ARCANA Annual Reports

Please click on the link above to access the PDF Annual Reports.

ARCANA (AB) Adjudicator User Guide

Benefits of Adjudication

While amounts owing of under $15K may represent a substantial sum to many contractors, Applicants are cautioned that ARCANA (AB) construction adjudication services are not free.  Appointment and adjudicator fees begin at almost $3000, and are often initially borne by the Applicant.  The Adjudicator may or may not allocate the cost of the adjudication in any one party’s favour.  For those collecting on an Adjudicator’s order, ARCANA (AB) does not provide enforcement services when debts remain unpaid, potentially incurring more cost to those owed money.  ARCANA (AB) wants such Applicants to be fully aware of ALL their resolution options:

1) Prompt Payment Construction Adjudication with ARCANA (AB) as detailed in these webpages;

2) Civil Claims Mediation or Litigation, with or without legal representation, for sums up to $100,000.  There are additional details regarding this option that you can access from this ARCANA (AB) webpage.  Application fees are very low, and Applicants are strongly encouraged to request the FREE mediation option which can achieve resolution faster without added expense; and

3) Register a Lien.  ARCANA (AB) does not provide advice or guidance on this option, but note that liens must be registered within 60 days. Registering a lien does not preclude, supercede, or interrupt an ARCANA adjudication process. In fact, the concluded adjudication may well resolve the issue(s) that give rise to lien.

Overview

The construction industry is a multi-billion dollar sector of Alberta’s economy that creates thousands of jobs for Albertans.

Payment timelines for Alberta’s construction industry, along with timelines for filing liens and rules for adjudication in the event of a payment dispute, are outlined in the Prompt Payment and Construction Lien Act, the Prompt Payment and Adjudication Regulation, and the Prompt Payment and Construction Lien Forms Regulation.

All new construction contracts in Alberta must adhere to the rules of the Prompt Payment and Construction Lien Act as of August 29, 2022.

Existing contracts that are scheduled to end before August 29, 2024 do not need to be changed to adhere to the new rules. Existing contracts that extend beyond August 29, 2024 have to become compliant by August 29, 2024.

View the Service Alberta Prompt Payment page here

Notice of Adjudication PDF

Notice of Adjudication Doc

ADRIA EFT Banking Information

There is no fee to issue a Notice of Adjudication but, once issued, it is incumbent upon the Applicant to immediately:  

A)  Work towards resolution with the Respondent if practical;

B)  If not resolved, try to agree upon an adjudicator to reduce the Appointment Fee by half; and

C)  Keep ARCANA (AB) informed and complete the Application Form if the adjudication appointment is to proceed.

ARCANA (AB) will issue an Application Form and instructions upon receipt of the Notice of Adjudication, but if the adjudication is to proceed, the actions above MUST be undertaken by the Applicant in the four (4) working days following issuance of the Notice.  Specifically, this includes completion of the ARCANA (AB) Application Form and payment of the Appointment Fee (usually with reference to Column B and Notes to the ARCANA (AB) Fee Schedule).  If the dispute is resolved, or the adjudication is to be discontinued after issuing a Notice of Adjudication, ARCANA (AB) must be informed.  Once appointed, the adjudicator will issue further instructions in accordance with the legislated timelines. 

The PPCLA legislation and regulation uses the terms “days” and “calendar days” to outline the adjudication process.  Note that under the legislation “Calendar days” excludes weekends and most recognized holidays.  The 11-step process below only uses the word “days”, noting that in most cases (but not all), this refers to working days.  A notable exception is Regulation 26(1) [Step 4] where ARCANA (AB) believes that the legislated intent is 30 straight days – i.e. including weekends and holidays.  For added clarity, refer to the legislation.  

Step 1 – Commencement

Action – The Applicant delivers a Notice of Adjudication to the Respondent and the Nominating Authority in the required form.

Notice of Adjudication

Includes a brief description of the dispute being submitted to for adjudication, and the redress sought (usually expressed to include a dollar value).

Specifies a preferred NA and adjudicator (if any) .

ARCANA (AB) will issue an application form to gather more details, and to detail the appointment and adjudicator fees.

Step 2 – Select an Adjudicator (or not)

Action – If practical, the Applicant and Respondent agree on the Adjudicator and notify the Nominating Authority.

