When “Following Orders” Conflicts with the Architect's Duty of Care

In a mid-rise office project, an architect’s risky plan to start construction on a 10-storey building based on a permit for 5-storeys, grinds to a halt when the building inspector issues a stop work order. Can the architect be liable for these costly delays due to miscommunication?

Learn why missing records can sink you, how translators keep you safe, and why risky actions are best avoided. 

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Chapters

• 0:00 Cold Open
• 0:19 Podcast Introduction
• 1:00 Episode Introduction
• 1:32 Share This Podcast With Your Colleagues
• 2:00 Story Begins
• 16:02 Lessons
• 18:07 Credits And Thanks

Transcript

Despite his slight stature, General Brancuso cut an imposing figure, with military bearing, austere expression, and a deep voice that carried an expectation of obedience. Unfortunately, he spoke very poor English. So for a Toronto Architect to obey the General’s instructions—or to imagine that the General understood the Architect’s ideas—could only lead to problems, which is what happened in this story, which we call: “LOST IN TRANSLATION.” 

During his years in the Peruvianmilitary, the General had accumulated a tidy sum of money from his salary—and various other benefits—which he had safely sheltered in offshore accounts, beyond the reach of Peruvian tax authorities. On his retirement, in failing health, he decided that he needed to leave something tangible for his family, and the Canadian real estate boom appeared to offer just the right opportunity. So, he and his wife Rosalita flew to Toronto in 2015, to check out the market, for themselves.

The General and Rosalita were greeted at the airport by a Toronto real estate agent, who was an expatriate of the home country and had been referred to them by a trusted friend. With this agent’s assistance the General looked at a number of building sites in the Toronto area. One site in particular attracted his attention. It had excellent exposure, on a prominent street corner and was currently underdeveloped, being occupied by a shop-worn two-storey commercial building. The agent had pointed out that the site was zoned for five-storey retail–commercial, but according to inside information from city hall, a ten-storey building would be favourably considered.

This was music to the General’s ears. He transferred the funds to a Toronto bank and purchased the property without delay.

The next task was to find an Architect who could carry out his instructions precisely, quickly and obediently. The real estate agent knew just the person. Carmen Verranda was a second-generation Canadian of south American parentage who would certainly be able to fulfill General Brancuso’s expectations. Even better, Verranda had an established practice with a track record of successful medium– and high-rise commercial buildings.

There was one drawback. The General spoke tersely and clearly, but only in Spanish. His English comprehension was very poor. Verranda, on the other hand spoke English as her first language, with only a rudimentary grasp of the language of her parents. She found it especially hard to understand the General’s Peruvian vernacular. Still, based on a shared heritage and a common will, there should be no problem following the General’s instructions and satisfying his demands—on-time and on-budget.

Thus assured, the General briefed his Architect, with “brief” being the operative word: He wanted a ten-storey commercial building with ground-floor retail, on a budget of $20,000,000 and an eighteen-month delivery time. Verranda agreed to the terms. And so, pleased with the arrangements, he and Rosalita returned to Peru.

The process was going to be a little more complicated than the General had imagined. Before the building department would even look at an application to construct a ten-storey building on the site, Committee of Adjustment approval was required. That meant that there would be months and months of hearings and committee meetings—arguments and counterarguments—before planning permission was granted and drawings could be submitted for building approval—to be followed by the normal snail’s-pace of the building permit process.

This virtually guaranteed that the General’s deadline would never be met. So, Verranda made a bold strategic decision. She would submit one application to the building department for a five-storey structure, and another to the Committee of Adjustment for a ten-storey structure on the same site, at the same time. The two approval processes would run concurrently rather than in tandem, and much time would be saved. The building design was no problem; it easily lent itself to the additional stories, and The Engineer had been instructed to provide the appropriate foundations, structure, mechanical and elevator capacity, etc.

Construction could start as soon as the building permit was issued . . . and when the variance was granted by the planning department, as it surely would be, the building permit application would be amended, and the next five floors would be added. Construction would proceed without a hitch . . . or at worst, maybe a small hitch.

Verranda discussed the matter with the General on a ZOOM call. He picked up on her enthusiasm for the “fast-tracking” proposal, without necessarily understanding all the details. With his apparent approval, Verranda crashed ahead with the work. 

The straightforward nature of the project meant that little Client–Architect communication was needed, and the Architect’s fluency in office building design guaranteed that there were, in fact, no hitches . . .

. . . at least not until the construction was about half-completed, at which point two unfortunate events stopped the project in its tracks.

The first event was as follows: The Contractor had started work on the potential 10-storey building with the five-storey building permit in hand. But it was becoming clear to the building inspectors that something fishy was going on: The structure had reached the five-storey level, but instead of being terminated with a roof, construction was continuing skyward. This was not the building described in the permit documents.

A Stop Work Order closed the job down.

Predictably, it took many months before the 10-storey permit was granted and the work could start up again. Based on this expensive inconvenience, which the Contractor must surely have anticipated from the start, he issued a substantial Delay Claim, which General Brancuso reluctantly paid in order to avoid any further delay.

The second event unfolded thereafter: Possibly triggered by the construction problems, General Brancuso’s health began to rapidly deteriorate. A few weeks after the project restarted, the General passed away. Control of the project transferred to the widow Rosalita.

Any thoughts that Rosalita would fade into the background and allow the project to proceed unimpeded were quickly dashed when she filed a claim against the Architect for $2.5 million, alleging that Verranda had misled her husband by proceeding to build a five-storey building when the instructions were to build a ten-storey building—and any deviation from this simple instruction had not been authorized.

