The Dates of Substantial Performance

The first or earliest is the date the General Contractor believes the Work has been substantially performed, within the construction Contract, and in accordance with section 2.(1) of the CA (Construction Act of Ontario) or the CLA (Construction Lien Act of Ontario) as applicable. This is the date identified in the General Contractor’s submission to the payment certifier. Should there be no payment certifier, the responsibility falls to the Owner and the Contractor.

Deemed - Substantial Date

This second date is the date on the Certificate of ‘Substantial Performance’ signed by the payment certifier or if not, by the Owner and Contractor. This date, in accordance with the Act, must be within a reasonable time of the receipt of request from the Contractor [CA or CLA 32(1)(7)]. If the payment certifier agrees that the Work had achieved the requirements of ‘Substantial Performance’ a copy of the certificate must be given to the contractor and owner within 7 days of the date the certificate is signed [CA or CLA 32(1)(4)]. This date is incidental to the legal process save, if not completed within the set time frame, may leave the payment certifier liable for claims and/or costs.

One thing to note is the dated Certificate must identify the ‘Date of Substantial Performance’ of the construction Contract (see above), as either the date identified by the General Contractor in their request or such other date as the payment certifier deems appropriate. This “Date of Substantial Performance” identifies the date of commencement of the 12 month warranty period.

The third date associated with the certificate is the date the payment certifier signs the document. The date of the certificate should not be confused with the date of “Substantial Performance” identified on the certificate.

Publication Date

In Ontario, the Construction Lien Act requires the Contractor to publish the certificate in a construction trade newspaper. The costs are in excess of $200 and usually appears the day after submission in the Daily Commercial News (DCN).This published date is confirmed by a returned copy of the ad to the players involved in a project. This, for the majority of the subcontractors, suppliers, workers and individuals involved with the project, is paramount. This notice and published date, the third date, commences the lien period during which an individual, not paid for work done, must register a lien for the Work [Property]. As a participant in the construction industry, the Construction Act and Construction Lien Act of Ontario, (or whatever province or territory you work in), are documents you must have. We all get involved with it and need to be aware of the requirements, so as to maintain our rights, protect those of others, and be able to fulfill our mutual responsibility.

Both parties to the Contract and all others are awaiting this point in time for different reasons. There are actually three different dates that are/can be substantial performance under the Architect's Act and construction Contract.

Construction Lien Act

Design-Build

In a design-build project the Design-builder is usually the Payment Certifier, and as such is the person to certify that a contract has been substantially performed. If there is no Payment Certifier, the owner and contractor shall make the determination jointly and shall both sign the certificate. The contents of the Certificate of Substantial Performance are defined in the Construction Lien Act. General If the architect is not the designated payment certifier under the owner/consultant contract, the architect should not sign the Certificate of Substantial Performance. The architect can prepare the certificate for the execution of it by the owner and contractor if there is no payment certifier. The legal description asked for on Form 6 is for the legal description of the property as determined in the survey and or land title. It is not the building’s address.

 

Substantial Performance Letter to GC
Substantial Performance Review to Subconsultant
Substantial Performance Letter to Owner

 

PT 10
CHOP 2.3.12 p 6
Deemed Completion Article
When Can Architects Not Certify Substl. Performance?
Substl. Completion vs. Performance - What’s the Difference?