IV. Law for Professional Practice Flashcards
1
Q
What branch of government do property rights and construction liens fall under?
A
Provincial.
2
Q
When would a civil case be brought to the Canadian Supreme Court?
A
If it is considered to be of “National Importance”.
3
Q
What is common law defined as?
A
Where judges use the principles of law and equity to make court rulings.
4
Q
What does Quebec use common law for?
A
Exclusively federal matters such as criminal or patent issues.
5
Q
What is case law defined as?
A
Using a set of past rulings that the court or judge will use to help make a decision.
6
Q
What is a civil code used for in Quebec?
A
To encourage judges to rely more on interpreting the law rather than looking at past case precedent.
7
Q
Which takes precedence: international treaties or domestic law?
A
International treaties.
8
Q
How is public and private law differentiated? Give an example of each.
A
Public: impacts society as a whole (lake pollution).
Private: issue between two or more individuals (landlord having tenant issues).
9
Q
What is the highest form of law?
A
Constitutional law.
10
Q
What is the charter of rights and freedoms?
A
A section within the constitution that gives certain rights to all Canadians.
11
Q
What is the definition of contract?
A
Lawful agreement between two or more voluntary parties.
12
Q
What are the 5 aspects of making a contract binding?
A
- Making and accepting of a contract
- Both parties have intention to enter into a contract
- Something of value is being exchanged (consideration)
- Each party has the capacity to contract (of legal age and ability)
- Contract product or service is legal
13
Q
What is invitation to treat?
A
When someone asks another for an offer for them to consider. (e.g. is a request for quotation)
14
Q
What are 3 examples of non-binding documents?
A
Agreements to agree, letters of intent, and memorandum of understanding.
15
Q
What is the definition of a waiver? Give an example.
A
Giving up rights to the contract in a non-written way. Example: if a contractor mentions verbally they are “flexible on payment due dates”
16
Q
What is the definition of an estoppel?
A
It is a concept that precludes a person from asserting something contrary to what is implied by a previous action or statement of that person.
17
Q
What is quantum meruit?
A
Latin for “amount that it is worth”.
18
Q
What are the two main types of damages? Define both and give an example of each.
A
- Direct or liquidated. Typically written into a contract and can easily be calculated. If a low bidder decided not to proceed with the contract, owner may sue for liquidated dames which would be the difference between the low bid and the next lowest bid.
- Indirect or consequential. Damages as a result of the breach of contract. For instance if a contractor fails to perform a service by a certain date and the owner has to shut down its plant, they would sue for a daily rate that is related to the profit loss.
19
Q
How is a fundamental breach of contract defined?
A
When the innocent party is deprived of most or all of the contract’s benefits due to action or inaction from the guilty party.
20
Q
What is repudiation?
A
When one party tells the other that they are not going to perform some of its obligations.
21
Q
How is a anticipatory breach of contract defined?
A
When a party warns the other party that they will be unable to perform some of its obligations in the future.
22
Q
What is the agency relationship?
A
A relationship which gives authority to the agent to make decisions on behalf of the principal and make decisions that the third party (such as a contractor) can act upon.
23
Q
What are changed circumstances in contracts?
A
An outline of how a client will be compensated as the project changes.
24
Q
What is a conditional agreement?
A
An agreement that is waiting on an action to be completed before it can begin.
25
What is a limitation of liability clause?
Something that you could add to your professional service agreement to tell your client upfront what the highest amount of claim that can be brought against you is in case of loss.
26
What is an exemption clause?
A clause which helps the guilty party if they can foresee an upcoming event that might cause it to cause damages.
27
What is a liquidated damages clause?
A clause written in to establish the cost that the party will pay the other party for late performance.
28
What is an indemnification clause?
A clause written in to give protection to a party or both parties against negligence of the other party.
29
What are the three types of misrepresentation?
1. Innocent
2. Negligent
3. Fraudulent
30
What are some standard details in a contract?
- scope of work
- contract time
- changed circumstances
- warranties
- indemnification
- waivers
- how the contract will end
- how disputes will be handled
31
What is a standard use contract?
A contract template/starting point when a company provides similar services over and over.
32
What is a professional service agreement?
It is what a professional would commonly enter into if acting in a design capacity.
33
What is a licensing agreement?
An agreement or clause within a service agreement which makes it clear who is owning the intellectual property being developed and how it will be used.
34
What is a tort?
A tort is when a duty of care is breached and someone else is injured or suffers a loss. A wrongdoing.
35
Is a contract necessary for a tort to occur?
No.
36
What is a negligence tort?
When a professional fails to exercise the standards that a reasonable professional would use in a similar situation.
37
What is an example of a trespass tort in a professional environment?
When you drill wandering boreholes.
38
What is a nuisance tort? Give an example.
When someone interferes with another person's right to use or enjoyment of right to land.
Rylands v. Fletcher: F was using property in non-natural way by creating an underground water reservoir which caused damage to an old mine shaft on R's property.
39
What is a defamation tort?
Using communications methods to make untrue statements to injure another party's reputation.
