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News: MoT clarifies contract language to permit CSP notice publication in OCN

Ontario Construction News staff writer

After more than two years, Ontario’s Ministry of Transportation (MOT) has updated its contract language to permit contractors to publish Certificate of Substantial Performance (CSP) notices in Ontario Construction News (OCN).

Long after the new Ontario Construction Act went into effect in 2018, the MOT’s standard form contract language specified that these notices needed to be published in a specific publication, causing confusion and some concerns among contractors about CSP publication validity in OCN – even though this publication complies fully with the Act’s definition of a daily construction trade newspaper.

OCN publisher Mark Buckshon communicated these concerns in a June, 2021 letter to Mary Gersht, director of the MOT’s legal services branch.

“The former legislation mandated that the relevant CSP notices be published in a Construction Trade Newspaper, with specific content and publishing frequency requirements,” Buckshon wrote. “These provisions effectively created a monopoly for one newspaper, the Daily Commercial News (DCN).

“However, the regulations under the new Act were amended to allow the publication of the Construction Trade Newspaper in electronic format, which enabled OCN to commence publication on May 1, 2019.

“Notably, last year, in part because of the marketplace competition and regulatory permission, DCN ceased publishing its printed editions – meaning there is no substantive difference in quality or distribution between our newspaper and DCN . . .

“We, like DCN, provide a public search tool for CSPs, and have added an additional feature at certficatesubstantialperformance.com, to allow multi-publication searches. Agencies and authorities throughout Ontario accept publication in OCN as entirely compliant with the Act.

“In this context, it seems unfair and unreasonable for the MTO to restrict and require publication of these notices in a specific commercial publication, when we completely meet the current Act’s legal requirements. More seriously, the documentation appears to not conform with the legislated lien timelines.

“Could your office clarify if there is a reason for the contract to continue to have the wording referenced in Appendix A, and provide that reasoning to us, and if not, can your office update the relevant contract language to achieve conformity with current Ontario laws and regulations?”

While the MoT didn’t respond directly to Buckshon’s letter, on March 11, 2022, the MoT posted a clarification notice on its Technical Consultation Portal titled “Changes to support the publishing of Notices of Substantial Performance in Construction Trade Newspapers not limited to the Daily Commercial News”.

The notice says: “The changes proposed will allow contractors to publish the notice of Substantial Performance in a construction trade newspaper other than the Daily Commercial News, in alignment with the provisions of the Construction Act.”

It continues:

“To support this change, the following documents have been identified to be revised:

  • PH-CC-817: Application for Substantial Performance/Contract Completion
  • PH-CC-799: Certificate of Substantial Performance
  • MTO GC Clauses GC and GC

“The changes to the above-noted items are summarized below and shown in track edits in the attached documents. The details of the proposed changes are as follow:

  • PH-CC-817: Application for Substantial Performance/Contract Completion
  • Contractor to use this form to communicate the construction trade newspaper that will be used for the notice. The website link will have to also be provided.
  • A note for Contractors to notify their subs as part of the Statutory Declaration (reminder: Statutory Declaration required in the MTO GCs)
  • PH-CC-799: Certificate Of Substantial Performance
  • Contract Administrator to fill-out construction trade newspaper information as confirmed by the Contractor in the “Application for Substantial Performance/Contract Completion” process
  • MTO GC Clauses GC and GC
  • Changed applicable “Daily Commercial News” references to “construction trade newspaper” references
  • Reminder: the Construction Act defines construction trade newspaper in O. Reg. 304/18
  • Reminder: Contractor is responsible to communicate publishing information to suppliers and subcontractors.