Final exam Flashcards
When are things attached to land Not fixtures?
- When they aren’t meant to be permanent.
- if they can be removed without causing damage
What does it mean when we say Property rights aren’t absolute
There is no one ultimate claim to property it’s about who has the “better claim”
What are the three possessory interests in land?
Fee simple: most complete ownership.
Life estate: right of possession during their lifetime
Leasehold estate: right of possession due to a contract
What are some interests that aren’t possessory (don’t have to do with ownership)
Easement: the right to use land
Right of Way: Easement but for entering and exiting the property
Licenses: right to profit from land
Restrictive covenant: you’re not allowed to use this land for xyz…
Mortgage: ability to take land if someone defaults
What’s the difference between joint tenancy and tenancy in common
(J/T) has right of survivorship where if one dies the other takes over their ownership. Also, there is equal interest
In (T/IC) if one dies their estate gets the ownership. Split can be whatever.
When does the finders keeps rule not apply?
It doesn’t apply when the personal property was found on private property
What is a bailment? What factors affect the standard of care?
A bailment is when one person is in possession of someone else’s property.
Things like who it’s benefitting, value of the goods, and the contract terms all affect the bailment.
What do trademarks protect? What happens after 5 years? 10?
Trademarks protect logos, words, or images that distinguish a product.
ONLY IF REGISTERED: After 5 years nobody can say they were using your TM first
After 10 years you have to renew the TM.
What is passing off? What about TM dilution?
Passing off is a tort with trademarks where one person tries to copy the product of another AND it causes damages. Dilution isn’t deceptive but it’s trying to hurt someone else’s mark’s reputation
What are the remedies for TM and Patent torts?
You can receive damages, an injunction (STOP), accounting of profits, and delivering up
What does copyright protect?
Copyright protects any original piece of art.
What are the requirements for enforcement of copyright? is registration one?
The requirements are that the art must be original, must be fixed (stored), and connected to Canada.
Can you sell intellectual property?
Yes, it’s considered property. It can be bought, sold, gifted, etc.
What does fair dealing allow?
permits unauthorized copyright use for review, personal study, criticism, news, parody. Must be done “fairly”
What are moral rights?
They are rights separate from copyright. 1. Right to attribution. 2. Right to not have work disparaged.
What do patents protect?
Patents protect inventions that are New (can’t have been publicly disclosed more than 1 year before application), useful, and not obvious.
What does industrial design protect?
Industrial design protects the visual appearance of a product.
Which of the intellectual properties must be registered?
Industrial design and patents must be protected.
Why is it important to distinguish between employee and independent contractor?
- Vicarious liability for the employer
- employment legislation
- income tax reasons
What are the tests to distinguish between an I.C. and an employee
- who has control?
- level of integration
- other factors (who buys the tools)
What are some obligations of the employer?
Provide pay, safe work environment, and comply with employment laws
What are the obligations of the employee?
Show up on time, work competently, be loyal, and (sometimes) fiduciary duty (only for directors, officers, and agents)
When termination of an employee with cause, what are they owed?
They aren’t owed anything
What are some examples that cause can be based on? what does progressive discipline have to do with it?
Cause can be based on serious misconduct, absenteeism, criminal behavior, assault, dishonesty, etc. Progressive discipline helps document and prove serious misconduct for a court.
To amount to cause to what level does the conduct have to arise?
Must destroy trust in the relationship. Must break a fundamental part of the employment contract. Must be inconsistent with the employee’s job.
What are the two sets of obligations if an employee is terminated without cause?
- must provide reasonable notice or pay in lieu of reasonable notice under common law and ESA.
- must provide ESA severance. 1 week/year max of 26 years.
What are Bartel damages? What are the different cases of wrongful dismissal?
Bartel damages are damages for wrongful dismissal. These will give damages for the missed pay in lieu of reasonable notice.
Wrongful dismissal: discrimination, bad faith (not business reasons), and no reasonable notice
ESA describes some minimum standards that can’t be opted out of what are some examples?
Minimum wage, time off, hours needed to work, termination and severance
When is drug testing illegal? when is it legal?
Mandatory drug testing is illegal but testing for impairment after an accident is legal. Also, it’s legal is some fields where public safety is a high priority.
Where does HR legislation apply?
It applies in employment, housing, and government services
What are the three ways to certify a union?
- more than 50% of employees are a part of the union
- a vote is held and more than 50% of the votes approve
- there’s an illegal move by the employer so the union automatically steps in.
What are some attributes of a collective bargaining agreement?
It’s an agreement of agency. Prohibits strikes and lockouts. has a term life of at least one year. Becomes the employment contract
What does the sale of goods act not apply to?
Only applies to sale of personal property. Doesn’t apply to services, real property, intangibles, gifts, leases or licenses
What does the term Caveat emptor mean?
It means buyer beware. Back in the days the law used to protect sellers not buyers.
What are the implied conditions of a sales contract according to SGA
- right to sell
- matches description
- matches sample
- merchantable quality
- reasonably suitable for INTENDED purpose
What are the implied warranties
- no encumbrances (strings attached)
- reasonable payment time
- reasonable delivery time
When are the implied terms of a sale of goods contract allowed to be modified?
When it’s a business transaction not a consumer transaction.
If there’s a breach of an SGA contract what are the remedies?
repudiation and damages (not going to do my promise) (for breach of condition)
damages (breach of warranty)
What does the consumer protection act protect?
Protects all consumer purchases
What are some of the controlled business practices?
Door-to-door sales, telemarketing, time shares, fitness clubs, used cars, MLM
What does the Competition act influence?
- It restricts all mergers/acquisitions
- Prohibits anti-competitive behavior
- Prohibits misleading advertising (drip pricing)
- prohibits illegal practices (like price fixing)
What are anti-competitive practices? What force protects against it?
The competition tribunal protects against
Price fixing, bid rigging, fake prices, abuse of dominant position, predatory pricing, and refusal to supply
What are the three main strategies that creditors use to minimize risk?
Good credit practices, securing collateral, and guarantors
What are the three conditions for attachment?
Debtor receives value (buys a skin), debtor has collateral (other v-bucks), debtor signs security agreement (agrees to epic terms and conditions).
What is needed to have perfection?
You need attachment + registration under PPSA
What are some of the characteristics of a guarantee contract?
The contract must be in writing, the guarantor must receive consideration (could be the debtor getting credit), and the contract is conditional.
What are the purposes of bankruptcy law?
Protect creditors. Rehabilitate debtors. Fair distribution of assets
What’s the difference between Bankruptcy and Insolvency?
Bankruptcy is a legal process in which assets are transferred to a trustee in order to distribute.
Insolvency is a matter of fact that you can’t pay your debts or liabilities exceed assets.
What are the stages a corporation goes through before bankruptcy?
- Informal calls
- formal proposals (division 1 for businesses)
What’s the order the assets are distributed in bankruptcy?
- secured creditors
- preferred unsecured creditors
- ordinary unsecured creditors (pro rata basis)
What is an aboriginal title? what rights does this grant?
right of exclusive use and occupation.
2. right to benefit economically
3. can only be sold to the crown
Cosignment
The owner of goods permits someone else to sell their goods (think artist cosigning with a label)
Bundle of rights
Rights attributed to owning property. includes right to exclude, right to possess and use, and the right to transfer to others.
Can a bailee be liable for a lost or stolen item?
Yes! if they are negligent or intentionally do wrong, they can be found liable.
What can’t be patented
Things that get exclusive protection in other areas of the law, things that are protected by policy, things that don’t meet the requirements.
What are the two parts of a patent?
Specifications: The details of the invention
Claims: the rights of the holder
What must be demonstrated to register a TM
- it’s distinctive
- The owner has the title to the TM
- it’s registerable (not someone’s name, not descriptive, not deceptive, not confusing, not the word in any language
How is copyright infringement measured
It’s measured by if a distinctive part is copied not a certain percent
What are the requirements for confidential business info?
- value in it being unknown
- efforts were taken to keep it secret
- not known in the industry
What are the obligations of those selling land?
Must no mislead, must answer questions honestly, must disclose defects.
What are some risks in buying land? what are ways to mitigate these risks?
Risks: there are squatters. There is damage to the property, government has a claim on it.
Mitigation: do a title search, look at the property, ask questions
What are the three stages of transfer of land?
Agreement of purchase and sale.
Investigation
Closing
What is the human rights commission? What are the types of Discrimination they look for?
They are a governing body that enforces HR legislation. They look for systemic and adverse effect discrimination
What is a Bonafide occupational requirement?
It is an aspect of a job that cannot be accommodated. Discrimination is ok in this circumstance.
What is constructive dismissal? What are you entitled to?
Constructive dismissal is when an employer changes a condition of an employment contract. This can be treated as a dismissal without cause.
What three duties do professionals have?
Contractual duties, fiduciary duties, and tort duties (avoid negligence)
What are some shipping terms?
Bill of lading: contract
stoppage in transit: when a buyer is insolvent good be returned
CIF: seller pays for everything
FOB: seller gets it to a carrier
COD: cash on delivery
What is price fixing? when is it legal?
Price fixing is artificially driving up the price. Only illegal when it excludes rivals or prevents entry into a market.
What are duties of the bank.
- fiduciary duty when giving advice
- honor payment instructions
- collect payments
- provide account info
- maintain the privacy of customers info
What are the three negotiables instruments
Promissory note: written promise to pay someone
Bill of exchange GLUCK
check
What are the three ways an insolvent person becomes bankrupt?
- assignment in bankruptcy (voluntary)
- Creditors apply for bankruptcy order
- Divison1 proposal fails
What are some bankruptcy offenses?
transferring property, false info, refusing to answer questions truthfully, tampering, concealing assets.
Who has super priority claims?
unpaid suppliers, employees (wages and pension), debtor in processes
