The Claims-Free Architect

The $530,000 Claim That Almost Ruined a Retired Architect

• Pro-Demnity Insurance Company • Season 4 • Episode 2

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In a small-town project for a charitable service club, a local contractor unilaterally swaps robust design elements for flimsy substitutes. The clubhouse ends up on the verge of collapse decades later. Can an architect be held liable for this failure when the contractor ignored their plans without anyone’s approval?

Find out how refusing free reviews saves you, why contractor shortcuts spell disaster, and how to avoid liability, years down the line.

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When the meeting hall of a charitable service club had to be vacated due to the danger of imminent collapse, who should be blamed but the out-of-town architect who designed the structure 20 years earlier, and not the local Contractor who had cobbled it together, ignoring the Architect’s drawings. Where does charity begin, if not at home? We call this story “A GOOD CAUSE IN PURSUIT OF A LOST CAUSE.”

Marble Bar is a small lakeside town in western Ontario. Formerly a fishing village supported by the rich harvest of lake herring, it fell on hard times when the herring were fished out. Many of the inhabitants who remained, “clinging to the past,” still spend their ample leisure hours swapping fish stories at their local service club. There are three clubs to choose from: The Loyal Order of Elks, The St. Patrick’s Association and The Ancient Charitable Order of Bethel, known popularly as The Bethel Club.

The Bethel Club has always had its home in a respectable late-Victorian building, and at the time these events occurred, the Club’s building committee was concerned about a sagging roof and some nasty cracks that had started to appear in the exterior walls. The cracks were located in the extension which had been added to the meeting hall 20 years before, during a period of high expectations.

In little communities like Marble Bar, service clubs perform the dual function of providing a social life—Saturday night beer and chicken wings, and Wednesday night bingo—along with some genuine charitable services provided to the less fortunate. They’re a feature of small-town North American life but, like the towns themselves, are becoming sad relics of a bygone era.

Mrs. Madeleine Hatter, the Club’s building committee chairperson, a lady of determined, if somewhat turbulent, character, had called the Club’s head office and was given the name of an expert, a Mr. P. Xavier Nelson of Toronto, whose letterhead proclaimed: “Construction Management and Forensic Engineering Inspections.” Under Mrs. Hatter’s direction, Mr. Nelson had produced a report. The report indicated that substantial funds were required to fix the problems and avoid the certain collapse of the structure.

According to Nelson’s report, the work performed 20 years before had serious structural shortcomings. In order to correct these shortcomings, and to make the hall safe for meetings, both the walls and the roof structure needed to be reinforced or replaced. Based on this opinion, Bethel and its members scraped together $410,000 to the replace walls and roof.

While the repairs were being made, the members were forced to convene in one of the abandoned, uninsulated dockside fisheries. This solution proved almost unbearable when winter gales replaced the soft summer breezes, however, it did have the advantage of increasing the bar receipts, the profit from which was directed towards the worthy charitable work of fixing up and heating the space.

It didn’t take much thought for the disgruntled members to identify the person responsible for their problems. It was the Architect James Codrington. He had designed the addition, hired the Engineer Ezekiel Beatty, and supervised the work of the local Construction Management company Arniston Construction.

So, at the suggestion, and with the assistance, of local lawyer Mia Kulpa, The Bethel Club filed a Notice of Claim against the Architect Codrington, alleging incompetent design and negligent site reviews. They weren’t demanding a lot. Naturally, they wanted to recover the costs of the remedial work, but they also wanted to be repaid for what they had spent to fix up and heat the wharf-side shed through a very cold winter. With costs, it all added up to $530,000.

As to the inevitable question of whether, after 20 years, the Architect could still be held responsible for the building failures, Kulpa correctly informed them that at that time, the Statute of Limitations only kicked in when errors were discovered—not when they were committed. 

The story that Architect James Codrington related to the Pro-Demnity Claims Specialist was far more fanciful than any of the fish stories floating around The Bethel bar and lounge, and it had one additional distinction: It was entirely true.

Codrington was retired, having folded his practice at about the same time that the Clubhouse remediation was winding up. He was now in his late 80s and getting a little frail. As we have learned from experience, the stress of the litigation process can be very hard on elderly people, and the medical consequences of stress cannot be overestimated. Our policy was to try and handle matters with as little involvement from them as possible.

That being said, despite Codrington’s physical frailty, his memory of events was excellent—he may have forgotten where he put his car keys, as many of us do, but he remembered the events of 2005 very clearly.

When he had accepted the project, he had travelled to Marble Bar from his home in Barrie and had been briefed by Mrs. Hatter and her building committee. He had negotiated a fixed fee, with contract supervision and construction review to be based on $750 per visit, including expenses. He had engaged the Engineer Beatty, an old friend, and produced the simple drawings and details for the extension. He had then taken the finished construction documents, personally, to the Marble Bar Township building inspector and filled out the permit application. After that, he’d had minimal contact with The Club but assumed that a permit had been issued.

