In our newsletters of November 2003 and January 2006, we discussed the case of Del Ridge Construction Inc. v. General Accident Assurance Co. of Canada, a 2005 decision of the Ontario Court of Appeal. In that case, the motions judge had determined that an architect could withdraw and replace any certificate it had issued. The Court of Appeal had overturned the decision on procedural grounds, but made no comments on its merits; the reasons for decision on the merits, died along with the decision.
This issue has been dealt with again in Demcon Construction Inc. v. Lee, a 2006 decision of the Ontario Superior Court of Justice.
Issue
The owner and the general parted ways before a contract was completed. They had the usual disputes: extras, percentage completed, deficiencies etc. The general relied on the architect’s certificate as being dispositive of the work that it had actually performed – and for which it should be paid. The owner argued that the certificates were incorrect and therefore the general could not rely upon them.
The judge held that there was nothing in the CCDC contract (probably CCDC 2) disallowing either party from contesting the validity or accuracy of a certificate. Accordingly, the judge held that a certificate is not conclusive as to the value or the percentage of work completed at any particular time during construction. Rather, the certificate was merely another matter of evidence for the judge’s consideration in resolving the financial issues.
Ultimately, the judge determined a value that was different from the certificate upon which the general relied.
Conclusion
Based on the Lee and Del Ridge decisions, we feel that the courts will not view an architect’s certificate as sacrosanct unless there is something in the contract that explicitly makes it so.