Section 4: Law for Professional Practice

Question 1

3 main features of the Canadian Constitution

Answer 1

1) power division
2) courts creation
3) Charter of Rights and Freedoms

Question 2

2 types of laws in Canada

Answer 2

1) statute laws (federal and provincial governments enacts legislation)
2) common laws (judge made law)

Question 3

Theory of precedent (common laws)

Answer 3

Common laws are “judge made” based on legal principles established in previous court decisions that involved similar or analogous fact situations

Question 4

plaintiff

Answer 4

part making the claim, or the Crown

Question 5

defendent

Answer 5

party defending against the claim, or the accused

Question 6

5 elements of a contract

Answer 6

• offer made and accepted
• mutual intent to enter the contract
• consideration (promise of value exchanged)
• capacity (no drunks, lunatics, must be legal age)
• lawful purpose

Question 7

letter of intent

Answer 7

common agreement that doesn’t contain all elements of a contract and is therefore not enforceable, but it is helpful to communicate the seriousness of each part and helps map terms for negotiation.

it does not does not create a contract or require the parties to enter into a contract

Question 8

duress

Answer 8

persuading a party to enter a contract through threats or actual violence/imprisonment

Question 9

force majeure clause

Answer 9

provides relief for events that each party agrees is beyond their control, including “Acts of God” (severe storms etc), fires, transport delays, labor disputes

Question 10

what is a “mistake” in relation to voiding a contract

Answer 10

a mistake made by both parties (mutual), non-trivial, prior to agreement

Question 11

Estoppel

Answer 11

a legal term that describes an action that the courts can use to prevent a party from enforcing the strict wording of the contract when that party has extended a gratuitous (uncalled for) promise that puts the other party at a disadvantage.

example: an owner and a contractor enter into a contract to build an airplane hangar that is to be built by July 1. then the Owner says she’s going on vacation and the contractor can finish by September 1. Then, she changes her mind when she misses her flight to her vacation and decides the hangar needs to be built by the contract date of July 1. The contractor refuses. The owner takes the contractor to court and the judge denies the claims by using an estoppel because the owner made a gratuitous promise and going back to the contract wording would put the contractor at a loss.

Question 12

Quantum Meruit

Answer 12

legal term used to define payment of “fair market value” or “fair and equitable amount”. used when no legal contract is in place

Question 13

4 types of breach of contract

Answer 13

1) inability (cannot perform duties, no money)
2) inadvertence (doesn’t want to perform duties)
3) disagreement
4) lack of profit (more $ to do work than to breach contract)

Question 14

Remedies for breached contract (4 points)

Answer 14

• termed damages
• specific performance (court order to carry out part of the contract)
• injunction (prohibit from breaching)
• declaratory order (declaration of rights between parties, clarify what was uncertain)

Question 15

Contract Intent vs. Literal Interpretation

Answer 15

the intent of the contract always wins as the mutual intent is of prime importance

Question 16

Contra Proferentem

Answer 16

if a contract is ambiguous, the interpretation that favours the party that did not write the contract is chosen (against the party that wrote the contract)

Question 17

Agency & Authority

Answer 17

Agent (engineer) is given authority by the owner to guide 3rd parties. Can be implied but is typically given through a contract

Question 18

Indemnity

Answer 18

often termed as a hold harmless agreement in which one party agrees to bear the financial loss or damages for another party. often done to make the contractor liable for claims by a 3rd party

Question 19

Parol Evidence Rule

Answer 19

rule that assumes prior evidence that contradicts that is not included in the contract has been omitted for a reason and is therefore prohibited. other terms can’t be enforced without amending the contract.

once terms are finalized, outside evidence can’t be used to contradict or change the finalized terms of the contract

Question 20

Specific Performance

Answer 20

to resolve a contract dispute, a judge may order a party to perform a certain part of the contract. this action is a specific performance that the judge/court feels would remedy the dispute (e.g., sale of land)

the court will not order specific performance for an action that it needs to monitor or verify (e.g., installation of machinery or engineering services)

Question 21

Dispute Resolution Provision (DRP)

Answer 21

clause that describes the process to follow when there’s a dispute to the contract to resolve

Question 22

Tort

Answer 22

a breach of the duty to care, termed negligence, resulting in injury or loss and may arrive independently of a contract

the purpose of tort law is to compensate victims and not to punish the negligent.

