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Publication

Everybody probably knows that the time for registration of a claim for liens starts to run at least from the time that a certificate of substantial performance of the general contract is published in the Daily Commercial News. This publication affects both generals and subs.

Rule 4 of section 32(1) of the Construction Lien Act provides that the payment certifier must give a copy of the certificate to the general within 7 days of its signing. What happens when the payment certifier signs and publishes the certificate but fails to give a copy of it to the general? This was the subject of a motion in For-Con Construction Ltd. v. 1120062 Ontario Inc., a 1998 decision of a Master in the Ontario Court (General Division).

Whoops 

The general had been pressing the payment certifier for the certificate. The certifier decided to issue and publish it. He said that he telephoned the general about its publication but agreed that he never sent a copy to the general. The general alleged that he was never told about the issuance or publication. As a result, the general registered a lien that was outside of the 45 day period for doing so, if the time for registration started to run from publication of the certificate.

Too Bad 

The Master noted that the purpose of issuing a certificate was to aid a general. Publication ensures that the lien period for its subs start to run, the time for release of holdback starts to run, and the time period running on a claim for delay against the general stops. Normally it is the general who would be quite content to arrange for publication of the certificate. Of course, the fact that a general receives a certificate means nothing for lien purposes. The time for registration of a lien starts from publication of the certificate, not the issuance or receipt of it.

The Master held that the failure to provide the general with a copy of the certificate did not invalidate it. It is up to the general and, indeed, all subs to read the Daily Commercial News to determine when a certificate is published. Ignore the publication at your peril.

The Master discharged the lien of the general.