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

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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

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.

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_{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.}

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

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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.

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.

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_{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.}

In this claim story, an architect fails to investigate zoning restrictions, an owner presses his right to an appropriately dignified design and Neoclassicism reveals surprising hazards.

Parties

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Context

Bianca Burinda was a very wealth widow who purchased a mansion in the Niagara Region. The house stood on a corner lot with a circular driveway off Street A, and the side yard off Street B.

She wished to install a tennis court in her side yard, but in order to do so, she had to relocate the front entrance and circular driveway, which was now facing Street A, to face Street B. The design also required that a septic field be relocated.

In addition, she desired a portico to embellish the front entrance.

Pleas

The Owner claimed that her wishes had been totally frustrated by the performance of the Architect.

She had watched her paved driveway be dug up, her beautiful lawn destroyed to remove the septic field, her house re-planned, turning the ground floor around so that the front door faced Street B. This latter undertaking required a total interior makeover, including the main stair, and involved six months’ disruption at great expense – all in order to realize her dream of having her own tennis court – only to be told, after all this, that the architect had made a mistake. She could not have a tennis court. The zoning did not allow it.

To add insult to injury, the portico had proven to be a fiasco. The Owner had imagined a very dignified entrance. In keeping with her style sense, she had asked for a classical portico in the Doric style, the epitome of tastefully simple architectural understatement. What she got instead was vulgar, entirely unclassical, and garish.

On top of all this, a third error had occurred during the work. Due to the Architect’s dimensional errors, part of the relocated septic field had to be ripped out and moved back.

The Architect’s Defence was that she had taken her design proposal to the building official, who had commented on various matters. She had revised hers plans accordingly, and the contractor had obtained the Building Permit. There had never been any mention of a problem with the tennis court.

It had transpired that there existed a four-foot height restriction on fences at the street line. So, there was actually no problem with the tennis court; it was just that, on two sides, the fence could not exceed chest height.

As for the portico, the Architect had chosen the closest thing to Doric columnss he could find in the Chicago metal supplier’s catalog. They were certainly a disappointment, but she believed that the portico’s sad appearance had more to do with poor workmanship than with unclassical character.

The dimensional error had been the fault of the septic field contractor, who had failed to produce shop drawings that would have alerted the Architect to the fact that the field’s large size would cause it to project into adjoining property.

The Owner had rejected the idea of reversing the driveway and septic field locations because she wanted an impressive approach to her grand new neo-classic portico, even though this change would have enabled a modified tennis court to be built where the new driveway and portico were to be located.

Nothing of the original concept could be saved.

In the end, the septic field had been relocated one more time, the bulbous columns replaced with more classical forms, the tennis court grassed over, and the new circular driveway installed. Consequently, a great deal of animosity had developed between Architect and Owner during the unfolding of these catastrophes.

Further Complications

The cost of this remedial work was documented. There were additional legal actions since the Contractor had placed a lien for the remedial work, and this had been settled prior to Pro-Demnity’s involvement. This had the disadvantage of undercutting any arguments that may have been produced relative to the amount claimed.

If Pro-Demnity had argued that the work had resulted in a betterment, or that the Contractor had overcharged, the judge at our trial would have had to say, in effect, that the previous lien judge or master had erred. This was an unlikely eventuality.

The Settlement

There were three factors to consider.

First, In the Architect’s view, the building official should have told her about the fence height restriction, but Zoning was a different department, and anyway, there was nothing to stop the playing of tennis, only that volleys would have to be kept low.

Second, shop drawings are not usually produced for septic fields. Contractors are specialists and march to the drum of the Ministry of the Environment and the local health department. The only thing required of the Architect is to locate the perimeter boundaries. In this sole task the Architect had inexplicably erred.

Third, the portico columns were defensible on the grounds that their selection was really a matter of taste. The Owner had not put specifically in writing that she required classically proportioned columns with proper fluting and entasis. However, it was difficult for an Architect, for obvious reasons, to argue that the Client was wrong.

