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How Long Should I Keep My Project Records?

The Straight Line Newsletter — Issue #1

This is the inaugural issue of The Straight Line, a newsletter that will appear occasionally throughout the year. Articles will cover a broad range of topics that will engage Ontario architects—whether in practice or not—and others with an interest in the profession. 

The Straight Line will provide a forum for commentary from experts outside the profession whose special knowledge can assist us by explaining areas of law and business that lie beyond our daily experience, but could affect us in unanticipated ways. Our “Ask an Expert” feature provides an opportunity for readers to have their own questions and concerns addressed in a forum that is broadly shared. 

Our goal is to provide “ten minutes well spent”—an easy read that you will find interesting and informative. Topics that require more time or more detailed explanation will continue to be addressed through Pro-Demnity Bulletins, Notices and Loss Prevention Events. 

We encourage readers to suggest topics for future issues of The Straight Line. Please send any suggestions to: editor@pd-straightline.com 

Christopher Fillingham 
Chair of the Board, Pro-Demnity Insurance Company 

Architects often ask Pro-Demnity this question. At one time the simple answer might have been forever. But thankfully, the Ontario Limitations Act, S.O. 2002, c.24 Sched. B, which came into force as of January 1, 2004, provides some guidance and limits. 

The Act provides that, in most cases, an architect will be free from exposure to claims or litigation related to its services 15 years after completion of the project or services. This suggests that architects can reasonably dispose of their project records 15 years after completion of their services on that project. 

For projects completed before January 1, 2004, the 15-year period commences on that date. So for projects completed before 2004, records will not be necessary after January 1, 2019. 

Architects should bear in mind that there may be other reasons for maintaining at least some of the project records and documents, particularly where the architect hopes to maintain a long-term relationship with a client. 

Mario Delgado of Brunner and Lundy explains further: 

Impact of Limitation Period on Record Keeping

The legal ramifications of design and construction don’t end once the architect has completed the project. Design and construction deficiencies that were not observed before the conclusion of the project may cause a civil lawsuit to be commenced against an architect at a later date. The law refers to unnoticed defects as “latent” —Latin for hidden, concealed or dormant.

Imagine, for example, that a latent defect in the design and construction of an exterior wall, unnoticed during construction or at the completion of the project, has allowed water to infiltrate the assembly. Over time, the water may have caused key components of the structure to corrode, including the fasteners for the cladding. On discovering the extensive damage, the current owner might well choose to commence a civil action in the hope of obtaining damages to offset the repair or replacement costs. The action may name the architect as
a defendant and make the common allegation that the defendant failed to meet the standard of care required of a prudent architect in carrying out a general review.

Typically, during the construction phase, the architect would have documented site reviews in the form of reports, which could help in establishing that the architect’s obligations were diligently carried out. Without these records, the architect must rely on the memories of the person(s) carrying out the site reviews—memories that, with the passage of time may be frail and unreliable. Worse, those involved in the project may not be around to give evidence. In any lawsuit, a defendant with only fallible memory to rely on may leave the court the option of accepting the plaintiff ’s version of events.

Clearly, an architect named in such a lawsuit will be best served by having records generated during the project to rely upon in its defence.

This raises the question: how long should records be kept? In Ontario there is a montage of statutes that deal with this issue. Many architects believe that records should only be retained for a period of six years, a misconception that may stem from the fact that the Canada Business Corporations Act recommends this retention period for certain records. But for architects, given that latent defects are common (perhaps an intrinsic part of design and construction), it is advisable that records be kept until the expiry of the limitation period on the project.

When does the limitation period start and end? In Ontario, the Limitations Act provides the public with a complicated formula to determine when a limitation period begins and ends. Unfortunately, the Act contains many caveats that cannot be covered in this article. That said, what follows may provide some guidance
for determining how long one should keep records. Section 15(2) of the Ontario Limitations Act states that:

No proceeding shall be commenced in respect of any claim after the 15th anniversary of the day on which the act or omission on which the claim is based took place.

Section 15(6) explains when the limitation period begins to run:

a) in the case of a continuous act or omission, the day on which the act or omission ceases;

b) in the case of a series of acts or omissions in respect of the same obligation, the day on which the last act or omission in the series occurs;

c) in the case of an act or omission in respect of a demand obligation, the first day on which there is a failure to perform the obligation, once a demand for the performance is made.

What does this mean for an architect?

In most instances, the limitation period commences when the project is substantially complete, since any errors in design or construction would be apparent at this stage. However, as discussed above, there could be latent deficiencies that cannot be discerned upon substantial completion. For this reason, prior to purging a file, the architect should consider whether the ultimate limitation period has expired on the project.

When section 15 is read in conjunction with other sections of the Act (and the case law that interprets the Act), it means that the ultimate limitation period expires on January 1, 2019 for projects completed prior to January 1, 2004. Therefore, architects who have records with respect to projects that pre-date January 1, 2004, would be wise to retain those documents until at least January 1, 2019.