When Carmen Verranda presented the claim to Pro-Demnity, she was perplexed, as well as insulted. Everything had been explained to General Brancuso, in plain English, and he had never disagreed with any of it.

The Claims Specialist questioned the Architect on various aspects of her interaction with General Brancuso and examined her file material. There were piles of design sketches, demonstrating a concerted effort to arrive at a design that possessed a distinctive “downtown corner silhouette” and reflected the Owner’s Peruvian culture. But there was virtually nothing written down that would signify any agreement on any aspect of the job.

It was beginning to look like we might have a problem.

Once Discoveries began, other areas of concern began to emerge. The few key documents and letters—those that might establish that the Client understood what was going on—were all in English. None of the Zoom conversations—conducted in English, Spanish and broken “Spanglish”—had been recorded. The widow’s claim pointed out that the General’s command of English was extremely poor and that he had relied upon the Architect for translation. He may have understood the topic of conversation, but he never had any idea what he was agreeing to.

Things began to unravel even more when we learned that Verranda had waited months before applying to the Committee of Adjustment for the variance. She claimed to have made several trips to the planning department, and had encountered roadblocks and delays, resulting in great difficulty getting the matter on the planning agenda. This account of events seemed credible enough, but the Architect did not keep a diary or written records of any kind to establish that these visits had ever occurred. The planning department, which maintained careful records, could produce no evidence of such visits, and no one in the department could even recall Verranda having been there.

With problems piling up, Pro-Demnity had only two viable defence positions.

First, we could establish that the application and permit process was not, as alleged, flawed in concept. We had experts, including a senior building official, who would testify that, in the context of the workload in the departments, the parallel application approach was sound and not unique.

Second, since the Contractor had known about the five-storey permit and the 10-storey intention, right from the beginning, they had also taken a risk and should share in the blame.

We also believed, but couldn’t prove, that the Architect had tried many times to start the ball rolling on the variance application, and had been repeatedly rebuffed by overworked officials.

Before the discovery session, we had only seen online images of the widow. In real life, strolling into the discovery room, she made a striking impression on everyone. She was a good 30 years younger than her late husband and impeccably attired. On the stand, she was an impressively effective witness, projecting an intriguing mix of vulnerability and shrewdness: a widow badly treated, but capable of taking care of business. In broken but understandable English, she testified that she had been present at all meetings with the Architect and had, like her late husband, totally relied on her. The Architect had let them both down and cruelly betrayed their trust.

It also came to light that the widow Brancuso had been her late husband’s secretary and was very knowledgeable about the project. Every piece of evidence she needed was at her fingertips. . . . But when any matter arose that related to the “obligation of the owner,” her English failed her. She knew nothing about such things, except that she had trusted the Architect.

She was invincible.

Verranda was not in the same league. She was sincere but muddled and forgetful—the sort of talented Architect whose design concerns seem to wash away any instincts of self-protection.

As evidence of her professional diligence, she was able to produce dozens of design alternates, plan ideas, related notes and correspondence that led up to the final design. But once the design was approved, the file underwent slow starvation, fed only on rare occasions by the odd item. As to the charge that her failure to take prompt action had caused the expensive delay, Verranda could produce no credible evidence to indicate otherwise.

She testified that the Stop Work Order had come as a complete surprise to her, although, in our view, it was clearly inevitable. If she had kept a closer watch on the project, she could have warned the General and allowed him to protect himself in some fashion.

The Contractor’s subsequent Delay Claim was another surprise to her. The Contractor had known in advance that a delay might occur and that by adding a gigantic claim, matters would only get worse. But the General had signed and paid it anyway, and it was this additional expense that made up a large part of the Plaintiff’s claim.

Pro-Demnity counsel approached the Plaintiff’s lawyer to see if a trial could be averted. The Defendant’s financial situation was tenuous: The claim far exceeded her insurance limits, and she had few liquid assets. Pro-Demnity proposed a settlement that was about half of Rosalita’s claim amount.

The widow was shrewd enough to see that prolonged litigation would be costly and might not result in a figure that was any better. So, she agreed to settle within Verranda’s insurance limits. It was arguably more than the Architect would have paid if she’d kept written records to support her side of the story, but less than the plaintiff had wanted, and a court might have awarded.

Still, it all turned out well for Rosalita. She is back in South America, re-married, so we are told, to another high-ranking military officer. 

The Architect Verranda took it all very hard. It was an expensive education for her, and hopefully, the lessons will not be wasted on the rest of us.

Lesson No. 1: Keep records. Always. Diarize every day what you have done, with whom you have met and what has been resolved.

Lesson No. 2: Where languages other than English play a pivotal role in Architect–Client relations, or in any contractual matter, including virtually all business correspondence, meeting minutes etc., use a language formally agreed to, and engage a competent translator, as needed.

Lesson No. 3: Make sure your Client understands the entire permit application process, especially if they are not familiar with local customs and procedures. Making an unorthodox decision—such as sidestepping a legally required process, and gambling that the matter will be resolved before things explode—is a risky strategy that is not advised. It becomes even riskier when there is no documented evidence that your client has understood the plan—and its possible consequences—and has agreed with it.

Lesson No. 4: The General and Mrs. Brancuso seemed to think that their Architect would simply follow orders, like any good soldier. They were unaware that Architects are professionals, with a protected scope of practice. It’s imperative that Architects listen to their Clients and understand their requirements and aspirations for a project, but an Architect’s “duty of care” also includes explaining their skills and knowledge, as well as their role in the design and construction process. Misunderstandings can lead to mistrust—with financial consequences.