Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Business LAW 2 > business_law_final_20240407170712 > Flashcards

business_law_final_20240407170712 Flashcards

You may prefer our related Brainscape-certified flashcards:
MPRE flashcards MBE flashcards Civil Procedure 1L flashcards
1
Q

What is an employee?

A

Contract by which a person (employee) does work under the direction/control of another person for a limited time and for pay (CCQ)

  • Each party has an obligation (bilateral contract)
  • Employee must personally carry out the work
  • Subordinated and receives $$
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What is an independent contractor?

A

contractor undertakes a physical, intellectual work or supply a service for a price and for a client

Contractor is free to choose the means of performing the contract and no relationship of subordination exists (CCQ)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

How do you distinguish between an employee or independent contractor?

A

The key is looking at the element of subordination or control (CCQ).

However, jurisprudence has implemented tests (SAGAZ)
1. Key factor = subordination and control
Employee → subordinate to the employer
Contractor → not subordinate

Other factors
2. Intuitu personae
Employee → must perform work herself/himself
Contractor → not obligatory, can hire others
(Affects the level of risk taken on by the contractor)

  1. Tools & equipment
    Employer → provides to employee
    Contractor → provided by contract
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Why is the distinction between contractor and employee important?

A
  1. Responsibilities for the employer change depending on whether they are an employee or contractor
  2. Taxes, certain deductions for independent contractor
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What laws govern employment contracts?

A
  1. CCQ
  2. Act respecting labour standards
  3. Act of legal rights and freedoms
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

What are the requirements for forming an employment contract?

A
  1. Legal capacity (14+ or approval from guardian)
  2. Must be a valid offer and acceptance (voluntary consent)
  3. Oral or written (written is preferable to have a record)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What is the term for an employment contract?

A

Fixed: specified date

Indeterminate: no set end date

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

How does termination of employment contract?

A

CCQ

  1. Tacit Renewal: If employee continutes to carry on their work five days after the expiry date, without objection from employer
  2. By notice: Need to give notice for indeterminate term, with reasonable time. Must think of circumstances and duration of the period of work and nature of work
  3. Death: Might terminate in death of employer (e.g. sole prop)
  4. By superior force: Can terminate if supeior force. e.g. factory you work in burns down, Covid used to be a reason but it is no longer valid.
  5. Good or sufficient cause: Serious reason to terminate (e.g. steal 50k from company, they can fire you without notice)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What are the employer obligations in employment contract?

A
  1. Provide work (the same as what was agreed upon)
  2. Remunerate
  3. Provide healthy/safe conditions (Charter of human rights and freedoms)
  4. Maintain dignity of employees (Charter)
  5. Provide tools and materials necessary to perform the work
  6. Provide work place and make it accessible
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What are the duties of employment from the employee?

A
  1. Work (with prudence and diligence to the best of abilities)
  2. Duty of loyalty during employment: do nothing to harm employer, Protect confidential info, avoid conflicts of interest, cannot use employer’s information
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What is duty of loyalty for employee?How does it change after employment?

A

Obligation to maintain private information continues, must be a reasonable time (determined by job responsibilities and balanced with need to make a living. Post-employment duty is less than when you are working there.

Permanent: reputation and private information

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What are the characteristics of non-competition clauses?

A
  1. Must be in writing
    - burden of proof on employer (standard is balance of probabilities)
    - Reasonable restrictions on: Work limitations, territory restrictions, time restrictions
  2. Courts dont like enforcing these
    - does allow employee to contribute to society
    - limits individual
    - if any part is unreasonable, they dont rewrite, they strike the whole thing
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

What is the act respecting labour standards?

A
  • product of national assembly (quebec)
  • amended many times
  • sets minimum employment conditions
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Why are employment standards important?

A
  • Correct for power imbalances between employers and employees
  • Feared that without legislation, employees would face bad working conditions (long hrs, bad pay, unsafe)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Why is the Act respecting labour standards in place (why cant they just figure it out themselves?)

A
  1. Abuse of power (some employees dont know what they should be asking for
  2. Presumption that prospective employees arent as sophisticated as their employers. therefore need to protect employees
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Who does the Act respecting labour standards apply to?

A

Any employee regardless of where they work for any employer that operates in quebec. Independent contractors are completely excluded (federally regulated) and partial exclusion for some people such as senior managers who only benefit from retirement, psychological and sexual harassment and family leave.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

What is the hierarchical levelof managers in the organizatonal structure?

