Pros watch in silence as DIY couple’s hands-on build leads to a costly disaster.

In a lakeside home where client-induced chaos breeds leaky walls, poor construction drowns dreams. Can an architect be liable for staying silent, when not engaged to supervise and coordinate construction?

Find out why inaction can cause problems, how putting things in writing shields you, and why clear professional boundaries help to avoid lawsuits. 

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Thank you for listening.

Chapters

• 0:00 Cold Open
• 0:21 Introduction
• 1:02 Story Begins
• 19:39 Lessons
• 21:17 Credits And Thanks

Transcript

A successful Dentist and her wife, an Interior Designer, decided to build themselves a grand house on a lakeside property in Haliburton County. The couple, Dr. Joanna Castella and Emilia Turret, both agreed that they wanted something in an early twentieth-century Modernist style—clean and simple, not the common cottage kitsch that seemed to be standard fare. Their plan was to find an Architect with the proper credentials to design the home and prepare construction drawings. Then, to ensure that everything was done according to their demanding tastes, they would take over the project: select materials, hire the construction trades, secure a building permit and oversee construction.

If architectural discipline was what they were hoping for, they missed it by a mile. Instead of simplicity, they got confusion. Instead of form-follows-function, they got form-follows-fiasco. And while all this was going on, professionals stood by and watched the tragedy unfold. We call this story “INACTION SPEAKS LOUDER THAN WORDS.”

Emilia, the Interior Designer, had worked with an Architect that she felt would be an ideal choice for designing the home and preparing construction documents—with their input, of course—and the Architect ElmerGoyette was delighted to accept the commission. He had a great affinity for the Modernist movement and had even won an award for a Bauhaus-influenced residence in Toronto.

Together the three professionals—Architect, Dentist and Interior Designer—pored over photographs that the two Clients had taken on European cultural tours; they scoured websites for materials and fittings; and they discussed the planning of the site and the building. It was going to be a delicate process, creating the feeling of an early twentieth century building with early twenty-first century materials and construction methods. But with care to detail, Goyette was confident that it would be successful.

It worried him, more than a little, that the Clients wanted to build the home themselves. Emilia, as an Interior Designer, knew how to read drawings and had worked on many new home construction projects, but did she have the right experience to direct a work crew from the ground up? And Joanna was a successful businesswoman, but would her organizational and administrative skills as a dentist translate to the rough-and-tumble of a construction site? The two seemed to think so. As long as Goyette provided decent construction documents, there should be no problem.

Goyette’s drawings were better than decent. They were thorough . . . and they were as clean and simple as the building itself. If properly followed, they would produce an exceptional building—possibly another award-winner. He was proud to hand the set of documents to his Clients and to wish them well on this exciting venture.

Joanna and Emilia thanked Goyette, paid him for his services and immediately undertook the task of managing the project: applying for permits, employing trade contractors directly, ordering materials, etc. From that point on, the project was plagued with problems.

The first problem cropped up when Emilia called for bids. To maintain the clean look of a Modernist structure, while still being able to deal with moisture penetration, Goyette had called for an EIFS drained exterior wall system with a “geometrically defined drainage cavity”. But the lowest—and therefore the winning—bid had substituted a non-drained “face sealed” system. The Carpentry Contractor assured her that this less expensive system would keep the weather out, just as well as the more expensive system . . . and it produced exactly the same Modernist appearance as the drained system. 

As an aside: Architects in Ontario are now aware that this assertion—that a non-drained system is as serviceable as a drained system—is simply not true. And if any doubt remains, they should refer to Pro-Demnity guidance in our Technical Requirements Schedule regarding water ingress coverage.The Ontario Building Code now requires a “geometrically defined drainage cavity” where EIFS is used in a Part 9 building.

Construction proceeded without any serious setbacks. Once the foundation had been laid, the Carpentry Contractor stepped in to coordinate the work, as best he could, including the installation of the EIFS system. But as construction progressed, coordination was the thing that was most conspicuously lacking. The disorderly and out-of-sequence manner in which workers and materials appeared onsite—all according to Emilia’s instructions—made coordination virtually impossible.

Windows didn’t arrive onsite until after the EIFS panels had been installed. Then, the windows were fitted into the openings before the flashings had arrived. When the flashings turned up, an attempt was made to install them around the windows. But the windows had been poorly fitted to begin with, and the envelope was already closed up, so really, there was little hope of ever being able to keep water out.

