BLAW Final Exam

Question 1

Classifications of Torts (2)

Answer 1

1) Intentional
deliberate acts that cause injury or loss
E.g. assault, passing off, inducing breach of contract, fraudulent misrepresentation, trespass
2) Unintentional
Careless or negligent acts that cause injury or loss
E.g. negligence, negligent misrepresentation or negligent misstatement, negligent hiring

Question 2

What is defamation and what are the two types? Also what type of tort if is?

Answer 2

A false statement about someone to his or her detriment - must be published or broadcast

1. Slander - spoken defamation
2. Libel - written defamation

Question 3

What are the 4 defenses to slander?

Answer 3

1. Truth
2. Fair Comment - celebrities
3. Absolute Privilege - parliament
4. Qualified Privilege - a statement made in good faith

Question 4

What is a tort? What should employers worry about?

Answer 4

A civil wrong

• a careless unintentional or intentional act that harms someone
• a tort is a wrong to the INDIVIDUAL
• employers are vicariously liable for the torts of employees when the torts are committed during the course of employment

Question 5

What is inducement?

Answer 5

Inducement is luring someone away from a job and terminating them so that they suffer loss

Question 6

What is Inducing breach of contract?

Answer 6

Involves company A luring an employee away from company B such that the employee is breaches her contract with B. Here, A may be liable in damages to B for inducing breach of contract.

Question 7

What is the Negligence A - D?

Answer 7

Essential Elements:
A: A duty of care is owed to Plaintiff **“Reasonable foreseeability test”
B: Breach of the duty of care
C: Causation – The act caused the injury *the “but for” test
D: Damages – Victim suffered a loss

Question 8

What is Negligent Misstatement

Answer 8

Professionals of all kinds – lawyers, doctors, accountants, engineers held to a high standard of advice giving.

It is no excuse to say a person is new to the profession. Even third parties affected by negligent advice or negligent misstatement may have a cause of action

Question 9

What is the Haig v Bamford case about?

Answer 9

• Accounting firm negligently prepared financial statements for a company knowing that third parties would rely on them to invest in the company
• The accounting firm was liable for negligent misstatement since it was foreseeable that third parties would rely on the statements to invest. A duty of care was owed to anyone who fell within that class of claimants. – negligent misstatement
• The SCC limited to whom a duty was owed, that is to people or a specific class of people that the professional actually knew would rely on the statement.

Question 10

What is contributory negligence?

Answer 10

The defendant is partially responsible for own loss

Question 11

What does Volenti mean?

Answer 11

Voluntarily entering into a situation with risk (hardly used)

Question 12

What are judicial remedies for negligence?

Answer 12

Courts will compensate for:
Physical harm
Mental disorder, but not simply mental distress
Economic loss
Court attempts to restore victim to original position

Question 13

Are children liable for their own tortes?

Answer 13

Children are liable for their own tortes
Parents not generally responsible for their children’s torts
except where there is a duty to control, instruct or supervise or a statute imposes duty
In BC Parental Liability Act imposes liability of up to
$10,000 for child’s intentional damage to property
unless parent can show reasonable supervision

Question 14

What is fiduciary duty?

Answer 14

• The duty to act in the best interests of another.
• When they are part of the agreement whether express or implied, and there is a breach, then the employer can sue for breach of contract.
• Alternatively, the employer can sue for breach of trust or breach of fiduciary duty when these duties are neither express or implied in the contract
• Fiduciary duty is also owed by many professionals to clients and by agents to their principals as well as by partners to their partnership.

Question 15

What are the two types of discrimination?

Answer 15

1. Direct discrimination
2. “Adverse-impact” (“constructive”) discrimination
   * these two have now been eliminated because intention doesn’t matter

Question 16

What is Constructive discrimination?

Answer 16

It is the result of the rule that counts, not the intent
Where a rule or qualification has a negative impact on a protected group or individual, the employer must accommodate them up to the point of undue hardship
ex) women and night shift work

Question 17

What is the Meiorin Test?

Answer 17

Determine When a Discriminatory Rule is Justifiable.

Question 18

What are the 3 rules of a BFOR?

Answer 18

1. The rule or policy is rationally connected to performance of the job.
2. The rule was imposed in good faith.
3. The rule is reasonably necessary to accomplish a legitimate work-related purpose, and it is impossible to accommodate without undue hardship?

