer matters to adjudication and the nature of the matters in dispute. Educational materials 14. The Authority shall develop and make publicly available on its website educational materials respecting the adjudication process. Annual report 15. (1) The Authority shall, no later than 90 days after the end of each of its fiscal years, issue and make publicly available on its website an annual report for the fiscal year, containing aggregated information respecting adjudication in Ontario, including, at a minimum, information respecting, (a) the number of adjudications that were commenced during the fiscal year and the number of adjudications that were completed during the fiscal year, broken down by, (i) geographical area, (ii) the matter that was the subject of the adjudication, described by reference to the applicable matter listed in section 19 or as a matter agreed to by the parties, as the case may be, and (iii) registry adjudicators and private adjudicators; (b) the total amount claimed in all notices of adjudication given during the fiscal year and the average of the amounts claimed during that year; (c) the total amount and the average amount required to be paid under determinations made during the fiscal year, broken down by registry adjudicators and private adjudicators; (d) the percentage of adjudications completed during the fiscal year in which the adjudicator made a determination within the timeline specified in subsection 13.13 (1) of the Act; (e) the total number of adjudications that were terminated under section 13.14 of the Act during the fiscal year; (f) the total amount of fees, costs or other charges paid during the fiscal year to the Authority; and (g) the total amount of fees paid to adjudicators during the fiscal year, broken down by registry adjudicators and private adjudicators. (2) Information under each of clauses (1) (a) to (c) shall be reported for Ontario as a whole and in respect of each of the following industry sectors: 1. Residential. 2. Commercial. 3. Industrial. 4. Public buildings. 5. Transportation and infrastructure. 6. Any other industry sectors the Authority considers to be relevant. (3) The Authority shall collect from holders of a certificate of qualification such information as may be reasonably required for it to meet the reporting requirements of this section. Public access to adjudication determinations 16. (1) The Authority shall publish a copy of every adjudication determination on its website. (2) Before publishing a copy of an adjudication determination, the Authority shall ask each party to the adjudication whether, in the party’s view, the determination should be anonymized, and if any party answers in the affirmative, the Authority shall, (a) request that each party indicate, in the time and manner specified by the Authority, any portions of the determination that, in the party’s view, may identify either of the parties; and (b) ensure that every portion indicated by a party in response to the request does not appear in the published version of the determination. (3) This section applies with respect to an adjudication determination if the notice of adjudication is given on or after the first anniversary of the day this Regulation comes into force. Accessible format 17. The Authority shall, on the request of any person, provide information that is published on the Authority’s website to the person in a format accessible to that person. Administrative support 18. The Authority may provide administrative support services for the purpose of facilitating the conduct of adjudications. Adjudication Availability 19. (1) The following matters are prescribed for the purposes of subsection 13.5 (1) of the Act: 1. The valuation of services or materials provided under the contract. 2. Payment under the contract, including in respect of a change order, whether approved or not, or a proposed change order. 3. A dispute that is the subject of a notice of non-payment under Part I.1 of the Act. 4. Amounts retained under section 12 of the Act (set-off by trustee) or under subsection 17 (3) of the Act (lien set-off). 5. Payment of a holdback under section 26 of the Act. 6. Any of the following matters, if it is reasonably necessary to resolve a dispute respecting the matter in order to make a determination on any other matter that may be adjudicated: i. The scope of work required to be performed under the contract. ii. A request for a change in the contract price. iii. A request for an extension of time in the completion of work required to be performed under the contract. (2) The matters listed in subsection (1), with necessary modifications, are prescribed for the purposes of subsection 13.5 (2) of the Act. (3) For the purposes of subparagraph 1 iii of subsection 1.1 (2.2) of the Act, paragraph 6 of subsection (1) does not apply with respect to a project agreement. Notice of adjudication, copy to Authority 20. A party to a