Ontario's Construction Act ("CA") allows for the early release of holdback funds following the publication of a Certificate of Substantial Performance ("CSP"). While the funds must still be held until the lien period has expired, the triggering event moves from "last day on site" to the date of publication of the CSP. Likewise, if you are a contractor on site at the time the CSP is published, the published CSP captures the work done prior to publication, and as such, a lien would need to be registered within 60 days of publication, even if the contractor is still on site working. Given the above, being aware of when a Certificate is published is important for calculating both lien rights, and holdback entitlement.
Under the previous legislation, the Construction Lien Act ("CLA"), the publication requirements were interpreted strictly, resulting in the Daily Commercial News becoming the home for essentially all publications. This was done, in part, due to the definition of "construction trade newspaper" as established in the CLA. Under the CA, these publication requirements have changed to include newspapers in electronic format. The CA defines a construction trade newspaper as follows:
"construction trade newspaper" means a newspaper:
a) that is published either in paper format with circulation generally throughout Ontario or in electronic format in Ontario;
b) that is published at least daily on all days other than Saturdays and holidays;
c) which calls for tender on construction contracts are customarily published; and
d) that is primarily devoted to the publication of matters of concern to the construction industry.
Because the new regulations no longer require the "newspaper" to be printed on newsprint and mailed through the postal service, this has opened up the marketplace to competitors such as Ontario Construction News and Link2Build.
Accordingly, it should be noted that construction participants must now conduct searches under all publications, of which there are currently three (i.e. the Daily Commercial News, Ontario Construction News and Link2Build) to ascertain whether or not a document has been published. It should be noted that this is subject to change, should more construction trade newspaper competitors enter the marketplace.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
