Date: November 2024
On November 6, 2024, the Building Ontario for You Act (Bill 126) received Royal Assent at the Ontario legislature. Bill 216 contains several important changes to the Construction Act.
As a proponent of interim adjudication, especially because the Superior Court is ill-equipped to handle many construction claims, I’d like to summarize a couple changes made to interim adjudication, which broaden its availability.
1. Interim adjudication no longer limited to certain matters – Previously, section 13.5(1) and (2) identified the only types of matters that could be referred to adjudication. This list included a “catch all” for “any other matter that the parties to the adjudication agree to, or that may be prescribed”. Amendments from Bill 126 remove the specifically enumerated matters and essentially replaces them with the “catch all”. Although the “catch all” already existed, by taking away the specifically enumerated matters, the legislature is signalling to the construction industry that it wants to expand the availability of interim adjudication.
2. Interim adjudication available after a project is completed – Prior to the amendments, interim adjudication was no longer available to parties once a contract was “completed”. Now, interim adjudication is available to parties to a contract so long as a notice of adjudication is given within 90 days after the date a contract is completed, abandoned, or terminated. Interim adjudication with respect to subcontracts can be commenced so long as a notice of adjudication is given within the earliest of (a) the deadline to commence an interim adjudication for a contract; (b) the date on which a subcontract is certified to be completed; and (c) the date on which the subcontractor last supplies services or materials to the improvement.
In my view, the expansion of interim adjudication beyond completion makes it clear that its primary intent is to make sure funds flow down the construction pyramid.
Although Bill 126 has received Royal Assent, it is not yet known when the changes will come into force – someone please correct me if I am wrong!