For projects commenced after January 1, 2004, it is recommended that records be kept for a period of at least 15 years from the date that the architect last rendered services. To minimize the risk of extending the limitation period, it is further recommended that architects send their clients a letter identifying the date on which they last provided services and keep a copy in their file. This document will assist in calculating when it is appropriate to purge the project file.

Summary
  • A prudent architect will maintain project records for at least 15 years after project completion.
  • Architects who can produce their own records, rather than relying on those produced by the plaintiff, are generally better able to defend themselves in the event of a claim.
  • Adequate and well organized project records may be taken by a court as evidence of sound administrative practice by the architect.

A written record in an email or letter trumps recollections of conversations. But as the old adage states: “A picture is worth a thousand words.” So photographs or sketches that supplement site review reports may provide the most valuable aids to your defence.
— Mario Delgado

What Records are Most Important to Keep?

There is no simple rule. What records prove to be most important will depend on the particulars of the claim, and will differ in each instance. When litigation occurs, it is the lawyer’s task to find
out what went wrong and who is responsible. Mario Delgado recommends that the following information be retained. It may prove valuable to understanding the claim and developing a defence:

  1. Contract between Architect and Client
  2. Contracts between Architect and sub-consultants
  3. Construction contract between Owner and General Contractor, Construction Manager or Builder (where available to the architect)
  4. Insurance policies of sub-consultants
  5. Other insurance policies and bonds, where applicable (e.g. Builder’s Risk Policy, Performance Bond, etc.)
  6. Communication documents such as emails, letters, faxes, etc.
  7. Minutes of meetings
  8. Bid and tender documents
  1. Contract between Architect and Client
  2. Contracts between Architect and sub-consultants
  3. Construction contract between Owner and General Contractor, Construction Manager or Builder (where available to the architect)
  4. Insurance policies of sub-consultants
  5. Other insurance policies and bonds, where applicable (e.g. Builder’s Risk Policy, Performance Bond, etc.)
  6. Communication documents such as emails, letters, faxes, etc.
  7. Minutes of meetings
  8. Bid and tender documents
  9. Drawings and specifications
  10. Certificates of Substantial Performance, Letters of Assurance, Statements of Completion
  11. Field review reports, site review notes, site observations and photographs
  12. Supplemental instructions
  13. Change Order logs, RFI logs and shop drawing logs
  14. Certificates of Payment and Progress Payment support documentation
  15. Budget documentation

Ask an Expert

“Ask an Expert” offers advice from members of a panel of experts familiar with insurance and other considerations related to architectural practice. Selected questions will deal with legal and insurance issues that have broad applications, while ensuring anonymity of individuals, projects and circumstances. Questions should be directed to: ask@pd-straightline.com

Answers will be general in nature and cannot be taken as legal or insurance advice for readers to apply to their own circumstances. Please consult your own lawyer or Pro-Demnity regarding any questions or concerns impacting your own practice.

An Ontario architect poses our inaugural question:

We were recently retained to carry out an inspection of an existing building. We retained a structural engineer to assist with the investigation and report. Our inspection disclosed that required fire-stopping had not been installed. In our opinion this is a serious “life safety” omission that requires correction, and we informed our client of this.
However, when we advised our client about the missing fire-stopping and our concerns about it, he immediately told us that he no longer wanted a written report, and that we were not to share the information with the local building department or fire chief.

The engineer has told us that it has a duty under the Professional Engineers Act to report such a life safety concern to its client; however, we are both concerned that this isn’t enough.
We have a number of questions we hope you can help us with:

  1. If we uncover unsafe conditions in a building, what are our obligations as architects?
  2. How should we address this issue with our client?
  3. When should we take our concerns about an unsafe condition to building officials?

Andrew Lundy of Brunner and Lundy offers this advice:

If you become aware that your client plans to take no action about the life safety issue you have identified, you should not stand idly by—action is required, including, perhaps, notification to the chief building official.

Canadian case law provides no clear direction as to whether, in your specific circumstance, there exists a common law duty to warn of danger to someone other than the building owner—and at what precise moment any duty of confidentiality to your client is supplanted by a legal or ethical duty to warn. However, you have identified a significant risk of harm or death to the occupants of the building, and in those circumstances, a court may well impose a duty to warn.

In its current form, the Architects Act does not directly address the question: What should an architect do if confronted with a client who refuses to perform remedial work to correct a life safety issue? However, Section 42 of the Regulations provides some guidance by giving examples of what constitutes “professional misconduct” on the part of the architect. Subsection (38) provides that professional misconduct means:“doing or failing to do anything while engaged in the practice of architecture that shows a deliberate or reckless disregard for the rights and safety
of others.”

