New Guidance on Jurisdiction Arguments for Adjudications

  • 10 janvier 2023
  • Chad Kopach, Partner at Blaney McMurtry LLP

In reasons released October 4, 2022, the Divisional Court provided guidance on when jurisdiction arguments have to be raised on Construction Act adjudications (and confirmation that adjudicators can properly determine jurisdictional challenges), and answered an important question on whether the abandonment or termination of a contract results in the contract ceasing to exist.

The matter came before Regional Senior Justice Ricchetti as a motion for leave to bring an application for judicial review, in an effort to set aside an adjudicator’s determination.  In the underlying adjudication, the Owner (Pasqualino) was ordered to pay $119,314 to his Contractor (MGW-Homes) in respect of unpaid invoices for renovation work done at the Owner’s property.

The Owner’s motion for leave stated that his application would be based on jurisdictional arguments.  Among other things, the Owner would be arguing that because the contract in question had been either terminated or abandoned prior to the commencement of the adjudication, it had “ceased to exist."  The Construction Act only allows the Divisional Court to set aside a determination in seven limited circumstances, one of which is where “the contract or subcontract is invalid or has ceased to exist.”