There was little enthusiasm on the part of Pro-Demnity* for allowing this matter to proceed to trial, although the Architect felt that he was being badly treated by the legal system. The Owner reduced her claim, which had included punitive and other special damages. The Architect’s professional liability insurance supported her legal defense and damages.

Lesson To Be Learned

If your brief includes extensive landscaping work, be familiar with local zoning regulations and have a surveyor stake the property lines.

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_{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.}

In this claim story, an Architect engages Engineers to provide design services for a building containing complex industrial processes. Problems start when the owner fails to properly brief the consultants, and continues when the consultants fail to recognize obvious issues.

Parties

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Context

The Owner, a large worldwide food processor, headquartered in Europe, had decided to introduce a new line of dietary frozen meals and needed a plant expansion. The existing plant, close to Ontario’s richest agricultural belt, and sitting adjacent to the US border, was ideally situated.

The Architect was hired to provide full services and to coordinate the construction program, in order to get the plant in operation and take advantage of the seasonal vegetable market, i.e., summer and early fall.

The Owner’s Claim

Alimgel had contracted with the Architect to deliver the expanded building, complete with equipment, to start processing in late June. The plant, however, had not been able to operate at any level until the following spring. The delay had cost them two million dollars in lost business and had enabled others to establish themselves in the market, thus requiring Alimgel to battle for market share as a latecomer. This entailed huge costs for advertising and market incentives.

Once the expected occupancy day had passed, the Owners put a lot of pressure on the Architect to get the work completed in minimum time, but to no avail.

The General Contractor had liened for additional funds to cover the costs of the correction of work and the delay.

The Owner–Architect contract was ironclad. The Architect had warranted and guaranteed his and the engineer’s performance, and indemnified the owner from all additional costs and consequential losses – even those due to unknown problems in the existing structure, which the architect had not inspected. The Owner’s head office was extremely angry; jobs were on the line. Looking at their contract with the Architect, they fully anticipated a large cheque to make it all right.

An Interview with the Architect

The Architect told Pro-Demnity that he had no knowledge of freezer processing. That is why he hired engineers. As it turned out, the engineers were equally ignorant of the special requirements, but he had no reason to suspect this. The delay had been caused by nothing going as planned, and he had planned very carefully. The equipment kept on blowing up. Pipes full of refrigerant alongside pipes of superheated steam caused unexpected ruptures. Various bureaucratic officials had ordered work redone.

The Architect had had no idea how dangerous this process actually was.

The Engineers had neglected to call the appropriate authorities. Either they had not realized that the local building inspector was not the governing authority for high-pressure containers and dangerous industrial fluids, or alternatively, they had relied on the contractor to get the permits and approvals. The Architect, a very intense and conscientious professional, thought the whole matter terribly unfair. He had done his best, worked very hard for a modest fee, and had been let down by his Engineers.

An Interview with the Engineers

The Mechanical and Electrical Engineers were interviewed by Pro-Demnity, the Architect’s legal counsel appointed by Pro-Demnity, and the Engineers’ insurance counsel.

It appeared to the Claims Manager that both Engineers, who were quite mature, had practiced almost exclusively in the small building (apartment and housing) end of the business, and lacked experience in process or production engineering.

They probably hadn’t done any high-pressure, or expansion calculations since their university days, decades before. They seemed not to believe that the fiasco caused by their failure to perform as engineers had anything to do with them personally. It was their belief that the Mechanical Contractor should have known. Their drawings were, after all, diagrammatic, not to be followed literally.

One remark did give us a lead for a defence, however. They said that the Owner’s staff had told them what to do during construction, and that they, the Engineers, had taken instruction on many matters directly from them.

The Mechanical Contractor had the usual we-were-following-orders defences, well papered in their files, but most of the documentation was post facto¹. They had a gobbledygook explanation as to why the proper permits had not been obtained, which covered the spectrum from “they were not required” through “the engineer should have got them” to “we got them as soon as we could; no delay was caused.”

The Engineering Consultant (Mechanical Engineer No. 2) was the messenger who was being shot. He was a real factory process Engineer who had been called in by the first Engineer to sort out the mess. He did so and, for his troubles, was blamed for causing delay and expense. To add insult to injury the Engineers denied hiring him, as did the Architect, despite having signed his letter of engagement.

But it was this Engineer who had recognized the kinetic nature of the huge temperature differentials, done the calculations and enabled the plant to eventually pass official muster and start operations. Pro-Demnity found it hard to accept that he was a villain. He had saved the situation, but had never received any payment.

The General Contractor was an innocent party. He appeared to have done everything asked of him, several times over. The Structural Engineer played a very minor role, and could only be blamed for not asking questions which may have minimized the errors, but only insofar as they affected structure, and this was negligible.

The Architect’s Position

For a start, the Architect had signed an RAIC Doc.6 Standard Agreement, to which had been added additional clauses. These clauses were more than a little unfair, making the Architect, in return for the opportunity of earning a modest fee (which included engineering), responsible for business loss and other economic damages. These, he subsequently learned amounted to tens of thousands of dollars a day.

Furthermore, the Architect claimed that he initialled the contract pages without reading them, being aware that the lawyer was in a hurry to catch a plane home. But he had been assured that these were just the standard boilerplate clauses the industry giant always had in contracts.

Pro-Demnity’s position was that any claim that relied upon these clauses was clearly excluded by the insurance policy, and would be denied coverage. The Architect had agreed to these clauses without benefit of legal counsel, because another (the Owner’s) had characterized them as harmless boilerplate. In fact, they were clearly inequitable, and would have been rejected by legal counsel if any advice had been sought.

The Architect had virtually no assets other than the insurance funds – and he was happy to be audited. This took a lot of the wind out of the Plaintiff’s lawyer’s sails, further deflated by the lack of excess insurance, and the low limit available. At several stormy settlement meetings, held in the absence of the Architect for tactical reasons – we wished to suggest by his absence that he was not a factor, it being all strictly engineering – we put our arguments forward.

The Architect’s Defence

To begin with, the Architect knew nothing about the frozen food process. The Owner was aware of this and, in truth, did not rely upon the architect as they were now claiming. It was an unstated but implied term of the contract that the Owner’s staff would inform and properly advise during the contract performance. They were the experts, and indeed hovered over the work on a daily basis, even, on occasion giving instructions directly to workers.

Therefore, at the very least, the Owners had a large degree of contributory negligence. In fact, we took the view that the Owner’s managers and plant engineer were totally responsible.

Further to this, the Architect had relied on his Engineers, and had been largely ignored during the construction phase. The job was so “engineering” in nature that large changes were made without anyone informing him. The Change Orders were chaotic and mostly post-facto.

Finally, the damages sought – business losses due to the lateness of coming into production – should have been anticipated in some fashion by the Owners, and alternate provisions made. It was patently unreasonable to imagine that the consultants, hired to do a minor extension to a decrepit industrial shed could be liable for worldwide losses of an industrial giant. We were reasonably confident that common law judges are, for the most part, reasonable persons.

Settlement

Once the vision of a cornucopia of insurance funds had faded, and a vigorous defence of the architect had been established – not the slam-dunk the lawyer for the Plaintiff had expected – the Plaintiff decided to climb down to reality. No guilt was admitted by any party, of course, but in order to avoid expensive litigation with an uncertain outcome where even a victory would be largely pyrrhic, the Plaintiff was ready to talk turkey.

Pro-Demnity counsel successfully argued that the Architect’s contribution should not be equal to that of the other parties. We ended up paying out much less than half of the limit, while others contributed much more. The Owner reduced his demands, in effect, reflecting the Pro-Demnity view that contributory negligence was a factor.

