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Legal Notes: BIM and the high evidentiary bar for proving errors and omissions

John Bleasby
Legal Notes: BIM and the high evidentiary bar  for proving errors and omissions

Stakes are high when projects are delayed. When allegations are made against an architect for design errors or omissions, the evidentiary bar is set understandably high.

Plus Development Group (Plus) alleged the actions of architect Onespace had caused a 100-day delay and costs totalling $760,000. Plus cited delays that included missing gas lines, incorrect windowsill details, inadequate personnel and poor work review.

The problem was that Plus failed to produce documents or drawings that clearly linked the delays to Onespace. As a result, the Ontario Superior Court of Justice rejected Plus’s claims.

“Plus has failed to clearly define alleged design errors and omissions, including identifying the specific drawings that are said to contain them, and has further failed to tender cogent evidence supporting a finding that Onespace was responsible for these items,” wrote Associate Justice Todd Robinson. “In addition, Plus has also failed to correlate the alleged errors and omissions to the claimed delays.”

Associate Justice Robinson also noted Plus relied on unsubstantiated estimates made by an individual from the owner/developer’s side that failed to demonstrate any impact on the overall project duration.

As Mahmoud Abuwasel, managing partner of international law firm Wasel & Wasel writes, “Without pinpointing the exact source of the errors, it becomes a herculean task to prove the alleged delays.”

So how can a claimant put together convincing evidence concerning alleged errors and omissions by an architect or design team?

“The process begins with a thorough review of the project’s baseline schedule and the as-built schedule,” writes Abuwasel.

This would provide a contrast between what was planned and what actually occurred. Errors could be identified, quantified in time and financial loss, and then determined if and how they may have interfered with other portions of the building sequence.

Creating a detailed review of this nature is easier said than done, as outlined in a previous column in the Daily Commercial News.

“What tends to result is a laborious, costly and time-consuming task for employers, contractors, counsel and arbitrators alike,” Mark Berry, partner with global law firm Norton Rose Fulbright LLP, and senior associate Ahmed Bobat write.

That’s where the various technologies that fall under the description of Building Information Modeling (BIM) can be very valuable.

“In simple terms, BIM is a process, or a way of working, which involves multiple stakeholders collaborating whilst using intelligent 3D models,” Berry and Bobat write.

“Although BIM technology is not inexpensive, the tool has the ability to significantly decrease the cost of more traditional methods of collecting, reviewing and presenting the project record through dispute resolution processes,” Jason Annibale, partner with McMillan LLP, told the Daily Commercial News.

Annibale spoke of how, as a construction law specialist visiting a project underway near Toronto, he was impressed by BIM’s cutting-edge ability to assemble, integrate and present the essential elements of the project record relating to design, construction, schedule and cost.

“BIM’s benefits to ensuring an efficient, orderly construction process are immediately obvious.  As a construction dispute resolution lawyer, BIM’s benefit to the settlement of disputes is equally obvious. BIM brings clarity to the complex world of delay and deficiency claims. The tool can be used to effectively evidence and present whether claimed delays actually impact the project’s critical path, the costs relating to such delays, and the record of design and construction.”

Abuwasel concludes the Onespace vs. Plus case, “serves as a stark reminder of the rigorous evidentiary standards required to successfully claim project delays. It emphasizes the importance of clear documentation, precise identification of errors, and the provision of cogent evidence to support claims of project delays in the complex landscape of construction disputes.”

As construction quickly embraces various 3D and 4D technologies and incorporates them into evermore more complex projects, it also points the way for BIM to do more than just assist planning and execution but also to serve as a vital tool to resolve disputes and keep the project moving forward.

John Bleasby is a Coldwater, Ont.-based freelance writer. Send comments and Legal Notes column ideas to editor@dailycommercialnews.com.

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