Or, if agreement cannot be mutually agreed upon by the parties, any party to the dispute (normally the Applicant) must notify the Nominating Authority that they have been unable to reach an agreement on the selection of an Adjudicator, and request the Nominating Authority to appoint an Adjudicator on their behalf.

Timing –  within 4 days of the delivery of the Notice of Adjudication, at which time the Appointment fee must be paid.

NOTE – if the Applicant does not intend to proceed to adjudication after the 4th day, the Nominating Authority must be advised immediately.

The parties are encouraged to communicate with each other during these 4 days and mutually agree upon an Adjudicator. To this end, the parties are encouraged to identify and exclude any Adjudicators that might have a Conflict of Interest, or be otherwise les suitable for the dispute at hand. Similarly, any party can communicate their preferences for an appointed Adjudicator. Direct one-party written or verbal communications with potential Adjudicators are NOT encouraged, as such communications would compromise the Adjudicator. If direct written communications with potential Adjudicators are initiated by any party prior to the appointment, then all other parties to the dispute must be copied.

In all circumstances, the Nominating Authority will confirm the availability, suitability, and willingness of the Adjudicator before appointing.

Step 3 – Appointment by the NA

Action – The Nominating Authority appoints either the Adjudicator agreed to by the parties, or an Adjudicator who the Nominating Authority deems qualified to adjudicate the dispute between the parties, and notifies the parties of the appointment.

The adjudicator may issue directions to the parties at this stage regarding the conduct of the adjudication.  Such directions may also be issued during the course of the adjudication process (see Step 6 below).

Timing –  within 7 days of Step 2.

Step 4 – Submission of Materials by Applicant

Action – The Applicant must deliver to the Adjudicator and the Respondent, the following materials:

•The Notice of Adjudication;

•A copy of the contract or subcontract, as the case may be; and

•Copies of all documents that the Applicant intends to rely on to prove its claim.

The documents should include a brief summary of the basis for the Applicant’s claim.

ARCANA (AB) provides a secure document transmission app (BOX)

Timing –  within 5 days of the appointment of the Adjudicator under Step 3, or such other time as may be directed by the Adjudicator.

This starts the 30-day clock i.e. the timeframe within which the adjudicator must make a determination of the dispute, unless extensions are granted

Step 5 – Submission of Materials by Respondent

Action – The Respondent must deliver to the Adjudicator, and the Applicant, its response which should include the following materials:

•A brief description of the basis upon which the Respondent disputes the Applicant’s claim; and

•Copies of all documents that the Respondent intends to rely on to dispute the Applicant’s claim.

Timing –  within 12 days of receipt of the Applicant’s materials under Step 4, or such other time as may be directed by the Adjudicator.

Step 6 – Adjudicator’s Notifications/Directions

Action – At the Adjudicator’s discretion, the Adjudicator may issue directions to, or seek clarifications from, the parties to the dispute.

The Adjudicator shall also give notice to the parties that the Adjudicator has in its possession all the documents and information required to make a determination.

This is where a site visit, hearing or expert witness could be directed.

Timing –  In Adjudicator’s discretion

Step 7 – Determination and Order

Action – The Adjudicator delivers to the parties and to the Nominating Authority their written determination of the dispute and a corresponding formal Order.

Timing –  within 30 days of receipt of the materials from the Applicant under Step 4.

The Adjudicator may extend this timeline (or any deadline) by up to 10-day increments if necessary or by agreement.

In accordance with section 13(3) of the PPCLA Regulation 23/2022 dated February 25, 2022, when making their Determination and Order regarding the cost and other charges related to the adjudication, ARCANA adjudicators shall be limited to the following:

a. Appointment fee paid by the parties to ARCANA(AB): and

b. Fees and disbursements charged by the Adjudicator to the parties including any costs incurred by the Adjudicator arising from any of the powers exercised in accordance with section 25(1) of the PPCLA Regulation.

Step 8 – Corrections

Timing – within 4 days after Determination is made the parties to the adjudication must seek a correction of any typographical error in the Order.

Step 9 – NA Certification

Action – The Nominating Authority certifies the Order and sends a copy of the Order to the parties.

