Canada: Architects Are Easy Targets For Lawsuits – Frivolous And Otherwise

Any fool with $250 and a typewriter can sue anybody. In my own practice I have seen an architect sued over mechanical defects, a mechanical engineer sued over structural defects and a structural engineer sued over building envelope defects. A contractor often has no money and insurance will not cover workmanship defects, so the plaintiff will try to place liability on insured "deep pockets" defendants such as architects and engineers.

As a design professional, you cannot control whether you are sued, but you can control your exposure and outcome by managing risks from the outset. Wherever possible, a proposal for services, an engagement letter or a contract for your services should define a monetary limit to exposure and limit the types of claims. The monetary limit should be no higher than the policy limit for a single claim under your professional liability insurance.

As well, whenever possible, you should exclude liability for "consequential damages," such as loss of profits expected from a delayed project. Damages of this kind can break your company if they exceed your insurance coverage. If you are acting as a sub-consultant, make sure that any limits of liability negotiated by the prime consultant apply to you as well.

An architect or engineer may not be able to negotiate the most favourable terms for limiting liability, but a design professional has complete control over the definition of the scope of its services. Lawsuits are often not about the design, but about as-built construction relative to the design and adequacy of the field review. These topics are often ignored in an engagement letter. The architect should exclude responsibility for changes made without its approval.2

The number, purpose and scope of field reviews should be defined, and should expressly state that a review is not an inspection. The owner or contractor must be assigned the responsibility to call for a field review at defined stages. Too often a required field review is called too late or is not called at all. Architects or engineers are then asked to provide a certification of field work that they should not issue, and often lack the resolve to require finished work to be opened up for review.3

If you are sued, or if there is even a threat of a lawsuit, notify your insurer. An often overlooked benefit of professional liability insurance is that it pays the cost of defence of any lawsuit (subject to a deductible that may apply to defence costs on some policies).4 Counsel appointed by your insurer can give you guidance in dealing with the claim and can minimize the impact of the legal process on you and your practice.5 Experienced defence counsel will know how to set the stage for a higher award of costs against the plaintiff if thecourt dismisses the claim, but those costs will go to the insurer who is paying for the defence.

Due to the prohibitive cost of going to trial, most claims are resolved through mediation. Settlement often requires a modest contribution by all defendants regardless of fault. Buying your way out of a lawsuit is often the most practical and cost effective solution. If there is no fault at all by the design professional, the payment will be made entirely by the insurer, as the insurer is paying to reduce its defence expense. If there is some exposure to the design professional, it will have to contribute some part of its deductible,6 depending upon the policy provisions.

I am often asked about recovering the internal costs incurred by an architect or engineer in dealing with such claims. Unfortunately, Canadian law does not recognize this kind of compensation.

In conclusion, become familiar with the provisions in the standard forms of Client– Architect agreement provided by the OAA or the RAIC. Get legal advice regarding your standard engagement letter if you do not use the standard forms of agreement provided by the OAA or RAIC. Get legal advice regarding any supplementary conditions or amendments to these standard forms of agreement prepared by yourself, a client or sub-consultant. Talk to your insurer about coverage concerns or insurance requirements specified by a client; and be prepared to say "No!" to risks that exceed your insurance coverage.


1. Many architects would like to imagine that they are the subject of a "frivolous" lawsuit. But regardless of merit, Pro-Demnity must provide a defence, if only to get the action dismissed. In reality, few actions are truly "frivolous", notwithstanding that some (or even many) aspects of the claim may turn out to be without particular merit.

2. Refer to Pro-Demnity Bulletin: Dealing with Substitutions to Your Design, December 31, 2016.

3. Claims related to insufficient or negligent field review services have been identified as one of the highest claim categories, across most building types. This research has been the subject of Loss Prevention seminars over the past year, starting in the fall of 2016. Pro-Demnity and the OAA have prepared a new Claims Experience Workbook including checklists aimed at reducing claims related to field review.

4. The Pro-Demnity policy provided to Ontario architects under our mandatory regime does not apply the deductible to defence costs, although excess policies available from other insurers may do so, particularly for higher claim limits.

5. Pro-Demnity is owned by the architectural profession in Ontario. Our claims staff (and the counsel we retain) works to minimize impact on our insureds and their practices.

6. Pro-Demnity policies include a "disappearing deductible" that has the architect paying a pro-rata share of its full deductible for damages paid up to $250,000. For example, if damages amount to $100,000 (40% of $250,000), the architect pays only 40% of the deductible. 100% of the deductible applies for damages at or above $250,000

Previously published in Prodemnity, The Straight Line, Issue 5, December 2017.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions