When a successful claimant under the Construction Dispute
Interim Adjudication (Adjudication) provisions in
the Construction Act1 does seemingly
everything right (obtains a favourable order and agrees to hold
funds in escrow pending judicial review, which is ultimately
dismissed), can insolvency law still strip those funds away?
As Re Earth Boring Co. Limited et
al. demonstrates, the answer is a sobering (and likely
correct) yes.
Case summary
In Re Earth Boring Co. Limited et al., 2026
ONSC 1242, the Ontario Superior Court of Justice (Commercial List)
(Re Earth Boring) addressed competing
claims to approximately CA$337,000 held in escrow. Earth Boring Co.
Limited (Earth Boring) had originally retained
Tulloch Geomatics Inc. (Tulloch) to provide
surveying services, and a payment dispute led to an order
(the Determination) made pursuant to the
interim adjudication provisions contained in section 13 of
the Construction Act requiring Earth Boring to
pay Tulloch
