Work on a small office building, starts before a permit has been issued. A gross error is discovered in the drawings, so the building is redesigned, but the desired design is not possible. The modified design is built, but it contains further flaws, so the owner sues the architect.
Arthur Crummage, owner-developer
Ed Ruff, construction manager (potential defendant)
Nathan Quandrie, Architect
Arthur Crummage was a successful accountant and small developer of some substance in a small north Ontario city. He had hired Nathan Quandrie to design the head office of his future business empire. The design, which was discussed at length, had windows all around, allowing a flexible internal layout, while providing every office with daylight. Under the direction of a construction manager, work had commenced prior to the issuance of a building permit. Site work had been done and excavation had been completed, with footings in place, when the building inspector issued a Stop Work Order.
Not only was there no permit, but a permit could not be issued for the building, as designed, since one of the glazed walls was located within one or two feet of the lot line. This meant that the wall was required to be a fire separation wall, built of non-combustible material, and completely unglazed (unless expensive and elaborate fire shutter systems were devised). The building had been redesigned and was now completed.
Crummage 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 the cost of relocating the building to the centre of the lot, along with the possibility of three months’ delay going through the site planning process again, forced him to accept the windowless wall.
Furthermore, the building had been designed with unacceptably low ceilings – mostly eight feet, where office buildings should have nine feet or more – and no account had been taken of air handling and duct work beneath the wood joists, which reduced the headroom in some areas even more. These unsatisfactory conditions had reduced the value of his investment, and the fiasco with the wall had cost him time. He had allowed the work to start without a permit, because the architect had told him that it could. His last complaint was that his business reputation had suffered.
It all added up to a million dollars.
The architect Quandrie denied having told the owner to start without a permit. He had not realized that the property line was so close to the building because the adjacent parking lot to a fast-food franchise was also owned by Crummage.
Quandrie said that the owner had chosen to proceed with the solid wall, knowing that he could have relocated the building, albeit with some delay.
Crummage 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 the architect had not been involved in it. Indeed, he had suggested that a mechanical engineer be hired.
Furthermore, the lack of windows affected very few offices, and accountants are accustomed to working in semi-open cubicles without windows to the outside.
The matter proceeded through discoveries and, upon an analysis of the evidence and testimony produced, Pro-Demnity concluded that, notwithstanding the grossly inflated amount of the claim, and the self-serving and insupportable appraisals produced by the plaintiff to bolster his alleged loss, the architect was not wholly credible, either. In the small town in which he lived it was unlikely that he had never observed the construction underway.
When interviewed by the Pro-Demnity counsel, Ed Ruff the construction manager told a story somewhat at odds with the architect’s version concerning the permit – he stated that Quandrie advised him to start – but backed him up on other issues.
Clearly, liability for the location error was established, and some delay flowed from this error. Other issues were defensible.
Claims Control Analysis
All sorts of verbal promises were claimed, but the defence 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 that of the construction manager.
Starting without a permit, excluding permissible start-up activities, is imprudent and illegal. It is also unwise to just “take your client’s word for it.” Not obtaining a survey showing the exact lot you are building on is ill-advised. You have a duty to protect clients against themselves. In this case, the client was a developer with some experience, so it is easy to see how the architect might have let his guard down.
Pro-Demnity settled the matter for a small fraction of the amount claimed.
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.