Introduction

Since 2011, the Architectural Institute of British Columbia (the “AIBC”), which is the governing body for architects in the province, has been engaged in a comprehensive bylaw review process.  The AIBC appointed a Bylaw Review Committee (the “BRC”), which is tasked with reviewing bylaws and making recommendations to the AIBC council with respect to any bylaw amendments, deletions or additions that may be appropriate in the context of the Architects Act,[1] and the AIBC’s public interest and professional regulation mandate.

As part of this ongoing bylaw review process, there have been a series of amendments to the AIBC’s Code of Ethics and Professional Conduct (the “Code of Ethics”).[2]  One such amendment pertains to the requirement of an architect to self-report with respect to specified matters, including legal proceedings related to professional negligence and ethics.  For Underwriters of insurance policies issued to architects in British Columbia, several issues of interest arise, which are discussed below.

Bylaw 32.5: the Requirement to Self-Report

Bylaw 32.5 provides:

An architect must promptly notify the AIBC in writing in any of the following circumstances:

(a)          Having reasonable grounds to believe that a non-AIBC registrant has illegally practised or offered to practise the profession of architecture, or otherwise violated the Architects Act;

(b)          Having reasonable grounds to believe that an AIBC registrant, including oneself, has breached any standard related to competency, professional conduct, or public safety, including any breach of the Code of Ethics and Professional Conduct;

(c)          Upon filing for assignment or upon being petitioned into bankruptcy or receivership;

(d)          In the event of a finding or admission of professional misconduct, unprofessional conduct, incompetency, conduct unbecoming or other disciplinary breach in another jurisdiction in which the architect is registered;

(e)          Upon being charged with an offence under the Criminal Code; and

(f)          Upon receipt or service of a notice of civil claim or other legal proceeding in which allegations are made of professional negligence, fraud, or other cause of action, claim, or offence that may be determined by council rules.

The AIBC’s stated rationale for these amendments include providing AIBC with “information relevant to its public protection mandate.”  The goals were also to better clarify the threshold for reporting and separate illegal practice reporting from other reporting obligations.  The amended reporting requirements also recall BC’s “leaky condo crisis”,[3] which was the subject of the Barrett Commission Report,[4] which admonished the AIBC for its role in that crisis, stating:

[The AIBC’s] regulatory and discipline role [being] passive in that a formal complaint regarding the architect’s activities must be filed with the [AIBC] … [T]here is no attempt on the [AIBC’s] part to deal with evidence of ineffective or negligent practices unless a formal complaint is filed.  That is, an architect is under no obligation to advise the Institute when a settlement is made regarding quality of design work or professional performance. As a result, it is difficult for the [AIBC] to identify, on a pro-active basis, problems such as design issues related to leaky condos.

[Emphasis added]

The new self-reporting requirements allow the AIBC to identify legal and liability issues facing the architectural profession, the prevalence of such issues and provide the ability to make an appropriate regulatory response, if necessary. [5]

Sections 32.5(a) and (b) oblige architects to report to the AIBC certain instances of non-compliance or possible non-compliance with the Architects Act or key professional standards. Sections 32.5(b) through (f) establish the obligation on registrants to self-report in certain specific circumstances.

Section 32.5(f) is of obvious interest to Underwriters insuring architects.  This section is broadly worded and requires architects to self-report actions in which the notice of civil claim contains allegations of professional negligence which, practically speaking, is almost every action commenced against an architect arising from the provision of the architect’s professional services (otherwise there would be no cause of action alleged).  The question is whether such self-reporting will result in greater investigation by AIBC where allegations of professional negligence are made.

The AIBC has confirmed that self-reporting of legal actions is not an automatic trigger for a professional conduct investigation.  The purpose of this reporting obligation is to provide the regulator with information relevant to its public protection mandate, particularly since the AIBC does not “self-insure” its registrants in the way that the Law Society of British Columbia and the Ontario Architects Association do.  Those regulators are able to draw on trends and information from their “captive” or related insurance organizations.[6]

The reporting standards required by section 32.5 cannot be avoided through confidentiality agreements or otherwise “contracting out” pursuant to a release of claims.  Entering into an agreement not to notify or complain to the AIBC may itself constitute unprofessional conduct. Registrants unsure whether to report or self-report may contact the AIBC’s practice advisors to discuss the matter on a hypothetical and “no-names” basis.  The written reporting obligation can be satisfied by sending a confidential email to the attention of the Director of Professional Conduct and Illegal Practice at [email protected].

