May 15, 2009
By Robert Kennaley
McLauchlin & Associates

Robert KennaleyIn construction projects, the consultant undertakes an important, albeit sometimes confusing, role. The role of the consultant, in any construction project, varies depending on the terms of the contract and the parties to the contract. It is possible that a consultant may be retained by an owner, or contractor, or both. Where the contractor is a design-build contractor, there will rarely be a consultant retained by the owner. In this article, we will discuss the role of the consultant who is retained by the owner to provide design services and to administer the contract between the contractor and the owner.

Although general statements can be made about the usual role of the consultant on a project, it is important to understand that the role might vary in any particular circumstance. On large commercial projects, the consultant will generally be an architect, engineer, or other entity licensed to practice in the province or territory where the work is being performed. The consultant will also generally be named as the person authorized as a representative, usually a representative of the owner, to interpret the contract documents and to provide technical guidance to the owner and design instructions to the contractor. The consultant is responsible for certifying payments, issuing and evaluating changes.

Ordinarily, the consultant enters into a contract with the owner and acts as the owner’s representative on-site. In this respect, there are generally two contracts for the construction project: a contract between the consultant and the owner, outlining the duties, responsibilities and liabilities of the consultant, and another contract between the owner and the contractor for the construction project itself. The contract between the owner and contractor is then overseen and interpreted by the consultant. It is generally imperative that all parties understand their responsibilities and roles in the project. More importantly, these responsibilities and roles should be outlined in the contract documents to signify the agreement, and understanding, of all parties. If the role of the consultant is unclear, confusion and disputes can arise.

Contract outlines responsibilities

Generally the contract between the owner and the consultant will define the extent to which the consultant is responsible for design, the manner and frequency of the consultant’s attendances and inspections on site, the extent to which the consultant will review and certify the contractor’s progress and the role of the consultant in determining how and when payments to the contractor are to be made. Where the consultant is made the initial interpreter of the contract documents, he or she will have a continuing responsibility for the project design, and for determining the suitability or inappropriateness of changes to the design.

Often, the consultant will be required to attend on site to review the progress of the work and to ascertain if the work is being performed in conformance with the contract documents. Again, the consultant will be the initial interpreter of this question. The consultant will also often be responsible for issuing certificates for payment and deciding on the quality of work and whether the work has been completed to the specified standard. If the consultant does not believe the work has been completed to standard, he or she has the authority to reject the work and require its rectification.

As project designer, the consultant often carries a continuing design responsibility and will be required to furnish supplemental instructions, preparing change orders and change directions and directions requiring the correction of defective work. The consultant will also take into consideration any timing and delay issues that might result from the need for a change to the project schedule.  

Consultant must be impartial

It should be understood that, even where the consultant works for the owner, the consultant will still generally owe a duty to the contractor, to be impartial and to administer the contract in a fair and concise manner. Thus, in theory anyway, the consultant should not be biased in favour of the owner in making these determinations. It is sometimes difficult to understand the impartiality of the consultant as the consultant appears, at first hand, to have extremely conflicting duties: the contract is generally the consultant’s own design and the consultant generally has commitments to the owner with respect to the design, the cost of the work and the schedule for completion.   

This tension can lead to problems for contractors. Simply put, a consultant may be reluctant to approve a change in the work, or to issue a site instruction, if it appears that a problem is attributable to design, for which the consultant himself would be responsible. When the circumstances arise, it is imperative that the contractor understand and follow the contractual provisions to ensure that he deals with the problem in accordance with contract. Further, where a change in design is required, contractors are generally well advised not to proceed with a change in the design without the written direction of the consultant, or the owner.

The consultant is nonetheless expected to maintain an unbiased and impartial role in all aspects of the contract, particularly with respect to dispute resolution. In the event of a dispute, the consultant usually becomes the adjudicator. Generally, the contracts will allow the contractor to engage a dispute settlement mechanism where the contractor disagrees with the findings of the consultant. Ultimately, the consultant can be liable for negligence to the contractor if he fails to meet this standard.
Robert Kennaley practices construction law in Toronto and Simcoe. He speaks and writes regularly across North America.  He can be reached for comment at 416- 368-2522, or at This material is for information purposes and is not intended to provide legal advice in relation to any particular fact situation.  Readers who have concerns about any particular circumstance are encouraged to seek independent legal advice in that regard.