Law for Professional Practice Flashcards
Canadian Constitution is made up of various portions of the BC and Canadian Parliaments and includes three main features:
- Power division (legislature)
- Court’s creation (common law)
- Charter of Rights and Freedoms (individual’s rights)
Two types of laws in Canada:
- Statute law (Federal & Provincial Gov’t enacts legislation)
- Common law (judge-made law)
What is the Theory of Precedent?
Common laws are termed “judge made” laws since the courts apply legal principles established in previous court decisions that involved similar or analogous fact situations.
What are the 5 elements of a Contract (that must be present for the contract to be enforceable)?
- Offer made and accepted.
- Mutual intent (to enter the contract).
- Consideration (promise of value exchanged)
- Capacity to enter (legal age, no drunks, lunatics)
- Lawful purpose (no drugs)
Contract can be voided by the Court due to _____ - mutual, non-trivial, prior to agreement
Mistake
Case where a contract is voided by the Court due to false statement or assertion of fact?
Misrepresentation
Case where a contract is voided by the Court due to threats or actual violence/imprisonment?
Duress
Case where a contract is voided by the Court due to extremely unfair or oppressive circumstances?
Unconscious
Case where a contract is voided by the Court due to impossible circumstances of unforeseen events (e.g. war, riots, flood)
Frustration
A common clause within contracts that provides relief for events that each party agrees is beyond their control. List is comprised of events such severe storms, fires, terrorism, transport delays, labour disputes, undiscovered toxic waste, etc.
Force Majeure
______ of a right in a contract occurs when a party no longer enforces a term of a contract. After a reasonable amount of time, that term is then deemed waived and becomes this, as the new term is enforceable.
Estoppel
What is the legal term used to define payment of “fair market value” or a “fair and equitable amount”? This applies when no legal contract is in place and a party must be compensated.
Quantum Meruit (the amount it is worth)
Unable to perform duties due to lack of finances, etc. is what type contract breach?
Inability
Reluctance or choice to not perform duties is what type of contract breach?
Inadvertance
_____ involves breach of contract due to unclear assignment scope and refusal to fulfill their contractual obligations.
Disagreement
When it costs more money to do the work than breach the contract, this is called __________.
Lack of Profit
Most common remedy to a breached contract is ____.
Damages
______ is a court order to carry out part of the contract as a remedy to breaching contract.
Specific Performance
Court order preventing or restraining a person from performing an act?
Injunction
Determination of damages is subject to what 3 concepts?
- Mitigation (suffering party must reasonably mitigate damages)
- No speculation (must be proven)
- Remoteness (whatever caused the damages must not be too far removed)
A _________ should be provided if work is being conducted outside your scope with the expectation to sue later to recover the money.
notice of protest
Express term where party has provided notice by words or conduct of no intention to perform it’s contractual obligations
repudiation
Express term where the party has issued a notice of intention to breach the contract.
anticipatory breach
If a contract is not clear or ambiguous, the interpretation that favours the party that did not write the contract is chosen. This is called ________.
Contra Preferentum
A hold harmless agreement in which one party agrees to bear the financial loss / damages for another party. Common form of this agreement is insurance policy. This is often done by a principal to make the contractor liable for claims by a third party.
Indemnity
Law rule that assumes that prior evidence (that contradicts) that is not included in the contract has been omitted for a reason and is therefore prohibited. If they wish to include other information, they must amend the contract.
Paral Evidence Rule
A ____ refers to a breach of the duty to care, termed negligence, resulting in injury or loss. Does not need to involve a contract and so it implies a certain liability or duty for care.
Tort
Tort liability and liability for breach of contract is referred to as _______
Concurrent liability (in tort and contract)
To satisfy the court that compensation should be awarded, the plaintiff in a tort action must substantiate that ALL the following criteria apply:
- defendant owed the plaintiff a duty of care
- defendant breached that duty by his/her conduct
- defendant’s conduct cause the damages to the plaintiff
- defendant’s breach was the proximate cause (culprit)
____ liability applies in: “No fault” insurance—it is not necessary to establish fault. Workers compensation—it is not necessary to demonstrate the company was negligent for the worker to be compensated
Strict
_____ liability can be applied to the employer, and the employees personally for the tort the employee has committed. To protect its employed engineers, a corporation providing engineering services should ensure that its professional liability insurance policy extends to cover the liability of both the corporation and its employed engineers.
Vicarious
It is possible for more than one party to be liable in such a tort action. The defendants are said to be __________.
Concurrent Tortfeasors
Tort actions and actions for breach of contract must be commenced within a _________ after the time the cause of action arose.
Limitation Period
Intentional tort involving libel (writing) and slander (verbal)
Defamation
_____ means the occupier of property must provide a standard of care to ensure the safety of individuals coming onto that property.
Occupier’s Liability
Quebec has a _____ law system, tracing it’s roots back to the Napoleonic Code of France and is a statute system. Quebec does not have a ____ law system, however certain Canadian laws still apply (criminal, patent, federal).
civil; common
Loyalty to the employer is a duty of what?
Fidelity
____ is very similar to litigation; however, it is done privately or without a judge or court system. Deemed an Alternative Dispute Resolution (ADR). Contracting parties form this clause and rules of the process at the contract phase.
Arbitration
Formal docs filed with the court in a lawsuit
Pleadings
Oral examination of the opposing party prior to trial
Examination for Discovery
Written questions of the opposing party, prior to trial
Interrogatories
All information discussed in the negotiation process is considered privileged, thus if negotiation fails the information cannot be used as evidence.
Privileged Negotiation Principle
Patent is a right, granted by the gov’t, to exclude others from making, using or selling your invention in Canada for a period of ____ years.
20
Registration of a Trademark gives exclusive protection in Canada for ____ years.
10
Copyright for a work lasts for _____.
the life of the author, plus the rest of that year and another 50 years after the year-end.
Not necessary to register an industrial design; however, registration protects the exclusivity rights to the industrial design for up to ___ years from the registration date.
10
___ is a claim against the property that work was performed. Purpose is to ensure payment for services or product and enable credit.
Lien
When an employee is injured at work, she cannot sue the employer, another employer or an employee. She will be covered under the ________.
Workers Compensation Act
