Week 9 (EMPLOYMENT LAW and Bailment)

Question 1

What is Bailment

Answer 1

is the transfer of possession of personal property without the transfer of ownership

Owner of prop –> bailor
posessesion of prob –> bailee

Property for bailment must be TANGIBLE and MOVEABLE

Question 2

What are the 2 types of bailments

Answer 2

1. Contractual
   -Benefits both parties (renting storage unit)
2. Non Contractual (gratuitious)
   Example: Bob finds a lost wallet on the street and takes it to the police station for safekeeping until the owner is found. Bob has not entered into any contractual agreement with the owner of the wallet or with any authority to hold the wallet. However, by taking possession of the wallet and acting in the owner’s interest, Bob has become a bailee in a non-contractual bailment.

Question 3

What are the rights and duties of a bailee

Answer 3

1.All bailees must take care of the property bailed to them
2.Contractual bailments may include exemption clauses
3.Will be strictly construed against bailee
4.The standard of care varies by type of bailment

Question 4

Standard of Care for Bailee/Bailor

Answer 4

If the bailee (person who has possession) is benefitting, they have a higher standard of care. If the bailor is the one benefitting, the standard of care is lower.

Higher Standard of Care for Bailee Benefitting:

Example: Sarah borrows her friend’s expensive camera to take photos at a wedding. Since Sarah is benefitting from using the camera, she has a higher duty of care to ensure its safety and proper handling.

Lower Standard of Care for Bailor Benefitting:

Example: A permits B to leave her car in A’s garage without charge. After all, the bailee is doing the bailor a favour.

Question 5

What are the remedies for Bailee

Answer 5

Damages

Lien –> legal right to retain posession of property until obligations fufilled by bailor

Right of sale to sell the bailed property
CAN ONLY HAPPEN IF
1. That a certain time elapse after payment fails
2. That advance notice be given to the bailor of the bailees intention to sell
3. That the sale be advertised
4. That it be held by a public auction

Question 6

Agent relationships (what are they and what duties)

Answer 6

Agency is a relationship in which one person (agent) is authorized by another for whom the agenct acts (principal) into contractual relations with third parties.

Example: Insurance Broker

AGENT MUST HAVE AUTHORITY TO ENTER INTO CONTRACTUAL RELATIONSHIP WITH 3RD PARTIES on behalf of principal.

Question 7

Employment law: What is the relationship bewtween Employer and Employee

Answer 7

Relationship is established by contract
VESTS that one party has the authority to control and direct work of the other

Employee and Agent are different since Employee is NOT independent contractor

Employers have VICARIOUS liability over their employees

Question 8

Do employees act as agents?

Answer 8

Employees are often both an employee and an agent

For example, a purchasing agent for a company has the responsibility to order goods on the company’s credit and has authority to do so within the limits of her agency (HAS AUTHORITY TO MAKE CONTRACTS WITH 3RD PARTIES). She is also a company employee and subject to the direction of management.

Other employees may have limited duties as agents of their employer

The driver of a delivery truck is an employee who may only act as an agent when taking the truck into a garage for servicing and binding the employer to pay the charges.

In many types of employment, an employee has no reason to enter into contracts on behalf of the employer and no authority to do so
* Not an agent in this case

Question 9

termination of employment with notice VS without notice

Answer 9

A warning is NOT a Notice, employee may want a notice of termination prior

If a person is hired on contract for summer and summer ends no need for termination

Question 10

What is a wrongful dismissal and what are remedies

Answer 10

Using sec 54 of the employment standards act it says that no employer should terminate employment without just cause if they have been employed for more than 3 months

employee must be given a written notice
-employor must give 1 week of notice for every year working

Wrongful dismissal occurs when there is insufficient or no cause established

damages may include
-payment
-mental pain damages

Question 11

What is dismissal for cause

Answer 11

Occurs when the employee conduct amounts to a breach of contract
CONDUCT LIKE
-misconduct
-incompetence
-permanent illness

if these causes above are not explicit then need to look at SEC 54

Question 12

Give an example of (a) a non-contractual bailment and (b) an involuntary bailment.

Answer 12

An example of a “non-contractual bailment” occurs when the owner of a lawnmower lends it gratuitously to a neighbour. (b) An “involuntary bailment” occurs, for example, when a customer leaves her coat behind in a restaurant. (A person who finds a valuable object is not bound to take possession of it, but once she does she becomes a “bailee” for the owner

Question 13

What factors determine the standard of care to be expected of a bailee?

