Law Flashcards
What is The Constitution.
Supreme law of Canada
Defines the powers of the federal and provincial governments
Contains the Charter of Rights and Freedoms
Cannot be amended by regular Act of Parliament
Explain Constitutional supremacy.
All other laws and government action must be in accordance with the basic rules and norms set out in the Constitution.
What is the power of the judicial review?
settling constitutional conflicts between different political actors
How is power divided in the BNA Act?
Federal Parliament has jurisdiction over matters of national importance (e.g., foreign affairs, criminal law, trade and commerce)
Provincial legislatures have jurisdiction over matters of local importance (e.g., ownership of land, regulation of professions, civil law)
Charter of Rights and Freedoms
- Rights held by every citizen of Canada
- broad rights that reflect the nature of Canadian society and democracy
- these rights are guaranteed
- federal /provincial governments cannot pass laws that violate these rights
Rights and Freedoms Guaranteed.
- Right to a fair trial and due process
- Freedom of conscience and religion
- Freedom of thought, belief, opinion and expression
- Freedom of peaceful assembly
- Freedom of association
Allows elected legislatures to declare that a particular action or law operates in spite of a right or freedom found in the charter.
Notwithstanding Clause
“Judge-made Law”
The Common law
What is precedent?
A process of always changing laws that develop over time through judicial decisions.
T or F?
Common law may not be altered by legislation.
F
T or F?
The workers compensation act removes a worker’s common law right to sue Tujunga employer for accidents occurring in respect of work.
T
A contract can be defined as?
An agreement between individuals that is enforceable by the courts
T or F?
Statutes can change the common law.
T
Legislation takes for in ___?
Acts = Statutes
Give some examples of Federal Statutes and Provincial Statutes.
Federal:
- Criminal Code of Canada
- Copyright Act
Provincial:
- Engineers and Geoscientists Act
- Builders Lien Act
What is the Engineer and Geoscientists Act?
- A self-governing professional body
- responsible for regulating admission into the profession
- includes obligation to discipline members
- public is best protected where members of the profession govern themselves because they are the most qualified.
What does the Local Government Act do?
Delegates to municipalities of certain authority vested in the provincial government by The Constitution.
A locally elected body that has better knowledge and ability to deal with local issues.
How is a bylaw enforced?
A statute gives power to an individual or body to create bylaws. The process is different that the creation of statutes, but bylaws has the same force and effect as the statute it was created under.
Describe Criminal Law
- base in legislation
- individuals with the public
- prosecutes a private party
- deters antisocial behavior
- BEYOND A REASONABLE DOUBT
- lasting consequences
Burden of proof in civil vs criminal law
criminal: beyond a reasonable doubt
civil: balance of probabilities
Interrelationship of the Constitution, Legislation and the Common Law
- All statutes must comply with the Constitution
- judges must apply the common law in accordance with the Constitution
- Statutes and common law affect one another
- statutes can modify common law
Concurrency and Changes in Law
- laws are independently and equally applicable
- law is dynamic
- laws of nature =/ laws of human nature
- keep current seek advice
What is a contract?
- private law
- terms chosen by parties
- enforceable by courts
What are the requirements to form a contract.
- offer
- acceptance
- consideration
- legal capacity
- intention to create legal relations
What is meant by privity of contract?
non-parties cannot be bound to contract
**privity does not protect you from allegations of negligence
Is a written contract required?
No, but recommended
Interpretation, Agency, Term
- Precise meaning, context, implied terms
- agent may enter into contract in place of owner (CM at risk?)
- Contract is binding until…
- obligations are fulfilled
- it is terminated
- it is amended by consent of each party
How can a contract be amended?
- both parties must agree to changes
- in construction, “changes” to the scope of work is not actually contract amendment. Original contract gives owner the right to impose changes
What is set out in Construction Contract?
- the WORK to be performed
- the SCHEDULE of work
- the PRICE for the work
- other rights and responsibilities
Who are the players in Construction Projects?
Owner General Contractor Consultant - architect or engineer Trade Contractor Suppliers
Name 3 standard form construction contracts.
CCDC
CCA
MMCD
What are some benefits of using standard forms?
Easier to prepare certainty comprehensive accepted in market developed in collaborative environment
3 types of Contractor compensation/
Lump Sum
Unit Price
Cost Plus Fee
4 Common Fee Structures for negotiated bids
- cost + percent of cost
- cost + fixed fee
- cost + fixed fee + profit sharing clause
- cost + sliding fee
Are negotiated contracts more common in private or public sector and why.
Private. Potential for abuse through favoritism.
What is a tort?
a civil wrong committed by one person against another person ( not a crime, not a breach of contract, redressed through damages)
Types of Tort
Intentional - battery - trespass Unintentional - negligence - nuisance - failure to warn
What area of Tort Law has greatest impact on professionals?
Negligence
What are the essential elements of negligence?
duty of care
breached duty of care
breach caused injury
what duty does engineer have to owner regarding negligence in Innovative Engineering Design
must have informed consent of client
client must have potential risks explained IN WRITING
What is outlined in Duty to Warn?
Once aware, engineer must warn: owner, authorities having jurisdiction, association.
Failure results in negligence claim
professional discipline
What are the limitation periods?
2 years - personal injury or property damage
6 years - other losses
30 years - ultimate limitation period (under review of AG)
What is a process contract?
A bidding contract that arises b/w the contractor and the owner immediately when the bid is submitted CONTRACT A
What is contract B?
A formal construction contract if the owner awards a project to someone who is already in contract A.