A

Senior manager must be part of senior management. Must report to: owner, president, BoD, GM. (Consider size of the business, smaller might only have 1, larger might have a lot).

Level of decisions, level of autonomy, manages managers, condition of employment.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

What is the required level of decisions for senior managers?

A

Participates in major decision making in the business (profit, growth, etc)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

What is level of autonomy for a senior manager?

A

Great autonomy and decision making power

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

What are the conditions of employment for a senior manager?

A

Among best paid employees

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

What are the laws regarding minimum wage?

A
  1. Wages must be equal or above minimum set by law;
  2. Benefits are not part of minimum wage;
  3. applies to part-time;
  4. tips not included
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

What are the requirements regarding pay?

A

Must be paid in cash (sealed envelope), check or bank transfer.

Must be max 16-day interval (1 month for first pay or for managers).

Must be paid at his place of empoyment on a working day or can be given to a third party upon WRITTEN request

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

What are the requirements regarding deductions?

A

No deductions unless law authorizes or employee consents.

Levine: Worked as teacher and stated that a union he was not part of was taking money and donating it, court said there was an infringement on charter but Unions are important.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

What are the laws regarding duration of work?

A
  1. Work week is 40hrs;
  2. Overtime pay is 150% or paid leave;
  3. Work periods are deemed by making yoursel favailable and 3-hour minimum call in pay (doesn’t apply to work in which the nature requires them to be present several times a day. E.g. cross guard)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Work breaks

A

30 minutes unpaid for meals for every 5 hours of work (must be paid if they cant leave work station

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

Weekly rest

A

Employee must have 32 consecutive hours of rest per week

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

What are the rules regarding work by children?

A

Must be over 14 ad cannot conflict with their education. (review all the requirements)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

Annual leave based on service

A

Less than one year = 1 day per month.

year of service = 2 weeks and 1 week upon request.

3 years of service = 3 weeks

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

Sick leave

A

Can miss 26 weeks in 12 months, must be re-integrated into a post or a comparable post so the employee isn’t penalized for being sick. Constructive dismissal

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

What is a contructive dismissal

A

When an employee is deemed to have been fired without notice because employers made major changes to working conditions.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

review personal leave

A

ok

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

What is a notice of termination?

A

Notification of one party to another of their intention to end the employenet and it is acceptable for one party to provide financial compensation to replace notice

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

What are the requirements of time for a notice of termination?

A

Less than one year (but more than 3 months) = 1 week;
1 to 5 years = 2 weeks;
5 to 10 years = 4 weeks;
10 years or more = 8 weeks. Doesn’t apply if: less than 3 months, contract for fixed term or undertaking, commited serious fault, superior force

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

Resources against dismissal

A

WHAT DOES THIS MEAN

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

What are the exclusions to immigration law?

A

Governor in council (cabinet) given the power to exclude ppl from canada based on race (Remained availabile until immigration act in 1978)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

What are the issues with immigration law?

A

1) Unequal distribution of canadian immigration offices abroad (bias against south).

2) Unequal VISA application requirements

3) Taxing immigrants –> processing fee, right of permanent residence fee (500$) this impacts people from the global south and is often a limiting factor

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

Who is legally permitted to work in canada?

A
  1. Canadian citizens and permanent residents (can be revoked if they lose their qualification) ;
  2. Foreign national (only if authorized to do so under refugee protection act)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

When is work without a permit allowed?

A

If they maintain a valid temporary resident status (Immigration and refugee protection regulations). Or if they have a study permit (limit of 20 hrs during academic year) or visitors (unclear)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

What is work?

A

An activity for which wages are paid or commission is earned or that is in direct competition with the activities of canadian citizens or permanent residents. IIRC guidance helps define these terms.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
40
Q

What are the two types of work permits?