Codrington had recommended and expected a proper tendering process, but the committee was persuaded by local builder—and Bethel Club member—Roger Keynes, to hire him as a Construction Manager, and save the expense of a contractor’s mark-up and an Architect’s inspection fees. He could handle everything himself. As far as he was concerned, Architects were good at designing things, but they were clueless when it came to construction.

So, Keynes set about constructing a more practical version of the extension that Codrington had designed and documented. He changed basement walls from 30 cm poured concrete to 20 cm parged block, and the solid masonry exterior walls to stud frame with brick veneer. The fancy scissor-truss roof framing was replaced by simple roof joists with a collar tie at the mid-point—much lighter, much cheaper and, in his opinion, just as effective.

As it happened, the Club had reached out to Codrington at some point during the construction, requesting that he make a site visit and discuss Keynes’ changes. They insisted that this should be a “free service,” since it was his supposedly extravagant and incompetent design that had necessitated the changes. Codrington took the wiser course: he turned them down and resigned from the job, leaving the building committee to deal with Mr. Keynes on their own.

Neither the Architect nor the Engineer was aware of the nature and extent of the changes that Keynes’s had made until they saw P. Xavier Nelson’s forensic report.

Armed with the actual facts of the case, Pro-Demnity contacted Mia Kulpa, the plaintiff’s lawyer, describing the actual circumstances, pointing out that there was no legitimate claim against the Architect, and demanding that the suit be dropped.

An angry exchange of correspondence ensued, with Kulpa taking the farfetched position that some kind of “duty of care” should have compelled Codrington to either review Keynes’ work, or to at least warn the committee of the problems that they might be facing.

The Engineer Beatty, who was considerably younger than Codrington, and still in practice, could recall very little. For him, it had been, a tiny job: designing the scissor trusses and advising Codrington on the wall and roof loads; but he couldn’t recall, ever having communicated with the Club, regarding site reviews, design changes or anything else.

In their claim, The Club insisted that the Builder Keynes had sent sketch drawings to Beatty for his comments, but they could produce no evidence that this had ever occurred. In fact, there was nothing to indicate that Keyne’s even had the ability to create such drawings. One thing was certain: Had Beatty seen such drawings, or the replacement roof support system itself, he would certainly have raised the alarm. Keynes’ joist-and-tie system had no chance of supporting the roof. Over time, the joists would spread and push out the walls, causing them to crack—which is exactly what they did.

A mediation was arranged in the nearby city of Southport, under the auspices of a retired engineer who had been president of the Southport Pulp & Paper Plant. It was a full house.

The defence was represented by Engineer Beatty and counsel, Architect Codrington, Pro-Demnity Claims Specialist and counsel, the Township of Marble Bar and, briefly, Construction Manager Roger Keynes.

Keynes, who was uninsured, appeared without counsel, only long enough to state that he had “cleared all the changes with the Architect.” He relied solely on his memory and personal credibility. He presented no supporting evidence of any kind.

The Township building department was represented by a young inspector, the previous inspector having long since retired and moved away to parts unknown. This much younger replacement had difficulty explaining his predecessor’s actions, since he had no personal knowledge or any records to refer to. The fact is, in a small town where everyone knows everyone, Keynes and the Inspector were most certainly on friendly terms and had probably shared a pint or two at The Club, so it’s difficult to believe that the matters weren’t discussed and, by inference, the changes approved.

The Plaintiffs had turned out in force. The entire committee of seven townspeople were in attendance. They constituted a formidable group—all of them senior citizens, salt of the earth, dressed in their Sunday best, and judging by their serious demeanour, prepared to take on any foe. Leading the team was the incomparable Madeleine Hatter.

We could only have sympathy for them. They had lived to see their main street half-boarded up, and their young people leave to find work. They had no incentive to forgive what they perceived as mistreatment by well-heeled city folks. Besides, their cause was righteous. Their association existed for the performance of good works. In fact, their lawyer was a substitution for their usual counsel, Mia Kulpa, who had recently left her practice to take vows and relocate to Nigeria, where she was currently doing heroic missionary work.

Her replacement counsel Ronan McCaffey seemed a little ill-at-ease with the cut-and-thrust of the mediation process, but he forged ahead with his presentation. It contained no surprises: In his view, the building committee should have been protected from its error by the Architect and Engineer, who had a duty as professionals not to be guided by money but to do the right thing. In this instance, the right thing would have been to prevent the errors committed by the unskilled tradesperson who called himself a Construction Manager, and in whom The Club had placed their trust.

McCaffey held up a copy of the Ontario Building Code, and using it to punctuate his speech, he reminded us of the regulation that buildings intended for assembly occupancy, required design and review by an Architect. Why, he asked, had the Township not insisted on this?

He proceeded to paint a picture of poor hardworking folks co-signing loans to finance the construction, in effect, mortgaging their meagre possessions and jeopardizing their very existence. How was this burden to be lifted from them, if not by the defendants and their insurers facing up to their responsibility and paying up?

McCaffey, who was already uncomfortable, was even more disconcerted by repeated interruptions by the Pro-Demnity Claims Specialist, who asked for Code references and other irritating particulars about which McCaffey clearly knew very little. The committee members were equally incensed by the interruptions but confined themselves to glaring at the defendants.

