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18 September 2008
There are a number of issues to consider when an architect’s services are terminated and another architect has been engaged to complete the project – there are regulatory and contractual matters, as well as legal issues, professional courtesy and common sense.
General This Regulatory Notice addresses questions that frequently arise when a client changes architects during the course of a project. Whether you are having your services terminated, or are contemplating a commission to complete a project started by another holder, a number of issues need to be considered.
When the services of an architect are terminated and the client elects to proceed with the completion of the project engaging another architect, Regulation 27 under the Architects Act requires that a certain procedure be followed. The procedure entails a written notice from the client to the subsequent Architect B that the services of the previous architect A have been terminated. The subsequent architect B is required to send a letter to Architect A by registered mail stating that Architect B “has been engaged on the same building project for the same purpose by the same client”.
Termination may occur one year from the date of substantial performance or total completion of the work as stipulated in the client/architect contract or at any time during a project and can be for any number of reasons such as:
In some cases, the termination might be a breach of contract in which case the offended party may wish to consider legal proceedings for recovery of damages.
The Regulation does not require Architect B to ensure that Architect A’s accounts with the client have been discharged in full. Architect B cannot be expected to be the arbiter between Architect A and the client, nor is Architect B necessarily privy to Architect A’s contract, the extent of services performed, etc.
In the event that a client does not give assurance that Architect A’s services have been appropriately paid, or agrees there is a dispute over fees, then Architect B must advise the client that documents/design relative to the dispute cannot be used until the dispute is resolved and disposition of the documents in question agreed to.
Changes at Different Stages
In general, where an Architect B has been engaged to continue with a project for the same purpose by the same client as Architect A whose services were terminated, and Architect B has complied with the relevant sections of the Regulation under the Architects Act and is satisfied that the documents of Architect A may be used for the purpose intended, a number of issues relative to liability need to be considered.
1. If termination of services occurred at completion of site plan approval, but prior to completion of schematic design, the conceptual design to the point of termination can be expanded upon to schematic design and subsequent stages by Architect B. Credit should be given to the originator of the conceptual design. Site plan agreement should be complied with or, in the alternative, a new site plan agreement should be applied for with amendments requested by the client. This latter course, and its inherent consequences, should be discussed with the client before proceeding.
2. If termination of services occurred at Architect A’s completion of schematic design but prior to design development, Architect B may continue into design development and subsequent stages provided that the regulatory requirements have been met. New drawings should be prepared by Architect B incorporating changes (if any) that the client agrees to or initiates. Appropriate credit should appear on documents, site signs and subsequent publications for schematic design by previous Architect A.
3. If termination occurred at completion of design development, working drawings and specifications can be proceeded with on new drawings under Architect B’s title block. Appropriate credit to Architect A should be given.
4. If termination occurred part way through working drawings, a judgement has to be made as to the extent to which Architect A’s documents can be used in application for building permit or for construction. If nearly complete and sealed, they may form part of application for building permit and contract documents supplemented by Architect B’s documents with appropriate cross referencing and credit. If a relatively small percentage is complete, it may be more effective to start over with all documents prepared by Architect B.
Unless given specific authorization in writing to do so by Architect A, Architect B must not draw on or alter Architect A’s drawings or documents.
5. If the working drawings have been completed but were not issued for building permit or construction, they may be issued with supplemental documentation prepared by Architect B. Ordinarily, Architect B must not alter architect A’s documents nor can Architect B apply seal and signature to Architect A’s documents.
If the municipality requires the documents of A to be sealed, there are two options:
a) Arrange with Architect A to seal the documents (on the rare case where the termination was due to death or disability of Architect A, it may be possible to have someone in A’s office seal the documents attesting to the fact that the documents were prepared under the personal supervision and direction of an architect.)
b) Create the documents under Architect B’s title block and seal, giving appropriate credit to Architect A.
6. If termination occurred after application for building permit but before construction, the municipality will want to know who will be the architect responsible for general review during construction. Usually both the Architects A and B will separately communicate to the municipality – Architect A to advise no longer engaged and Architect B to execute the commitment form. Adjustments required by the municipality before issuance of permit and subsequent additional details, change orders, etc. will be prepared separately by Architect B, cross referencing where necessary to Architect A’s documents. Changes to Architect A’s permit application documents by Architect B are not permitted.
7. If termination occurred during construction, the same principles as outlined above under item 6. would apply. Municipality to be notified, new documentation to be separate from previous architect’s work.
