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Adjudication under the Construction Act, R.S.O. 1990, c. C.30, is now a well-established mechanism for resolving disputes. Recent legislative changes, however, have reshaped how it is used, requiring practitioners and parties to consider not only the procedural timing and jurisdictional scope of adjudication, but also how it interacts with lien claims and trust remedies. Case planning must account for timing, scope, enforcement, and cost, particularly when multiple invoices remain unpaid or when disputes involve multiple issues. In choosing a procedural direction, practitioners must now decide not simply whether to adjudicate, but whether adjudication should complement or replace lien and trust litigation.
Expanded Adjudication Scope
Adjudication remains a rapid and cost-effective tool for resolving disputes over progress payments, change orders, or other contractual entitlements, helping maintain project cash flow (see Pasqualino v. MGW-Homes Design Inc., 2022 ONSC 5632 (CanLII) (“Pasqualino”) at para 30). Adjudication determinations under the Construction Act are interim-binding decisions. They are enforceable as court orders but remain subject to later determination by a court or arbitrator. The 2026 amendments have broadened the availability of adjudication: parties can commence adjudication within 90 days of contract completion, termination, or abandonment (Construction Act, s.20.2) rather than only while ongoing, and section 19.1 of Ontario Regulation 264/25 expands upon list of adjudicable matters previously set out in section 13.5 of the Construction Act. The regulation expressly permits adjudicators to determine: scope of work required to be performed under the contract, a request for a change in the contract price, and, a request for an extension of time in the completion of work required to be performed under the contract, if reasonably necessary to resolve a dispute respecting the matter to make a determination on any other matter that may be adjudicated. Pursuant to section 13.5, parties continue to be permitted to agree to include additional matters, granting flexibility in complex projects to also encompass any matter agreed to by the parties.
This contrasts the old language in the Construction Act, which previously enumerated matters subject of adjudication, as well as case law predating the amendments on the issue (see Pasqualino at para 25, wherein Justice Richetti stipulated that adjudications are not meant to determine issues such as whether a contract was abandoned or terminated, whose fault it was, whether the conduct amounted to repudiation, whether the innocent party’s claim should ultimately succeed, among other similar issues).
The legislative changes have been reinforced by case law. On March 4, 2026, after the amendments came in force, the Divisional Court released its decision in on an appeal heard June 4, 2025 from the determination of Adjudicator Hunault in Sayers Foods Ltd. v. Gay Company Ltd., 2026 ONSC 918 (CanLII) wherein the Court rejected the moving party’s submissions that a delay claim was outside the jurisdiction of adjudication. The Divisional Court went on to cite Adjudicator Hunault’s comment that exclusion of matters from adjudication on the basis of complexity of an issue is not a reason to bar it from adjudication:
…The idea that prompt payment and adjudication can be denied due to a complex issue is inconsistent with the scheme of the Construction Act. Otherwise, if this were the case, there is a strong incentive for a payor to claim that their matter is too complex for adjudication, and this would defeat the purpose of the changes to the Construction Act. (see Sayers at para 21)
Multiple Invoices and Procedural Risk
Practical challenges arise when a claimant faces numerous unpaid invoices or multiple categories of claims. Authorities offer differing approaches to whether multiple invoices may form part of a single adjudication. Some legislative provisions and case law provide authority to permit this where the invoices arise from the same dispute, whereas others treat each invoice as a discrete dispute requiring separate adjudication. Section 13.5(4) of the Construction Act provides that an adjudication may address only a single dispute, unless the parties and adjudicator agree otherwise (cf. Section 13.8 of the Construction Act which provides a mechanism for multiple adjudications relating to the same improvement to be consolidated, allowing related disputes to potentially be addressed together). In Pasqualino the Ontario Superior Court accepted enforcement of an adjudication addressing multiple unpaid payment items arising under the same renovation contract.
This apparent inconsistency creates procedural risk: a claimant may initiate a single adjudication encompassing multiple invoices, only for an adjudicator to determine that some fall outside the defined dispute. Where a claimant commences a single adjudication encompassing several invoices and the adjudicator determines that some fall outside the defined dispute, additional adjudications may be required. The administrative burden and cumulative legal cost may render a single lien action more efficient, albeit slower. Claimants should carefully consider whether invoices relate to multiple disputes. From the perspective of responding parties, considering jurisdictional objections based on multiple invoices must weigh whether raising such objections meaningfully advances their position, particularly where the resulting fragmentation of disputes may increase cost and procedural inefficiency.
Notwithstanding party agreement under section 13.5, the fact that certain matters are generally ill-suited for adjudication with its compressed timelines and restricted evidentiary process may increase the attractiveness of pursuing one single Superior Court claim rather than pursuing adjudication for certain disputes. For instance, trust allegations often require increased investigation and discovery. In this example, the fact that Regulatory amendments permit a lien claim to be combined with trust claims where they arise from the same issues, furthers the economic advantages of pursuing one single Court claim (see O. Reg 265/25 amending O. Reg. 302/18 s.3 under the Construction Act).
Enforcement Considerations
Enforcement considerations underscore the interplay between adjudication and liens. Courts have consistently held that adjudication determinations are enforceable as judgments, yet they do not create security over property. Preserving a lien while pursuing adjudication allows a claimant to maximize recovery and leverage, whereas relying solely on adjudication leaves the claimant without property security and may limit leverage, particularly against financially stressed payors. In Integricon Construction Inc. v. Stevens, 2025 ONSC 4688 (CanLII) at paras 62-63, 70-71, Justice Mathai declined to revisit the merits of an adjudicator’s determination on a garnishment enforcement motion, confirming that adjudication awards are to be swiftly enforceable even in the presence of parallel litigation. With that said, the Court has declined to dismiss the corresponding lien action on the basis of a party’s compliance with an adjudicator’s determination, which may raise concerns about compliance pending the hearing (see Feldt Electric Ltd. v. Gorbern Mechanical Contractors Limited, 2025 ONSC 4150 (CanLII)).
Strategy for Practitioners
The modern Construction Act framework requires counsel and parties to weigh speed, cost, scope, and enforcement together, considering whether a lien action (or combined lien/trust action) alone suffices, whether adjudication is warranted, or whether both avenues should be pursued concurrently. Adjudication is often appropriate for discrete, mid-project payment disputes, where rapid cash flow is essential. Lien actions become comparatively attractive when different disputes are involved or where personal liability issues exist. The choice is rarely binary. In many cases, the optimal approach is a carefully sequenced combination: adjudication to secure immediate payment on critical invoices, while preserving lien rights for remaining amounts and potential trust claims.
Advising clients requires careful review of how different mechanisms can be exercised to maximize recovery and protect their interests. As adjudication continues to mature and lien/trust remedies become increasingly integrated, the central strategic sequencing has become central to effective construction law practice in Ontario.
About the author
Sarah Naughton is a lawyer at Soloway Wright LLP, where her practice focuses on construction law and commercial litigation. She assists owners, contractors, and subcontractors and other parties with construction disputes and risk management, bringing a practical, results-oriented approach. Her litigation experience also spans a variety of commercial and other disputes.
Sarah is an active member of the Canadian Association of Women in Construction, the Ontario Bar Association Construction Law Section, and is currently a member of The Advocates’ Society’s Young Advocates Standing Committee and is committed to professional engagement.
Sarah earned her J.D. from Queen’s University and a B.Sc. in Public Policy from Georgia State University where she graduated magna cum laude.