A

Open work permit and employer-specific (closed) work permit

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
41
Q

Open work permit

A
  • Allows the holder to work for any employers in canda including oneself (some exceptions)

For: International student who graduated from designated learning institution and spouse or common-law partner of a skilled worker/international student

Restrictions: can’t work for employers who: offers striptease, erotic dance, escort, erotic massages, listed ineligible on list of employers who have been found non-compliant. To prevent sex trafficking as these ppl can be vulnerable

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
42
Q

employer-specific work permit (closed work permit)_

A
  • Holder can work according to conditions stated in the permit (no sex work or non-compliant employers)
  • Any change requires new work permit (pay increase >20%, promotion leading to job title change, etc)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
43
Q

What is employer compliance for work permits and what are triggers for compliance

A
  • follow guidelines in Immigration Regulations

Inspected for compliance (3 triggers): 1) known past non-compliance, check to see if they changed ways; 2) Random selection from those participating in hiring foreign workers; 3) Reason to suspect such as media, complaint, etc

Can last up to 6 years

44
Q

What are the requirements for employer compliance of having foreign workers

A
  • Maintain document related to conditions
  • if found non-compliant, might be issued warning, monetary penalty, banned from hiring foreign workers for certain period ( Could criple business if reliant on them)
45
Q

Why is employer compliance information public?

A

So you can pick an employer (check eligibility) and to embarrass the company

46
Q

What is abuse of vulnerable workers?

A

physical harm, unsafe work, unsanitary conditions in employer-provided housing, sexual comments/touching, stealing, stopping you from seeing ppl, taking money, insults, intimidation, forcing you to commit fraud, charging you fees for a job

There are societies which help victims of abuse find a work permit from another employer

47
Q

What are the facts of the Dominguez v Northland Properties Corporation case?

A
  • 77 employees of Denny’s filed class action for failing to pay OT and breaching employment contract
  • most form Philippines
  • Need to pay recruitment company to get job
  • Some said that Denny’s told them to retract statements to keep position and work permit
48
Q

What is the court decision of the Dominguez v Northland Properties Corporation case?

A
  • Court said there could be no repercussions against employee participation, sent to mediation and settled
  • since they are required to be given 37.5-40Hrs a week, Denny’s had to cover shortfall, pay all unpaid overtime, pay air costs if they fail to maintain and go home, 30k donation to charities, 40k to local children’s charity, legal fees, disbursements paid to employees’ lawyers
49
Q

What are facts of PN v FR

A
  • 16 weeks of exploitation and sexual abuse, worker filed a complain.
  • Signed contract with Mr, live in residence, deductions for sitting, breaks, even meals, yelled abuse,
  • put lotion on his penis and made her stroke (?)
  • Visa was only 3 months but she didn’t know
  • slept on couch,
  • not given her own food
  • cell but no way of contacting family
50
Q

What was decision of Pn v FR and another

A
  • 50k award
  • tried to put her in a position she would be in if the discrimination didn’t occur
  • Awarded lost wages
  • Unlikely to see money (MR and FR appeared via video call from asia)
51
Q

What is the status of PN in the PN v FR case?

A
  • couldnt work because she entered on a visitor visa, original request for temporary residence was declined but was given discretionary permit after a review was requested.
52
Q

What is the charter of the french language?

A

1966, make french language for education, business, etc in quebec.

53
Q

What was the purpose of the charter of the French language?

A
  • Quebec desire to live in french and preserve the language
  • 80% of population in quebec had french as their first language
  • Immigrants choosing english 80% of the time though
54
Q

What is OQFL

A

Office quebecois de la langue francaise

Inform companies of responsiblities and oblications. Inform customers, promote vitality of french, activities and festivals, can complain if your rights arent respected

55
Q

How does charter affect freedom of speech?

A

Some parts were changed but it was mostly approved because french is not a major language in Canada therefore they want to preserve it.

Restrict but not erase

56
Q

Why do we care about french more in Quebec than france?

A

Fell threatened, NA speaks english (except mexico), french is heart of culture, taste of Europe, Quebec is different from rest of NA

57
Q

What was the state of the french language in 1977?

A

Low birth rates among francophones, immigrants joining at high rates, English main language in business and workplace.

58
Q

What are the laws regarding the right to work in french?

A
  • Employees have right to wokr in french. French must be used for:
    1. Written communication
    2. offers of employment/promotion
    3. Employment offers in newspaper in another language must also be in french
    4. Collective agreements
    5. Written communication of employee associations
59
Q

What are the rules regarding dismissal on the basis of language?

A

cannot fire, demote, transfer employee for sole reason that: Only speak french, employee has insufficient knowledge of another language, employee requests a right from chapter VI of the CFL to be respected

60
Q

What are the facts in Case of Hebert V Sodema inc?

