REALWorld Law



Does the law state what has to be achieved before 'completion' of the building works can be certified and, if so, can this be overridden by specific terms in the contract? Who would certify completion of building works carried out in accordance with a construction contract?



Most jurisdictions in Canada have a statutory concept called ‘substantial performance’ or ‘substantial completion’, which is achieved when the criteria prescribed by the legislation have been met. Typically, this means that the project is ready for occupancy and that a threshold for the amount of work remaining until total completion has been achieved.  The substantial performance date will in turn also drive the deadline for preserving construction lien rights and the release of holdback funds.

Canadian construction contracts also often supplement these concepts, to the extent permitted by legislation.

Substantial completion is usually achieved to the satisfaction of a third party certifier such as the architect, superintendent or other employer’s agent who has the discretion to certify substantial completion where minor items are incomplete. Substantial completion should be left to the discretion of the third party certifier. Building contracts are often amended to state that certain requirements must first be satisfied before the works may be certified as substantially complete.