Section 4: Law for Professional Practice Flashcards
3 main features of the Canadian Constitution
1) power division
2) courts creation
3) Charter of Rights and Freedoms
2 types of laws in Canada
1) statute laws (federal and provincial governments enacts legislation)
2) common laws (judge made law)
Theory of precedent (common laws)
Common laws are “judge made” based on legal principles established in previous court decisions that involved similar or analogous fact situations
plaintiff
part making the claim, or the Crown
defendent
party defending against the claim, or the accused
5 elements of a contract
- 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
letter of intent
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
duress
persuading a party to enter a contract through threats or actual violence/imprisonment
force majeure clause
provides relief for events that each party agrees is beyond their control, including “Acts of God” (severe storms etc), fires, transport delays, labor disputes
what is a “mistake” in relation to voiding a contract
a mistake made by both parties (mutual), non-trivial, prior to agreement
Estoppel
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.
Quantum Meruit
legal term used to define payment of “fair market value” or “fair and equitable amount”. used when no legal contract is in place
4 types of breach of contract
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)
Remedies for breached contract (4 points)
- 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)
Contract Intent vs. Literal Interpretation
the intent of the contract always wins as the mutual intent is of prime importance
Contra Proferentem
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)
Agency & Authority
Agent (engineer) is given authority by the owner to guide 3rd parties. Can be implied but is typically given through a contract
Indemnity
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
Parol Evidence Rule
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
Specific Performance
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)
Dispute Resolution Provision (DRP)
clause that describes the process to follow when there’s a dispute to the contract to resolve
Tort
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.
tort liability criteria
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
Examples of intentional torts
fraud, trespass, defamation
Examples of unintentional torts
Negligence, negligent misrepresentation, strict liability, vicarious liability
Strict liability
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)
Fraudulent misrepresentation
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
innocent misrepresentation
when a party doesn’t know that the untrue statement or fact is untrue, but loss is caused as a result
negligent misrepresentation
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)
Vicarious liability
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
Concurrent tortfeasors
when there is more than one party liable in a tort action (defendants)
Limitation Period
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)
Defamation
statement that injures a party’s reputation - libel (writing) or slander (verbal)
Occupier’s liability
occupier of a property must provide a standard of care to ensure the safety of individuals entering that property
Nuisance
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
3 basic forms of businesses
- sole proprietorships
- partnerships
- corporations
Joint venture
partnership on one project
duty of fidelity
loyalty to the employer (keeping info confidential such as business processes, client lists, non-competing or restrictive covenants)
Restrictive covenants (positive & negative)
(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
T or F: termination notice and severance pay is required even if an employee breaches the employment contract
false
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
True
4 types of dispute resolution
- 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)
Dispute resolution provision (DRP)
clause that describes a process to follow when resolving disputes between parties to a contract
Arbitration
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
Pleadings
formal documents filed with the court in a lawsuit such as:
- statements
- replies
- demands
- motions
- interrogatories
Examination for discovery
oral examination of the opposing party prior to trial
Interrogatories
written questions of the opposing party, prior to trial
Discovery of documents
identifying documents by both parties prior to trial
Privileged negotiation principle
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
Patent
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)
Criteria to get a patent
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
What do you need if you are improving an existing patent invention?
To avoid infringement, one often acquires a license agreement to use the existing patent
Are patents granted to the first inventor, or the first inventor to file?
First inventor to file - it’s important to file early!
4 components of a patent application
- 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
T or F: public disclosure (adverts, displays, publishing info) may make it impossible to acquire a valid patent
True
Trade Name vs Trademark
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
Copyright
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)
T or F: the creator has to register the Copyright
False - however, they do provide evidence that the Copyright exists and who the owner is. Also, the Copyright symbol is not mandatory in Canada
Assignment and License (under Copyright Act)
Assignment: Copyright owner transfers their Copyright rights to another
License: Copyright owner allows another to use a work but still retains ownership
Industrial design
visual features of shape, pattern, configuration or ornament applied to a manufactured material (e.g., repeated wallpaper design, perfume bottle shape, chair design)
Expert witness
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
Construction liens (or builder’s lien)
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
T or F: international agreements and treaties take precedence over provincial or municipal legislation
True
3 parts of an Environmental Site Assessment (ESA)
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
Workers Compensation Act: no-fault insurance
the cause of the incident has no bearing on whether the employee is given compensation, even if the employee is at fault
Workers Compensation Board (WCB)
authorized by the Workers Compensation Act, to collect funds from employers as a function of payroll, safety record, etc.
If an employee is injured while working, who can they NOT sue?
They cannot sue the employer, another employer, or an employee. They will be covered by the Workers Compensation Act regardless of fault
3 rights of the employee (OH&S)
1) right to know
2) right to refuse
3) right to participate
if two contractors are named the prime contractor simultaneously, who is deemed responsible for OH&S adherence?
the employer
Privacy legislation
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
Is a hidden workplace camera allowed?
There is not an expectation of privacy in the work environment, so yes (but the workplace bathroom is a different story)
Human Rights Code (basic meaning)
everyone has the right to work in an environment free from harassment
Holdback
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.
Bid shopping
when price negotiations happen after the tender closes. considered by many to be unethical
Liquidated damages
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
3 elements the court needs to consider allowing a contract to be voided due to a mistake
Must be:
- mutual
- significant
- must have existed at the time of contract formation
Secret commission
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.
Appointment of 3-person arbitration board is done by who?
Each side selects one arbitrator, and the two representatives agree on a 3rd
Peak Oil
When oil production reaches its maximum, after which it will begin to decline
Subrogation
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
Cost reimbursement contract
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)
Essential submission items when submitting for an industrial design application
- at least one drawing or photo
- application form
- associated fee(s)
- name of the item
- your name and postal code
First offence for a person who violates a regulation or code of the Occupational Health and Safety Act?
Fine and/or imprisonment
When Copyright is sold, the original owner/creator still retains what?
Moral rights
OH&S Act states that there must be a prime contractor if there are ___ or more employers involved in work
Two or more employers
Self-dealing
Self-dealing is when someone acts in their own interest instead of the interest of someone they owe a fiduciary duty to
Tariff (copyright)
set fee that users pay to use certain copyright materials
Commercial general liability (CGL) policies cover claims for what?
bodily injury and property damage
Registering a trademark in Canada makes it valid for how long?
15 years
Remedy of recission
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
Trust provision
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
Chattel
A tangible item of property other than real estate
Learned intermediary
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
Voluntary binding aribtration
Agreed to by both parties after the dispute has arisen
A registered industrial design is valid for how many years?
10 years; maintenance fee after 5 years
Frustration
exceptional change in circumstances which could not have been foreseen (like a flood or war)
In terms of professional responsibility, the standard of service is that which is:
Duty to prevent harm
Limited liability of a corporation
Creditors can only seize the corporations assets. It is a way to protect personal assets and protect shareholders
Workers’ Compensation is based on which type of liability?
Strict liability
The employee does not need to demonstrate that he or she was injured as a result of his or her employers’ negligence
Rylands v Fletcher
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.
What does errors and omissions insurance NOT cover?
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.
Bid bond
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.
Unconscionability
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.
Cost-plus contract
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
T or F: in addition to the owner, shareholders of a company would also be held liable for costs of environmental cleanup
False. Shareholders may lose their shares if the company goes bankrupt but wouldn’t be expected to pay anything beyond that
Examples of corporate wrongs that a director of a corporation would be personally liable for
- 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
performance specifications
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.
T or F: employers can hire temporary replacement workers during a lockout or strike
False
collective agreement (aka collective labor agreement)
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
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?
the owner
4 different types of project delivery models
- design-bid-build
- design-build
- design-build-operate
- construction management
3 components of a public-private partnership
- 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)
components of an independent contractor agreement
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
privity
a relation between two parties that is recognized by law. Privity of contract occurs only between the parties to the contract
construction bond
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)
T or F: the parties to a contract can subsequently agree to cancel or terminate the contract
True (even if there isn’t an express term in the contract)
T or F: a mechanic’s lien can be filed regardless of whether or not in privity of contract with the owner
True
Innocent misrepresentation entitles the deceived party to:
Recission of the contract