40
What are the four criteria that need to be satisfied to satisfy a negligence tort?
1. defendant owed the plaintiff a duty of care
2. defendant breached that duty
3. plaintiff suffered loss/damage
4. breach was the main cause of plaintiff's loss
41
What is an example of a duty to warn? To what extent should a professional have a duty to warn?
Hot coffee warning on cup.
If you notice something even if it is outside of your scope of work, you have a professional duty to notify those responsible and ensure all steps are taken to prevent injury/loss of life.
42
What are the two types of affected parties of negligent misstatements? Give an explanation of each.
- Clients. If they rely on your misstatements and they turn out to be negligent or fraudulent, they can sue.
- Third parties. The public could rely on information such as a public lake not being contaminated.
43
What is a disclaimer? What would make it enforceable?
A tool professionals can use to shift risk on a contract or when selling a product - tells the user what limitations/exclusions come with the design services. Must be clearly drafted and not be a replacement for selling low-quality services or products.
44
What is product liability?
An idea in which manufacturers are liable to consumers for defective products.
45
When can a consumer sue using contract law, and when for tort law?
Contract law: if purchasing directly from manufacturer.
| Tort law: if purchasing through middleman (retailer).
46
What is concurrent liability on contract and torts?
The idea that a professional owes a duty of care to the other party even if that duty is outside of the contract terms.
47
What is a limitation period? When does it start?
A statutory or contractual requirement for a claim to be made or lawsuit to begin within a defined timeframe. Starts when the plaintiff has noticed the loss/damage OR should have reasonably noticed it.
48
What is joint liability?
When 2 or more partners are responsible for their partner's obligations or debt.
49
What is several liability?
When each party in a group of 2 or more parties is only responsible for their own debt or obligations.
50
How is it determined where liability is joint or several?
Through provincial legislation as well as the actions of the plaintiff.
51
What is vicarious liability? What is a common example?
Shifting the liability to another person or group based on those who are profiting from the work.
Employer taking responsibility for employee's liability.
52
How are private matters (non-criminal) dealt with in the courts of Quebec?
Civil code.
53
What is favoured in a contract in Quebec?
The parties' common intentions over the literal meaning of the words within the contract.
54
What is civil liability defined as under the Quebec Civil Code?
Each person has a duty to abide by rules and not cause injury to each other.
55
What is the term in Quebec's Civil Code when a creditor who is paying for products/services has a right to demand that the deliverable is completed in full and on time?
Performance of obligations.
56
What is contract of enterperise or for services defined as under the Quebec Civil Code?
When someone agrees to do physical or intellectual work in exchange for money.
57
What are the three main forms of business in Canada? Define each and explain differences in terms of liability.
1. Sole Proprietorship: Individual carrying business on their own under their own name or business name. Sole liability.
2. Partnership: When two or more people join forces to run a business. Equal liability b/w partners (unless it is a LLP, here liability is based on money put in by each partner).
3. Corporation: Legal entity run by a group of directors. Liability rests on the corporation as if it were a person.
58
What are the pros and cons of a sole proprietorship?
Pros:
- inexpensive to start
- sole individual is not liable for error or omissions of others
Cons:
- personal assets are at risk of being seized if business has debts, obligations, lawsuits against it
59
What are the pros and cons of a partnership?
Pros:
- do not have to pay fees to incorporate or deal with regulation
- benefit from shared expertise and costs
Cons:
- more exposed to risk of partner error, where personal assets may be seized
60
What are the pros and cons of a corporation?
Pros
- limited liability, corporation is treated as a separate entity.
- tax advantages
- ability to transfer ownership easily
Cons:
- highly regulated
- costly to register and record keep
- potential conflicts between shareholders and those that operate the business
61
What does labour law cover?
Exclusively employer/employee-union relations.
62
What are layoffs? What's the difference between layoffs and termination?
Layoffs happen because the employer is in business where the need for skilled labour changes throughout the year or another period of time. Implied to be temporary as opposed to termination which is permanent.
63
What is a collective agreement?
An agreement in place between a union and management concerning mutual issues.
64
What does employment law cover?
The relationships between employers and employees.
65
What are implied terms in an employment contract? Give three examples.
Common sense things that are implied such as:
- loyalty to employer
- performing competent work
- maintaining skills and training
66
What are restrictive convenants? Do they hold up in court?
Employment contract clauses that attempt to prevent employees who leave a company from working for a competitor.
May not hold up in court dependent on how clearly written and fair they are to employee.
67
What is employment standards legislation? What does it address?
Legislation that exists in every jurisdiction in Canada and addresses:
- safety
- wages
- working conditions
68
What would an employer need to do to terminate an employee without just cause?
Give notice and pay severance.
69
What is the definition of litigation? What is a pro and con?
Solving a dispute by going to court.
Pro:
- courts enforce the decisions made.
Con:
- expensive and time consuming.
70
What is the definition of arbitration?
Solving a dispute by have an arbitrator (private judge/jury) mutually selected by both parties.
71
What is the definition of negotiation?
A private and informal solving of a dispute.
72
What is the definition of mediation? When does it work best?
