The eastern Ontario town of Blanding boasts a treasury of beautifully preserved and re-purposed historic buildings. Until lately, the best known—and the most commercially successful of these — was the Old Stone Mill, on the Trent-Severn Waterway, recently converted by heritage Architect Bertram Wooster, into an elegant restaurant called “L’Héritage.” Under the guidance of business manager Florence Craye and celebrity chef Pauline Stoker, the restaurant had rapidly become a gourmet destination, in effect, helping to reignite the town’s slumbering tourist industry.
All it took was a tiny electrical arc, possibly from a faulty wire staple to reduce this ultracool heritage gem to charred rubble. This story is called: “Sparks Will Fly.”
It was a chilly January morning. The winter holiday crush had subsided and the spring tourist season was still a couple of months away. “L’Héritage” was closed for business, but a few employees were on-hand, cleaning and stocktaking. Florence Craye and Madeline Basset, a freelance bookkeeper, were in the second-floor office taking care of administrative chores.
Florence thought she smelled smoke, but paid little attention to it. In the restaurant business, a hint of smoke is a common aroma. But as the smell intensified, the two women grew apprehensive. The bookkeeper’s first thought was to grab her paper files, her laptop computer and flee. As the two women rushed downstairs and out of the building, they saw that the kitchen staff had already vacated and had gathered in the Tim Horton’s across the street, watching the smoke that was now billowing from the roof. Thankfully, someone had thought to call the fire brigade.
When the firefighters arrived, they immediately decided not to use sledgehammers and axes—this was, after all, a beloved tourist attraction—and instead, began removing access panels and ceiling sections, searching for the source of the smoke. But it could not be found, and the temperature was rising.
As the small fire crew regrouped on the street to plot a new strategy, flames appeared on the ridge of the roof. At first, no bigger than a campfire, within ten minutes, they had grown to engulf the entire roof and were leaping from the windows. The dried-out hundred-year-old wooden columns, beams and planks were providing excellent kindling, and the fire spread so quickly that there was no chance to save the structure. Declaring it a “controlled burn,” the firefighters’ main objective now was to make sure that the adjacent buildings didn’t catch fire. The Old Stone Mill itself was a total loss.
This was a loss felt by everyone: the two business owners certainly, but also their devoted clientele, the townspeople, and most particularly, the Architect Bertram Wooster, who regarded the Mill as one of his most successful heritage conversion projects. Wooster’s distress was significantly compounded when he received a notice of claim from his former clients' property insurers, alleging professional negligence. Not only had his pet project been destroyed, but he was somehow being held responsible for the tragedy.
According to the Notice, the Owners’ insurers, Homewood Fire and Auto, were suing for the total costs of rebuilding and for business losses, claiming that the Old Stone Mill restoration had contravened Building Codes. The claim was for nearly two million dollars, half-a-million of which was for lost revenue.
Barely had the rubble cooled off, when official reports were commissioned. The Fire Marshal submitted a guarded and inconclusive brief, finding that the fire had started in the basement and spread upward through the building, by way of the vertical shafts created by the enclosure of ancient steel columns, as part of the renovation. This “chimney effect” explained why the fire had remained undetectable until it burst through the roof, by then, too aggressive to tame. The lack of oxygen within the enclosed spaces had allowed the fire to grow slowly, until the flames finally breached the roof, and the “fireworks” really went off. The brief concluded that the most likely—but unverified—source of the fire was an electrical arc in the basement wiring. It had taken literally a single spark to destroy the entire building.
The restaurant’s insurers had wasted no time in hiring Engineering Experts themselves, to sift through the ashes. These independent Experts agreed with the Fire Marshal’s findings, but added some details. They pinpointed the cause of the fire as a single staple that had penetrated an electrical wire, causing the sparking that eventually ignited the adjacent surfaces. The rapid spread of the fire, they claimed, was due to the lack of fire stops. Having carefully examined the burned-out shell, the experts had found no evidence of firestop remains or fire-safing material among the rubble. This clearly indicated that the architect was the culprit. Had Wooster done his job properly, the fire would never have spread throughout the building.