It wasn’t long after the new home was completed, that Emilia and Joanna moved in, believing that any minor moisture penetration observed during construction had been taken care of, that it started to leak in earnest. In fact, during the very first summer shower—a light sprinkling, according to weather reports—water started pouring down the walls and collecting on the floors. The source of the problem was a mystery to them, but rather than calling their original Architect, they hired a well-known local engineer, to prepare a forensic report, to find the source of the water infiltration and recommend solutions.

As a result of this report, they were forced to reconstruct the exterior walls from top to bottom, at a cost of $250,000, largely paid to another contractor following the Engineer’s advice.

Goyette had gotten a copy of the Engineer’s report and agreed with it totally. The report placed the blame on atrocious construction. There was nothing in it that reflected badly on his work. 

But, Joanna and Emilia blamed the Architect for their problems. They were generally pleased with the design, and they had followed his drawings—and his details—to the letter, but the leaky walls showed that his detailing must have been deficient in some major way. Furthermore, although Goyette had not reviewed the work, he had visited the site, on occasion, and was aware of what was going on but had said nothing. 

The homeowners filed a claim against Goyette in the amount of $300,000, to cover the cost of the reconstruction, plus another $50,000 for replacement of the ruined wood flooring and carpets.

The Pro-Demnity Claims Specialist and counsel, discussed Goyette’s position. We appeared to have a perfect case. The Architect had done what he’d been hired to do, flawlessly. The drawings were extremely good and the details were of the highest quality. The fact that his Clients had not followed them, and had made a mess of the construction, provided us with a perfect defence—at least on the face of it. The poor and disordered construction by the Carpentry Contractor and the Window Installers was performed under Emilia’s directions, wrong though they were, and not the Architect’s.

Mediation briefs were exchanged. Nothing new was pleaded. We all knew where we stood, and so, the process lumbered towards mediation. 

Mediation took place in a rented meeting room in downtown Toronto. The mediator, Jonathan Corbel, was someone we knew to be a strong and reasonable negotiator, with an impressive record of success. In this case, however, we didn’t see that he had much of a challenge. All the technical evidence was stacked against the plaintiffs, who appeared to have no credible arguments. With more bravado than wisdom, they had taken an excellent set of construction documents and used them to guide the actual construction into chaos.

But something didn’t make sense to us: Plaintiffs’ counsel was a good lawyer and the Clients were very intelligent people. They appeared to feel confident about winning this hopeless case. What was the confidence based on?

Mediator Corbel began the proceedings in the traditional way, by letting each party briefly present their case.

Dr. Castella, who seemed quite relaxed, introduced herself and suggested that perhaps Emilia, the professional designer, could explain their case best. But Emilia was visibly upset—almost on the verge of tears—and it looked as though she might have some difficulty addressing the mediator.

With a little encouragement from her counsel, Emilia calmed herself and presented her side of the story. She had trusted the Architect, she had trusted the Carpenter, she had trusted the Window Contractor, and she had trusted the EIFS installer. She had opted for the cheaper wall system because she was assured that it was as good as the more expensive system that the Architect had specified. All of the “experienced professionals” connected with the job—Architect and constructors—were aware of the decision, but said nothing.

Furthermore, these same professionals had observed the construction process—the poor window installation, the ineffective flashing, and the general confusion, if that’s what it was—and still, they said nothing.

At this point, it looked like Emilia was beginning to fight back tears again, so the mediator suggested that we take a break and reconvene in an hour. The plaintiffs headed for a nearby coffee shop, and the defendants huddled together at one end of the meeting table.

The Architect ElmerGoyette was shaking his head. He was most displeased with the way things had unfolded. He had produced an exceptional design that had even attracted some critical acclaim. His drawings were very thorough and, if followed, would have produced a great building. Instead, his Clients had created a leaky mess, with only themselves to blame. Why were we here at all?

We couldn’t disagree with this assessment, but there was a more basic question to be answered. Had the defendants really done the right thing? Why, for example, had the Carpenter not tried to organize the site a little better? Why had the Window Installer not refused to install the windows without flashings when it would have been obvious to them that the wall would fail? Goyette claimed to have warned his Clients about the EIFS substitution, but why had he not put his reservations in writing?