contract or subcontract who gives a notice of adjudication under subsection 13.7 (1) of the Act shall, on the same day, provide a copy of the notice in electronic format to the Authority. Selection of private adjudicator 21. For the purposes of subsection 13.9 (2.1) of the Act, the parties may agree to a private adjudicator if, (a) there is a written agreement signed by the parties and the adjudicator that discloses the terms applicable to the adjudication and the adjudicator fee to which they have agreed; and (b) the adjudicator fee amounts to an hourly rate of at least $1,000, regardless of how it is charged. Requirement to request adjudicator appointment 22. If, in the view of the party who gave the notice of adjudication, there is no prospect for the parties to agree to a registry adjudicator or to a private adjudicator, the party shall request that the Authority appoint a registry adjudicator. Payment of adjudicator fees 23. (1) The parties shall pay adjudicator fees to the Authority in accordance with section 10. (2) The Authority may, after the adjudicator is selected or appointed under section 13.9 of the Act, estimate the total amount of the adjudicator fee payable in respect of an adjudication and require the payment of the estimated total. (3) Subsection (2) applies regardless of whether the adjudicator fee is determined by the Authority under clause 13.10 (2) (b) of the Act or agreed to by the parties to the adjudication and the adjudicator. (4) If the Authority requires the payment of an estimated total adjudicator fee amount, it shall notify the parties of the total adjudicator fee amount that it determines was actually payable for the adjudication as soon as possible after making the determination, but in no event later than, (a) the expiry of the 10 day period following the making of the adjudicator’s determination; or (b) the adjudication concludes because the adjudicator resigns or otherwise fails to complete the adjudication, including because the adjudication is consolidated under section 13.8 of the Act or is terminated by the parties under section 13.14 of the Act. (5) If there is an overpayment of an adjudicator fee under this Regulation by a party, the Authority shall return the overpaid amount to the party no later than five days after the Authority notifies the parties of the adjudicator fee under subsection (4) or the amount of the adjudicator fee is determined under subsection 32 (4), as the case may be. (6) If there is an underpayment of an adjudicator fee under this Regulation by a party, the party shall pay the outstanding amount in accordance with section 10. (7) If a party fails to pay any portion of an adjudicator fee to the Authority in accordance with section 10, the Authority shall notify the adjudicator. Documents to adjudicator, party under s. 13.11 of the Act 24. (1) Unless the adjudicator directs otherwise, the documents required to be provided to the adjudicator or a party under section 13.11 of the Act shall be served on the adjudicator or party in a manner permitted under the rules of court for service of a document other than an originating process. (2) The provision of documents by a party under clause 13.11 (b) of the Act is subject to the following requirements: 1. The documents shall be provided to the adjudicator together with the copy of the notice under clause 13.11 (a) of the Act. 2. The documents shall be provided to the other party or, in the case of a consolidated adjudication, to every other party, on the same day as they are provided to the adjudicator. (3) As soon as possible after receiving all of the documents required to be provided to the adjudicator under section 13.11 of the Act, the adjudicator shall provide written confirmation to the parties of the date on which they were received. Response 25. (1) A party responding to a notice of adjudication shall provide copies of the response to the adjudicator, to the party who gave the notice of adjudication and, in the case of a consolidated adjudication, to every other party. (2) Unless the adjudicator directs otherwise, the copies required to be provided to the adjudicator or a party under subsection (1) shall be served on the adjudicator or party in a manner permitted under the rules of court for service of a document other than an originating process. (3) The response shall be provided no later than such day as the adjudicator may specify, but must be provided to the adjudicator and every other party on the same day. Consolidation of adjudications if no agreement 26. (1) A party to an adjudication who wishes to require the consolidation of that adjudication and one or more other adjudications under subsection 13.8 (2) of the Act shall give a written notice that includes the information specified in subsection (3) to, (a) the parties to each of the adjudications; and (b) the adjudicator of each of the adjudications. (2) Notice under subsection (1) may not be given later than the fifth day after the adjudicator in the adjudication receives the documents required by section 13.11 of the Act. (3) The notice shall include, (a) with respect to each adjudication, (i) the names and addresses of the parties, (ii) the nature and a brief description of the dispute that is the subject of the adjudication, including details respecting how and when the dispute arose, (iii) the nature of the redress sought, and (iv) a copy of the notice of adjudication; (b) a statement that the adjudications are to be consolidated, subject to the agreement of the adjudicators of the separate adjudications as confirmed by the Authority; and (c) the name of a proposed adjudicator to conduct the consolidated adjudication. (4) The party shall, as soon as possible after giving the last of the notices under subsection (1), provide a copy of the notice in electronic format to the Authority. (5) The adjudicator of an adjudication that is the subject of a notice under subsection (3) may require a party to that adjudication who does not agree to a consolidation to give to the adjudicator, in the time and manner that the adjudicator specifies, reasons for their lack of agreement. (6) The Authority shall determine whether the adjudicators of the separate adjudications agree to the consolidation and, on that basis, shall notify the adjudicator and parties for each of the adjudications as to whether or not the adjudications are to be consolidated. Application of Part to consolidated adjudications 27. (1) This section applies with respect to adjudications consolidated under subsection 13.8 (1) or (2) of the Act. (2) An adjudicator of an adjudication that is consolidated under subsection 13.8 (1) or (2) of the Act is deemed to have resigned from the adjudication on, (a) the day on which the adjudicator receives notice that the parties to the adjudication have agreed to consolidation under subsection 13.8 (1) of the Act; or (b) the day on which the Authority gives notice under subsection 26 (6) of this Regulation. (3) An adjudicator who is deemed to have resigned under subsection (2) may be selected or appointed under section 13.9 of the Act to conduct the consolidated adjudication, subject to the requirements of that section. (4) For the purposes of subsection 13.9 (4) of the Act and this Regulation, a reference to the day on which a notice of adjudication was given shall be read as a reference to, (a) the day on which the parties to each of the adjudications agreed to the consolidation of the adjudications; or (b) the day on which the Authority gives notice under subsection 26 (6). (5) The requirement under section 13.11 of the Act, as modified by subsection 13.8 (3) of the Act, to provide documents to the adjudicator and to every other party applies with respect to each of the parties who gave the notice of adjudication in each adjudication being consolidated. (6) For the purposes of subsection 13.13 (1) of the Act, the day on which the documents required under section 13.11 of the Act are received by the adjudicator is the last day on which the adjudicator receives any such documents, as confirmed by the adjudicator in accordance with subsection 24 (3) of this Regulation. Disclosure of documents 28. (1) An adjudicator may issue directions respecting the disclosure of documents on which a party intends to rely in an adjudication. (2) An adjudicator shall exercise the power to issue directions under subsection (1) to the extent and in a manner that ensures that each party to the adjudication has an opportunity to review any documents on which a party to the adjudication intends to rely. Powers of adjudicator 29. An adjudicator may exercise a power under subsection 13.12 (1) of the Act despite any failure of a party to the adjudication to comply with a direction or other requirement of the adjudicator. Determinations 30. (1) An adjudicator who makes a determination shall, (a) communicate the determination to the parties by sending them an electronic copy of the determination once it has been made; and (b) give a certified copy of the determination to the parties no later than seven days after sending them the electronic copy. (2) If, at the time the determination is being made, a party has failed to pay any portion of the adjudicator’s fee for which the party is responsible, the adjudicator shall notify the parties and provide an opportunity for another party to pay the outstanding fee amount. (3) If another party pays the outstanding fee amount, the adjudicator shall include in the determination a requirement that the party who failed to make the payment pay that amount to the party who made the payment. (4) If any portion of the adjudicator’s fee remains unpaid by the time the determination is made, the adjudicator may, despite clause (1) (a), communicate the determination to the parties only once the outstanding fee amount is paid. (5) Subsections (2) to (4) do not permit the adjudicator to exceed the deadline for making a determination as determined under subsection 13.13 (1) or (2) of the Act. (6) An adjudicator who makes corrections to a determination under section 13.17.1 of the Act shall, (a) send an electronic copy of the corrected determination to the parties on the day it is made; and (b) give a certified copy of the corrected determination to the parties no later than five days after sending them the electronic copy. Adjudicator unable to conduct adjudication 31. (1) An adjudicator may at any time resign from an adjudication of a matter if, (a) the adjudicator determines that the matter is not eligible for adjudication under section 13.5 of the Act; (b) the adjudicator determines that they are not able or competent to conduct the adjudication; or (c) no part of the adjudicator’s fee has been paid in accordance with this Regulation. (2) The adjudicator shall promptly give written notice of the resignation to the parties. Failure of adjudicator to complete adjudication 32. (1) If an adjudicator fails to complete an adjudication, the party who gave the notice of adjudication may give to the other party a fresh notice of adjudication under section 13.7 of the Act. (2) For greater certainty, subsection (1) does not permit a matter to be adjudicated that could not otherwise be adjudicated under Part II.1 of the Act. (3) If a fresh notice of adjudication is given, the parties shall, if requested by the adjudicator in the new adjudication and to the extent that it is reasonably practicable to do so, provide to the adjudicator copies of any documents that they made available to the adjudicator in the adjudication that was not completed. (4) If an adjudicator fails to complete an adjudication, the adjudicator’s entitlement to an adjudicator fee and its amount shall be determined, (a) by agreement between the parties to the adjudication and the adjudicator; or (b) if no agreement is reached, by the Authority on the adjudicator’s request. (5) In determining the amount of a fee under clause (4) (b), the Authority shall determine an amount that is, in the Authority’s view, appropriate given the work completed by the adjudicator and the circumstances in which the adjudicator failed to complete the adjudication. (6) For the purposes of clause (4) (b), a party to the adjudication shall provide to the Authority, on its request, any information in the party’s possession relating to the adjudication that is reasonably required by the Authority to assist it in making a determination under that clause. (7) This section, other than subsections (1) and (2), applies with respect to a failure of an adjudicator to complete an adjudication because it is consolidated under section 13.8 of the Act. (8) This section, other than subsections (1) to (3), applies with respect to a failure of an adjudicator to complete an adjudication because it is terminated by the parties under section 13.14 of the Act. Application of Part II.1 to labour and material payment bonds 33. (1) A person to whom payment is guaranteed under a labour and material payment bond required under subsection 85.1 (4) of the Act may refer to adjudication under Part II.1 of the Act any dispute with the principal and the surety in relation to the payment guaranteed under the bond. (2) For the purposes of subsection (1), Part II.1 of the Act and this Regulation apply with the following and any other necessary modifications: 1. Subsection (1) applies instead of subsections 13.5 (1) and (2) of the Act. 2. Except as otherwise provided by this subsection, a reference in Part II.1 of the Act and this Regulation to a contract shall be read as a reference to the public contract in relation to which the labour and material payment bond was furnished. 3. In section 13.6 of the Act, a reference to adjudication procedures that are or may be set out in the contract shall be read as a reference to adjudication procedures that are or may be set out in the subcontract with respect to which the dispute relates. Any such adjudication procedures, if applicable under section 13.6 of the Act, apply with necessary modifications. 4. In section 13.7 of the Act, a reference to a contract shall be read as a reference to the labour and material payment bond, and a reference to the parties to a contract shall be read as a reference to the person to whom payment is guaranteed under the bond, the principal and the surety. 5. The reference in subsection 13.12 (1) of the Act to any other power of an adjudicator that may be specified in the contract shall be read as a reference to any other power of an adjudicator that may be specified in the subcontract with respect to which the dispute relates. 6. Subsections 13.8 (2) and 13.19 (1), (5) and (6) of the Act do not apply. 34. Omitted (revokes other Regulations). 35. Omitted (provides for coming into force of provisions of this Regulation).