Interim Adjudication - the Wild West of Construction Dispute Resolution

  • May 10, 2023
  • Dan Fridmar, Fridmar Professional Corporation

The interim adjudication dispute resolution process was one of the most hyped-up changes to the Construction Lien Act. This new regime promised expedient determinations to improve (or at least supplement) processes that otherwise took years to complete. As a selling point, comparisons were made to other jurisdictions where interim adjudication had flourished and almost replaced traditional lien litigation. With this promise, many awaited their turn to take this process for a spin. Excitement was in the air. I was one of those people – freshly introduced into the construction law sphere – who was mesmerized by the appeal of an efficient resolution system.

As many know, Construction Dispute Interim Adjudication under Part II.1 of the Construction Act applies to projects whose prime contracts were procured or entered into following October 1, 2019.[1] We are now four years into this process and more disputes are qualifying for adjudication. As per the 2022 Report released by Ontario Dispute Adjudication for Construction Contracts (“ODACC”), being the authority facilitating this process, during the 2022 Fiscal Year, 121 adjudications were commenced at ODACC. Of those, 67 resulted in the rendering of a Determination.[2]

While these numbers do not seem large, I understand that a fair number of construction lawyers have now had a chance to experience this process – me included. Of the people I have spoken with, there appears to be a general disappointment with the process as it is now. Of the four  adjudications I participated in, one stood out as the most problematic from both a procedural and substantive approach.