CITATION: Gay Co. Ltd. v. Sayers Foods Ltd., 2024 ONSC 6123
DIVISIONAL COURT FILE NO.: 238/24 JR
DATE: 20241105
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
D.L. Corbett, Ricchetti and Sutherland JJ.
BETWEEN:
GAY COMPANY LIMITED
Respondent
– and –
SAYERS FOODS LIMITED
Applicant
COUNSEL:
Faren Bogach and James De Melo, for the Respondent
Richard K. MacGregor and Kevin Sherkin, for the Applicant
HEARD at Toronto by ZOOM: November 4, 2024
DIRECTION
[1] This is an application for judicial review of the determination of Adjudicator Marc A. Huneault (ODACC Case No. 5629) made pursuant to the Construction Act, RSO 1990, c. C.30 (the “Act”).
Jurisdiction
[2] The court has jurisdiction pursuant to ss. 2(1) and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. and s. 13.18 of the Act.
[3] Section 13.18 specifies that an application for judicial review of an adjudicator’s decision may be made only with leave of the Divisional Court. Leave was granted on June 28, 2024 (2024 OSNC 3609).
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 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, 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.
Reporting Back to the Court
[9] The Applicant is directed to confirm to this court that notice has been given pursuant to this direction and to advise the court of any responses received to this notice, by email, by November 26, 2024, after which the court may issue further directions.
“D.L. Corbett J.”
“Ricchetti J.”
“Sutherland J.”
Released: November 5, 2024
CITATION: Gay Co. Ltd. v. Sayers Foods Ltd., 2024 ONSC 6123
DIVISIONAL COURT FILE NO.: 238/24 JR
DATE: 20241105
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
D.L. Corbett, Ricchetti and Sutherland JJ.
BETWEEN:
GAY COMPANY LIMITED Respondent
– and –
SAYERS FOODS LIMITED Applicant
DIRECTION
Date: November 5, 2024