Question 23

tort liability criteria

Answer 23

the plaintiff in a tort action must prove that all the following criteria apply:
1) the defendant owed the plaintiff a duty of care
2) the defendant breached that duty by his or her conduct
3) the defendant’s conduct caused the injury to the plaintiff
4) the defendant’s breach was the proximate cause of the plaintiff’s loss

Question 24

Examples of intentional torts

Answer 24

fraud, trespass, defamation

Question 25

Examples of unintentional torts

Answer 25

Negligence, negligent misrepresentation, strict liability, vicarious liability

Question 26

Strict liability

Answer 26

applies to intentional torts in which the plaintiff does not need to prove liability (e.g., a tiger owner is liable no matter how strong the cage, if the animal escapes and attacks - liability is implied)

Question 27

Fraudulent misrepresentation

Answer 27

when a party knowingly or recklessly uses a misrepresentation (untrue statement) to intentionally induce another party into a contract. the misled party is usually entitled to compensation for costs incurred, rescind the contract, and sue for damages

Question 28

innocent misrepresentation

Answer 28

when a party doesn't know that the untrue statement or fact is untrue, but loss is caused as a result

Question 29

negligent misrepresentation

Answer 29

when a party does know that the untrue statement or fact is untrue, and loss is caused as a result (but there was no intent to deceive)

Question 30

Vicarious liability

Answer 30

the employer is liable for negligence of an employee that causes damages or injury. the employer is assumed to be in a better financial position than the employee to compensate the injured party. It is in the best interest of a corporation to extend its professional liability insurance policy to cover the liability of both the corporation and its employees

Question 31

Concurrent tortfeasors

Answer 31

when there is more than one party liable in a tort action (defendants)

Question 32

Limitation Period

Answer 32

claim, lawsuit, or actions for a tort and actions for breach of contract must be commenced within prescribed time periods after the time the cause of the action arose in order for the court to consider them. (courts can extend the limitation period)

Question 33

Defamation

Answer 33

statement that injures a party's reputation - libel (writing) or slander (verbal)

Question 34

Occupier's liability

Answer 34

occupier of a property must provide a standard of care to ensure the safety of individuals entering that property

Question 35

Nuisance

Answer 35

an act that endangers the life, health, property, morals or comfort of the public or obstructs the public in the exercise or enjoyment of rights common to all

Question 36

3 basic forms of businesses

Answer 36

- sole proprietorships - partnerships - corporations

Question 37

Joint venture

Answer 37

partnership on one project

Question 38

duty of fidelity

Answer 38

loyalty to the employer (keeping info confidential such as business processes, client lists, non-competing or restrictive covenants)

Question 39

Restrictive covenants (positive & negative)

Answer 39

(e.g., non-compete agreements) must be reasonable and not restrict one's ability to earn a living. positive covenants require a party to do something, negative covenants prohibit a party from doing something

Question 40

T or F: termination notice and severance pay is required even if an employee breaches the employment contract

Answer 40

false

Question 41

T or F: if a contractor works solely for one person and the employment situation closely relates to employment, it is legally deemed an employee - employer contract

Answer 41

True

Question 42

4 types of dispute resolution

Answer 42

- negotiation (voluntary, without a third party) - litigation (non-voluntary) - mediation (voluntary, with the assistance of a neutral third party) - alternative dispute resolution methods (such as arbitration which is often voluntary)

Question 43

Dispute resolution provision (DRP)

Answer 43

clause that describes a process to follow when resolving disputes between parties to a contract

Question 44

Arbitration

Answer 44

Similar to litigation but less costly, takes less time and is less public. Done privately without a judge or court system but echos the court system and involves an arbitrator who acts as a judge to settle the dispute

Question 45

Pleadings

Answer 45

formal documents filed with the court in a lawsuit such as: - statements - replies - demands - motions - interrogatories

