Enforcement of amounts payable
The defendant must pay any amount no later than 10 days after the adjudicator’s determination has been communicated to the parties.
Interest to be paid
The highest of the contract rate or the rate under Section 127(2) of the Courts of Justice Act shall be paid.
Stopping work until paid
If an amount payable to a contractor or subcontractor under a determination is not paid when due, the contractor or subcontractor may suspend further work until the following is paid:
- the amount due under the determination;
- any interest accrued; and
- any reasonable costs incurred by the contractor or subcontractor as a result of the suspension of the work.
Costs of resumption of work
The contractor or subcontractor who suspends work is entitled to payment of reasonable costs incurred as a result of the resumption of work following payment.
Enforcement by the court
The court may enforce the determination.
Deadline for enforcement by the court
An application must be made before the second anniversary of the communication of the determination to the parties and, if applicable, before the second anniversary of the final determination of an application that did not result in the setting aside of the adjudicator’s determination.
Duty of the court
The court shall make an order enforcing the determination.
Immunity of the adjudicator
No action or other proceeding may be started against an adjudicator or his or her employees for any act done in good faith in the execution or intended execution of any duty or power under Part II.1 or the regulations, or for any alleged neglect or default in the execution in good faith of that duty or power.
The adjudicator is not required to give evidence respecting a matter that was subject of the adjudication.
Part II.1 applies in respect to contracts and subcontracts entered into on or after the day the Construction Lien Amendment Act comes into force.
In this author’s view, the proposed regulations are very important and will change many aspects of the Bill. New clauses may be inserted that have not been seen to this date, and existing clauses removed.
The general feeling in the industry is all affected parties are now aware of the provisions of Bill 142 and will be working to persuade the provincial government to pass something that is in their favour.
Regardless, the new Act will be complicated, and there may be transition periods for adjudication, as well as other ‘prompt payment’ clauses.
David I. Bristow, QC, LSM, C.Arb., is a Toronto-based provider of alternative dispute resolution (ADR) services consisting of mediations, arbitrations, and early neutral evaluations. He is co-author of Construction Builders’ and Mechanics’ Liens in Canada. Bristow is a member of the American Arbitration Association’s (AAA’s) panel of arbitrators, a mediation and arbitration panel member of both the International Chamber of Commerce and the Centre for Public Resources Institute of Dispute Resolution, and a charter member of Mediators Beyond Borders. He is the recipient of the Ontario Law Society Medal, and the Golden Jubilee Medal of Queen Elizabeth II. Bristow is a member of Who’s Who Arbitration and Mediation, and is a prolific author and lecturer. He can be reached at firstname.lastname@example.org or via www.davidibristow.com.