Section 32.5 does not impose an ongoing reporting obligation upon architects.  For instance, if a notice of civil claim contains allegations of professional negligence, which are generic and un-particularized, the architect will be required to self-report upon service of the notice of civil claim.  However, should the action continue and an opposing party serve an expert report particularizing the architect’s alleged professional negligence, there is no express requirement in section 32.5 for the architect to provide those expert reports to AIBC or further self-report.

Self-Reporting in Other Canadian Provinces

British Columbia appears to be unique in the self-reporting requirements contained in section 32.5 of the Code of Ethics.

Ontario Requirements

There is no requirement in the Architects Act[7] of Ontario for architects to self-report claims, but there is a requirement for members of the Ontario Architects Association (the “OAA”) to report unauthorized practice.  The failure to do so could result in a finding of professional misconduct.

Sections 49(3) and (4) of the Regulation[8] to the Architects Act require members to report as follows:

    1. Every member of the Association or holder must promptly bring to the attention of the Registrar any act or omission by another member or holder that may constitute professional misconduct or incompetence.
    2. Every member of the Association or holder must promptly bring to the attention of the Registrar any act or omission by any person that may constitute a contravention of the Act or the regulation.

There is also a requirement under section 49(29) of the Regulation to notify the Registrar of: (i) a petition to declare the member or holder bankrupt, or (ii) the making of a general assignment for the benefit of creditors, and (iii) of the manner in which the professional responsibilities of the member or holder will be discharged.

Alberta Requirements

Section 45(1) of the regulation[9] issued pursuant to the Architects Act[10] of Alberta states: “An authorized entity must forthwith inform the Registrar in writing of the following: (a) the receipt by the authorized entity of a petition to declare the authorized entity bankrupt[.]”  This requirement is similar to the AIBC’s and Ontario’s self-reporting requirements for issues relating to bankruptcy.

Conclusion

While the AIBC has stated the purpose of self-reporting claims of professional negligence is not to allow the AIBC to embark upon professional disciplinary investigations, it seems inevitable that at some point, in the right circumstances, a civil claim against an architect will trigger an investigation by AIBC.  Whether the AIBC would be entitled to production of reports and documents from the civil action pursuant to its investigation remains an unanswered question.  At present, such production is prohibited by the implied undertaking rule.[11]

Architects should ensure that they are fully compliant with this self-reporting requirement and Underwriters should inquire as to whether prospective insureds have satisfied their self-reporting requirements.

[1]     R.S.B.C. 1996, c. 17.

[2]     https://www.aibc.ca/?file=12702.

[3]     For an in-depth review of the “leaky condo crisis” see: https://www.millerthomson.com/assets/files/article_attachments/KLW_2016-02_Water-Ingress.PDF.

[4]       British Columbia, Commission of Inquiry into the Quality of Condominium Construction in British Columbia, The Renewal of Trust in Residential Construction, (Victoria: Government of British Columbia, 1998) at Chapter One, II. What Has Gone Wrong.

[5]     See AIBC Memorandum dated April 30, 2019: https://www.aibc.ca/?file=31686.

[6]     During the bylaw development process, the BRC did inquire of insurers as to whether they would be willing to share claims information with the AIBC.  The insurers were not willing to do so, citing commercial and personal privacy interests.  See note 5.

[7]     R.S.O. 1990, c. A 26.

[8]     R.R.O. 1990, Regulation 27.

[9]     Alberta Regulation 200/2009 147/2018.

[10]   R.S.A. 2000 c. A-44.

[11]   This is a common law rule that prohibits discovery of documents and information produced in the course of a civil action for any “collateral purpose”.