Question 46

Examination for discovery

Answer 46

oral examination of the opposing party prior to trial

Question 47

Interrogatories

Answer 47

written questions of the opposing party, prior to trial

Question 48

Discovery of documents

Answer 48

identifying documents by both parties prior to trial

Question 49

Privileged negotiation principle

Answer 49

all the information discussed in the negotiation process is considered privileged, thus if negotiation fails the information cannot be used as evidence against the parties in court

Question 50

Patent

Answer 50

a right, granted by government, to exclude others from making, using, or selling your invention in Canada for a period of 20 years (the inventor provides a full description of the invention)

Question 51

Criteria to get a patent

Answer 51

must be new, must be useful, must show ingenuity and not be obvious. patents include process, machine, manufacturing, composition of matter invention, or any new useful improvement of an existing invention

Question 52

What do you need if you are improving an existing patent invention?

Answer 52

To avoid infringement, one often acquires a license agreement to use the existing patent

Question 53

Are patents granted to the first inventor, or the first inventor to file?

Answer 53

First inventor to file - it's important to file early!

Question 54

4 components of a patent application

Answer 54

- abstract - specification (what does it solve, what prior invention exists and why is it inadequate, how does it work, is it new, useful, and ingenious?) - claims - drawings

Question 55

T or F: public disclosure (adverts, displays, publishing info) may make it impossible to acquire a valid patent

Answer 55

True

Question 55

Trade Name vs Trademark

Answer 55

a trade name is a business's identifier and can be registered as a TM only if it is useas as a TM (words, sybols, or design to distinguish goods or services). A TM is not used to identify the business

Question 56

Copyright

Answer 56

sole right to produce, reproduce, or publish a work or any substantial part of it in any form. gives protection for all original works (literary, drama, artistic, music), or other subject matter (performances of work, sound recordings, communication signals)

Question 57

T or F: the creator has to register the Copyright

Answer 57

False - however, they do provide evidence that the Copyright exists and who the owner is. Also, the Copyright symbol is not mandatory in Canada

Question 58

Assignment and License (under Copyright Act)

Answer 58

Assignment: Copyright owner transfers their Copyright rights to another License: Copyright owner allows another to use a work but still retains ownership

Question 59

Industrial design

Answer 59

visual features of shape, pattern, configuration or ornament applied to a manufactured material (e.g., repeated wallpaper design, perfume bottle shape, chair design)

Question 60

Expert witness

Answer 60

provides an expert opinion to some sort of government or judicial body. Can be paid by one party but must remain impartial and non-biased

Question 61

Construction liens (or builder's lien)

Answer 61

purpose is to ensure payment for services or product, and to enable credit. it's a claim against the property that work was performed on. mandated by legislation. all liens must be satisfied prior to purchase. liens must be registered within a certain period of time upon completion of the prime contract

Question 62

T or F: international agreements and treaties take precedence over provincial or municipal legislation

Answer 62

True

Question 63

3 parts of an Environmental Site Assessment (ESA)

Answer 63

Phase I: information gathering, title searches, etc Phase II: if recommended in Phase I, dictates sampling procedures Phase III: if recommended in Phase II, describes remediation procedures

Question 64

Workers Compensation Act: no-fault insurance

Answer 64

the cause of the incident has no bearing on whether the employee is given compensation, even if the employee is at fault

Question 65

Workers Compensation Board (WCB)

Answer 65

authorized by the Workers Compensation Act, to collect funds from employers as a function of payroll, safety record, etc.

Question 66

If an employee is injured while working, who can they NOT sue?

Answer 66

They cannot sue the employer, another employer, or an employee. They will be covered by the Workers Compensation Act regardless of fault

Question 67

3 rights of the employee (OH&S)

Answer 67

1) right to know 2) right to refuse 3) right to participate

Question 68

if two contractors are named the prime contractor simultaneously, who is deemed responsible for OH&S adherence?

Answer 68

the employer

Question 69

Privacy legislation

Answer 69

Governs the collection, use, and release of your personal information. Note - In the case of substantial personal safety risks, personal information can be released without persecution

Question 70

Is a hidden workplace camera allowed?