But the architect was not the only defendant. Homewood had cast a wide enough net to include all those who might be remotely culpable: Contractor, Engineer, Electrician, Municipality, and Utility Provider. And, naturally, each defendant had its own irrefutable defence position.
Reginald Jeeves, the Electrical Engineer was prepared to accept no liability at all. He had created the original design, but had not performed the installation . . . and, he had made only one visit during construction, due to the fact that the Architect had instructed him not to run up his fees by travelling to Blanding for site visits . . . except as requested. There had been only one such request by Wooster, for the purpose of sorting out a Hydro entrance and transformer problem, which Jeeves had promptly dealt with.
On that single visit, the work he observed seemed perfectly fine. He couldn’t possibly be expected to have spotted a defective staple somewhere in the basement ceiling. That would have required a “micro-inspection,” well beyond normal site review duties, and certainly beyond the scope of his contract with the Architect. And, anyway, firestops are an architectural matter.
The Electrical Contractor Charles Silversmith claimed that the work of his crew had been performed properly and had been approved by the Electrical Engineer and all authorities, including the Hydro providers and the Town. Regulation staples had been used throughout, despite earlier reports that they were “undersized.” Besides, the actual cause of the fire—electrical or otherwise—had yet to be established with any certainty.
The Building Inspector had not observed any building code problems in the renovation. As for conformity to the Electrical Code, he relied on the Hydro providers and the Electrical Engineer for this, as was customary in Blanding.
The Hydro providers agreed that they were responsible for approving the electrical design and installation, but they had found nothing wrong and did not believe that the fire was caused in any way by their failure to inspect.
The Architect had no particular insights into what had caused the fire. It may have been an electrical spark . . . or a grease fire in the kitchen, which happened in restaurants all the time. In either case, he couldn’t see how an “architectural matter” could have caused that fire, or any fire. He had lavished a great deal of care and attention on the job and took great pride in it. He had even featured it on his Christmas cards, several boxes of which he had recently sent out. As it now appeared, this wasn’t a great marketing strategy, since the considerable public interest generated by the fire and its probable cause was extremely unfavourable. And, the scandal-hungry community newspaper was “fanning the flames” of public indignation by sensationalizing the issue.
Wooster wanted the matter settled, and within the Blanding region, he needed the disaster to be forgotten. He couldn’t afford to lose the goodwill of the Municipal Council, or the School Board members, who were, at the time, considering an addition to the Town’s only high school.
The Client’s Insurer was building what they believed to be a solid case. In the opinion of their Expert, the improper installation of an Electrician’s staple should have been observed by someone: the Electrical Engineer, the Building Inspector, the Hydro Inspector or the Architect. All of them should share in the liability, jointly and severally. As regards the missing or poorly designed firestops, surely the Architect—and no one else—was to blame.
But the Pro-Demnity Claims Specialist could see several gaping holes in this argument. First, the errant staple was never found and was unlikely ever to be found, so there was no proof that it had caused the fire. Second, no observation, review or inspection could be so thorough as to examine every staple . . . and any argument to the contrary was preposterous. Third, firestops, or lack of them, in a 150-year-old, dry-as-a-bone timber structure, would be an irrelevance. Hungry flames would not be deterred by a wad of mineral wool, a panel of drywall or a bit of wood blocking.
A few months before the looming trial date, and nearly a year after the fire, a mediation session was convened in the banquet room of Blanding’s once-grand main hotel.
It was the perfect spot: gloomy, down-at-the-heels, and with large windows that provided an excellent, unexpected view of the blackened remains of L’Héritage. A bright morning sun, sparkled on the blanket of snow that had fallen during the night, creating a cheerier aspect to the facts under discussion
The mediator, a retired senior lawyer, after making the usual admonitions to maintain confidentiality and good behavior, suggested that the Plaintiffs begin by stating their case.