Using a third party to aid a settlement discussion. Works well for a variety of disputes when parties are committed to reach a settlement.
73
What is a patent for?
Invention - something new, useful, and innovative. Could also be a new improvement to existing ideas.
74
What is the most important section of a patent? Why?
Claims section, which defines the features of your invention, because it is enforceable in court.
75
What is a trade secret?
Anything that a company wants to keep confidential.
76
What does a copyright do? When is one granted?
Gives the owner the right to copy their work or allow others to copy it.
Granted upon creation of the work.
77
What is the typical length of a protected copyright?
Life + 50 years.
78
If an employee designs something new that earns a copyright, who owns the copyright?
Typically the employer, unless it is stated differently in the employment contract.
79
Is software covered by copyright law?
Yes.
80
What types of trademarks can't you register?
- Names (like John)
- Geographic locations
- Clearly descriptive names (like "sweet" candy)
- Anything deceptively misdescriptive (like calling an oat cereal "riceables")
81
How long is a trademark eligible for when granted?
10 years with opportunity to renew.
82
When is IP (intellectual property) status automatically granted? What must be registered in order for this to happen?
Only granted for copyright. Patent and trademarks must be registered to establish a record of creation.
83
What is licensing of IP?
Allowing others to either manufacture and sell your invention, or use your trademark to sell their product.
84
What is an expert witness?
Someone with the expertise, skills, training, and experience to comment on case details.
85
Is an expert witness's "opinion evidence" admissable?
Yes, as long as it is unbiased.
86
Can an expert witness be paid to provide their services? How?
Yes, but as a set amount not dependent on the outcome of the case.
87
What are bonds?
Three party agreements where the surety takes responsibility for certain obligations of the principle, giving a level of assurance to the obligee.
88
How many agreements are in a bond? What are they?
Two:
- One between the surety and principle, where the principle pays for the surety to provide a bond while it promises to perform a certain set of tasks
- One between the surety and the obligee, where the surety is responsible for covering any costs associated with the principle's poor performance
89
What is subrogation?
When the bonding company (or surety) can assume the rights of the obligee to recover (via suing most likely) losses that have occurred at the fault of the principal.
90
What are the 3 main types of bonds? Define them.
1. Bid bonds: An agreement between owner and contractor that the contractor who won the bid is bonded to pay a specified amount if they do not follow through in entering a contract to complete the work after they've won the bid.
2. Performance bonds: An agreement between surety and contractor used to ensure the contractor finishes the work for the owner. If the contractor defaults, the surety can pay the bond amount to ensure the work gets finished OR they can hire a replacement contractor or dispute the default.
3. Payment bonds: An agreement which ensures a surety is involved to give a guarantee to the obligee that payments will be made and reduces the chances of liens.
91
What is a construction lien?
A claim made against a property by a contractor or subcontractor who has not been paid for work done on that property.
92
What is the purpose of a lien?
To give some security to the construction industry and prevent owners from not paying.
93
Who can and cannot claim a lien?
Anyone not more than two degrees of separation from the owner can claim a lien. Engineers and architects may claim liens.
Example: Owner - contractor - sub contractor - sub sub contractor. The only one who cannot claim a lien is the sub sub contractor.
Insurers can also not claim liens. Material suppliers can.
94
What is a holdback?
A percentage of the contract value that is held by the owner from every progress draw.
95
What should a professional abide by if the foreign country in which they are working has no local rules pertaining to the work?
Follow the code of ethics, regulations, and bylaws of your home association.
96
What are three important federal environmental law acts? What are they for?
1. Environmental Protection Act - prevent pollution
2. Fisheries Act - protect fish habitats
3. Environmental Assessment - encourage sustainable development
97
When there is federal and provincial legislation that seems to cover the same activity, which takes precedence?
Federal.
98
What are the 4 steps a professional would take as part of their duty to report a potential environmental mishap?
1. Analyze the situation to find if the environment is in immediate danger.
2. Decide if the problem is being caused by an individual or a situation.
3. Try resolving the issue with the people involved. If resistance, go higher up in management.
4. If there is still resistance from people involved, blow the whistle by bringing the matter to your association for advice and support.
99
What is the purpose of occupational health and safety law?
To protect workers from unsafe conditions by requiring their employers to follow stringent safety regulations.
100
Who starts out as the one responsible for occupation health and safety on a project? Are they always?
The owner.
Through the tendering process, the role is typically transferred to the prime contractor who is paid to take on this responsibility and risk.
101
Who are employers protected from tort lawsuits against in a safety incident on a jobsite? Why?
Employees, because they are protected and will get compensated by WCB. If a member of a public gets hurt, that person is able to sue.
102
What major act has to do with privacy law and who is it governed by? Explain it.
Personal Information Protection and Electronic Documents Act (PIPEDA). Governed Federally.
Governs how private sector organizations collect, use and disclose personal info.
103
What is PIPA? Who is it governed by?
Personal Information Protection Act. Provincial governance.
104
What is a letter of credit?
A letter from a bank guaranteeing that a buyer's payment to a seller will be received on time and for the correct amount.