Answer 70

There is not an expectation of privacy in the work environment, so yes (but the workplace bathroom is a different story)

Question 71

Human Rights Code (basic meaning)

Answer 71

everyone has the right to work in an environment free from harassment

Question 72

Holdback

Answer 72

Technique to ensure that those working for the general contractor are paid. The owner holds back a certain percentage from each of the contractor's invoices. At the end of the project, the subcontractor has the opportunity to file a lien if they have not been paid what is owed. If a lien is not filed after a certain timeframe, the owner can pay the general contractor the holdback amount. If there is a lien filed, the owner must wait until the lien is resolved.

Question 73

Bid shopping

Answer 73

when price negotiations happen after the tender closes. considered by many to be unethical

Question 74

Liquidated damages

Answer 74

contract clause to minimize risks associated with performance. liquidated damages are pre-estimates of the damages that may result from a non-performance. example: an owner hires a contractor to install photo technology on a new toll road so that it can charge motorists for using the road. they agree on a payment amount of $5000 per day if the subcontractor does not have the equipment installed by July 1. The $5000 is the owners estimate of its daily-lost revenue from not charging motorists to use its road

Question 75

3 elements the court needs to consider allowing a contract to be voided due to a mistake

Answer 75

Must be: - mutual - significant - must have existed at the time of contract formation

Question 76

Secret commission

Answer 76

Giving or receiving a bribe or kickback to show favour to a person or company. Can be offered to engineers and geoscientists as they are often involved in awarding projects to companies that may be looking to increase their chances illegally.

Question 77

Appointment of 3-person arbitration board is done by who?

Answer 77

Each side selects one arbitrator, and the two representatives agree on a 3rd

Question 78

Peak Oil

Answer 78

When oil production reaches its maximum, after which it will begin to decline

Question 79

Subrogation

Answer 79

Subrogation is a legal process that allows an insurance company to seek reimbursement from a third party for losses that they've already paid out to an insured

Question 80

Cost reimbursement contract

Answer 80

A cost reimbursement contract is an agreement between parties in a construction project that guarantees the owner reimburses the contractor for costs incurred while they work on the project. (unlike a fixed-price contract)

Question 81

Essential submission items when submitting for an industrial design application

Answer 81

- at least one drawing or photo - application form - associated fee(s) - name of the item - your name and postal code

Question 82

First offence for a person who violates a regulation or code of the Occupational Health and Safety Act?

Answer 82

Fine and/or imprisonment

Question 83

When Copyright is sold, the original owner/creator still retains what?

Answer 83

Moral rights

Question 84

OH&S Act states that there must be a prime contractor if there are ___ or more employers involved in work

Answer 84

Two or more employers

Question 85

Self-dealing

Answer 85

Self-dealing is when someone acts in their own interest instead of the interest of someone they owe a fiduciary duty to

Question 86

Tariff (copyright)

Answer 86

set fee that users pay to use certain copyright materials

Question 87

Commercial general liability (CGL) policies cover claims for what?

Answer 87

bodily injury and property damage

Question 88

Registering a trademark in Canada makes it valid for how long?

Answer 88

15 years

Question 89

Remedy of recission

Answer 89

Recission is the act of canceling a contract and returning the parties to the positions they would have been in if the contract had never been made

Question 90

Trust provision

Answer 90

Trust provisions are a statutory scheme that protects lien claimants and unpaid subcontractors in construction projects. Obligates a general contractor to pay its subcontractors before using money from the owner for its own purposes

Question 91

Chattel

Answer 91

A tangible item of property other than real estate

Question 92

Learned intermediary

Answer 92

The learned intermediary doctrine is a legal defense used by manufacturers of medical devices and pharmaceuticals to avoid liability for product defects. The doctrine states that a manufacturer has fulfilled its duty to warn consumers if it provides the necessary information to a "learned intermediary," such as a treating physician, who then passes that information on to the patient

Question 93

Voluntary binding aribtration

Answer 93

Agreed to by both parties after the dispute has arisen

Question 94

A registered industrial design is valid for how many years?

