The awarding of contracts for major work, repair of garage slabs, replacement of roofs, structural work or interventions on the building envelope, constitutes a pivotal moment in the life of a co-ownership. The sums at stake are significant, expectations are high and the legal risks are very real. In this context, the architect plays a fundamental role in the analysis of tenders. However, the case law consistently reminds us that this analysis, however rigorous it may be from a technical standpoint, cannot replace the role of legal counsel, which falls to the lawyer. Two major decisions make this distinction particularly enlightening.
In the case of EBC inc. c. Ville de Matane, 2014 QCCS 5067, confirmed on appeal by Ville de Matane c. Ville de Matane c. Jean Dallaire, architectes, 2016 QCCA 1912, confirmée en appel par the courts were called upon to rule on the liability of an architect who had analyzed tenders in the context of a public call for tenders.
The Superior Court, and subsequently the Court of Appeal, recalled a fundamental principle: the architect is bound by an obligation of means and not of result. His mandate consists in assessing the compliance of tenders from a technical point of view, in making professional recommendations and in pointing out any relevant reservations. However, he is not the legal advisor of the project owner.
The Court of Appeal recalled, without ambiguity, the statement of the trial judge:
“The architect is competent in his field, that is to say the assessment of compliance from a technical point of view, but he is not the legal advisor to issue an opinion as to the consequences for the City of choosing bidder X instead of Y” (Ville de Matane c. Jean Dallaire, architectes, 2016 QCCA 1912)
Although these decisions were rendered in a municipal context, their teachings fully apply to the world of co-ownership. Syndicates of co-owners are frequently called upon to launch calls for tenders containing demanding clauses: minimum experience, comparable projects, precise execution methods, tight schedules.
When the architect formulates a reservation, for example regarding the actual experience of the contractor or the strict compliance of a tender, the board of directors cannot simply ignore this warning or rely blindly on a purely technical reading.
It is precisely at this stage that the intervention of a lawyer experienced in co-ownership law becomes decisive.
The lawyer’s mission is not to repeat, correct or supplant the technical analysis of tenders, which falls exclusively within the competence of the architect and other building professionals. His intervention is nevertheless part of a distinct but complementary sphere and plays a decisive role in the decision-making process of the syndicate of co-owners.
The lawyer’s role consists first of ensuring a rigorous legal reading of the applicable documents, in particular the clauses of the call for tenders, the declaration of co-ownership, the by-laws of the syndicate and the legislative rules governing the awarding of contracts. This analysis makes it possible to identify the real scope of the syndicate’s obligations, to determine the margins of manoeuvre of the board of directors and to prevent any interpretation likely to weaken the validity of the process.
The lawyer is also called upon to legally qualify the irregularities noted in a tender, distinguishing those that constitute minor irregularities from those that constitute major irregularities. This distinction is essential, since it determines the legality of the acceptance or rejection of an offer and may, in certain cases, require the mandatory exclusion of a non-compliant tender.
His intervention also makes it possible to proactively assess the legal risks associated with the decisions considered by the board of directors, whether these involve risks of contestation by an unsuccessful contractor, recourse by dissenting co-owners, the calling into question of the liability of the syndicate or the nullity of the awarding process.
Finally, the lawyer advises the syndicate on the concrete legal consequences of the choices made, taking into account the specific context of the co-ownership, the financial issues and the obligations of prudence and loyalty incumbent upon the directors. This complementarity between technical analysis and legal analysis constitutes an essential lever for prudent and enlightened governance in co-ownership. The decisions EBC inc. c. Ville de Matane and Ville de Matane c. Jean Dallaire, architectes strongly recall that, when a legal doubt remains, it is the responsibility of the project owner to consult a lawyer, this burden not being transferable to the construction professional.
The case law is also clear on a fundamental point: when the architect expresses a reservation in a clear and documented manner, and the project owner nevertheless decides to proceed, the decision is assumed by the latter in full knowledge of the facts.
In co-ownership, this means that the board of directors must fully exercise its decision-making role, enlightened by the technical opinion of the architect and the legal analysis of the lawyer.
None of these professionals can, on their own, bear the entire risk.
WHAT YOU SHOULD KNOW! The architect who analyzes tenders is bound by an obligation of means. His mandate concerns the technical assessment and the compliance of the offers, not their legal consequences. The courts have clearly established that he does not act as the legal advisor of the syndicate, notably in the cases EBC inc. c. Ville de Matane and Ville de Matane c. Jean Dallaire, architectes.
WHAT TO KEEP IN MIND: In co-ownership, any reservation expressed by the architect or any ambiguity in a call for tenders should lead the board of directors to consult a lawyer experienced in co-ownership law. Legal analysis usefully complements technical evaluation and helps limit the risks of contestation or liability.
WARNING! Relying solely on the architect’s analysis may expose the syndicate to significant financial consequences. The final decision belongs to the syndicate, which assumes responsibility for it. Recourse to a lawyer therefore constitutes an essential protective measure in the decision-making process.
Yves Joli-Coeur, Ad. E.
Lawyer
Dunton Rainville
3055 Boulevard Saint-Martin O
Bureau 610
Laval, QC H7T 0J3
Tél. : (450) 686-8683
Courriel : [email protected]
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