The scenario that you describe has some factual similarities to the events that led to the collapse of the Algoma Centre Mall in Elliot Lake, Ontario. In the Report of the Elliot Lake Commission of Inquiry, the Commissioner, the Honourable Bélanger, found that the failure of various engineers to report unsafe building conditions to the Municipality was a contributing factor to the roof collapse. In his summary of conclusions, Commissioner Bélanger stated:

Some engineers forgot the moral and ethical foundation of their vocation and profession—to hold paramount the safety, health and welfare of the public. They occasionally pandered more to their clients’ sensitivities than to their professional obligation to expose the logical and scientific consequences of their observations.

In making recommendations based on lessons learned, Commissioner Bélanger added:

Experience is the best teacher. To ensure that we do not repeat the mistakes of others but benefit from the knowledge of their successes and failures, we need to carefully document lessons learned and pass them along to our successors.

One of Commissioner Bélanger’s recommendations is that structural engineers be required to deliver certain reports to a municipality’s chief building official, if minimum conditions have not been met during the course of their inspections. Further, these reports must explain what repairs or maintenance actions are required to correct the situation.1 While it remains to be seen whether the recommendations from the Elliot Lake Commission of Inquiry are implemented, architects should be mindful of Commissioner Bélanger’s words to “hold paramount the safety, health and welfare of the public.”

In light of these recommendations and the meaning of “professional misconduct” under the Regulations of the Architects Act, our own recommendations are:

  1. Write to your client, describing the life safety concerns found during your investigation.
  2. In that letter, ask your client what steps it will be taking to address the life safety issues.
  3. If you find that your client has not adequately rectified, or is unwilling to rectify, the life safety issues, write a follow-up letter advising of your intention to notify the chief building official.
  4. If you do not receive a satisfactory response from your client, notify the chief building official.

This last step should not be taken lightly. There will be implications for the owner and occupants and there is potential for a claim to be made against you in response. Accordingly, should you find yourself in this situation or if you have any questions or concerns about your professional or legal obligations, you should consult legal counsel, Pro-Demnity or a practice advisor of the OAA.
— Andrew Lundy

Note

  1. This is paraphrasing one of the many recommendations made by Commissioner Bélanger. The conclusions and recommendations made by Commissioner Bélanger are contained in the Executive Summary to the Report of the Elliot Lake Commission of Inquiry. The report can be found at www.elliotlakeinquiry.ca

Our Contributors

Andrew Lundy and Mario Delgado are among the select group of lawyers regularly retained by Pro-Demnity Insurance Company to assist in the defence of architects involved in litigation arising from a claim. They have appeared before all courts of the Province of Ontario, trial and appellate, as well as before a variety of administrative tribunals. Both are partners of Brunner and Lundy Barristers and Solicitors of Toronto.

Andrew Lundy has extensive experience and expertise in insurance and professional liability law as well as in professional disciplinary proceedings. He has served as counsel for the Discipline Committee of the OAA and the Ontario Association of Certified Engineering Technicians and Technologists. In addition to his litigation practice, for the past 15 years, Andrew has represented the National Hockey League Players’ Association at salary arbitration proceedings. Andrew has been selected by his peers to be included in the 2010–2016 editions of The Best Lawyers in Canada in the areas of Construction Law and Insurance Law.

Mario Delgado has developed a litigation practice in the areas of insurance defence, professional negligence (including disciplinary proceedings) and construction law. A significant portion of Mario’s practice is focused on architects and other design professionals. He is regularly engaged in construction disputes and claims including errors and omissions in design, bidding and tendering, fee disputes, product liability and delay claims.

Andrew or Mario can be contacted at:
Brunner and Lundy
360 Bay Street, Toronto, ON M5H 2V6
Telephone: (416) 966-9955
brunnerandlundy.com

The Straight Line is a newsletter for architects and others interested in the profession. It is published by Pro-Demnity Insurance Company to provide a forum for discussion of a broad range of issues affecting architects and their professional liability insurance.

Publisher: Pro-Demnity Insurance Company
Editor: Gordon S. Grice
Design: Finesilver Design + Communications
Address: The Straight Line c/o Pro-Demnity Insurance Company 200 Yorkland Boulevard, Suite 1200 Toronto, ON M2J 5C1
Contact: editor@pd-straightline.com

Pro-Demnity Insurance Company is a wholly owned subsidiary of the Ontario Association of Architects. Together with its predecessor the OAA Indemnity Plan, it has provided professional liability insurance to Ontario architects since 1987.

Questions related to the professional liability insurance program for Ontario architects may be directed to Pro-Demnity Insurance Company. Contact information for the various aspects of the program can be found on the Pro-Demnity website: www.prodemnity.com

Pro-Demnity Insurance Company makes no representation or warranty of any kind regarding the contents. 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. Letters appearing in the publication may be edited.

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.

This publication 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 the publisher for permission: publisher@pd-straightline.com 

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