Ontario Construction News staff writer
On May 15, The Ontario Association of Architects (OAA) and the Ontario General Contractors Association (OGCA) issued a joint statement outlining “best practice regarding the publication of Certificates of Substantial Performance (CSPs).”
The associations said in their statement that the Construction Act “has changed the definition of a daily industry paper in which substantial performance may be published.”
“Most importantly it should be noted that neither of our associations is advocating any one publication as being the sole publisher that should be used, and neither association is in a position to verify that any publisher meets the requirements to be considered a construction trade newspaper, nor does the government maintain a list of acceptable publishers,” they wrote.
Visit the certificatesubstantialperformance.com site to see the universal search resource
“The expanding number of publications in which CSPs can now be published makes it more difficult for those searching for the CSP publication in order to anticipate the release of their holdback or be prepared to start an action. If this information is not readily available to those involved in the project, it could be disruptive and have ramifications for the owner and others.
“It is our opinion that this can be easily resolved by taking some simple steps when issuing a tender or when contractors issue their purchase orders or contracts to sub trades. The key is communication.
“Therefore we are recommending to OAA members that when preparing bid documents the general contractors be required to identify which publisher will be used, or when general contractors are issuing their purchase orders or contracts to sub trades that they identify where they will be publishing their CSPs. This should be included in writing in these documents. This simple step will ensure clear communication and avoid potential problems down the road.”
In response, Ontario Construction News publisher Mark Buckshon sent the following letter to the two associations on June 1:
Ontario Association of Architects
111 Moatfield Drive
Toronto, Ontario
M3B 3L6
Phone: (416) 449-6898 x 400
Ontario General Contractors Association
180 Attwell Drive, Suite 280
Toronto, Ontario
M9W 6A9
Phone: (905) 671-3969
Good afternoon:
Re: Publishing Certificates of Substantial Performance (CSPs)
We have noticed with interest your joint statement on May 15 about the publication of Certificates of Substantial Performance (CSP).
Since the Ontario Construction Act introduced regulations allowing the publication of a daily construction trade newspaper in digital format, we have endeavoured to produce a publication that complies with both the Construction Act and the Legislation Act (2006), with its specific definition of a “newspaper” for the publication of legal notices. While the Legislation Act has an overriding provision in the event other laws or regulations contradict its language, we believd this provision should be interpreted narrowly – so while we don’t “print” Ontario Construction News, we have designed the publication to have the look and feel of a conventional newspaper; namely it is published in sheet format at regular intervals.
The issue of “fragmentation” in the daily construction trade newspaper publishing environment has concerned us from the outset, and especially when a third organization started publishing CSPs on a website last fall. We respect that one publisher’s lawyers have a differing interpretation from Daily Commercial News’ counsel about the definition of a “newspaper” and that the provincial government has not provided any guidance or list of compliant publications.
Several months ago, we set out to solve the fragmentation problem by developing a universal search tool that would search all relevant publications and websites. It turns out our new site, at certificatesubstantialperformance.com, was ready for release shortly after you issued your May 15 notice.
While we do not hide this site’s provenance and relationship to our publication, we have designed it to be fair and comprehensive, with a simple keyword and date search to allow all relevant certificates to be visible with a single search. The search site provides links to the original publication source, making it easy for anyone needing to check for CSP publication to find the relevant information.
We aren’t lawyers, and we cannot not guarantee results, so encourage anyone checking for certificate publications to verify with the original sources before wrapping up their search. Nevertheless, we have tested the tool and discovered it does what it should do – it simplifies the research process and provides a good starting point for verifying whether and when a certificate has been published.
Your suggestion about communication and notification about which publication contractors will use in publishing CSPs is a good idea and may be helpful in resolving the confusion. I think our universal search tool will provide solid backup to the process and help in the many situations when the disclosure process is not made.
I appreciate there are complexities in the CSP publication process because of the competition between publishers. The trade-off is that contractors needing to publish these notices can both save substantial amounts of money and achieve much more rapid publication of the notices, with all three publishers providing clear and verifiable evidence of publication. We have developed a solution at certificatesubstantialperformance.com that should help to simplify the search and verification process.
Sincerely,
Mark Buckshon
Publisher
Ontario Construction News