We were beginning to get an unsettling feeling about this case.

Goyette had observed the walls being completed and windows being fitted to their openings, before the flashings had arrived on the job. He must have seen that this backwards process, combined with the poor workmanship, meant that the wall had little chance of keeping water out. He was also aware that the drained EIFS system shown on his drawings had been replaced by a “face sealed” system, which, lacking drainage, would have the effect of sealing moisture inside the building, instead of outside. But he did nothing to intervene.

At the same time, the Carpentry Contractor Pont-Levée had also watched this botched exercise going on and had said nothing. According to his account, he had pointed out things that were wrong, but had taken no steps to correct them. As far as he was concerned, the exterior cladding was under a separate contract, and didn’t involve him. Besides, he was owed $20,000 and had filed a lien on the property.

Bartizon, the Window Supplier had installed good windows. He knew that flashings should have gone in before the windows, but the owners were in a rush and had told him to not create a delay. 

The EIFS installers, hired by the Carpentry Contractor, had disappeared shortly after receiving payment, so whether their work was good bad or indifferent, they could not be held to account.

We thought we might be witnessing a sinister plot, where the professionals had taken some delight in standing around and watching the two would-be project managers bungle the job, one misstep at a time, without ever stepping in. The Germans, of course, have a single word to describe this complex perversion: schadenfreude—defined as “the pleasure and self-satisfaction derived from witnessing the suffering and humiliation of others.” So, in this case, while the plaintiffs behaved foolishly, the much wiser professionals simply looked on and enjoyed the spectacle. In what way did this represent commendable professional behaviour?

Based on the facts of the case, our defence was rock solid, but this perspective on events cast the defendants in an unflattering and possibly culpable light. We had already witnessed Emilia’s emotional testimony. If the defendants were shown to have contributed to this sorry state through deliberate inaction, sympathies were likely to go in favour of the plaintiff, and one way or another, it would be found that a duty was owed.

We began to form the opinion that we might save time, money and further grief by agreeing to settle the matter promptly. But it was clear that Dr. Joanna Castella could not back down. Emilia would be devastated and a serious family crisis would result.

Still, was it not worth making some gesture?

The Architect’s defence requested to meet with Corbel separately, while the other defendants waited in the mediation room and the plaintiffs retired to an adjacent room. We knew that, on our worst day, a court would give 50% of the damages back to the Plaintiffs. And although they were, in every sense, “architects of their own misfortune,” the actual Architects, along with the others, were guilty of standing by and letting it all happen.

On this basis, we proposed to offer $150,000 to be split amongst the three defendants—Architect, Contractor and Window Supplier—$50,000 each. Our legal bills would be three times that amount if the case went to trial.

Corbel agreed and, after several hours of very diplomatic browbeating, he got commitments from the other two defendants.

Joanna and Emilia considered the offer in the private meeting room and agreed without haggling. Dr. Castella’s relief that it was all over was evident. She and Emilia had gotten a little money, a protracted legal experience had been largely avoided, and family harmony was on the way to being restored.

On reflection: The Architect had done an admirable job doing what he was hired to do—but a far-from-admirable job at the things he was not hired to do. To start with, why hadn’t he offered an opinion, in writing, concerning the wisdom of an interior designer taking on critical tasks in which she had no experience? Building envelope, coordination of hard-construction trades, excavation, concrete framing and many of the other rough-construction activities are not typically the concerns of an interior designer. In this story, there are lessons to be learned by all participants: Architect, trades and Clients.

Lesson No. 1: This case was typical of many residential projects where the Client wishes to act as the Builder. Architects may be better served by doing everything in their power to discourage them from doing this. General Contractors earn their money. A good general contractor is a good investment.

Lesson No. 2: If it becomes clear that you, as Architect, will not be required to review a project, and especially if you believe that no competent construction manager will be involved, chaos may be inevitable. Write a clear resignation letter.

Lesson No. 3: if you are not “on the job,” do not go near the job. Occasional visits and helpful remarks may be taken as indications of acceptance of the work, and may establish some liability. There’s an old adage that people tend to value advice at what they have paid for it, which is to say that free advice is worthless. But this can get turned on its head in an insurance claim, where a plaintiff alleges that free advice—or even implied advice—is actually worth an enormous sum, to be paid, not to the person who has offered it, but to the person who claims to have been harmed by following it.