The Hierarchy of Obligations in Construction and Design Disputes
By Gerald R. (Jerry) Genge, B.A.Sc., LL.M., P.Eng., BDS, BSS, C.Arb. Q.Med.
Expert opinion evidence can add clarity but may also confuse decision-makers. Expert witnesses should consider the hierarchy of obligations of the parties, such that their opinion achieves a more stable foundation that is clearer to the decision-maker. This can avoid the proverbial “battle-of-the-experts” scenario so often found to block settlements, slow entry of evidence, and add unnecessary costs to claims.
The basis for all construction, professional negligence, and related claims and counterclaims is that a party suffered in some way because someone did something they were not supposed to do or did not do something they were supposed to do. The basis of the obligation to do or not do something is critical to the dispute and the importance of the relevant obligations can be lost in a mountain of conflicting expert evidence if not properly managed.
The obligations flow from a priority hierarchy. If an expert witness is asked to opine on a party’s compliance with that party’s obligations or duties, they would be wise to employ this hierarchy in their analysis. It creates a foundation for the opinion that they wish to have accepted. A summary of the hierarchy of obligations is set out in this article.
Compliance with Applicable Statutes
Applicable statutes include, for example, the Building Code Act,[i] the Professional Engineers Act,[ii] and the Architect’s Act,[iii] all of which set out duties of those involved in design and construction. These provide the applicable law, which takes first place in the priority hierarchy.
Compliance with Applicable Regulations
A regulation made under applicable statutes, such as the Building Code,[iv] is “senior” to any contract or specification and thus firmer ground on which to base an expert opinion. Regulations contained in the Professional Engineer’s Act[v]or Architect’s Act[vi] on minimum professional practice requirements may also apply.
Compliance with Contracts Enforceable by the Parties
Parties cannot contract out of the applicable statutes or regulations; hence the statutes and regulations have a higher standing in the hierarchy of obligations than the construction contracts, professional service agreements, and all approved changes to those agreements made between the contracting parties.
Compliance with Written Specifications Referenced in the Contract for Work
Specifications describe the materials and methods to be used in the work. These are normally organized in a standard format and recognized by the contracting parties. Non-compliance with a specification may not amount to non-compliance with a contract if the specification is not consistent with the requirements of the applicable law.
Compliance with Drawings and Details in Graphic Form Referenced in the Contract for Work
While specifications describe materials and methods, drawings show how things go together to meet the intent of the design. Drawings of insufficient detail which do not clearly illustrate the design intent could be a basis for a claim. The contract will often establish a priority for interpreting drawings and specifications. If not specified in the contract, specifications supersede drawings.
Compliance with Consensus Standards
Consensus standards[vii] may be prepared by industry bodies such as ULC, ASTM, and CSA, among others. These represent the current practice in the construction industry. If a standard is referenced by the applicable regulation, its hierarchy is elevated to the level of that regulation. If a standard is not referenced by the regulation, the standard may be considered as minimum current practice, but not the only practice that could be followed.
Conforming to Independently Published and Readily-Available Practice Guides
Practice guides represent current industry practice and are often authored by an industry group, with or without independent peer review. If a guide is referenced by the applicable construction regulation, its hierarchy is elevated to the level of the regulation. If a guide is not referenced by the regulation or is referenced only in an appendix to the regulation, the guide is not mandatory.
Professional Opinion or Choice
Professional opinion is typically based on education and experience. Those qualifications may make an expert desirable as a witness; however, if the opinion is based on extraordinary knowledge beyond that of a reasonable practitioner, advanced techniques for construction processes not required in the contract, or theoretical absolutes that fail to consider the financial and physical practicalities of design and construction, the usefulness to the court of the expert opinion could be undermined.
Expert opinion witnesses must consider if their opinion is superseded by a specification, contract, regulation, or statutory requirement. The best-supported expert opinion evidence shows compliance or non-compliance with the higher levels in the hierarchy of obligations.
In conclusion, ADR professionals would be wise to consider the foundation for evidence presented as a basis for claims or defences and guide their expert witnesses to consider the priority hierarchy. Indeed, their opinion evidence on obligations may be of lesser importance to a determination of liability than obligations assumed by the party that flow from a priority hierarchy.
[i] (currently in Ontario) Building Code Act, 1992, S.O. 1992, Chapter 23.
[ii] (currently in Ontario) Professional Engineers Act, R.S.O. 1990 c. P.28
[iii] (currently in Ontario) Architects Act, R.S.O. 1990, c. A26.
[iv] (currently in Ontario) Building Code Ontario Regulation 332/12 amended to 451/22.
[v] Engineers’ professional misconduct is regulated by O.Reg. 941/09 and Performance Standards are regulated under Ontario Regulation 260/08.
[vi] Architects’ professional misconduct is regulated by R.R.O. 1990, Reg. 27.
[vii] Consensus standards are prepared by committees of technical experts following a standard format and rules of preparation. Committees are configured from a cross-section of industry representatives who vote on the standard content. The draft standards are open to public review and comment.
Gerald R. (Jerry) Genge, B.A.Sc., LL.M., P.Eng., BDS, BSS, C.Arb. Q.Med. is the Principal of Genge Construction Adjudications, has a certificate in Advanced Adjudication for Administrative Agencies, Boards and Tribunals, is a Qualified Mediator and a Chartered Arbitrator with ADRIC, a Mediator and Adjudicator with the Condominium Authority Tribunal in Ontario, and a qualified ODACC Adjudicator. He is a strong proponent of cost-effective, low-anxiety, and speed resolution of claims through mediation and arbitration.