Timing –  within 7 days of the Nominating Authority’s receipt of the determination and Order under Step 7.

Step 10 – Enforcement

Action – The party seeking enforcement of the Order may file the Order with the Clerk of the Court.

When filed with the Clerk of the Court, the Order has the same legal effect as an Order of the Court.

Timing –  If unpaid, 30 days after the delivery of the certified determination and Order of the Adjudicator from the NA under Step 9.

OR – Judicial Review is requested within this same 30 days.

Step 11 – Notification of Enforcement

Action – Party seeking enforcement of the Adjudicator’s Order delivers to the other party written notice of the registration of the Order with the Clerk of the Court.

Timing –  within 10 days of the registration of the Order under Step 10.

Under the PPCLA, a Nominating Authority is required to:

• • assess applicants against the prescribed requirements as adjudicators;

• • appoint adjudicators and arrange for them to adjudicate specific disputes;

• • develop and oversee programs for adjudicator training;

• • establish and maintain a publicly available registry of adjudicators; and

• • perform any other duties as may be prescribed by regulation.

The Nominating Authority ARCANA (AB) functions as a partnership between the ADR Institute of Alberta (ADRIA), the ADR Institute of Canada (ADRIC), and the Royal Institution of Chartered Surveyors (RICS).

For more information on Prompt Payment Construction Adjudication or how to initiate the adjudication process, contact arcana@adralberta.com or call/text 780-245-4042. 

An alternative and cost-effective option for smaller construction prompt payment disputes is Civil Claim Court, and free mediation services that the parties can request or be directed to.  Claims of up to $100,000 can be referred to the Alberta Court of Justice Civil Division.  Filing fees are low, and many such files are diverted to a half day of free mediation – especially when mediation is requested by the applicant or parties to the dispute.  Successful mediated outcomes can be filed as court documents, and mediations can be scheduled much earlier than court dates.   If a mediated settlement is not reached, you can still proceed to trial.  You can find full details on the following websites:   

https://albertacourts.ca/cj/areas-of-law/civil/claims/filing

https://www.alberta.ca/civil-mediation.aspx

https://albertacourts.ca/cj/areas-of-law/civil/claims/fees

https://www.albertacourts.ca/docs/default-source/qb/court-information-access-guide-for-alberta.pdf?sfvrsn=1420ab83_21

TBA

Enforcement Options PDF

Neither the Courts nor ARCANA (AB) provide enforcement services.  Any party to a dispute that is still owed payment more than 30 days after a construction adjudicator’s order is certified should consult Steps 10 and 11 of the 11-step ARCANA (AB) Adjudication process AND the attached guide.  Legal counsel is recommended.   

Code of Conduct

 May, 2025

The partnership between the ADR Institute of Alberta (ADRIA), The ADR Institute of Canada, Inc. (ADRIC) and the Royal Institution of Chartered Surveyors (RICS) as the ADR Institutes / RICS Construction Adjudication Nominating Authority (Alberta) [ARCANA (AB)] brings together three organizations with long-established records of performance in the development and implementation of dispute resolution services in many commercial sectors, notably construction.

The Royal Institution of Chartered Surveyors (RICS) is a global leader in the provision of adjudication services to the construction industry and has nominated in excess of 20,000 adjudicators over the past 24 years pursuant to statutory and contractual regimes in the UK, Australia, New Zealand, Southern Africa and the Republic of Ireland. The RICS training, accreditation and performance monitoring programs for construction adjudicators are regarded as the gold standard by industry professionals and users of adjudication globally.  https://www.rics.org/

The ADR Institute of Canada (ADRIC) is Canada’s leading ADR professional organization and presides as the national body of the seven regional affiliate bodies of the ADR Institutes in Canada. It has established benchmarks for best practice for ADR professionals across Canada and offers highly respected and sought-after professional designations. ADRIC members include Canada’s top dispute resolution professionals many of whom are skilled and experienced in construction industry law and practice.  ADRIC and RICS have also partnered at the Federal level with the intent of responding to the Canadian Government’s Prompt Payment Adjudication legislation, and are working with individual Affiliates across Canada to support existing and future Provincial Construction Adjudication initiatives.  https://adric.ca/