To further support their position, the Club had asked Mr. P. Xavier Nelson, author of the damning engineering report, to attend the mediation and answer questions about his findings and recommendations. There was a short break in the proceedings while Nelson, bustled in and busily arranged his papers on the table in front of his seat next to plaintiff’s counsel.

The mediator took this opportunity to invite the defendants to present their case.

Pro-Demnity counsel was brief and to the point. The building that had been constructed was not the building that James Codrington had designed. The Architect’s design had been essentially ignored, and The Club had not engaged him to review the work or to offer any further services at all, once the building permit had been issued.

The Club’s request for Codrington to volunteer his services to review the construction changes for free was absurd. The Architect had no obligation, under any law, rule or regulation to work for nothing. Architects are recompensed on a fee-for-service basis, just like lawyers are—he casually glanced over at McCaffey as he said this. He continued: Mr. Codrington’s office was in Barrie, a three-hour drive from Marble Bar, so even a $750 site review fee barely covered the cost of gas. In fact, his entire original fee had been lowered as an act of generosity to a Club that dedicated itself to good works. But even so, free construction review was never contemplated, as the correspondence clearly indicated.

The Engineer’s counsel spoke next, stating emphatically that his client had no knowledge of what had been built, and would never have agreed to the structural changes if his advice had been requested—structural changes that were clearly doomed to fail. Furthermore, the remedies that had been carried out on the advice of the Nelson Report were unnecessary and foolishly extravagant.

Beatty was beside himself with anger at the whole proceeding, especially at the suggestion that he had approved the roof-support changes. When it was his turn to speak, he glared at Nelson and said, slowly and forcefully, “No engineerwould have agreed to that!” This remark was useful in reminding the assembly that, despite P. Xavier Nelson’s claim to “forensic engineering,” he was not actually an engineer.

Beatty, who had 40 years of engineering experience, went on to explain, in some detail, how the weak roof support system could have been made fully functional by adding joists, and installing tension cables at their base which could be tightened to straighten out the roof. The unreinforced block walls could have been reinforced with pilasters to act as buttresses.

The cost savings in Keynes’ original work had been unwise, but the remedies were not much better. Nelson’s design had not increased the strength of the system nearly as much as a more simply engineered solution could have done at a fraction of what had been spent to demolish and rebuild, following his suggestions.

Mr. Nelson, who had found the room too hot and was dabbing his neck frequently, declined to offer any rebuttal.

The counsel for the Municipality had little to add. The former building inspector was an experienced man, and as far as he was aware, so was the Construction Manager Keynes. There were no records to refer to, but he felt certain that an Engineer’s approval would have been sought at that time. He pointed out that there had been legal rulings suggesting that the Municipality was entitled to rely on professional consultants, and this is what he assumed the building inspector had done.

There was little conviction in the counsel’s presentation—we were all aware of how weak their position looked—and, unfortunately, there was no one who could testify about what had actually happened 20 years ago.

Meanwhile, the citizens of Marble Bar—who were excluded from the mediation, but were free to discuss it endlessly in coffeeshops, check-out lines and Club gatherings—were getting edgy. They fully expected a triumph for their righteous cause, that their lawyer would put on a Oscar-worthy performance, demolish the defendants, and obtain grovelling confessions.

Instead, there had been a forceful and spirited defence that included evidence no one had ever explained to them. It exonerated the Architect and the Engineer, leaving as the only apparent losers, their own Municipality, which, in a small town, meant them, their friends and their neighbours.

Despite the hard work and good intentions of the mediator, the meeting ended without a resolution, and not on a friendly note—we had all shaken hands at the outset, but the committee left the room in a huff. We would have felt sorry for their lawyer had he and his predecessor not been so uncompromising from the outset.

Months went by before the plaintiffs finally announced their intention to go to trial and applied for a trial date. First, however, they demanded dates for discovery. We toyed with the idea of applying for summary judgment to dismiss the action, but by this point, the Architect was in no shape for discovery or trial, and his family wanted the matter settled so that he could be left in peace.

Pro-Demnity had no intention of making any payment, but with the Architect’s assent, offered $5,000 to the Club to close the matter on his behalf. The Engineer’s insurer followed suit. To our surprise, the offer was accepted, and the matter was finished.

The committee was now free to sue the real culprit, Roger Keynes, if they so desired. We don’t know how this saga ended and we won’t be inquiring.

Ordinary good people often find it hard to accept the simple reality that, when their “just cause” has suffered a loss, it doesn’t follow that the “justice system” will automatically deliver compensation.

And there are other lessons to be learned from this unfortunate incident:

Lesson 1: If you find yourself in circumstances where your review services have been assumed by someone else, especially someone who is evidently incompetent, it’s a good policy to write to the chief building official, for example, saying that the review of construction is not being undertaken, or perhaps more clearly, an “I will not be responsible” letter to the Client.

Lesson No. 2: Don’t imagine that by showing generosity to a worthy client, that the client will extend the same generosity to you. Good deeds have a habit of inflicting their own form of punishment.