Fees and Retainers
Table of Contents
Negotiating the Adjudication Fee with the Parties
After an Adjudicator consents to adjudicate a dispute, the Adjudicator must contact the Parties to negotiate the Adjudication Fee. The Adjudication Fee may consist of a flat fee, or the Adjudicator’s hourly rate (plus disbursements).
Formalizing the Fee Agreement with the Parties
Once the Parties and the Adjudicator have agreed on an Adjudication Fee, the Adjudicator must formalize the fee agreement with the Parties through the “Fees” page of ODACC’s Custom System, a screenshot of which is found below (at Figure 4). An Adjudicator should:
- Log in to ODACC’s Custom System;
- Access the adjudication from “My Cases”;
- Click on the “Fees” page (refer to Figure 4);
- Click on the “Change” button;
- Enter the flat fee rate or hourly rate (and disbursements) that was negotiated with the Parties;
- Click on the “Save & Recalculate Retainers” button;
- Add the Adjudicator’s comments; and
- Click on the blue “Submit to Parties” button.
The Parties will be notified via email that the Adjudicator set the Adjudication Fee and they will be asked to formalize the fee agreement by consenting to the fee amount.
ODACC will attempt to collect a retainer at the beginning of an adjudication to cover expected adjudication costs. When the Adjudicator submits the Adjudication Fee to the Parties (as outlined above), the Parties will receive a retainer and a link to make payment. The Retainers chart at the bottom of the Fees page (refer to Figure 5 above) will contain a breakdown of the retainer amount.
How Does ODACC Calculate the Retainer?
The retainer is calculated to cover the following fees and taxes:
- The Adjudication Fee that was negotiated with the Adjudicator or set by ODACC;
- If a fixed fee is being charged, the Adjudication Fee will be the fixed fee;
- If an hourly rate is being charged, the amount required for the retainer for the Adjudication Fee will be based on an estimate of the time to be spent by the Adjudicator and expected disbursements (often in the range of about 60 hours);
- Each Party will pay half of the retainer.
- A Referral Fee (please refer to the Schedule of Fees for further information). The Referral Fee is payable by the Claimant;
- A Certification Fee (please refer to the Schedule of Fees for further information). Each Party will pay half of the Certification Fee; and
- Estimated taxes.
FAQ: When must Parties pay the retainer?
The retainer must be paid within seven days after ODACC sends the email to the Parties asking them to consent to the fees through ODACC’s Custom System.
The Parties’ Response to the Adjudication Fee
As Parties consent or reject the Adjudication Fee, the Retainers chart at the bottom of the Fees page (refer to Figure 5 above) will be updated as follows:
- If a Party has not consented to the Adjudication Fee, the status of the Retainers chart will state “Outstanding”.
- After a Party consents to the Adjudication Fee, the status of the Retainers chart will state “Ready to Pay”. That Party will be able to pay the retainer.
- After both Parties agree to the fee amount, an email notification will be sent out stating that all the Parties agreed to the Adjudication Fee.
- If a Party rejects the Adjudication Fee, the status of the Retainer chart will state “Rejected”.
- The Adjudicator will receive an email asking him or her to open the Fee page and to submit a new Adjudication Fee to the Parties, or to ask ODACC to set the Adjudication Fee, as outlined below at “Asking ODACC to Set the Adjudication Fee”.
- After a Party pays the retainer, the status of the Retainers chart will state “Payed.”
FAQ: What happens if a Party does not pay its share of the retainer?
If the retainer is not paid, the Adjudicator may consider resigning and not releasing a Determination. If the Respondent does not pay its share of the retainer, the Claimant may advance the Respondent’s share of the retainer in order to allow the adjudication to proceed. The Adjudicator should apportion the costs of the adjudication in his or her Determination and if fees are owed by the Respondent, the Adjudicator should order that the fees advanced by the Claimant be reimbursed by the Respondent. Adjudicators will be able to view who paid the Retainer on the “Finances” page of ODACC’s Custom System.
FAQ: Who is responsible for paying the cost of adjudications?
The Parties to an adjudication are responsible for an equal share of the Adjudication Fee unless the Adjudicator orders otherwise (s. 13.10(3) of the Construction Act). Each Party to an adjudication will be responsible for their own costs, regardless of the outcome (s. 13.16 of the Construction Act). Pursuant to s. 13.17 of the Construction Act, an Adjudicator has the discretion to order a party to pay all or a portion of the other Party’s costs where the Party acted in a manner that was “frivolous, vexatious, an abuse of process or other than in good faith”.
Asking ODACC to Set the Adjudication Fee
If the Adjudicator and the Parties cannot agree on an Adjudication Fee, the Adjudicator may ask ODACC to set the fee. The Adjudicator must open the Fees page on ODACC’s Custom System and click the “Request ODACC to Set the Adjudication Fee” button (refer to Figure 5 above).
ODACC will set the fee in accordance with the Schedule of Fees approved by the Attorney General for Ontario. After the Adjudication Fee is set, the Adjudicator and the Parties will receive an email asking them to visit the Fees page to view the Adjudication Fee and the retainers.
In some cases, where the Adjudicator is of the view that the standard amount usually requested for a retainer will not cover the expected costs of the adjudication, the Adjudicator may request an additional amount for the retainer.
For example, where the retainer is calculated based on the Adjudicator’s hourly rate times sixty hours, if the Adjudicator believes that he or she will spend over sixty hours on the adjudication, then he or she may wish to request (and collect) an additional amount for the retainer. Alternatively, where the Adjudicator had set, for example, a Pre-Designed Adjudication Process for the adjudication, and where the Adjudicator and the Parties later determined that the process required a site visit, the Parties and Adjudicator may also agree to a higher fee, requiring a higher amount for the retainer.
Adjudicators can request an additional retainer through the Fees page of ODACC’s Custom System, a screenshot of which is found below (at Figure 5). The bottom of the Fees page contains an Additional Retainer section that functions in the same way as the Initial Fee page (described above). The Referral Fee and Certification Fee will not be collected for additional retainers.
ODACC will attempt to collect retainers from the Parties and will pay Adjudicators on the 15th of the month after conclusion of the adjudication or after the fees are received, whichever is later.