Are Architects at risk when hiring a contractor for construction services on the client’s behalf?

It is not unheard of for clients to request a holder to directly engage a contractor, on the client’s behalf, for minor construction services, usually with the intent to simplify the client’s procurement or contract administration processes. Therefore, it is important to understand the risks and conflicts of interest that may arise in these situations—even for simple work, such as minor demolition and patching during an existing building audit or assessment.

Be wary of:

• RFPs that carry a testing and inspection allowance under a Certificate of Practice holder’s contract with the client;
• hiring a tradesperson to provide a mockup that may be incorporated into the completed construction; and
• hiring a contractor to lift acoustic ceiling tiles in an occupied space for your investigation of existing conditions.

When considering such client requests, even when an allowance may cover the costs of the contractor’s services, holders should acknowledge that conflicts of interest and added risks, stemming from regulatory requirements, are inherent as discussed below.

Architects Act: Understand Regulatory Considerations

The Architects Act requires members and holders, as regulated professionals, to avoid conflicts of interest. Conflicts of interest may lead to charges of professional misconduct.

Consider that a conflict of interest exists where the holder has a financial or other interest in, and is engaged to provide, both architectural and construction services on a project. To be impartial in such circumstances can be extremely difficult.

The holder’s duties often include responsibility for certifying the value of work completed and advising the owner on the quality of the work performed. It creates a potential conflict of interest to provide architectural and construction services on the same project. Whether or not the conflict can be addressed by disclosure depends on the specifics of the situation and which clause(s) in the Act apply.

OHSA: Are You Now the Constructor?

At law, there may be risks for practices who hire contractors to provide construction services to their client’s projects. The Ontario Occupational Health and Safety Act (OHSA) uses the term “constructor” to refer to the person who has control of the site. Traditional thinking has been that the contractor is solely responsible for site safety, but this ignores the recent Supreme Court of Canada ruling in R. v. Greater Sudbury (City), the profession’s duty of care to the public, and architects’ status as professionals.

One simply cannot turn a blind eye to safety hazards or violations just because the contractor is in overall charge of site safety. Hazards, and violations should be reported to the “responsible person” as soon as practicable. If you hire a contractor to perform construction services when there is no other contractor on site, you may be considered to be that “responsible person.” Even when there are other contractors on site, as an employer (as defined by OHSA), you have a role in site safety.

Liability Insurance: Impact on Coverage?

Conflicts of interest may provide an enduring risk regarding future claims from other parties related to the project (such as contractors, consultants, owner, occupants, and the public). The introduction of Pro‑Demnity’s “Excluded Services Endorsement” clarifies that, since January 2022, the Delivery of Construction Services is not “usual and customary” for a holder, unlike Construction Phase Architectural Services. Subsequently, the Delivery of Construction Services falls outside the coverage that the mandatory Professional Liability Insurance Program is intended to provide to Ontario architects.

For more about this topic, contact Pro-Demnity’s Risk Services with any risk management or underwriting questions.

Suggested Procedure

1. Maintain a distinction between construction services and professional services and don’t include construction services as part of your practice’s offerings.

2. Communicate to clients about the nature and coverage of your insurance, the risk to your licence and certificate of practice, and your value to the client as an impartial professional.

3. Avoid inappropriate transfer of risk and align your services to the wording of the OAA’s standard contracts for architectural services (i.e. “assist” the client in the engagement of contractors to obtain site information required by the services contract, rather than providing it).

Additional Reading

Ontario Occupational Health and Safety Act

Architects Act, Regulation 27 – Section 42 & 43

Pro-Demnity on “Claims made” Insurance”

Pro-Demnity’s Excluded Services Endorsement

Pro-Demnity’s “Wear Only Your Architect’s Hat to Keep Your Coverage Intact” article

Practice Tip PT.26, Provision of Architectural Services and Construction Services – Conflict of Interest Guideline

FAQ.05 “OHSA - When is an Owner a Constructor?”

FAQ.35 Responsibility for Site Safety

This article originally appeared in the Practice Advisory—the OAA’s bimonthly e-newsletter developed by the OAA’s Practice Advisory Services team, comprising architects and other staff, which offers numerous resources for both member and the public. The OAA does not provide legal, insurance, or accounting advice. Readers are advised to consult their own such representatives to obtain suitable professional advice in those regards.