Lessons To Be Learned

Lesson 1: Don’t undertake projects, the scope of which you cannot appreciate, without safeguards, such as guidance by your client, client approvals and acceptance stage by stage.

Lesson 2: Do not assume all engineers are equal. Do your research and find an appropriately knowledgeable firm.

Lesson 3: Get legal advice whenever “standard clauses” in the Client–Architect Agreement are modified, or additional clauses added. Never fail to read what you sign.

Lesson 4: “Delivery dates” are very dangerous. Buildings are nearly always delivered late. Where time really is of the essence, the construction process must go “like clockwork,” which is not a normal construction environment.

NOTES:

1. Post facto: done, made, or formulated after the fact; retroactive.

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_{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.}

In this claim story, an architect’s design uses an approved but unproven material, resulting in a “system” failure. Product liability is involved, along with the disappearance of several hockey pucks.

Parties

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Context

The architects had designed a two-storey retirement home utilizing a construction system that was fully approved by authorities having jurisdiction. It consisted of very lightweight blocks made from what looked like Rice Krispie squares, but were actually a plastic mixture. The walls made from these blocks were held together by a buttering of an acrylic stucco containing a nylon mesh on both the interior and exterior faces, with no “mortar” between them. This wall system was held to be load bearing and, by utilizing spreaders, could take the point loads of beams and trusses. Also, it was cheap.

The Pro-Demnity Claims Manager visited the building to see things for himself. He was, therefore, under no illusion as to the need for remedial work.

The Owner’s Pleas

The Owners stated that the building was only a year old and rapidly descending into decrepitude, having assumed the appearance of a ruin. Stepped through-wall cracking was evident inside and out. Water stains were disfiguring all surfaces and the stucco had the uneven look of crude adobe, which, when whitewashed, would have been an attractive wall in Santa Fe, but looked tacky in Cornwall.

In addition, local boys had discovered that they could slapshot stones and hockey pucks from an adjacent playground into the walls of the building wherein those most energetically whacked would penetrate to the point where less than half a puck would be left protruding. Some of the retirees were incensed at this vandalism and vigorously removed the objects by attacking them (the objects, not the boys) with canes which left rather ugly additional damage.

The Owners’ concern for their safety and investment demanded remedies.

The Architect’s Defence

The Architect maintained that the problems stemmed from workmanship, or alternatively, product failure.

The workmanship was obviously lacking. The wall surface undulated, some blocks clearly protruding, others recessed. The acrylic stucco varied from transparent to half an inch thick. The stepped cracking was caused by failure to reinforce joints to act as spreaders for point loads.

The product had all the official approvals, so problems could not have derived from the Architects’ professional service. Either workmanship or product failure was to blame.

The Architects told Pro-Demnity that they had realized early on that the materials were not good. They regretted being persuaded by the salesman, and would never use this product again.

If this honest opinion were to emerge as the result of a straightforward question in cross-examination, it would be awkward for the defense. We would be reduced to reliance on Cross- and Third-Party Claims, in other words: sharing the guilt.

Third-Party Defences

The Structural Engineer had accepted the system and designed his structure relying upon it. He had placed joists bearing directly on the Crispyblocks but failed to ensure that the loads were properly carried. He had visited the site, and had “signed off” on the structure.

The Engineer’s insurer was concerned, and agreed to follow Pro-Demnity’s* lead, accepting shared liability if any existed.

The General Contractor: At a meeting held with the various potential defendants, their insurers, and lawyers, the contractor explained the problems he had encountered. He was a straightforward, “honest workman” type, who had done his best.

The blocks were supposed to be 12” thick, but their width varied ½’ plus or minus. This random width was a serious problem as the mason had to try to keep both exterior and interior faces flat, clearly impossible. The mason has therefore averaged the wall out, creating two uneven surfaces. The acrylic stucco and mesh was supposed to be 1/8” thick. He had tried to hide the unevenness but had, admittedly, failed.

