Threshold Test For Leave To Appeal An Adjudicator's Decision Under Ontario's Construction Act

The Ontario Superior Court of Justice (the "Court") confirmed in Anatolia Tile & Stone Inc v Flow-Rite Inc., 2023 ONSC 1291,¹ ("Anatolia Tile") that when bringing a motion for leave to commence an application for judicial review of an adjudicator's decision, the moving party is required to meet a threshold test analogous to the test for leave to appeal an interlocutory order of a judge.

Statutory adjudication and the judicial review of an adjudicator's decision

The statutory adjudication provisions were introduced as part of the changes to the Construction Act ("Act"), and came into effect on October 1, 2019.

Statutory adjudication provides the parties with an interim binding decision on disputed issues during the course of the project and permits either or both parties to revisit any substantive issues in litigation or other dispute resolution proceedings at a later date. Accordingly, parties are required to comply with any adjudication decisions issued