The ADR Institute of Alberta (ADRIA) is well known to the Provincial Government as Alberta’s professional association of mediators, arbitrators, adjudicators and other ADR practitioners, and the source of ADR expertise in Alberta.  ADRIA functions as an independent Regional Affiliate of ADRIC in the delivery of highly qualified and credentialed ADR professionals in all sectors of Alberta’s economic and civil life.  For over 20 years ADRIA has administered the Canadian Motor Vehicle Arbitration Plan (CAMVAP) in Western Canada, in partnership with the CAMVAP national body.  ADRIA has represented the new ARCANA (AB) partnership throughout Service Alberta’s consultation process and the drafting of prompt payment adjudication legislation and directives.  https://adralberta.com/

ARCANA (AB) hosted a highly successful Construction Adjudication Prompt Payment Symposium on April 20th, 2023 in Calgary, featuring speakers from the UK and multiple Provinces.  Symposium activities for 2024 are now being planned.  Visit https://adralberta.com/events/construction-adjudication-symposium/ or contact arcana@adralberta.com for more details and sponsorship opportunities.

Disclaimer:  The content of these FAQ’s is provided for information purposes only and is not intended as legal advice.  Users of adjudication should familiarize themselves with the current legislation and regulations.

1.  How do I commence an adjudication?

Answer:  An adjudication is commenced by the party seeking the adjudication (the “Applicant”) completing and giving to both the other party to the dispute (the “Respondent”) and ARCANA(AB) a “Notice of Adjudication” (See section 20 of the Prompt Payment and Adjudication Regulation (the “Regulation”).   The Applicant must also complete and deliver to ARCANA(AB) an Application form containing further information required by ARCANA(AB).  These forms can be accessed on the ARCANA(AB) webpage https://adralberta.com/prompt-payment/.

2.  What are the key deadlines for Applicants and Respondents  in an adjudication once it has been commenced?

Answer:  Within first 4 days of commencement of the Adjudication – The Applicant and Respondent are to discuss, and possibly, agree upon an adjudicator selected from ARCANA(AB)’s roster of adjudicators which can be found at https://adralberta.com/prompt-payment/  under the section of “Roster of Available Construction Adjudicators”. (See section 22(1) of the Regulation).

Within 7 days of selection of the adjudicator by the parties or expiry of the 4 day period above  – ARCANA(AB) appoints the adjudicator – either the adjudicator agreed upon by the Applicant and Respondent or, in the absence of agreement, chosen by ARCANA(AB) based upon the issues in the dispute (see section 22(2) of the Regulation).

Within 5 days of appointment of the Adjudicator – the Applicant must provide to the Adjudicator:  (1) a copy of the Notice of Adjudication and (2) a copy of the contract or subcontract as the case may be.  (3)The Applicant must also provide to both the adjudicator and the Respondent copies of any documents the Applicant intends to rely on during the adjudication.  These documents should include a brief narrative explaining the basis of the Applicant’s claim. (See section 23 of the Regulation).  

Within 12 calendar days of receipt of the Applicant’s materials:  The Respondent must provide a response to the Applicant’s materials to the adjudicator and the Applicant.  This response should contain copies of any documents the Respondent intends to rely on in the adjudication together with a brief narrative explaining the basis of the Respondent’s defence to the Applicant’s claim.

An adjudicator can extend the deadlines of the Applicant and/or Respondent one or more times,  at the request of either or both of the parties, for a period of up to 10 days.  Such requests should come with an explanation.

Further deadlines and steps in the adjudication process can be found on the ARCANA(AB) webpage https://adralberta.com/prompt-payment/.

3.  What matters can an adjudicator adjudicate, ie. What matters are within an adjudicator’s jurisdiction?

Answer:  An adjudicator can only adjudicate disputes which relate to construction contracts, ie. contracts which give rise to an improvement to land.  Furthermore, an adjudicator can only adjudicate disputes that pertain to property in Alberta.  Otherwise, for contracts entered into before April 1, 2025, an adjudicator cannot adjudicate a dispute regarding a contract which has been “completed” before the dispute has been referred to adjudication (unless the parties agree otherwise) or where an action in court has been commenced before or on the same date as the matter is referred to adjudication (Legal advice should be obtained regarding the interpretation and application of this provision).