Question 19

Is the employer liable in regards to workplace harassment?

Answer 19

As with vicarious liability in tort law, employer is vicariously liable for unauthorized discriminatory actions of employees in the workplace

Employer is liable for workplace harassment by managers but may avoid liability for non-managerial harassment if it can show:
It was unaware that harassment was occurring
It was diligent in preventing it
It responded appropriately to it, once aware
Remedies – human rights tribunal can reinstate, in general they can do a lot more!!!

Question 20

Remedies of Human Rights Tribunals

Answer 20

If an employee files a human rights complaint which is found to have merit, a tribunal may order the respondent employer:

1. To cease the discriminatory policy or behaviour
2. To refrain from engaging in similar acts in the future
3. To award the complainant any opportunities or privileges that were lost as a result of the discrimination—such as reinstatement or a promotion
4. To compensate the complainant for wages, lost income or expenses incurred
5. To take any other action the tribunal considers proper to place the complainant in the position he or she would have been in but for the discrimination
   * Note that this is a wider range of remedies than a court can grant e.g. courts do not grant reinstatement

Question 21

What are the Key Features of the BC Employment Standards Act?

Answer 21

• Creates a “floor of rights” to provide minimum working conditions for employees not excluded by the Act
• Employer and employee are free to negotiate a higher right or benefit. However the employer cannot contract out of the minimum standard.
• The rationale behind the Act is that many employees lack the bargaining power to negotiate acceptable working conditions on their own behalf

Question 22

What is The Workers’ Compensation Act?

Answer 22

Covers, without ascribing fault, the compensation and rehabilitation of workers who are injured, or who contract a disease related to the workplace
*The no-fault aspect of it is key to the whole system of compensation; in that sense it is very different from the fault-based concept of civil wrongs

Question 23

What does No-Fault Insurance mean?

Answer 23

Employers pay the entire cost of the system
-In exchange, employers are protected from being sued by injured workers and workers are not put in a position where they feel compelled to sue their employer
-Can still sue third parties
Ex) box of bults delivered to the class and then hurt, can sue the third part and do workers comp as well

Question 24

What does Willful Misconduct mean?

Answer 24

It can disqualify you from workers comp

• If the injury is “attributable solely to the serious and willful misconduct of the worker” the injury will not be covered unless the injury results in death or permanent disablement
• The injury need not result from performance of the job so long as it is reasonably incidental to it

Question 25

How do disability claims work?

Answer 25

• The onus is on the worker to show a causal relationship with work
• Occupational diseases are compensable if a causal relationship exists

Question 26

What does Schedules B and D to the WC Act mean?

Answer 26

• list industrial diseases that arise from specific industrial processes
• if a worker contracts a listed disease, there is a rebuttable presumption that the disease results from employment – the employee doesn’t have to prove he got it from work, it’s a assumed. Employer can still try to prove otherwise(rebuttable).

Question 27

How does WC deal with mental stress?

Answer 27

The WC Act sets out three criteria for mental stress in s. 5.1, all of which must be met to be eligible for benefits:

1. The stress is an acute reaction to a sudden and unexpected event related to the employment
2. It is diagnosed by a physician or psychologist as a mental or physical condition, and
3. It does not arise in the proceedings involved in making a compensation claim
   * cannot claim for the stress you are under while filing the claim

Question 28

How do appeals work with WC?

Answer 28

A worker or employer who disagrees with a decision may request a review by a review officer within 90 days

If not content with the review officer’s decision, the party may file a written notice of appeal with Workers’ Compensation Appeals Tribunal within 30 days

Question 29

What does overriding duty mean?

Answer 29

You take every reasonable precaution to protect the health and safety of workers, such as:

• Complying with legislation, regulations, and orders
• Establishing health and safety policies, and programs
• Providing and maintaining protective equipment, devices, and clothing
• Reporting accidents, injury, or illness
• Ensuring workers are made aware of:
• All known or foreseeable hazards
• Their rights and duties under the legislation
• Information, training, and supervision respecting their health and safety

Question 30

What are the Penalties for Non-Compliance?

Answer 30

• Steep civil or criminal penalties can be imposed for non-compliance with the WCA
• These are strict liability offenses because the Crown d/n have to prove intention
• Nevertheless, the company has the defense of due diligence if it can show it took reasonable steps to comply with health and safety standards

Question 31

What is a non-competition clause?

