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Construction - Judicial Review. Sayers Foods Ltd. v. Gay Company Ltd.
In Sayers Foods Ltd. v. Gay Company Ltd. (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a statutory JR, this brought against an adjudicator's order for "the Applicant to pay $685,574.91, plus interest .... pursuant to the prompt payment regime in the Construction Act" [under Part II.1 - Construction Dispute Interim Adjudication].
The court considered a 'fresh evidence' issue, here where some fresh evidence was admitted on mutual consent and more contested:(b) Contested Fresh Evidence
[41] In general, the record on judicial review should be the same record that was before the original decision-maker when the underlying decision was made: Sierra Club Canada v. Ontario (Ministry of Natural Resources and Ministry of Transportation), 2011 ONSC 4086, paras. 10-15. Evidence that was not in the record below is generally inadmissible on judicial review unless it falls within recognized exceptions (Windrift Adventures Inc. v. Chief Animal Welfare Inspector, 2023 ONSC 4501, paras. 33-39):I. Where the evidence provides background information to place a decision in context.
II. Where the evidence demonstrates a complete absence of evidence before the tribunal on a material point, to support an argument that a key finding is unreasonable because it rests on a factual finding unsupported by any evidence.
III. Where the evidence is in respect to natural justice, fairness, improper purpose, or fraud, and the evidence could not have been put before the original decisionmaker. See also: Canadian National Railway Company v. Teamsters Canada Rail Conference, 2019 ONSC 3644, para. 12; Kadri v. College of Physicians and Surgeons of Ontario, 2020 ONSC 5882, paras. 12-18.
[42] Sayers argues that a more permissive standard for fresh evidence ought to be applied in judicial review of prompt payment determinations under the Construction Act (Sayers’ Factum on the Fresh Evidence Motion, paras. 9-15). We see no good basis for this argument, and the provisions of the Construction Act strongly militate against such an approach.
[43] Sayer cites no authority for its proposed approach to this issue. Rather, it argues that the short timelines for exchange of adjudication materials caused it unfairness, and materials it now seeks to adduce would have been adduced in the adjudication if it had had time to locate them.
[44] In our view, such materials are potentially admissible under one of the recognized exceptions, but only for the limited purpose of that exception: it is relevant to the argument of procedural unfairness. No relaxation in the Sierra Club principles are required to reach this conclusion. Fresh evidence may be used to establish prejudice arising from alleged unfairness. They may not be used for anything more, and in particular, they may not be used for an assessment of the underlying merits of the impugned determination. If the court found that there was procedural unfairness, and that this unfairness had deprived a party of a reasonable opportunity to adduce material evidence, and that this failure could have affected the result of the adjudication, then the remedy usually would be to allow the application and remit the matter for adjudication on a complete record.
[45] In this case, however, we are satisfied that the proposed fresh evidence – while it may have been admissible before the Adjudicator had it been tendered in the adjudication process – would not have affected the result. We are also satisfied that Sayers had a contractual obligation to mount its claim for a Contract credit in a timely manner if it wished to use that claim as a basis to stop paying for construction work as it was being done on its project. It had nine months to be gathering its evidence for its delay claim prior to the adjudication – not the mere days it says it had once the adjudication process was commenced.
[46] Further, as we explain below, we find no procedural unfairness that could ground a basis for this court to interfere with the impugned determination. Thus, even if these materials were admitted as fresh evidence, since there was no procedural unfairness, there is no need or the court to determine whether prejudice arose therefrom.
[47] Finally, we accept Gay Co.’s argument that the contested fresh evidence is replete with impermissible material. It contains factual argument, legal argument, inadmissible opinion evidence, hearsay on contentious issues, and de novo argument on the merits. None of this is properly admissible in any event: Gutierrez v. The Watchtower Bible and Tract Society of Canada, 2019 ONSC 3069, paras. 50-51; Lovell v. Ontario (Minister of Natural Resources and Forestry), 2022 ONSC 423, para. 8; Mensour v. The Corporation of the Town of Leamington, 2012 ONSC 3525, paras. 18-25; Rules 4.06(2) and 39.01(5) of the Rules of Civil Procedure; Belsito v. 2220742 Ontario Ltd., 2017 ONSC 7207, para. 17.
[48] For all of these reasons, the disputed fresh evidence tendered by Sayers (set out at Schedule “A” to the Factum of Gay Co. on the fresh evidence motion) is not admitted into evidence on this application. . Gay Co. Ltd. v. Sayers Foods Ltd.