The stepped cracking was, in this view, caused by shrinking of the blocks in the drying out process. The spreaders were in place as designed, but were only a few horizontal strips of nylon mesh in the joints. Maybe the design was inadequate. How could he know?

The Contractor did not want a lawsuit. He would contribute a modest sum, or undertake remedial work if he knew what to do, and if the others pitched in.

The Manufacturer was not in good shape. He was living abroad and his operations appeared to have petered out. He was represented by his lawyer, who was uncertain as to whether there was any point in his attendance. He was willing to cooperate as far as he could, but since his duty was to defend his client, he did not admit to any shortcomings in the product.

It was rather clear that little comfort could be expected from the manufacturer’s direction.

Settlement Negotiations

The Owner’s lawyer was mercifully patient. He was surprisingly content to play a mediation role rather than the more usual pose of virtuous avenger.

The Defendants agreed to hire a third-party consulting engineer to report on the situation and suggest remedies. The Owner agreed to wait.

The engineer’s report served its purpose well. The structural problem was serious but not catastrophic. Structure could be inserted. Provided the owners were not looking for perfection and prepared to accept something less than flatness, the walls could be repaired.

Various payment formulas were proposed, each Defendant seeking to minimize their own involvement, and claiming that, as they were entirely blameless, their contribution should be token. There also had to be alternative formulas: one if the manufacturer was insolvent, another if there proved to be a viable entity to claim against.

The Architects prepared the contract documents for the remedial work. The Contractor agreed to do it at cost. The third-party consultant was accepted by the Owner as the certifier of the work and accepting authority.

In the final analysis, all parties contributed. The Manufacturer revived a little and contributed a modest sum. The Owners reduced their claim to the cost of the work, forgetting consequential losses which were quite legitimate in the circumstances – loss of revenue, for example, for suites that could not be occupied.

The remedial work was completed and the Architects fully released from any further claims.

Lessons To Be Learned

Lesson 1: The risks associated with “new and improved” materials are burdensome. We cannot discourage experiment, however, penalties can be severe. Think twice before believing the promises of product literature and sales personnel, even if they are supported by governing authorities.

The approvals of various government authorities – CMHC, Underwriters Labels, Fire Marshal, etc. – are necessary and comforting, but you are still the architect. Quoting the authorities may be a defense, but it may not exonerate you.

Lesson 2: The use of building materials that resemble – or inexpensively imitate – those used in other climates, should be carefully considered for suitability to our climate.

Lesson 3: By seeking remedies rather than pointing fingers, much litigation time and money can be saved.

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_{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.}

Parties

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Context

The Hills had requested that Bering design a house for them that would also be suitable for a relative with a disability. The architect sloped paths to entrances and avoided steps.

The house required a septic field, but the site was steeply sloped from the rear down to the road. The architect located the septic field beside house, with landscaping berms around the house and with levels that effectively prevented natural run-off. The house was subject to frequent flooding.

Pleas

The Hills stated, “We refuse to pay the balance of the money owed to the contractor, and the holdback, until the problem is solved.”

As against the architect, they stated “We hired an architect to look after the construction of our residence, and we have serious damages that speak for themselves as to liability. Our architect failed in his duty.”

At trial, the owners recounted harrowing experiences of working at midnight in mid-winter, digging trenches to redirect flood water.

Judgement

The judge found that both defendants (the architect and the contractor) were jointly and severally liable. 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.

Claims Control Analysis

The architect should not have intervened in the location of the septic system but allowed a specialist to do it. He should also have insisted that a landscape architect or surveyor be engaged to advise on such a difficult site. His reliance on verbal evidence – “I told him to dig a swale in this or that location” – proved to be worthless.

The judge did not buy into the idea 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: “An architect must properly supervise the works and inspect them sufficiently frequently to ensure that the materials and workmanship conform to contractual requirements …,” etc.

Post Script

The contractor proved to be insolvent. The architect/Indemnity Plan paid the full cost of the new site drainage system.

Lessons to be Learned

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.

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_{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.}