A
  • A unilingual francophone call center worker was laid off just as the company was hiring several bilingual call center workers
  • An important client had just taken its business away from the call center, significantly reducing the volume of French calls
  • There was a simultaneous increase in English calls
  • The employer resorted to temporary layoffs to unilingual francophone employees
61
Q

What was the verdict of Hebert V Sodema Inc?

A
  • The fact that the employee is a unilingual francophone, laid off just as bilingual employees were hired, creates a presumption that these people were laid off because they are unilingual French speaker
  • The employer must therefore show that the fact that the employee is a unilingual francophone is not the sole reason of the lay-off and that there is another serious reason for the lay-off
  • Here, the reason for the lay-off was in fact the change in the volume of French calls and English calls
62
Q

What are the facts of the Bekteshi case?

A
  • A daycare worker receives instructions form a parent to speak to his child only in English
  • he daycare worker raises this with her manager, who instructs her to speak to the children of the group in both languages
  • There follows a heated exchange between the worker and her manager about the use of English in activities, following which the daycare worker is fired
63
Q

What was the decision in Bekteshi case?

A

The CFL doesnt cover this situation, the worker is french and english, cannot request their rights from CFL

64
Q

What are the rules regarding hiring on the basis of language?

A
  • Cannot require candidates for a position to have specific knowledge of another language unless it is in the nature of duties of the position
  • Cannot be a mere advantage of knowing another language, it must be necessary
65
Q

What are the facts of the Pouliot case?

A
  • A building maintenance worker applied for a position in a small hotel
  • The hotel owners speak Punjabi and French, and the clientèle is 40% English-speaking
  • During the interview, which was conducted in French, he is asked whether he speaks English, and he objects to the question
  • The position is reposted with a requirement to speak — English and the candidate made a complaint
66
Q

What was the decision in Pouliot Case?

A
  • employer did not respect CFL, a building maintenance worker does not need to speak English
  • The complaint was determined to be well-founded, and the employer was ordered to pay $1,000 in moral damages and $2,000 in punitive damages
  • The goal of damages: Put the plaintiff back into the position that they were in before they suffered the loss
67
Q

What are Moral damages vs punitive damages?

A

Moral damages: damages to the person’s well-being,harder to quantify

Punitive damages: punish the wrongdoer for not following the law, with the hope that it will be a disincentive for them to re-offend

68
Q

What are the facts of the Cosette case?

A
  • Cosette was not hired as a security guard at the Casino de Montréal due to poor English proficiency
  • The Casino seeks to cater to tourists and to compete with casinos outside Québec, and 13% of its clientele is English-speaking
  • Cossette argued that she should not be denied her right to work in French just because the Casino was deliberately choosing to target tourists from outside Quebec
69
Q

What was the decision of the Cosette case?

A
  • Reasonable to have linguistic requirement as this is a high-risk environment that may require conflict resolution which may need to be done in English.
  • Findings: the tasks of a security agent involve a significant component of communication with the public and the Casino’s clientele and its marketing objectives can justify the use of linguistic requirements for its staff
  • The linguistic requirement was not unreasonable or unjustified
70
Q

What is the objective of the Francization of enterprises?

A

The objective of Ch. V of the CFL is to “generalize the use of French at all levels of enterprises”

71
Q

What are the rules of Francization of enterprises for 100+ employees?

A
  • francization committee of 6+ ppl
  • Analyzes language situation of company and makes a report to OQLF
  • if french is generalized at all levels, OQFL issues “francization certificate”
  • Rare for french to be generalized and OQFL can require the company to adopt a francization program
72
Q

What is the purpose of a francization program?

A

The francization program is intended to generalize the use of French by:
- Ensuring that management, professionals, and others have knowledge of French
- Hiring employees with a good French-speaking level
- Making French the language of work and internal communications
- Producing working documents in French
- Communication with stakeholders in French
- Using French on public signs and advertising

73
Q

What are the rules of Francization of enterprises for 50+ employees?

A
  • Register with OQFL and give an analysis of linguistic situation
  • OQFL can issue francization certificates, butit requires a francization program or require a committee
74
Q

What are the rules of Francization of enterprises for less than 50 employees?

A

OQFL can require on an exceptional basis to implement francization program with ministry approval

75
Q

What are the requirements of holding a francization certificate?