Plaintiff’s counsel, Mr. Giles Leadbettor, a physically imposing and jovial man, informed us that this was an “open-and-shut case,” in which the facts spoke for themselves. As there was no suggestion of arson, the complete destruction of the building could only be blamed on the failure of fire walls, firestops, and the sprinkler system. Furthermore, there was no indication that the fire had started in the kitchen, so contributory negligence by the owners was not a factor.
Leadbettor concluded by saying that, thanks to Ontario’s Negligence Act, the assembled Defendants were jointly and severally liable for the total loss. “Sort out the liability among yourselves,” he advised. “My client’s claim is for replacement costs, loss of profits, relocation expenses, etc.” This all added up to 1.7 million dollars.
In a final flourish, Leadbettor waved the Fire Marshal’s report in the air, using it like a baton, gesturing toward the building remains and then toward each of the defendant groups, naming them one by one. When he got to the extremely nervous Architect, he pointed the report directly at him and growled, “We relied upon you, Mr. Wooster.”
It would have been devilishly effective. . . if there had been a jury.
The Architect’s defence started, as usual, with Pro-Demnity counsel describing what an architect does and doesn’t do. In particular, architects do not, unless specifically engaged to do so, stand onsite, watching the carpenters pounding in every nail and electricians punching every staple. Architects come to the site “periodically” . . . which means from time to time . . . as their professional judgment deems necessary, or as required to certify the value of the work for payment to the General Contractor.
Counsel continued by pointing out that Wooster had designed the renovation carefully; nowhere was it alleged that a design error had occurred. The correct fire separations and protective drywall enclosures had been shown on the drawings. The sprinklers had also been correctly installed and tested, and had functioned properly. Unfortunately, they didn’t spring into action until the fire had grown to an inferno.
No professional enjoys being called negligent and incompetent, and Wooster was by now bristling and ready for a fight. Pro-Demnity counsel was able to persuade him to stay calm, assuring him that the cause of the fire was an electrical, not an architectural matter.
The Electrical Engineer Jeeves was also finding it difficult to control his anger. His body language and facial expressions warned of an imminent explosion. His counsel looked at him sternly and stood up to present his client’s view. Jeeves had been told by the Architect not to travel to Blanding unless specifically told to do so. Wooster had requested one “inspection” only, and Jeeves had performed it. Even if he had been paid to provide “full service,” he would not have been looking over every electrician’s shoulder, watching every staple going in.
It was hard to fault this logic. So, Jeeves was let out of the action, and he and his counsel got up and left the room without looking back. We knew that damages were certain to be levied, and this left one fewer defendant to absorb the blow.
The Municipality’s defence was equally compelling. First, in common with all the defendants, they could not be expected to guarantee the discovery of every tiny construction error. Second, certain court decisions have established that a municipality may have a limited duty to inspect and it is not required that they second guess an engineer. In this instance, they believed that Jeeves was looking after the inspection. Third, the Municipality had no electrical expertise and had expected the Hydro or the Electrical Consultant to “sign off” on electrical work.
Counsel for one of our co-defendants asked why the Municipality had not insisted that an electrical engineer actually review the work. Wasn’t a taxpayer entitled to look to them for protection? The Municipality’s counsel and the inspector were lost for a reply.
The Electrical Contractor Bruno Stark, known locally as “Bluto,” was a stocky, athletic 35-year-old, wearing a hockey jacket with a huge charging buffalo and the words “Blanding Buffaloes Atom A” emblazoned on the back. He was accompanied by his counsel who, by contrast, was a dapper Bay Street-type. His defence was simple: There was no defect in the work, and certainly no proof of any staple causing an arc. The building was clearly a tinderbox waiting for a match, and that was not his client’s fault. The Architect and Engineers should have designed a fire-resistant building.