 For contracts entered into on or after April 1, 2025 (the date of amendment of the Prompt Payment and Construction Lien Act (the “Act”) by Bill 30)  an adjudicator cannot adjudicate a dispute where the dispute has been referred to adjudication after 30 days from the “date of final payment” (See section 33.4 of the amended Act (  “Final Payment” is a defined term in the Prompt Payment and Construction Lien Act, as amended by Bill 30.  Legal advice should be obtained regarding the interpretation and application of this provision).  An adjudicator may also be able to adjudicate a dispute regardless of when an action is commenced in court regarding that dispute (Legal advice should also be obtained in this regard as there is some lack of clarity in the Act regarding the amendments concerning adjudication and court actions.  See sections 33.4(1) and (5) of the amended Act).   

Otherwise, an adjudicator’s jurisdiction is set out in section 19 of the Regulation which provides that an adjudicator can resolve disputes regarding the following matters:

a. The valuation of services or materials provided under the contract or subcontract, including in respect of a written change order, whether approved or not, or a proposed change order, as the case may be;

b. Payment under the contract or subcontract, including in respect of a written change order, whether approved or not, or a proposed change order;

c. Disputes that are the subject of a notice of non-payment under Part 3 of the Act;

d. Payment of non-payment of an amount retained as a major lien fund or minor lien fund and owed to a party during or at the end of a contract or subcontract as the case maybe;

e. Any other matter in relation to the contract or subcontract, as the case may be, that the parties to the dispute agree to, regardless of whether or not a proper invoice was issued or the claim is lienable.

 4.  What should I include in my submissions to the adjudicator as either an Applicant or a Respondent?

Answer: See the answer to FAQ # 2 above. Parties should  keep their submissions concise, but addressing each aspect of the party’s position, and  including only the key documents supporting their positions.  They should keep in mind that the adjudicator is seeing the dispute, and the relevant documents, for the first time and that the adjudicator has a limited time in which to make his/her determination.  

5.  If I obtain an adjudicator’s determination in my favour how do I enforce it?

Answer:  A party receiving a determination with an order which directs that a payment be made can enforce that order by filing it with the Clerk of the Court.  The order cannot be filed with the court until 30 days following receipt of the adjudicator’s order by the parties  (See section 33.61 of the unamended and amended Act).    Thereafter it can be enforced in the same manner as any court order.  Further information in this regard can be found on the ARCANA(AB) webpage https://adralberta.com/prompt-payment/ .  ARCANA(AB) and the adjudicator lack the jurisdiction to assist the parties with enforcement of an adjudicator’s order. 

6.  If I obtain an adjudicator’s determination in my favour is it inevitable that the dispute goes to litigation in any event?

Answer:   No.  A court action can be commenced by either party to a dispute following (or even during the course of) an adjudication.  However, that court action does not affect the enforceability or binding effect of the determination and order.  That determination and order only become unenforceable, thereby requiring either litigation or arbitration to resolve the dispute,  under the following circumstances: 

1. For contracts entered into before April 1, 2025.

1. A court order is made in respect of the matter.

2. Either party has applied to court for judicial review of the determination and order.  

3. The parties have entered into a written agreement to appoint an arbitrator under the Arbitration Act.  

4. The parties have entered into a written agreement that resolves the matter.

(See section 33.61 of the unamended Act).

        B. For contracts entered into after April 1, 2025

1.  A court order is made affecting the binding nature of  the determination  and order (ie. a stay) or resolving the same dispute.

2. The issuance of a court order setting aside the determination and order at an application for judicial review.

3. An arbitration has commenced and is in progress under the Arbitration Act..

4. The issuance of an award by an arbitrator respecting the same dispute.  

5. The parties have entered into a written agreement that resolves the matter in dispute.

(See sections 33.6(5) and 33.61 of the amended Act).

7. Is the issuance of a “proper invoice” necessary before a dispute can be resolved by an adjudicator?

Answer:  No.  The jurisdiction of an adjudicator is as set out in the answer to FAQ # 3 above.  Only one of those areas of jurisdiction relates to the issuance of a “proper invoice”, namely, section 19(c), i.e. “disputes that are the subject of a notice of non-payment under Part 3 of the Act”.  Part 3 of the Act is that part of the Act that provides the legislation governing requirements regarding  issuance and responses to “proper invoices”.  