A

Submit progress reports every 3 yeras.

Penaltys: fines and damages

76
Q

What are the facts of the Chiasson case?

A
  • Two pharmaceutical companies applied for a francization certificate
  • OQLF required that the companies provide software to employees only in French
  • The companies wanted to be able to provide access to English software on request
  • In order to generalize the use of French, is an employer required to offer software and other work tools only in French?
  • Applicable law: 52.1. All computer software, including game software and operating systems, whether installed or uninstalled, must be available in French unless no French version exists.
  • Software can also be available in languages other than French, provided that the French version can be obtained on terms, except price where it reflects higher production or distribution costs, that are no less favourable and that it has technical characteristics that are at least equivalent.
77
Q

What were the findings of Chiasson case?

A

The OQLF may require that working documents and programs be provided in French However, nothing prohibits an employer from offering other options as well to its employees The employer can use other means to promote the use of French in the workplace, without prohibiting the use of English software

78
Q

What are the rules regarding CFL and contracts?

A

Contracts pre-determined by one party, contracts containing printed standard clauses, and the related documents, must be drawn up in French. They may be drawn up in another language as well at the express wish of the parties.

79
Q

patent

A

Document issued by a government which grants a right of exclusion to an inventor for a given period, in exchange for a complete description of the invention

A patent does not give the right to use an invention

80
Q

What are examples of a patent

A

A product → new compound
A composition → chemical composition comprising the new compound
A machine → machine for making the new compound
A process → method for making the new compound
An improvement on any of these

81
Q

What are criteria for a patent

A

newness, non-obvious, patent subject matter, useful

82
Q

industrial Design

A

Visual features of shape, configuration, pattern or any combination

  • protect how something looks but not how it functions
  • protect = stops commercialization
83
Q

copyright

A

Exclusive legal right to produce, reproduce, publish or perform an original work

  • provides protection for literary, artistic, dramatic or musical works and other subject-matter known as performar’s performances, sound recordings, and communication signals
  • more creative
84
Q

Trademark

A
  • Can be a sign or combination of signs (e.g.,words, sound or designs) used to distinguish the goods or services of one person or organization from those of others
  • Main use = inform consumers of the source of certain goods or services
  • Tries to prevent what is known as confusion in the marketplace → avoid confusion of source
85
Q

What are limitations of trademarks?

A

Limited to certain goods/services (can be used in different area of business).

e.g. someone can open a nuclear reactor seller named second cup and it would likely be ok because it is unlikely an average buyer would surprise themselves (and if you are purchasing nuclear reactor you are likely not an average purchaser)

86
Q

What is covered by trademarks?

A

hologram, moving image, scent, traste, texture, colour, sounds, positioning of sign, Canada has few of many of these

87
Q

Trade secrets

A

Trade secrets include any valuable business information that derives its value from secrecy

88
Q

What are requirements to protect and benefit trade secrets?

A
  • Obtain value from secret
  • Keep info a secret
  • Take all possible measures to ensure the business info is secret
89
Q

What is identifiable intellectual property?

A
  • technology
  • brand name/logo
  • Any works you are currently using (logo, slogal, website, text, pictures, pamphlets, computer programs_
90
Q

Why is it important to protect IP?

A
  1. Adds value to business and Product/service
  2. Can obtain licensing agreement from competitors
  3. Prevent competitors from commercializing your technology/product
91
Q

What is inventor and author in IP?

A

Inventor = person who created the invention
Author = person/people who helped write the copyright

92
Q

What are the rules regarding ownership and assignment of copyrights created by employees?

A
  • Owner is presumed to be the employer if work was made in the course of employment, unless there is an agreement stating the contrary
  • Examples of the employer being the owner:
    Computer code drafted by an employee programmer
    Logo created by an employee
    Pertain to works
93
Q

What are the rules regarding ownership and assignment of Patents created by employees?

A
  • Owner is presumed to be the employee unless:
    There is a contract expressly stating otherwise; or
    The employee was specifically hired to invent or innovate
  • Pertain to inventions
  • Examples of employer being the owner:
    New car braking system created by employee whose contract states that employer is the owner
    Chemical compound created by an employee researcher specifically hired to create said compound (e.g. pain releaving med)
94
Q

What are the rules regarding ownership and assignment of IP created by independent contractors?

