Question 1: Does publication of Certificates of Substantial Performance on the Link2Build website meet the requirements of the Construction Act?^[1]

Short answer: Yes it does.

Detailed legal explanation: The following information is provided by our legal counsel Norton Rose Fulbright.

Pursuant to Section 32 of the Construction Act, the certification or declaration of substantial performance of a construction contract must be published “in the manner set out in the regulations”.^[2] Section 9 of the General Regulations under the Act states that a certificate of substantial performance or declaration of substantial performance under section 32 of the Act shall be published in a “construction trade newspaper”.^[3] Section 1 of the Regulations defines “construction trade newspaper” as the following: 

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.^[4]

Link2Build Ontario publishes construction news focused on matters of concern to the construction industry and also publishes calls for construction tenders daily which therefore satisfies the conditions under s 1(b), (c) and (d) of the Regulations.

Publishing on the Link2Build website qualifies as an electronic newspaper in this format. Neither the Act nor the Regulations provides a definition for “newspaper” but statutory and common law interpretations support this.

In Ontario, “newspaper” is defined in the Libel and Slander Act as follows:

“newspaper” means a paper containing public news, intelligence, or occurrences, or remarks or observations thereon, or containing only, or principally, advertisements, printed for distribution to the public and published periodically, or in parts or numbers, at least twelve times a year. (“journal”)^[5]

Ontario courts have held that online version of newspaper is “newspaper” for the purpose of the Act. In John v. Ballingall, Court Of Appeal for Ontario found that an online article published on the Toronto Star website is an article published “in a newspaper”.^[6] The Court specifically commented on the general trend to interpret legislation to take into account advances in technology.^[7] Although the same article (with a different title) was also published in the print version of the newspaper, this did not seem to play a role in the Court’s decision.^[8]

^[1] Construction Act, RSO 1990, c C 30.

^[2] Ibid , s 32(1), items 5 and 9.

^[3] General Regulations, O Reg. 304/18: General, s 9.

^[4] Ibid, s 1.

^[5] Libel and Slander Act, RSO 1990 c L12, s 1(1), “newspaper”.

^[6] John v. Ballingall, 2017 ONCA 579 at paras 1 and 21 – 32.

^[7] Ibid at para 24.

^[8] ibid at para 1.

For a deeper dive into the legalities of publishing news on a website versus a print newspaper, please see our article, Ending the CSP Confusion.

Question 2: Why does Link2Build publish the actual Certificate of Substantial Performance?

Section 32 of the Construction Act outlines the “Rules” governing certification or declaration of substantial performance and is reproduced below. The legislation uses the words “publish a copy of the certificate” in several areas (highlighted below). Link2Build complies with the legislation by having a copy of the actual signed certificate published.

Rules governing certification or declaration of substantial performance

32 (1) The following rules govern the certification and declaration of the substantial performance of a contract:

1. On the application of the contractor, the payment certifier shall determine whether the contract has been substantially performed in accordance with section 2, and, if the payment certifier so determines, shall certify the substantial performance of the contract by signing a certificate in the prescribed form. If there is no payment certifier, the owner and contractor shall make the determination jointly and shall both sign the certificate.
2. The payment certifier or the owner and the contractor jointly, as the case may be, shall set out in the certificate the date on which the contract was substantially performed.
3. The date set out in the certificate as the date on which the contract was substantially performed is deemed for the purpose of this Act to be the date on which that event occurred.
4. Where the payment certifier certifies the substantial performance of a contract the payment certifier shall within seven days of the day the certificate is signed give a copy of the certificate to the owner and to the contractor.
5. The contractor shall publish a copy of the certificate in the manner set out in the regulations.
6. Where the contractor does not publish a copy of the certificate within seven days of receiving a copy of the certificate signed by the payment certifier or, where there is no payment certifier, signed by the owner, any person may publish a copy of the certificate.
7. Where there is a failure or refusal to certify substantial performance of the contract within a reasonable time, any person may apply to the court, and the court, upon being satisfied that the contract is substantially performed, and upon such terms as to costs or otherwise as it considers fit, may declare that the contract has been substantially performed, and the declaration has the same force and effect as a certificate of substantial performance of the contract.
8. Unless the court otherwise orders, the day the declaration is made shall be deemed to be the date the contract was substantially performed.
9. The person who applied to the court shall publish a copy of the declaration of substantial performance in the manner set out in the regulations.
10. For the purposes of this Part, a certificate or declaration of the substantial performance of a contract has no effect until a copy of the certificate or declaration is published. R.S.O. 1990, c. C.30, s. 32 (1); 2017, c. 24, s. 27 (1), 65.

Question 3: Publishing the actual certificate will display the signature of the payment certifier or the owner and contractor. Is consent required to publish these signatures?

Short answer: No. Consent is implied.

Detailed legal explanation: Again referring to Section 32 of the Construction Act, you can see the multiple highlighted references below that a signature is required on the certificate of substantial performance (Form 9).

Given that the requirements for a signature are statutory, there would be an implied consent on behalf of the person signing the certificate to have their signature published given that they are signing on a form that is required to be published.

32 (1) The following rules govern the certification and declaration of the substantial performance of a contract:

1. On the application of the contractor, the payment certifier shall determine whether the contract has been substantially performed in accordance with section 2, and, if the payment certifier so determines, shall certify the substantial performance of the contract by signing a certificate in the prescribed form. If there is no payment certifier, the owner and contractor shall make the determination jointly and shall both sign the certificate.
2. The payment certifier or the owner and the contractor jointly, as the case may be, shall set out in the certificate the date on which the contract was substantially performed.
3. The date set out in the certificate as the date on which the contract was substantially performed is deemed for the purpose of this Act to be the date on which that event occurred.
4. Where the payment certifier certifies the substantial performance of a contract the payment certifier shall within seven days of the day the certificate is signed give a copy of the certificate to the owner and to the contractor.
5. The contractor shall publish a copy of the certificate in the manner set out in the regulations.
6. Where the contractor does not publish a copy of the certificate within seven days of receiving a copy of the certificate signed by the payment certifier or, where there is no payment certifier, signed by the owner, any person may publish a copy of the certificate.

Question 4: I am a payment certifier and wish to use an electronic signature that does not look like my signature as an alternative. Is that compliant with the law?

Yes.

Section 11 of the Electronic Commerce Act, 2000 (Ontario) states:

Legal requirement that document be signed

11 (1) Subject to subsections (3) and (4), a legal requirement that a document be signed is satisfied by an electronic signature.  2000, c. 17, s. 11 (1).

Additionally, the act defines “Electronic signature” as follows:

“electronic signature” means electronic information that a person creates or adopts in order to sign a document and that is in, attached to or associated with the document; (“signature électronique”)

As a result, an electronic signature does not have to look like a handwritten signature. It is electronic information in any form if it serves the stated purpose. As well, an electronic signature may be in a separate document or piece of data from the signed text as long as there is an expressed link demonstrating an intention to sign.

An electronic signature could therefore look like the following: