Season 1 of The Claims-Free Architect (formerly Architects’ Claims Stories)

4 full episodes in Season 1 plus bonus S.2 episode



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The stories have been fictionalized, to protect the identity of the parties involved, but each recount the circumstances of a real claim, inspired by the 6,000+ that
Pro-Demnity has defended over the years. The “cast of characters” involve the Architect, the Client/Owner, the Sub-Contractors and others – whose situations are part of an unfolding drama, from the origin of the claim right up to the often-surprising outcome.

Did you listen to the podcast? Share your feedback.

General disclaimer

The contents of this PDF are derived from a website and offer information for general purposes only. The material presented does not establish, report or create the standard of care for Ontario architects. The information is by necessity generalized and an abridged account of the matters described. It should in no way be construed as legal or insurance advice and should not be relied on as such. Readers are cautioned to refer specific questions to their own lawyer or professional advisors. Efforts have been made to assure accuracy of any referenced material at time of publication; however, no reliance may be placed on such references. Readers must carry out their own due diligence. Professional Liability Insurance provides valuable coverages and benefits however does not cover everything. Please refer to the Policy wordings for specific coverages, benefits, exclusions and limitations. This PDF should not be reproduced in whole or in part in any form or by any means without written permission of Pro–Demnity Insurance Company. Please contact mail@prodemnity.com. 
 


Relying on Consultants

Relying on Consultants



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Captions available on podcast platforms.

Architects’ Claims Stories have been fictionalized, to protect the identity of the parties involved, but each recount the circumstances of a real claim, inspired by the 6,000+ that Pro-Demnity has defended over the years. The “cast of characters” involve the Architect, the Client/Owner, the Sub-Contractors and others – whose situations are part of an unfolding drama, from the origin of the claim right up to the often-surprising outcome.

Did you listen to the podcast? Share your feedback.

General disclaimer

The contents of this PDF are derived from a website and offer information for general purposes only. The material presented does not establish, report or create the standard of care for Ontario architects. The information is by necessity generalized and an abridged account of the matters described. It should in no way be construed as legal or insurance advice and should not be relied on as such. Readers are cautioned to refer specific questions to their own lawyer or professional advisors. Efforts have been made to assure accuracy of any referenced material at time of publication; however, no reliance may be placed on such references. Readers must carry out their own due diligence. Professional Liability Insurance provides valuable coverages and benefits however does not cover everything. Please refer to the Policy wordings for specific coverages, benefits, exclusions and limitations. This PDF should not be reproduced in whole or in part in any form or by any means without written permission of Pro–Demnity Insurance Company. Please contact mail@prodemnity.com. 
 


Exploring New Products

Exploring New Products



Listen on Apple Podcasts


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Captions available on podcast platforms.

Architects’ Claims Stories have been fictionalized, to protect the identity of the parties involved, but each recount the circumstances of a real claim, inspired by the 6,000+ that Pro-Demnity has defended over the years. The “cast of characters” involve the Architect, the Client/Owner, the Sub-Contractors and others – whose situations are part of an unfolding drama, from the origin of the claim right up to the often-surprising outcome.

Did you listen to the podcast? Share your feedback.

General disclaimer

The contents of this PDF are derived from a website and offer information for general purposes only. The material presented does not establish, report or create the standard of care for Ontario architects. The information is by necessity generalized and an abridged account of the matters described. It should in no way be construed as legal or insurance advice and should not be relied on as such. Readers are cautioned to refer specific questions to their own lawyer or professional advisors. Efforts have been made to assure accuracy of any referenced material at time of publication; however, no reliance may be placed on such references. Readers must carry out their own due diligence. Professional Liability Insurance provides valuable coverages and benefits however does not cover everything. Please refer to the Policy wordings for specific coverages, benefits, exclusions and limitations. This PDF should not be reproduced in whole or in part in any form or by any means without written permission of Pro–Demnity Insurance Company. Please contact mail@prodemnity.com. 
 


Inattention to Detail

Inattention to Detail



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Captions available on podcast platforms.

Architects’ Claims Stories have been fictionalized, to protect the identity of the parties involved, but each recount the circumstances of a real claim, inspired by the 6,000+ that Pro-Demnity has defended over the years. The “cast of characters” involve the Architect, the Client/Owner, the Sub-Contractors and others – whose situations are part of an unfolding drama, from the origin of the claim right up to the often-surprising outcome.

Did you listen to the podcast? Share your feedback.

General disclaimer

The contents of this PDF are derived from a website and offer information for general purposes only. The material presented does not establish, report or create the standard of care for Ontario architects. The information is by necessity generalized and an abridged account of the matters described. It should in no way be construed as legal or insurance advice and should not be relied on as such. Readers are cautioned to refer specific questions to their own lawyer or professional advisors. Efforts have been made to assure accuracy of any referenced material at time of publication; however, no reliance may be placed on such references. Readers must carry out their own due diligence. Professional Liability Insurance provides valuable coverages and benefits however does not cover everything. Please refer to the Policy wordings for specific coverages, benefits, exclusions and limitations. This PDF should not be reproduced in whole or in part in any form or by any means without written permission of Pro–Demnity Insurance Company. Please contact mail@prodemnity.com. 
 


Failure to Communicate

Failure to Communicate



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Captions available on podcast platforms.

Architects’ Claims Stories have been fictionalized, to protect the identity of the parties involved, but each recount the circumstances of a real claim, inspired by the 6,000+ that Pro-Demnity has defended over the years. The “cast of characters” involve the Architect, the Client/Owner, the Sub-Contractors and others – whose situations are part of an unfolding drama, from the origin of the claim right up to the often-surprising outcome.

Did you listen to the podcast? Share your feedback.

General disclaimer

The contents of this PDF are derived from a website and offer information for general purposes only. The material presented does not establish, report or create the standard of care for Ontario architects. The information is by necessity generalized and an abridged account of the matters described. It should in no way be construed as legal or insurance advice and should not be relied on as such. Readers are cautioned to refer specific questions to their own lawyer or professional advisors. Efforts have been made to assure accuracy of any referenced material at time of publication; however, no reliance may be placed on such references. Readers must carry out their own due diligence. Professional Liability Insurance provides valuable coverages and benefits however does not cover everything. Please refer to the Policy wordings for specific coverages, benefits, exclusions and limitations. This PDF should not be reproduced in whole or in part in any form or by any means without written permission of Pro–Demnity Insurance Company. Please contact mail@prodemnity.com. 
 


No Written Record

No Written Record



Listen on Apple Podcasts


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Captions available on podcast platforms.

The Claims-Free Architect stories have been fictionalized, to protect the identity of the parties involved, but each recount the circumstances of a real claim, inspired by the 6,000+ that Pro-Demnity has defended over the years. The “cast of characters” involve the Architect, the Client/Owner, the Sub-Contractors and others – whose situations are part of an unfolding drama, from the origin of the claim right up to the often-surprising outcome.

Did you listen to the podcast? Share your feedback.

General disclaimer

The contents of this PDF are derived from a website and offer information for general purposes only. The material presented does not establish, report or create the standard of care for Ontario architects. The information is by necessity generalized and an abridged account of the matters described. It should in no way be construed as legal or insurance advice and should not be relied on as such. Readers are cautioned to refer specific questions to their own lawyer or professional advisors. Efforts have been made to assure accuracy of any referenced material at time of publication; however, no reliance may be placed on such references. Readers must carry out their own due diligence. Professional Liability Insurance provides valuable coverages and benefits however does not cover everything. Please refer to the Policy wordings for specific coverages, benefits, exclusions and limitations. This PDF should not be reproduced in whole or in part in any form or by any means without written permission of Pro–Demnity Insurance Company. Please contact mail@prodemnity.com. 
 


Who’s In Charge?

In this claim story, too many cooks spoil the broth. Three architects, a construction manager and one engineer, all review one mason’s work; there is confusion on the jobsite; an expert is hired, but his advice is ignored.

Parties

Plaintiff
Philip Bloch, masonry sub-contractor

Defendants
Rubblestone Properties, Owner
Derek Wynch, Construction Manager

Added as Defendants by amendment
Architect A, who had prepared the design and contract documents
Local Architect B, hired to do review
Expert Architect C, to advise on historical masonry.


Context

The mason was contracted to reconstruct some rubble stonework as part of a larger historic renewal project. The specifications indicated the types of mortar to be used in different locations, related to exposure and strength required. Old mortar was to be removed to a certain depth, and hollows in the rubble grouted. When completed, The Expert Architect had rejected a large part of the work, due to the mason’s failure to follow the specs. The work had been redone under protest.

Pleas

The Mason claimed that there was nothing wrong with the mortar he used. His work had been inspected to death, and the mortar used had been specifically accepted by the engineer, as well as the Design Architect and the Local Architect, who had many opportunities to correct any error at an early stage. He had experts’ opinions from the National Research Council to prove it. Furthermore, he had no contractual requirement to please the Expert Architect. Approval had been withdrawn improperly and to his prejudice.

The Construction Manager took the view that he had relied on the consultants who were present at various meetings and had, except for the Expert Architect, accepted the work. However, the Expert Architect reported to Architect A, and the Construction Manager was not involved.

(Design) Architect A admitted that he had observed the “wrong” mortar being used but denied that he recognized the significance at the time. He remembered that, before the bulk of the actual had been being done, the Expert Architect had remarked that certain mortar did not look right and should be checked. But he had not taken any immediate action.

According to Architect A, the specifications were clear: No substitutions were allowed and there were to be no changes without his written authority. As the mason did not have written authority, indeed was claiming only oral instructions from the Engineer and Architect A’s assistant architect, the specifications should govern. Architect A felt that the reason for requiring written instructions in the first place was to avoid such problems as this.

A secondary argument was also put forward: it was found that, in redoing the work after rejection, the Mason had not removed old mortar to the specified depths, therefore the mortar question was moot. The original work was unacceptable.

(Local) Architect B was nonplussed by the whole affair, which he thought was a storm in a teacup. He admitted to Pro-Demnity that, since all the mortar in question was to be covered up, the engineer had indicated acceptance. Besides, the mortar actually used was in common use – indeed was normally used in similar circumstances – so he had not bothered to make a fuss. Most other architects would have accepted the work. He knew that the old mortar had not been excavated to sufficient depth, but had tacitly approved it because the old mortar was so hard that removal “to refusal” (i.e., to the point that the mortar strongly resisted removal) seemed more sensible than to any prescribed depth. Why remove good mortar that had been there a hundred years anyway?

Furthermore, Architect B found it difficult to accept his subservient role. When on the job, he acted and was accepted as though he were the de facto architect of the works.

(Expert) Architect C marched to a different drummer. He was the expert hired to advise specifically on the preservation of old masonry. The purpose of his specification was to minimize deterioration of the walls by excluding moisture penetration and migration of deleterious salts from mortar to the face of the stonework, in fact, to preserve its natural beauty. Architect C told the plan that his contract with Architect A afforded him three site visits only, and that he relied upon the others to monitor the work. He did, however, maintain that the redoing was justified. Why was he employed if not to be listened to?

The engineer had a solid defence. The mortar was perfectly acceptable from an engineering point of view. He knew nothing of the preservationist’s theories and had not been consulted on them.

Settlement

Pro-Demnity represented all three architects, therefore, a delicate balance had to be struck if liability were to be admitted. Among the three, each felt that the mason was at fault but “in the alternative,” the other architects were responsible.

Pro-Demnity felt that a court would have little sympathy for the architects collectively, Phil Bloch being a “simple workman” who had believed what he had been told by an engineer and two architects. To point out the fine print of the specification with its requirement for written authority was not only self-serving, but it also put the architect in a bad light, since Architect A’s assistant architect did not deny authorizing the continuing of the work. Furthermore, the claim that the work was discovered to be sub-standard anyway did not ring true, the defence being undermined by Architect B’s position that he had accepted the work. He was, after all, the review architect. It was also a potential embarrassment that Architect A maintained that Architect B had no power, except to report to Architect A and was not entitled to waive the specification.

The Construction Manager also had a duty of care. He was present when all the decisions were made and should have insisted on the specs being followed. He could not claim, as he tried to, that he was merely an innocent observer.

Postscript

The matter was settled with all defendants contributing. The expert Architect C contributed a very minor nuisance payment. Litigation, if it had been appropriate, would have cost far more than the settlement amount.

Lessons To Be Learned

As with most claims, the lessons to be learned are simple, and in this case at least, well established.

Lesson 1: “Too many cooks spoil the broth.” When there are multiple professionals, establish a clear chain of command.

Lesson 2: “If you hire a chauffeur let him drive.” The Expert Architect C was hamstrung by having a minimal role. He should have been engaged to “review the work in situ when the essential preservation work was started, and at reasonably frequent intervals during the work.” Architect “A” wanted to be “in charge” and wished his local architect to have limited authority on the site. This arrangement was unsound. 

Lesson 3: “Don’t rely on the fine print.” (Note: This lesson might appear to contradict two cardinal rules “Get it in writing,” and “Avoid reliance on oral instructions.”)

There is a tendency to an excessive and unwarranted belief in the power of the written word. If an architect speaks directly to a contractor and authorizes work, it is absurd to say later that the words should have been ignored. Similarly, if work is tacitly accepted by not being rejected, there comes a point where it cannot be challenged. The law recognizes a quality called reasonableness.


Names and places have been changed to protect the innocent, and partially innocent, also the guilty. Situations are slightly modified and fictionalized from Pro-Demnity’s actual claims files and imbued with our real experience in protecting and defending Ontario architectural practices over three decades.

General disclaimer

The contents of this PDF are derived from a website and offer information for general purposes only. The material presented does not establish, report or create the standard of care for Ontario architects. The information is by necessity generalized and an abridged account of the matters described. It should in no way be construed as legal or insurance advice and should not be relied on as such. Readers are cautioned to refer specific questions to their own lawyer or professional advisors. Efforts have been made to assure accuracy of any referenced material at time of publication; however, no reliance may be placed on such references. Readers must carry out their own due diligence. Professional Liability Insurance provides valuable coverages and benefits however does not cover everything. Please refer to the Policy wordings for specific coverages, benefits, exclusions and limitations. This PDF should not be reproduced in whole or in part in any form or by any means without written permission of Pro–Demnity Insurance Company. Please contact mail@prodemnity.com. 
 


Field Level

In this claim story, an architect’s duty to the Owner as “Inspector of work” is tested; limits of expertise are exceeded, and liability for incorrect work is incurred.

Parties

Plaintiff
The Hills, Norman and Marie (Owners)

Cross-Claims
Both defendants against each other

Defendants
Lucas Bering, Architect
Flood Brothers, General Contractors


Context

The Owner had requested that a house be designed to accommodate a handicapped relative, in addition to normal family use. The Architect sloped paths to entrances and avoided steps.

The House required a septic field, but it was built on steep slope from the rear down to the road. The Architect located the septic field beside the house, placed landscaping berms around house and showed levels and direction of surface drainage that effectively prevented natural run-off. The house was subject to frequent flooding.

Pleas

The Plaintiff’s case against Contractor was: “We refuse to pay the balance of the money owed to the contractor and the holdback until the problem is solved.”

The case against the architect was: “We hired an architect to look after the construction of our residence. We have serious damages that speak for themselves as to liability. The architect failed in his duty.”

At trial the Owner recounted harrowing experiences of working at midnight in midwinter, digging trenches to redirect flood water.

Defences

The Architect’s defence was that the Contractor was responsible for the placing of the septic field. The Architect only indicated the “general arrangement”. Levels and dimensions were to be verified by the Contractor, with discrepancies brought to the attention of the architect etc. The Architect did as much as he was able, giving oral directions to workers and shooting his own levels.

The Contractor claimed that he had recommended to the Architect that the house be placed a foot higher, but this suggestion was rejected. This was confirmed in written evidence. He also claimed that the level of the septic field was determined by the local authority. This was also confirmed by evidence. Furthermore, the Architect interfered and would not listen to reason.

Judgement

A judge found that both Defendants – the Architect and the Contractor – were jointly and severally liable1. The Owner had a right to expect the Architect to ensure against major errors. The Contractor had a duty to protect the owner against errors that were clearly demonstrable.

Claim Control Analysis

The Architect should not have intervened in the location of the septic system. A landscape architect or surveyor should have been engaged to advise on such a difficult site. Reliance on verbal evidence such as “I told him to dig a swale in this or that location” proved to be worthless.

The Judge did not buy into the theory that “review” is a lesser duty than “inspection.” He stated the architect’s duty by quoting from Hudson’s Tenth Edition, the construction law bible, which states, “An architect must properly supervise the works and inspect them sufficiently frequently to ensure that the materials and workmanship conform to contractual requirements …” etc.

Postscript

The architect’s error was an insurable risk under his professional liability insurance policy, so the costs and legal fees were covered by Pro-Demnity*. As for damages: Although the Defendants were found jointly and severally liable, the Contractor proved to be insolvent; Pro-Demnity* paid the full cost of a new site drainage system.

Lessons To Be Learned

Lesson 1: There should be no half-measures when it comes time to review the work in progress.Forget the fine print. If you are on the scene of the error and don’t correct it, it will be yours.

Lesson 2: What’s in a name? What an architect might call a “review,” a judge might see as an “inspection.”

Lesson 3: When dealing with a difficult site, hire professional consultants to help with the problems. And, without good reason, don’t interfere with their decisions.

NOTE:

1. Cross-claim: a claim by a plaintiff against another plaintiff or a defendant against another defendant. https://uslawessentials.com/what-is-a-crossclaim/

2.  Joint & Several Liability: Liability shared with other parties to a suit may fall upon any of the parties that has the assets to meet the claim, each being liable for the whole. This is the “deep pocket” factor.


Names and places have been changed to protect the innocent, and partially innocent, also the guilty. Situations are slightly modified and fictionalized from Pro-Demnity’s actual claims files and imbued with our real experience in protecting and defending Ontario architectural practices over three decades.

General disclaimer

The contents of this PDF are derived from a website and offer information for general purposes only. The material presented does not establish, report or create the standard of care for Ontario architects. The information is by necessity generalized and an abridged account of the matters described. It should in no way be construed as legal or insurance advice and should not be relied on as such. Readers are cautioned to refer specific questions to their own lawyer or professional advisors. Efforts have been made to assure accuracy of any referenced material at time of publication; however, no reliance may be placed on such references. Readers must carry out their own due diligence. Professional Liability Insurance provides valuable coverages and benefits however does not cover everything. Please refer to the Policy wordings for specific coverages, benefits, exclusions and limitations. This PDF should not be reproduced in whole or in part in any form or by any means without written permission of Pro–Demnity Insurance Company. Please contact mail@prodemnity.com. 
 


A Home is Not a House

In this claims story, an architect fails to record his client’s instructions and confuses residential ambience with institutional requirements; meanwhile, shoddy workmanship goes unobserved by the engineer.

Parties

Plaintiff
Board of Directors, Golden Dale Home for the Aged (Owners)

Third Party
Sutton Gust, Mechanical Engineer

Defendants
Martin Pecunius, Architect, General Contractor,
Micro Mechanical, subcontractor,
Senex General Contractor.


Context

The Architect designed a Home for the Aged, based on the instructions of the Board’s chairwoman and another appointed Board member. He was told that no funds were available for air-conditioning, this being Canada and not “the sunny south.” This fact is not disputed; however, the decision was later made that air conditioning was necessary and money was found to provide it.

Pleas

The board claimed that the ventilation and cooling system was a “disaster” that had resulted in clients passing out for lack of air and high temperatures. The original consultants had failed to devise remedies, so third party consultants were engaged. These consultants found gross inefficiency in the air handling, a 60% loss of air pressure due to duct leakage, undersized condensers and an absence of required thermal zoning.

The architect Pecunius replied that the Home had been designed to budget-conscious residential standards, not institutional. Also, the site was near a main highway, creating lots of noise and dust, and the need for security against unobserved exits dictated that any openings had to be small.

Pecunius had met with the chairwoman, and an agreement was reached that the air conditioning would be a low-cost, minimum job “to take the temperature down a little on the hottest days.” The architect so instructed the mechanical engineer. The engineer added an air conditioning unit to the heating system, which was domestic style hot air, with tubular ducts.

Pecunius maintained that he relied on his engineer, however, the system was never intended to meet the use and occupancy that the building now had. Not only had the board underestimated the number of residents, but also many of them were dumping their belongings onto the air registers.

The engineer Gust said that the minimal contract called for three site visits during the construction, which meant that he did not observe workmanship, such as ductwork, that had been covered. He had followed the architect’s instructions, doing the same as he would for any large house in any suburb. Most homes, even large ones, have only one zone and are cooled through the hot air system, as was this building.

Settlement

The architect could produce no written evidence of his design brief, of the instructions to design to residential minimal standards, or of the decision to provide a minimal cooling system. The owners could not recall giving any such instructions, indeed, denying that such standards were ever contemplated. The engineer was a sub-consultant of Pecunius, under his direction.

Pro-Demnity felt the defence was too weak to dispute the allegations and settled the matter.

Claims Control Analysis

Architects must put their client’s instructions in writing and have the client sign off on them.

If it were true, as we believe, that the verbal instructions had been given as the architect stated, it still may not have exonerated him. He may have had a duty to guard the owners from their own folly, and to insist upon a budget large enough for an adequate level of engineering input. The group consisted of social workers and volunteers who were not knowledgeable about such things. The system they allegedly requested, could never have provided acceptable comfort levels.

The architect’s laudable desire to provide a minimal cost building and consulting service for this charity led him astray.

Lessons To Be Learned

Lesson 1: Get it in writing. If the Architect had put the client’s instructions in writing in the first place, and had the client sign off on them, a lot of grief could have been avoided

Lesson 2: If consultants are hired separately by your client, you may avoid being involved in legal actions against them. Failing that, you should at least make sure that consultants are adequately insured. Insist upon a budget that allows an adequate level of Engineering input

Lesson 3: Don’t allow your sympathy for a client’s self-declared poverty to lead you into making poor decisions.

Lesson 4: Clients have a right to rely on an architect’s professional knowledge. When clients make decisions based on their own lack of knowledge, architects may have an obligation to step in, to protect them from themselves.


Names and places have been changed to protect the innocent, and partially innocent, also the guilty. Situations are slightly modified and fictionalized from Pro-Demnity’s actual claims files and imbued with our real experience in protecting and defending Ontario architectural practices over three decades.

General disclaimer

The contents of this PDF are derived from a website and offer information for general purposes only. The material presented does not establish, report or create the standard of care for Ontario architects. The information is by necessity generalized and an abridged account of the matters described. It should in no way be construed as legal or insurance advice and should not be relied on as such. Readers are cautioned to refer specific questions to their own lawyer or professional advisors. Efforts have been made to assure accuracy of any referenced material at time of publication; however, no reliance may be placed on such references. Readers must carry out their own due diligence. Professional Liability Insurance provides valuable coverages and benefits however does not cover everything. Please refer to the Policy wordings for specific coverages, benefits, exclusions and limitations. This PDF should not be reproduced in whole or in part in any form or by any means without written permission of Pro–Demnity Insurance Company. Please contact mail@prodemnity.com. 
 


False Start

In this claim story, work on a small office building, starts before a permit has been issued, but stops when a gross error is discovered in the drawings. The desired building is not possible, so a modified version is built. It has errors too. The owner sues the architect.

Parties

Plaintiff
Arthur Crummage, owner-developer

Third Party
Ed Ruff, construction manager (potential defendant)

Defendants
Nathan Quandrie, Architect


Context

Arthur Crummage was a successful accountant and small developer, of some substance in a small, north Ontario city. He had hired Quandrie to design a the Head Office of his future empire. The design, which was discussed at length, had windows all around, allowing flexibility in the internal layout, with every office having daylight.

Under the direction of a Construction Manager, construction had commenced prior to the issuance of a building permit. Site work had been done and excavation was completed with footings in place when the Building Inspector issued a Stop Work Order. Not only was there no permit, but the building could not be built as designed, as it had a glazed wall within one or two feet of the lot line. This wall was required to be a fire separation wall, built of non-combustible material and unglazed (unless expensive and elaborate fire shutter systems were devised). The building had subsequently been redesigned and was now built.