Castle Hydro Corporation admitted that they had inspected the work and accepted it. But again, there is no way an inspection can check every staple.
By the time the depositions and discussions had concluded, the winter sun had gone down. We had endured this pointless posturing for an entire day. Thankfully the mediator declared a recess until the following morning. We all filed out and made our way back to the gloom of Blanding’s only serviceable travel hotel, ironically called “The Millview.” The view that the name referred to was still offered from the window of the dining room. However, the object of the view, the Mill itself, was gone, reminding us of why we were there.
The following morning, we got down to business. Liability certainly existed, but the amount was open to discussion. The reconstruction cost was known, being the amount of the insurance evaluation. Loss of business and other claims and expenses were more flexible. The defendants proposed $800,000 as a starting number.
Raising the $800,000 among the defendants was not going to be easy. But, we knew that if we took the matter to court, the Fire Marshal’s report was going to carry a lot of weight and might doom us to an even higher settlement.
Bluto, the Electrical Contractor was front and centre. The Architect, and the other Consultants and “Inspectors” had a chance to dodge blame, but he was not going to escape. The first offer from his insurer was to contribute half the cost, provided the rest of us put in the balance. But it was too rich for the rest of us. We felt that the Architect’s contribution should be an amount equivalent to half our anticipated trial costs. We expected that the Architect would be found not liable and even awarded some costs, probably amounting to about half of our actual costs.
When it finally sorted itself out, we had reduced the amounts to percentages of a settlement amount and had gone back in, to deal with the Plaintiff, as a block. We negotiated the half-a-million-dollar uninsured loss down to $150,000 and settled. The architect’s share ended up at $30,000, an amount we would probably have spent before trial just in preparation and expert reports.
It's been a few years since the settlement. The rubble has been cleaned up, but the restaurant has never been rebuilt. In front of the historic ruin that was once a heritage building, there is a plaque describing the site’s history—as a gristmill, a popular gourmet restaurant, and the scene of a spectacular fire. It serves as a lesson that, in many small Ontario towns, or small towns anywhere, tourism is the only “industry.” Old buildings are vital to that, and their preservation is not a luxury.
For Architects, there are other valuable lessons to be learned.
Lesson No. 1: Rationing engineering services to save a few thousand dollars is a risky move. When Electrical, Mechanical and Structural Engineers are employed, they must be required to provide a service parallel to that of the Architect. By not engaging the Engineer to review the work in this instance, the Architect not only lost a contributor to the settlement, but also assumed liability for the lack of electrical review.
Lesson No. 2: The alleged lack of firestops is a frequent source of claims. Fire separations are a serious matter, and Architects who review construction should make a special point of seeing that they are installed competently, and then recording these observations.
Lesson No. 3: Experts’ Reports are a fact of life. They can be helpful (such as those provided by our experts) or harmful (as are sometimes presented by the Plaintiff).
Reports provided by the Plaintiff’s so-called Experts often allege that the Architect has failed in their duty of care—even suggesting gross incompetence—and proposing extravagant solutions to modest problems. The Defense’s Experts, on the other hand, will point out that the Architect met the normal standard of care, which is not perfection, and that the Plaintiff has grossly exaggerated problems which could have been cured by proper maintenance.
Fortunately, reason usually prevails before such extreme positions are reached.
Lesson No. 4: When Experts’ Reports and Expert Witnesses—even including Architects, themselves—refer to site reviews, they may sometimes paint an absurdly idealistic picture of the Architect’s duty of care. By alleging that every tiny defect should be observed and pursued, an unrealistic and impractical portrayal of Architects’ duties is created, and a harmful misconception of an Architect’s actual “standard of care” is encouraged.
Lesson No. 5: Be careful not to offer unrealistic and possibly uninsurable guarantees, written or oral. When you or your Experts provide technical arguments based on unachievable expectations, you do your clients, yourself and your profession a disservice.