A

For both patents and copyrights, the owner is presumed to be the inventor/author, or the company under which they are employed, unless agreed otherwise

95
Q

What are factors that come into deciding if you should file IP rights or not?

A

Cost of filing/registering/maintaining a patent/trademark/industrial design vs the value gained

96
Q

Factors related to registered trademarks vs unregistered trademarks

A

Unregistered trademarks do provide some protection, but it is limited
E.g. unregistered trademarks require proof of goodwill, and enforceability is limited to the geographic area in which said goodwill has been proven

97
Q

File patents or trade secrets?

A

Patents:
- Lasts 20 years from filing date
- Can be difficult and/or expensive to obtain/maintain
- If you file for a patent and then it gets denied, you can’t claim that it is a trade secret because people would have seen the application so it is no longer a secret

Trade secrets:
- Can last indefinitely (until secret is revealed)
Information must be kept secret (which can be difficult/costly)

98
Q

What is assignment clause of IP?

A
  • Specifically mention who owns IP created by employee or third party. Must be signed and in righting
  • Waiver of moral rights → rights that the author has in their work that will always remain with them and cannot be transferred to someone else. Can waive their rights against certain people, “employee hereby waives any moral rights”
  • right to remain anonymous
  • right of integrity (work cannot be defaced or destroyed
  • ## Right of association (prevent their work from being associated with environemnted deemed inappropriate by their valued)
99
Q

What is duty of loyalty/confidentiality?

A

obligation of loyalty and confidentiality of the employee

Can be specified in contract but also under CCQ: bound to do work with prudence, diligence, faithfully, honestly and not use any confidential info

Lasts a reasonable time after the contract terminated (normally few months) and permanently when the information concerns the reputation and privacy of others

100
Q

What actions must the employee take to comply with CCQ on loyalty and confidentiality?

A
  • Respect the confidentiality of certain information belonging to the employer;
  • Not appropriate the material or intellectual property for the employer;
101
Q

What are the rules of CCQ regarding relationships with third parties and confidentiality?

A

CCQ doesnt apply

  • Contractual clauses (trade secrets) - If providing someone with confidential info, have them sign an agreement stating they cannot use or disclose the confidential information! (NDA)
    MUST HAVE:
  • Definition of confidential information → definition that says what the confidential information actually is, keeping it both broad and narrow
  • Obligation of non-disclosure and non-use → states that the employee or third party has an obligation not to use nor disclose information received unless the right to do so was provided in the agreement
  • Definition of “permitted uses” → cases in which they can use or disclose the information in question. - Needed as you are disclosing info for a specific information so you must state they can only use it for this.

SOMETIMES:
- Undertaking not to use/disclose confidential information of third parties (e.g. former employer) → if you hire an employee or third, you should make it clear what their duties are in relation to your company as well as past customers information
-Date destruction/return of documents → return or destroy all confidential info when contract is over
-Obligation to report if information was inadvertently transmitted → tells the employee or independent contractor that they need to do something if they accidentally give information
-Penal clause (articles 1622 and 1623 of the Civil Code)

102
Q

What are remedies for infringement of intellectual property?

A

Injunction → court orders you to start or stop doing something
Damages → pay owner for profits they may have lost bc of infringement
Accounting of profits → pay profits you made bc of infringement
Punitive damages → above and beyond other damages, usually reserved for infringements are heinous (e.g. did it a lot, and received multiple notices, but didn’t stop)
delivery/seizure and destruction of property → court forces you to destroy anything infriging or send it to someone.

103
Q

What services should be considered for IP?

A
  • Professional to perform a freedom to operate search who looks through databases to see if there are existing patents
  • trademark search and opinion, avoid trademark infringement bc you hire someone to search for trademarks you might infringe on
104
Q

What is the obligation to 3rd parties (obligation towards employer)

A

Important because if said former employer or client gets it in their head that their former employee/independent contractor they could sue that person as well as your company for inducing them to break their agreement 3

105
Q

What should francization programs take into account?

A

Francization programs should take into account:
- Employees near retirement or with long records of service
- The particular case of head offices and research centers of enterprises from outside Quebec
- Enterprises that produce language content
- The line of business of the enterprise
- If you are producing a German show, it would make sense that most of your interactions are in German

Business LAW 2 (1 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions