Final study

Question 1

Standard of proof

Answer 1

a. Ethics and law [3]
b. Criminal charges must be proved beyond reasonable doubt
Civil charges must be proved to lower stand called balance of probabilities (more likely the not)
c. If found guilty of criminal conviction. this conviction can almost always be sufficient for civil liability

Question 2

Conflict of Interest

Answer 2

Ethics and law [3]
Engineers have 4 “duties”:
duty to the public (safety)
duty to the client (confidentiality)
duty to the employer (non compete)
duty to the profession (policing each other)
Soft hierarchy of duties - Public interest in safety takes precedence

Question 3

Sole proprietorship

Answer 3

Business organizations [5]
Business under sole individual - no legal difference between business and individual
Principal disadvantage is personal liability for business

Question 4

Partnership

Answer 4

Business organizations [5]
Business under group of individuals - liability is shared by partners
Shared liability can be dangerous as you can be held accountable for partners mistakes

Question 5

Corporation, company

Answer 5

Business organizations [5]

Business is created as a separate entity (separate legal person)

“Piercing the corporate veil” principal shareholders are held directly liable for company - usually in cases of fraud

Question 6

Joint venture

Answer 6

Business organizations [5]

Act together but retain separate legal status

Question 7

Due diligence

Answer 7

Business organizations [5]

All reasonable steps have been taken by officers and directors to ensure the corporation is not in breach of statute.

This is the principle defence by officers and directors against liability

Question 8

Insider Trading

Answer 8

Business organizations [5]

Purchase or sale of shares prior to the disclosure of a coporate news release, or it may involve the purchase or sale of shares on the basis of information that will never be disclosed to shareholders

Question 9

Moral Rights

Answer 9

. Intellectual Property. Copyright law [x]

b. Rights that protect the artistic integrity of copyrighted work. such as the manner in which a painting is displayed. Moral rights include the right to prohibit distortions. mutilations and modifications and the right to prevent other from claiming authorship. ( rights tied to personality/reputation of author; or non-economic rights) [x]
c. Copyright law is not unlimited and only subject to the list of protected rights that are listed in the Act. This right cannot be assigned to someone else but it can be waived. The moral rights of a copyright are also tied to the personality/reputation of the author. (Includes: paternity, attribution, integrity; or unique to Canada, or limited nature, example (Geese sculpture at Eaton Center))

Question 10

Prohibited Grounds

Answer 10

a. Employment Law . human rights [21]
b. It is against the law to discriminate in employment against people on the basis of 14 “grounds”
c. Prohibited grounds is a list of human rights which employers must follow when terminating. employing and deciding the pay grade of workers. If an employee is discriminated against for one of the prohibited grounds they have the right to sue the employer based on a human rights violation. Employees may however be discriminated against for disability which effects their work. experience and education as these are not covered under the prohibited grounds.

Question 11

Estopel

Answer 11

a. any part of law [7]
b. Estoppel is a collective name given to a group of legal doctrines in common law legal systems whereby a person is prevented from asserting certain matters before the court to prevent injustice - the person is said to be “estopped”.
c. in contract law when rights in a contract are waived they are subject to estoppel and cannot be used in court.

Question 12

waiver

Answer 12

a. contract law [7]
b. a waiver of rights occurs when the words or conduct a party ceases to enforce certain of his or her contractual rights.
c. a lease is written to have payment on the first of every month, if the payment is accepted several days late on the odd occasion, it cannot be enforced to be accepted on the first anymore. must provide reasonable written notice to reinforce this rule

Question 13

Express terms

Answer 13

Contract law [6]

Words, phrases, conditions that have been agreed to by both parties, written or orally

Question 14

Implied terms

Answer 14

Contract law [6]

Terms of a contract which haven’t been written or discussed but are taken for granted

Question 15

Enforceability of contract

Answer 15

Contract law [6]
For a contract to be enforceable there must be an offer, acceptance, and consideration
something of value must be exchanged - this “thing” is called consideration

Question 16

breach of contract

Answer 16

• inability: unable to perform contract
  inadvertence: one party unintentionally failed to carry out one of its promises or obligations
• Disagreement: contract is interpreted differently between parties.
• Anticipated Financial Losses: when the contract is more costly to perform then face legal consequences of non performance.

Question 17

force majeure

Answer 17

a. contract law
b. unavoidable contract ending clause agreed upon by both parties
c. acts of gods. labor disputes. fires. delays by transport companies. and unavoidable casualties.

Question 18

Performance under protest

Answer 18

Contract law [7]
A party gives written notice to the other party that it will be performing work on the understanding that it will be arguing for additional payment for that work
Ex. construction project where extra work needs to be done to to continue and owner refuses to pay extra

Question 19

right to title

Answer 19

a. Regulations of the Profession [2]
b. the professional regulatory authority can regulate the exclusive right for its member’s to use a particular title (scope of practice)
c. apegbc and P.Eng designation

Question 20

Moral Principles

Answer 20

a. Ethical Consideration [3]

b. are the standard of conduct required by society. by an organization or or group or by an individual

Question 21

Express Authority

Answer 21

a. Contract law [9]
b. is the authority which the principal (owner) has expressly given to the agent whether orally or in writing
c. if the owner of a house gives express authority to an architect to make certain changes the owner must go along with those changes even if he doesn’t like them

Question 22

Apparent Authority

Answer 22

Contract law [9]
Is where the agent has been held out by the principal as having authority
If the agent exceeds his authority and the owner is aware and does not stop it - this creates apparent authority which means the owner has to abide by those changes

Question 23

liquidated damages

Answer 23

a. contract law [7]
b. are genuine estimates of loss written into the original contract before breach has occurred
c. ex. Payment per extra day if contract is not completed on time

Question 24

Indemnity

Answer 24

Contract law [9]
Agreement by one party to bear the financial loss for a specific event
An indemnity provision in the contract is a means of allocating risk. An example of an indemnity is insurance

Question 25

Call for tenders

Answer 25

Contract law
a request from a buyer of goods or services (often called the owner) to a group of potential sellers of those goods or services
a call for tender is often used in the bidding process for a large project by owners such as municipalities.

Question 26

Contract A

Answer 26

Contract law

is the contract resulting from the submission of a bid

Question 27

Contract B

Answer 27

Contract law

The contract formed as a result of the acceptance of a bid

Question 28

Privilege clause

Answer 28

Permits an owner to accept or reject all bids, but dos not mean he can use undisclosed criteria

Question 29

Pure economic loss

Answer 29

Breach of contract [7,12]
The compensation for pure economic loss which does not cause damages or personal harm is covered by breach of contract
If pure economic loss occurs it cannot be compensated through a tort case.

Question 30

Standard of care

Answer 30

Tortoise law [12]
The level of skill and care required of a person.
This standard is generally based on the level of skill and care expected of a reasonable and competent member of the profession or occupation.

Question 31

Proximate cause

Answer 31

Tortoise law [12]
A cause that plays a significant role in producing the result, compared to one that is too remote.
Municipal crew removes the barricades and fails to replace them, motorist then drives into the trench resulting in instantaneous death and minor paint scratches.

o but for breach, there would be no damage/loss
o “would the loss or damage or injury have occurred without the negligent action of the defendant?”

Question 32

misrepresentation

Answer 32

Tortoise law/contract [12/6]
· false statement that misled party to enter into contract
, either innocent, negligent or fraudulent.
Liability for negligent misrepresentation arises where a person makes a representation knowing that another may rely on it, and the plaintiff in fact relies on the representation to its detriment.”

Remedies:
· recission - cancellation of K and restoration to parties to pre-contractual state
· Damages - in addition to rescission for negligent & fraudulent misrepresentation

Question 33

Fiduciary duty

Answer 33

tort
A heightened duty to care for the interest of another party in priority to one’s own interest and a duty to not act against the interest of the other party
Large mining company negotiating with small company, large company takes advantage and buys adjacent plots of land - breaks fiduciary duty

Question 34

Strict Liability tort

Answer 34

Tort law
defendant is responsible for situation in which plaintiff was injured and does not require intent or carelessness

· A defendant is strictly liable to the Plaintiff for the non-natural use of their own land, where something escapes from their property and injures the plaintiff
· Requires: non-natural use of land + unusual danger created by that use + something escapes beyond it
· Takeaway: reasonable foreseeability about consequences of actions, even on your own property
· Strict liability: liable regardless of precautions

Question 35

Duty to Warn

Answer 35

Tort/duty of professions
· duty to warn users about dangers associated with a product ASAP or professionals owe a duty to warn of impending damage to persons or property. Especially for risk of personal harm.
Surrey v. Carroll Hatch. Engineer found lack of geotechnical info, informed architect but not owner and building caused damages. Courts found engineer guilty of not performing duty to warn.

