The Divisional Court provides guidance for motions seeking leave to bring judicial review under the Construction Act.

Date: April 2023

A few weeks ago, the Divisional Court dismissed a motion for leave to bring an application for judicial review of an adjudicator’s determination.

Before this decision, the Divisional Court had not provided much by way of prior guidance respecting the test for leave to apply for judicial review under s. 13.18(5) of the Construction Act. As a result, in its reasons, the Divisional Court clarified several important issues.

  • First, because an adjudicator’s determination is interim, not final, and intended to be fast and to secure prompt payment, the Divisional Court found that the test for leave applied to the factors in 13.18(5) of the Construction Act is analogous to the test for leave to appeal an interlocutory order of a judge (see paragraph 6 for the full test).
  • Second, it is in the jurisdiction of an adjudicator to decide whether a claim is properly brought under the Construction Act. An adjudicator does not “lose jurisdiction” if they “err” on the decision regarding jurisdiction. The Divisional Court will only intervene where an adjudicator’s decision is “unreasonable”.
  • Third, it is in the discretion of a case management judge to stipulate when a motion to stay the determination shall be argued (before, during, or after the leave motion). When a stay is granted, securing the disputed payment will be a common term of a stay order.
  • Fourth, where leave to apply for judicial review is granted, the standard of review is reasonableness.

Overall, I am glad that the Divisional Court has emphasized that a high bar must be met to be granted leave to apply for judicial review. Prompt payment is meant to be prompt, and without a high-bar, s. 13.18(5) of the Construction Act could be used as a tactic to reduce the effectiveness of the prompt payment provisions.

Click here for a link to the decision.

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