Pleas

The Owner alleged that he would not have proceeded with the design had he known that he could not have windows in one of the long walls. But once this was made clear, the cost of relocating the building to the centre of the lot, along with the possible three months’ delay going through the site planning process again, forced him to accept a windowless wall.

In addition, the building turned out to have unacceptably low ceilings – mostly at eight feet, whereas office buildings should have nine-foot ceilings or more. In addition, air-handling and duct work beneath the wood joists reduced the headroom in some areas still further. The value of his investment was reduced by these unsatisfactory conditions, and the fiasco with the wall had cost him time. The work had started without a permit because the Architect had told him that it could. Lastly, his business reputation had suffered.

It all added up to a million dollars.

The Architect denied having told the owner to start without a permit. He had also not realized that the property line was so close to the building, because the adjacent fast-food parking lot was also owned by his client. He claimed that the owner had chosen to proceed with the solid wall even though he could have relocated the building, albeit with some delay.

The owner, he added, was not inexperienced, and the floor-to-floor heights were clearly shown on the drawings. The duct work was part of the design–build contract and not his responsibility. Indeed, he had suggested a mechanical engineer be hired. Furthermore, the lack of windows affected very few offices, and accountants often worked in semi-open cubicles without windows to the outside.

The Settlement

The matter proceeded through Discoveries and, upon an analysis of the evidence and testimony produced – notwithstanding the grossly inflated amount of the claim and the self-serving and insupportable appraisals produced by the Plaintiff to bolster the alleged loss – Pro-Demnity concluded that the Architect was not wholly credible. In the small town in which he lived, it was unlikely that he had not observed construction underway.

The Construction Manager was interviewed by Pro-Demnity counsel and he told a story somewhat at odds with the Architect’s version. Concerning the permit, he stated, it was the architect who advised him to start. However, he backed up the Architect on other issues.

Clearly, liability for the location error was the Architect’s. Some delay flowed from this error. Other issues were defensible.

Claim Control Analysis

All sorts of verbal promises were claimed, but the defense was prejudiced by the lack of an architect–client agreement. The informal manner that reflected the relaxed small-town environment blurred the roles of the parties, including the Construction Manager.

Postscript

Pro-Demnity settled the matter for a small fraction of the amount claimed.

Lessons To Be Learned

Lesson 1: Beyond certain permissible start up activities, starting without a permit is imprudent and illegal.

Lesson 2: Not obtaining a survey showing the exact lot you are building on is unwise.

Lesson 3: Do not always take your clients’ word. You have a duty to protect them against themselves. This client was a developer of some experience, so it is easy to see how one’s guard could be let down.

Vocabulary

De facto

A Latin phrase meaning “in fact.” In law, it refers to the reality of a situation, not necessarily recognized by any law. “The de facto Architect was his grandmother. Joe had no control over the design.”

Joint & Several Liability

Liability shared with other parties to a suit may fall upon any of the parties that has the assets to meet the claim, each being liable for the whole. This is the “deep pocket” factor. Defendants themselves may bear the responsibility to apportion liability and payment, meaning that if the claimant pursues one defendant and receives payment, that defendant must then pursue the other obligors for a contribution to their share of the liability.


Names and places have been changed to protect the innocent, and partially innocent, also the guilty. Situations are slightly modified and fictionalized from Pro-Demnity’s actual claims files and imbued with our real experience in protecting and defending Ontario architectural practices over three decades.

General disclaimer

The contents of this PDF are derived from a website and offer information for general purposes only. The material presented does not establish, report or create the standard of care for Ontario architects. The information is by necessity generalized and an abridged account of the matters described. It should in no way be construed as legal or insurance advice and should not be relied on as such. Readers are cautioned to refer specific questions to their own lawyer or professional advisors. Efforts have been made to assure accuracy of any referenced material at time of publication; however, no reliance may be placed on such references. Readers must carry out their own due diligence. Professional Liability Insurance provides valuable coverages and benefits however does not cover everything. Please refer to the Policy wordings for specific coverages, benefits, exclusions and limitations. This PDF should not be reproduced in whole or in part in any form or by any means without written permission of Pro–Demnity Insurance Company. Please contact mail@prodemnity.com.