Question 36

Construction lien/builders lien

Answer 36

A charge or claim against property that has been improved by construction - creates a cause of action (the right to sue) against the owner’s property [18]

Question 37

Trust provision

Answer 37

Construction liens [18]
While one party (trustee) has ownership of a property (e.g. money) the trustee must use the property for the benefit of another party (e.g. subcontractors)
If a general contractor receives 100,000 of which 90,000 is in trust to pay subcontractors. If the general contractor uses more than 10,000 this is a breach of trust - which can lead to quasi criminal penalties

Question 38

holdback/retainage

Answer 38

Construction liens [18]
A percentage of the contract value that must be retained until all parties have been paid
Holdbacks in construction are typically 10 percent and are kept in reserve to deal with liens (when subcontractors haven’t been paid). The owner can only be liable in liens for the holdback amount

Question 39

Statutory declaration

Answer 39

Sworn statement that, to the best of their knowledge, all financial obligations of the subcontractor have been met [18]

Question 40

Employment contract implied terms

Answer 40

Employment law [21]
Employees obligation of loyalty, employees obligation of competence, employers obligation of proper notice time or severance pay
Employees are seen as agents of employer so employer is responsible, therefore loyalty is required

Question 41

Trade secret

Answer 41

Employment law [21]
document , product, formula, patent which:
Is used in particular industry
Is not widely known in industry
Has value because it is not widely known
Company tried to maintain its secrecy

Question 42

Restrictive covenant

Answer 42

Employment law [21]
Restricts employees from working with competitor for certain period after termination of employment
Courts may find these too restrictive if unreasonable

Question 43

Just cause

Answer 43

Employment law [21]
Fundamental breach of employment contract that justifies termination
Dishonesty and theft are usually considered just cause. Minor breaches are considered just cause if enough warnings have been given

Question 44

Employment standards

Answer 44

Employment law [21]
These statutes address issues of wages, safety, and working conditions
Ex. minimum wage

Question 45

Vicarious Liability

Answer 45

Employment law [21]
Id the liability of a party for the acts of omissions of another party. It is usually used in the context of an employer being liable for the acts of omissions of its employee.

Question 46

Posita

Answer 46

Patent law
“Person Ordinarily Skilled In The Art”
The reader/audience standard to which a patent description must be written; or similar the reasonable person standard in patent drafting.

Question 47

Legal Personhood

Answer 47

Corporate Law / business law
corporation or company that has legal rights similar to people
It’s a feature/benefit of incorporation; corporation can enter contracts, be liable for torts, own property, be sued or charged etc.

Question 48

Secondary meaning

Answer 48

Trademark Law
When an ordinary word/phrase acquires a different meaning/association than literal meaning
Some indication that: different meaning helps distinguish the product; or example like Motorola using Razor as a trademark for a phone, LG Chocolate etc….

Question 49

Incompetence

Answer 49

Ethics or Professional Responsibility (APEGBC)
Lack of knowledge or skill that demonstrates member is unfit to carry out duties of profession
Subject to professional disciplinary process; can be a basis for losing your license to practice.

Question 50

Alliance agreement

Answer 50

Contract law
Includes: no blame clause, clearly defined painshare/ gainshare, clear understanding of role of participants
Used to diffuse adversarial owner - contractor relationship in construction project

Question 51

Exclusive license

Answer 51

Exclusive rights to use a license

Often include a “use it or lose it” type of obligation (perhaps because of percentage of sales agreement)

Question 52

Negligence claim requirement

Answer 52

Defendant owed plaintiff a duty of care
Defendant breached said duty
Plaintiff suffered loss or damage
Breach was the cause for the damage

Question 53

Duty of care

Answer 53

Tortoise law
Negligence based on reasonable foreseeability - if it is reasonably foreseeable that something could happen then designer owes a duty of care
Often not applicable to 3rd parties (ex. Investor relying on confidential report between engineer and client)

Question 54

FIRAC

Answer 54

 F - facts relevant circumstances and behaviors that lead to an issue between parties
I = Issues - the legal issue raised by the facts
o what law(s) have been possibly infringed
R = Rule: Specific law(s) governing the issue (Conduct and consequence)
A = Applications: How well does the rule fit to the conduct/behavior described by the
facts (AKA analysis)
C = Conclusion: the likely consequences of applying the rule to the facts in the
circumstances
o what is the logical outcome(s) based on the law?
o Should point out possible outcomes for and against your interests

for exams only IRAC is necessary to write