Exposure to Liability
Contractually, an architectural practice is liable for the services it performs. If a problem occurs due to negligence of either architect, it is likely that both architects will be called upon to address the situation. At issue may be whether Architect B knew or ought to have known of the deficiency in Architect A’s documents. Architect A may claim that there was no opportunity to correct the deficiency in a timely fashion, not having been advised of the problem until a later time. Although the contractual relationships of Architect A to client, and Architect B to client may address the issues of liability, neither A nor B can limit exposure to third party liability through contract with their client. In some third party liability situations, Architect A or Architect B may be able to claim over to the other architect for compensation.
Changes at Different Stages The following procedures are a generalization and may differ in your specific circumstances. Read the noted reference and, if appropriate, discuss with your legal counsel.
1. If you are approached by a client to provide services for a project and you have reason to believe that another architect has been engaged for the same project for the same purpose by the same client, you are required by the Regulation to neither solicit or accept the engagement until the other architect’s services have been terminated and you have been so advised in writing by the client. It is always good practice to ask your client whether another architect has been engaged on the project prior to accepting a commission.
2. Send a letter by registered mail to Architect A stating that you are advised in writing by the client that Architect A’s services have been terminated and that you have “been engaged on the same building project for the same purpose by the same client.”
3. Although not mandatory, it is a desirable professional courtesy for Architect B to communicate with Architect A and explain the essence of the regulatory registered letter being sent to him/her. Architect A may understandably be upset (in some cases relieved) and Architect B may learn from the experience. Architect B should notify Architect A that appropriate credit for the work performed by Architect A will be noted on Architect B’s documents, construction signs and future publications in brochures and articles.
4. In some cases, Architect A might take the position that this credit is not appreciated, in which case it would be prudent to record, in writing, the agreed position of both architects on the matter of credit for authorship both during and after the project.
5. If the terminated architect prohibits you from using his/her documents/design, promptly notify the client and request clarification. The client may give you a written statement to the effect that he/she has paid the previous architect for the services represented by the documents/design that you intend to use. You are ordinarily entitled to rely on the client’s statement to permit you to proceed. You are not required to seek the other architect’s permission if you have the client’s statement. If the client does not issue such a statement to you, or agrees that the terminated architect has not been paid for the service represented by the documents you propose to use, you may still proceed with the project but must not use the other architect’s documents/design. You should inform the client that you cannot use the documents/design and if it is essential that you do use them, advise the client to resolve the matter before you can continue with that part of your services which will require the documents/design.
6. Ensure that your client-architect contract has articles concerning termination.
7. Review your architect-subconsultant agreement and ensure it provides for extension of your obligations (under your agreement with the client) to your subconsultants.
Exposure to Liability
1. If your services have been terminated, you may, depending on the stage of development, seek indemnification from the client for your work - expressing that it may be unreasonable to expect you to be held liable for misinterpretation of your documents.
2. If you are continuing a project started by another architect, you must consider the ramifications relative to the stage of development. Discuss with your client the work that has to be completed, set out in your agreement the extent of contractual liability you and your consultants can be reasonably expected to assume.
3. Review the attached appendices (Word) (PDF) and, if applicable to your situation, reduce your exposure to liability by writing an appropriate letter to and obtaining indemnification from your client.
4. Remember that you cannot contract out of third party liability, and that whatever indemnity you obtain is only as good as the client’s ability to fulfill the obligation.
Architect A: The architect whose services have been terminated
Architect B: The architect who is being subsequently engaged for the same building project for the same purpose by the same client
Architectural Work means any building or structure or any model of a building or structure; (Copyright Act)
Artistic Work includes paintings, drawings, maps, charts, plans, photographs, engravings, sculptures, works of artistic craftsmanship, architectural works, and compilations of artistic works; (Copyright Act)
Work for the purpose of this Regulatory Notice, work means “artistic work” and “architectural work” as defined by the Copyright Act, any instrument of service provided by an architect including design and other documents
Design means a plan, sketch, drawing, graphic representation or specification intended to govern the construction, enlargement or alteration of a building or part of a building as defined under the Architects Act
Architects Act Regulation 27 under the Architects Act; OAA Standard Form of Contract 600, “The Canadian Law of Architecture and Engineering” second edition, by McLachlin, Wallace and Grant – published by Butterworths Copyright Act