Publication of Substantial Performance - Cost vs Convenience and Certainty

There is a debate currently ongoing in the construction industry regarding the publication of substantial performance required by regulation under the Construction Act.  Here’s what the regulation says,

“Certificate, declaration of substantial performance

9. A certificate of substantial performance (Form 9) or declaration of substantial performance under section 32 of the Act shall be published in a construction trade newspaper.”

The Act defines a construction trade newspaper as follows,


1. In this Regulation,

“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) in 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.”

Many believe that there should be multiple construction trade newspapers in which substantial performance can be officially published in order to get competitive pricing.

Others argue that contractors should not have to check 10, 15 or even more publications or websites in order to make sure substantial performance has been declared.  They like the convenience and certainty of having only one place where this information resides.  They fear that fringe publishers will see the publication of substantial performance as a cash cow and adjust their publishing schedules and content to match, at least to a scant minimum, the criteria to qualify as a construction trade newspaper.

It’s an argument that has cost on one side and convenience and certainty on the other.  If the marketplace becomes populated with fringe publishers that contractors would never think to check with, then a regulation change is in order.