Divisional Court Clarifies Judicial Review Notice Requirements and May Make ODACC Determinations Publicly Available

Written By Alex Payne and Josephine Bulat

The Divisional Court’s recent decision in Gay Co. Ltd. v Sayers Foods Ltd., 2024 ONSC 6123 addressed two noteworthy issues for stakeholders in the Ontario construction industry, particularly industry participants who use the interim adjudication regime under the Construction Act as administered by the Ontario Dispute Adjudication for Construction Contracts (ODACC).

The Court (1) confirmed that notice to the Attorney General is mandatory in an application for judicial review of an interim adjudication determination, and (2) signaled an intention to consider whether determinations should be made publicly available.

Overview of Interim Adjudication under the Construction Act

The interim adjudication regime under Ontario’s Construction Act is intended to allow parties to address qualifying construction-related disputes under an expedited and procedurally streamlined process, outside of the Court.

Interim adjudications are determined by independent, third-party adjudicators, whose determinations bind the parties unless the issues are subsequently relitigated (in arbitration or the Superior Court of Justice) or set aside on judicial review. The grounds to challenge a determination by judicial review are limited, and an application for judicial review may be made only with leave of the Court.

The Court’s Decision in Sayers

In an earlier decision, the applicant was granted leave to seek judicial review (2024 ONSC 3609). The Court adjourned the hearing of the matter on the merits for two reasons:

• The Court confirmed that notice to the Attorney General is mandatory in an application for judicial review of a determination. Although section 13.18 of the Construction Act does not refer to notice to the Attorney General, the Court held notice is mandatory under subsection 9(4) of the Judicial Review Procedure Act.
• The Court signaled an intention to consider whether determinations should be publicly available, including on CanLII. The Court held that issues raised in the application may be of interest to ODACC and that notice should be provided to ODACC so that the Court “may inquire into and decide whether ODACC should be required to devise and implement a policy for public release of adjudication decisions in future.”

Commentary

The fact that interim adjudication determinations are not publicly available has been specifically identified as an area of concern by industry stakeholders. With no evolving body of case law, adjudicators cannot refer to and consider prior determinations when determining a dispute. Industry stakeholders have identified this can lead to inconsistent, and at times, arguably incorrect, results.

Bennett Jones will monitor the Sayers matter as it continues to develop and provide an update regarding any implications for industry participants.

The Bennett Jones Infrastructure team helps clients develop major projects through strategic and business-focused legal advice. To discuss any of the matters covered in this blog, please contact one of the authors.

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