Generally speaking, architects and engineers are retained as the
agents of the owner of a project to design, supervise and
administer the construction of a project. In the course of
performing their obligations, architects and engineers may be
required to adjudicate disputes between the owner and its
contractor based on the terms of the construction contract.
The courts have held that an architect or engineer employed by
an owner is required to act judicially (i.e. fairly and reasonably)
when adjudicating disputes or making decisions under a construction
contract. All decisions must be dictated by the architect's or
engineer's own best judgment of the most efficient and
effective way to carry out the contract. Further, the architect or
engineer must not be influenced by extraneous considerations and,
particularly, his or her judgment must not be affected by the fact
that he or she is retained and paid by the owner.
A contractor will not be bound by a decision of an architect or
engineer if the architect or engineer does not adhere to the
provisions of the contract and acts arbitrarily, fails to exercise
his or her duties in good faith or to act impartially, or makes a
decision under the owner's influence. As a corollary to this,
because the owner is typically given the power to name its own
architect or engineer as an arbiter or adjudicator of a
contractor's claims, the courts have held that there is an
implied term in the construction contract that the owner must not
interfere with the independence of the architect or engineer,
meaning an owner is under a contractual duty not to influence or
interfere with the architect's or engineer's judgment.
In summary, in adjudicating disputes under a construction
contract, the architect's or engineer's duty is to decide
claims and disputes impartially, fairly, and with professional
competence. An architect or engineer is required to act in an
unbiased manner and his or her judgment cannot be affected by
extraneous considerations, including the fact that he or she is
being paid by the owner. A contractor will not be bound by
determination of an architect or engineer where the architect or
engineer does not act in such a manner.
Tyler Galbraith is a partner at Jenkins Marzban Logan LLP. His
practice is primarily focused on construction law. If you have any
questions or comments please contact Tyler directly. He can be
reached at 604.895.3159 or at firstname.lastname@example.org
2 D.W. Matheson & Sons Contracting Ltd. v. Canada
1999 CanLII 1510 (NS SC), citing B.M. McLachlin, W.J. Wallace
& A.M. Grant, The Canadian Law of Architecture and
Engineering, 2nd ed. (Toronto: Butterworths, 1994)
Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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