8. If I file a construction lien as security for a claim can my dispute over that claim still be resolved by an adjudicator?  Similarly if I commence an adjudication can I still file a construction lien?

Answer:  The answer to both questions is “Yes”.  A party can file a construction lien and still proceed to adjudication.  Similarly, commencing an adjudication does not affect the right of a party to register a construction lien.  While an adjudicator lacks the jurisdiction to enforce a construction lien, the adjudication can often resolve the dispute underlying the construction lien claim and, thereby, simplify the subsequent lien enforcement process.  

9.  If I commence  an adjudication can I still commence an action in court?

Answer:  Yes.  Whether under the unamended or amended Act, a party to an adjudication can still commence a court action.  The adjudication and court action can then proceed in tandem.  However, a court order in the action may terminate the adjudication.

10.  If an action has already been commenced in court by me or another party respecting a dispute can an adjudication still be commenced regarding that dispute?

Answer:

A. For contracts entered into before April 1, 2025

No.  Section 33.4(1) of the unamended Act specifically prohibits the commencement of an adjudication if a court action regarding that dispute has already been commenced.  

B. For contracts entered into on or after April 1, 2025

Perhaps.  The amended Act has removed the following words from section 33.4(1) “Provided that no party has commenced an action in court with respect to a dispute…”.  However, subsequent language in section 33.4(5) of the amended Act which permits “adjudication and the action in court to both proceed”  where “a party commences an action in court with respect to a dispute on or after the day the dispute is referred to adjudication…”  may well prevent an adjudication and court action to proceed in tandem unless the court action is commenced on the same day as,  or subsequent to, the commencement of the adjudication.  

11. What does it mean when an adjudicator’s jurisdiction is challenged?

Answer:  A challenge of an adjudicator’s jurisdiction is the contention by one party (invariably the Respondent) that the adjudicator lacks the authority under the Act and Regulation to adjudicate the merits of the dispute.  

12.  What should I do, as an Applicant, if the Respondent includes in its submissions to the adjudicator under section 24 of the Regulation  a challenge of the adjudicator’s jurisdiction?

Answer:  The Applicant should request from the adjudicator an opportunity to reply to the jurisdictional challenge if the Applicant’s original submissions do not already address the Respondent’s submissions in this regard.  

13. What do I do if I, as an Applicant, anticipate that the Respondent will challenge the jurisdiction of the adjudicator?

Answer:  If an Applicant becomes aware, before or at the outset of an adjudication, that the Respondent will challenge the adjudicator’s jurisdiction, an Applicant (and the Respondent as well) should promptly notify the adjudicator in this regard, and obtain directions from the adjudicator on the procedure in the adjudication for resolving the jurisdictional challenge.  The adjudicator will invite submissions from the parties in this regard and possibly set a specific procedure, including deadline extensions, for the resolution of the jurisdiction issue.  

14.  What do I do if I, as a Respondent, have received from an Applicant  a Notice of Adjudication and I wish to challenge the jurisdiction of the adjudicator?

Answer:  As in the case of an Applicant (see answer to FAQ#13) the Respondent should notify the adjudicator,  as soon as possible following receipt of the Notice of Adjudication,  of the Respondent’s intention to challenge the adjudicator’s jurisdiction.  The adjudicator will then deal with the challenge as set out in the answer to FAQ#13.

  15.  What are some typical jurisdictional challenges?  

Answer:  Jurisdictional challenges to date have included the following:

1. The contract has been “completed” within the meaning of section 33.4(1) of the unamended Act.

2. An aspect of the dispute (specifically a delay claim) is outside the jurisdiction of the adjudicator under section 19 of the Regulation.

3. The invoice upon which the claim is based is not a “proper invoice”.

4. The adjudicator lacks jurisdiction as the result of the transitional provisions under the Act.   

5. The dispute is the more appropriate forum for hearing the matter (N.B. Technically this is not a jurisdictional issue as it is in the discretion of the adjudicator to make this decision.  It is, however, included here as this submission is typically made as a jurisdictional challenge).  