Answer 31

Usually restrict employees in area and duration from competing with their employer after contract termination.

Question 32

How do you bind Employees in Employment Agreements to the Terms of the Manual?

Answer 32

1. Incorporate the manual by reference into the employment contract
2. Create a clause giving the employer sole discretion to change policy

Question 33

What is the Hunt v. Sutton case about?

Answer 33

Employers have a duty to safeguard employees from harm; they must take positive steps to ensure duty is met, particularly in relation to work-related drinking/partying

-Sutton worked at a real estate office and attended her employer’s Christmas party, where she consumed quite a lot of alcohol. She was still on duty to answer the phone and to clean up
-When she was leaving the party, her employer offered her a cab, offered to call her husband to pick her up—all of which she refused *employer replied on her discretion which was a huge mistake – she didn’t have the capacity to disagree. He should have told her what to do, not asked.
-She decided to drive to a pub where she consumed more alcohol
-Later, on her way home, Sutton was in a serious car accident, leaving her brain-damaged
Issue: Whether her employer was liable to Sutton for her injuries
Held: Yes. Employer and pub 25% liable. ->Pub went bankrupt so employer paid the full 25%

Question 34

What is the Jacobsen v. Nike case about?

Answer 34

• Jacobsen was asked by his employer Nike to bring his own vehicle to work at the annual trade show
• Twice, supervisors brought cases of beer to the location where the crew was working, telling them not to consume more than they could handle—but no one monitored their ability to drive
• While driving home from work, Jacobsen decided to stop at a pub for more drinks
• On the way home, he was in a car accident that left him a quadriplegic

Issue: Whether the employer was liable to Jacobsen
Held: Employer was 75% liable because he was asked to bring his vehicle and therefore it was reasonably foreseeable that if he was given large amounts of alcohol and not monitored he would be driving home. Thus the employer’s duty of care to the employee was breached.
*Contributory negligence = both parties are liable.

Question 35

What are the 2 key elements required when inferring resignation?

Answer 35

1. Intention (clear and unequivocal)
2. An action by the employee that reaffirms the decision to resign
   * To ensure a resignation by conduct becomes binding, the employer should send a letter formally accepting the resignation

Question 36

What are wallace damages?

Answer 36

Insensitive or callous treatment or bad faith. With Wallace damages, the notice period is extended.

Question 37

An employer who dismisses an employee can (in regards to stating grounds of dismissal):

Answer 37

• Can do so without just cause
• Can later assert that it actually had just cause at the time of dismissal
• Can justify dismissal based on after-acquired information
• Can change the grounds for dismissal from those originally alleged

Question 38

What is condonation?

Answer 38

Occurs when an employer who discovers misconduct or poor performance fails to respond within a reasonable time
-A reasonable amount of time is allowed to permit an employer to decide how it will handle the situation

Question 39

Duty to mitigate under which act?

Answer 39

common law

*NOT Employment Standards Act

Question 40

Three types of damages in a wrongful dismissal action:

Answer 40

1. Compensatory damages (reasonable notice)
2. Wallace damages (what is reasonably expected from the breach of contract e.g. damages for mental distress caused by the employer’s conduct). Must be based on actual damage, not an extra amount tacked on to reasonable notice
3. Punitive damages for outrageous behaviour (malicious, harsh, vindictive) on the part of the employer.

Question 41

Record of employment must be issued to the employee within:

Answer 41

5 days - they need it to get employment insurance.

Question 42

How do you avoid a wrongful dismissal claim?

Answer 42

1. Hire intelligently
2. Include and update a termination clause in employment contracts
3. Make use of probationary periods
   4, Create a paper trail
4. Provide reasonable notice of changes
5. Determine whether a just cause claim is sustainable
6. In the absence of just cause, determine the appropriate notice period
7. Note that “near cause” does not merit a shorter notice period than what the employee is legally entitled to.
8. Handle terminations professionally
9. Provide outplacement counseling
10. Get a signed release where possible
11. Carefully consider all issues when providing a letter of reference

Question 43

How do you determine the credibility of an investigation?

Answer 43

1. Take down detailed stories, word for word
2. Internal consistency of the story
3. Level of detail vs. vagueness or forgetfulness
4. Consistency with external story ex) corroborative evidence
5. Vested interests vs. neutrality if story teller
6. proximity of story teller to the events
7. Direct or indirect observation (hearsay)