Answer 94

10 years; maintenance fee after 5 years

Question 95

Frustration

Answer 95

exceptional change in circumstances which could not have been foreseen (like a flood or war)

Question 96

In terms of professional responsibility, the standard of service is that which is:

Answer 96

Duty to prevent harm

Question 97

Limited liability of a corporation

Answer 97

Creditors can only seize the corporations assets. It is a way to protect personal assets and protect shareholders

Question 98

Workers' Compensation is based on which type of liability?

Answer 98

Strict liability The employee does not need to demonstrate that he or she was injured as a result of his or her employers' negligence

Question 99

Rylands v Fletcher

Answer 99

The rule in Rylands v Fletcher states that a person is strictly liable for any damage caused by a dangerous thing escaping from their land due to their non-natural use of that land.

Question 100

What does errors and omissions insurance NOT cover?

Answer 100

E&O insurance doesn’t cover claims for property damage, bodily injury, workplace injuries, data breaches, intellectual property violations, or criminal acts such as fraud.

Question 101

Bid bond

Answer 101

The function of the bid bond is to provide a guarantee to the project owner that the bidder will complete the work if selected. The existence of a bid bond gives the owner assurance that the bidder has the financial means to accept the job for the price quoted in the bid.

Question 102

Unconscionability

Answer 102

Unconscionability is a legal doctrine that refers to contract terms that are so unfair or one-sided that they are against good conscience. When a court finds a contract to be unconscionable, it can refuse to enforce the contract, enforce the remainder without the unconscionable terms, or limit the application of the unconscionable terms.

Question 103

Cost-plus contract

Answer 103

an agreement between a contractor and a project owner where the contractor is paid for all project expenses plus a predetermined profit. This type of contract is also known as a cost-reimbursement contract or time and materials contract

Question 104

T or F: in addition to the owner, shareholders of a company would also be held liable for costs of environmental cleanup

Answer 104

False. Shareholders may lose their shares if the company goes bankrupt but wouldn't be expected to pay anything beyond that

Question 105

Examples of corporate wrongs that a director of a corporation would be personally liable for

Answer 105

- corporate failure to pay wages - corporate breach of construction lien legislation - corporate failure to remit income tax - fraud - negligence - approving transactions that would result in the corporation becoming insolvent

Question 106

performance specifications

Answer 106

a document that outlines the desired functional and performance characteristics of a product or installation. It defines the required results and criteria for verifying compliance, but does not specify how to achieve those results.

Question 107

T or F: employers can hire temporary replacement workers during a lockout or strike

Answer 107

False

Question 108

collective agreement (aka collective labor agreement)

Answer 108

a written contract that outlines the terms and conditions of employment for a group of employees. It is negotiated between a company's management and one or more trade unions that represent the employees. a collective labor agreement typically states that employees with the least seniority will be laid off first

Question 109

if a contract between an owner and a contractor fails to specify who is responsible for OH&S on the work site, who is responsible?

Answer 109

the owner

Question 110

4 different types of project delivery models

Answer 110

- design-bid-build - design-build - design-build-operate - construction management

Question 111

3 components of a public-private partnership

Answer 111

- contractual agreement - a long-term contract outlines the roles and responsibilities of each partner - risks associated with the project are shared by both sectors - private sector contributes to financing but public sector and/or users also make payments over the project's life (source of revenue)

Question 112

components of an independent contractor agreement

Answer 112

An independent contractor agreement includes important information such as payment terms, confidentiality, and ownership of any work product. It should also state that the contractor is not an employee and that they are responsible for their taxes, insurance, and equipment

Question 113

privity

Answer 113

a relation between two parties that is recognized by law. Privity of contract occurs only between the parties to the contract

Question 114

construction bond

Answer 114

a written agreement in which one party (the surety) guarantees that a second party (the principal) will fulfil its obligations to a third party (the obligee)

Question 115

T or F: the parties to a contract can subsequently agree to cancel or terminate the contract

Answer 115

True (even if there isn't an express term in the contract)

Question 116

T or F: a mechanic's lien can be filed regardless of whether or not in privity of contract with the owner

Answer 116

True

Question 117

Innocent misrepresentation entitles the deceived party to:

Answer 117

Recission of the contract