6. Whether an action has been commenced under the unamended Act by the posting of security into Court to bond of the Lien

7. Whether an adjudicator can proceed in face of zero participation from the respondent, i.e. how to provide the Reg s. 25(2) notice

The results of these jurisdictional challenges cannot be published due to the confidentiality of the adjudication process.  Suffice it to say, in this regard however, that jurisdictional challenges frequently fail.  

16.  Can an adjudicator resolve a dispute over the adjudicator’s jurisdiction before proceeding with the dispute on the merits?

Answer:  Yes.  However, an adjudicator cannot resolve a jurisdictional challenge without affording both parties an opportunity to make submissions to the adjudicator in this regard. See the answers to FAQ#’s 12, 13, and 14 above.  Since jurisdictional challenges are often made by the Respondent in its submissions in response to those of the Applicant, the adjudicator will already have received submissions from both parties regarding the merits of the dispute.  The adjudicator may well, then, invite submissions from the parties, and give a direction, regarding whether the adjudicator will make a decision on the jurisdiction issue separate from his/her determination on the merits.  

16.  Do I compromise my case by sharing my best arguments and supporting documents with the adjudicator and the other party sooner than would be the case in a court proceeding or arbitration?

Answer:  No. Whether the parties are involved in settlement discussions, mediation, arbitration, litigation, or adjudication, it is always best to put one’s best arguments and supporting documents to the other party sooner rather than later.  In the case of an adjudication, even if the dispute is not resolved by the adjudicator,  the exchange of arguments and documents in the adjudication process will often result in the subsequent settlement of the dispute.

17.  If I am dissatisfied with the outcome of an adjudication what are my remedies?

Answer:  A dissatisfied party may commence an action in court or, if there is an arbitration clause in the contract, initiate arbitration proceedings.  An application to court for judicial review of the adjudicator’s determination may also be made.  In the case contracts entered into before April 1, 2025 this application will have the effect of immediately staying the binding effect of the determination.  However, in the case of contracts entered into on or after April 1, 2025, the dissatisfied party will first need to apply to court to obtain a stay of the effect of the determination.  The parties may also settle the dispute by way of a written agreement to that effect.  (See also the answer to FAQ#6).

18.  If I file an application for judicial review of an adjudicator’s determination does it stay or pause the effect of the determination?

Answer:

1. For contracts entered into before April 1, 2025

Yes.  Filing of an application for judicial review stays the binding effect of the determination pending an outcome of the application.  

2. For contracts entered into on or after April 1, 2025

              No.  A court order staying the binding effect of the determination must be obtained by way of court application.  

19. Does a “pay when paid” clause in a contract prevent a claimant from using the “prompt pay” provisions of the PPCLA or from commencing an adjudication?

Answer:  No.  A “pay when paid” clause in a contract does not prevent a party from utilizing the “prompt pay” provisions of the Act and Regulation, including the issuance of a “proper invoice”, and commencing an adjudication regarding a dispute in that regard.  However, the recipient of a “proper invoice” may also utilize the “prompt pay” provisions of the Act and Regulation in order to invoke the “pay when paid” clause. Legal advice should be sought in this regard.

20.  Does the presence of an arbitration clause in my contract prevent me from commencing an adjudication?  

Answer: No. Whether an arbitration clause is included in either a contract entered into before,  or on or after,  April 1, 2025,  the mere presence of an arbitration clause in a contract does not prevent the commencement or conduct of an adjudication.  For contracts entered into before April 1, 2025 the parties must have entered into a written agreement to appoint an arbitrator under the Arbitration Act  to preclude the commencement of an adjudication.  For contracts entered into on or after April 1, 2025 the commencement of an arbitration under the Arbitration Act will, however, prevent the enforcement of a determination where the arbitration is still in progress (See section 33.61(1)(c) of the amended Act).  Oddly enough, however, the determination may still be binding on the parties if the arbitrator hasn’t yet made an award (See section 33.6(5)(b) of the amended Act). Legal advice should be sought in this regard as there is some lack of clarity in the provisions of sections 33.6(5) and 33.61  

21.  If an arbitration has been commenced regarding a dispute can that dispute still be resolved by adjudication?  

Answer:  See answer to FAQ#20.