In Gay Co. Ltd. v. Sayers Foods Ltd. (Div Court, 2024) the Divisional Court considered the JRPA s.9(4) duty to provide notice of the application, but not of a leave to commence, on the AG - and of an apparently judge-initiated service on a related public-interest industry group:Notice to the Attorney General
[4] Subsection 9(4) of the Judicial Review Procedure Act provides:Notice of an application for judicial review shall be served upon the Attorney General who is entitled as of right to be heard in person or by counsel on the application. It is not necessary to serve the Attorney General with notice of a motion to seek leave to apply for judicial review pursuant to s. 13.18 [SS: of the Construction Act] of the Act. If leave is granted, it is necessary to serve the Notice of Application on the Attorney General with sufficient time to enable the Attorney General to decide whether they wish to exercise their right to be heard on the application. This has not been done yet in this case.
[5] As a consequence, this application is adjourned to a date to be set by the Registrar. The Applicant shall give notice to the Attorney General and shall provide a copy of this endorsement as well as copies of the Notice of Application, the impugned decision, copies of the factums filed by both sides, and copies of the notices of motion and factums seeking to adduce fresh evidence before this court.
Notice to ODACC
[6] This court considers that some of the issues raised on this application are matters touching upon the jurisdiction and process of proceedings below, and the finality of prompt adjudication determinations, all of which may be of interest to the Ontario Dispute Adjudication for Construction Contracts (“ODACC”). The court is not aware of ODACC participating in prior applications for judicial review, and this may be a factor the Attorney General would take into account in deciding whether to exercise their right to be heard on the application.
[7] For the purposes of giving notice to ODACC, the Applicant shall serve a copy of the impugned determination, the Notice of Application, the Notices of Motion and Cross-Motion to adduce fresh evidence, and a copy of this endorsement.
Notice Requirements and Proper Parties
[8] In this endorsement, this court finds that notice to the Attorney General of the Notice of Application is mandatory in applications for judicial review of prompt payment determinations under the Construction Act. At the return of the application, the court may inquire into and decide whether ODACC is entitled to notice and/or is entitled to be heard on such applications. Since the court is requiring notice to ODACC in this case, the court may also consider concerns raised in prior decisions of this court that adjudication decisions are not receiving neutral citations and are not apparently being released to reporting services such as CanLII, and 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. . Caledon (Town) v. 2220742 Ont. Ltd. o/a Bronte Construction
In Caledon (Town) v. 2220742 Ont. Ltd. o/a Bronte Construction (Div Court, 2024) the Divisional Court considered a JR of a Construction Act adjudication.
Here the court considers the 'prompt payment' and related JR provisions of Construction Act:Limited Jurisdiction of this Court
[56] As noted by this court in SOTA Dental Studio Inc. v. Andrid Group, 2022 ONSC 2254, para. 9 (Div. Ct.):The whole point of these provisions is to require prompt payment to avoid the consequences of disruptions to construction projects of brinksmanship over disputes that arise. The prompt payment provisions are based on similar provisions introduced in the United Kingdom more than a decade ago. They provide for a quick and relatively informal adjudication, by an adjudicator experienced in construction law disputes. The decision is without prejudice to the parties contesting issues between them at the end of the project. It triggers an obligation on the part of the payee to make its payments to its subcontractors, suppliers and workers. Effective implementation of these provisions is intended to reduce terminations (by payors) and work cessations (by payees) in the midst of construction, either of which can cause cascading losses down the construction pyramid. The obligation to pay, and to pay promptly, when ordered to do so, is fundamental to the scheme of the prompt payment provisions. [57] The bases on which the court may intervene on an application for judicial review reflects the nature of the award made by an adjudicator: it is an interim award, without prejudice to the parties, and is to be made swiftly following a prescribed prompt process. The court affords a high degree of deference to an adjudicator’s decision and will intervene only in limited circumstances.
[58] The complete text of s. 13.18(5) of the Act states:The determination of an adjudicator may only be set aside on an application for judicial review if the applicant establishes one or more of the following grounds:
1. The applicant participated in the adjudication while under a legal incapacity.
2. The contract or subcontract is invalid or has ceased to exist.
3. The determination was of a matter that may not be the subject of adjudication under this Part, or of a matter entirely unrelated to the subject of the adjudication.
4. The adjudication was conducted by someone other than an adjudicator.
5. The procedures followed in the adjudication did not accord with the procedures to which the adjudication was subject under this Part, and the failure to accord prejudiced the applicant’s right to a fair adjudication.
6. There is a reasonable apprehension of bias on the part of the adjudicator.
7. The determination was made as a result of fraud. . Jamrik v. 2688126 Ont. Inc.
In Jamrik v. 2688126 Ont. Inc. (Div Court, 2024) the Divisional Court allowed a JR against a Construction Act (CA) adjudicator's 'prompt payment' decision that "the contract was not “completed” within the meaning of the Construction Act".
Here the court considers a Construction Act JR [under CA s.13.18(1)]:[7] An application for judicial review of an adjudicator’s decision lies to this court with leave: Construction Act, s.13.18(1). Leave was granted for this application on September 25, 2023: Jamrik v. 2688126 Ont. Inc. o/a Turnkey Construction, 2023 ONSC 5362 (Div. Ct.).
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