Answer 13

The “standard of care” required by the law of torts applies in circumstances not covered, expressly or impliedly, by the bailment contract, and that standard also applies to gratuitous bailments involving no contract at all. The required standard of care is “most exacting on a bailee” when the bailment is gratuitous and for the benefit of the bailee; it is “least exacting”, when it is gratuitous and for the benefit of the bailor

Question 14

Is a “real estate agent” a true agent?

Answer 14

The so-called real estate agent does not have authority to sell the property of a client—instead, her role is to introduce prospective purchasers, and the client contracts directly with the purchaser. Without the power to contract, a representative is not an agent in the legal sense.

Question 15

Is an agent entitled to delegate her duties to some other person?

Answer 15

No they cannot, owe their client a duty of personal performance

Question 16

After earning his B. Comm. degree, Bruce was hired as a junior accountant by Cargo Wholesale Inc. He received favourable assessment letters and salary increases after year one and year two. At the end of his third year, he received his final paycheque with a letter stating that he was dismissed for incompetence. What points might Bruce argue to show that he was wrongfully dismissed?

Answer 16

Bruce should argue that, since he had received only favourable assessment letters and salary increases for over the past two years and no warnings or criticisms of any type, there was no basis for asserting he was “incompetent”. (Incompetence is harder to prove, the longer an employee has been retained by an employer.)
Accordingly, Bruce was “wrongfully dismissed” (i.e. without just cause) and is entitled to “reasonable notice” or pay in lieu thereof.

Question 17

What are the main factors to be taken into account when assessing damages for wrongful dismissal?

Answer 17

• Reasonable notice depends upon all circumstances of the employment like but not limited to
• Length and nature of employment
• Age of employee
• Available of similar employment given educational background of the employee

Question 18

In May 1986, the directors of Universal Printing Co., publishers of a newspaper with a large circulation, approached Bell to persuade him to become their assistant advertising manager. They suggested that, if he accepted, he would probably succeed the present advertising manager upon that manager’s retirement. At the time, Bell held a responsible position with an advertising agency and was 42. During the discussions, Bell emphasized that his present position was a very satisfactory one, that it was important at his age that his employment be permanent, and that he would not consider a change that did not offer the prospect of a position lasting for the balance of his working life.
After careful consideration, Bell accepted the position offered at a salary of $65 000 a year. He was promoted to advertising manager in 1994, and in the period from May 1986 to July 2002, his salary was increased regularly until it reached an annual sum of $160 000. In addition, every year he received a discretionary Christmas bonus approved by the directors and a special distribution pursuant to a profit-sharing plan confined to selected employees and made under the sole direction of the principal shareholder of Universal Printing Co. Ltd. Bell’s receipts under the profit-sharing plan were $23 600 in 1999, $20 400 in 2000, and $17 000 in 2001.
In August 2002, the president of Universal Printing Co. Ltd., T. G. Dodds, called Bell into his office and, after some opening pleasantries about Bell’s prowess in golf, told Bell he thought another advertising manager he had in mind could produce better results for the company. Dodds told Bell that if he could see his way clear to resigning forthwith, he might have three months’ salary in lieu of notice. Bell replied that he could not afford at this stage in his career to admit to the incompetence implied in a resignation and refused. Later in the afternoon, his secretary brought him the following letter:
August 8, 2002
Dear Mr. Bell:
This is to confirm the notice given to you today of the termination of your employment with Universal Printing Co. Ltd. as of this date. Enclosed is a cheque for your salary to date. Your pension plan has been commuted to a paid-up basis that will pay you $3500 a month commencing at age 65.
T. G. Dodds
Bell at once made efforts to secure other employment and by December 8, 2002, found a position with an advertising agency at a salary of $42 000 a year. If he had remained a further year with Universal Printing Co. Ltd., the paid-up value of his pension would have increased to $6500 per month.
Bell brought an action against Universal Printing Co. Ltd. for damages for wrongful dismissal. What amount of damages, if any, should he recover? Are there any additional facts you would like to know?

Answer 18

In this case, there was no suggestion that Bell’s employment was terminated for “just cause”; accordingly, Bell was entitled to “reasonable notice”. What constitutes “reasonable notice” in this case? “Reasonable of notice” must be determined, in each case, by reference to all circumstances of the case, including: (i) character of employment; (ii) length of service; (iii) age of employee; and (iv) availability of similar employment, having regard to “experience”, “training” and “qualifications” of employee. In this case, there were relatively few comparable positions available in Canada.

Considering the seniority of Bell’s position (exacerbating factor), his length of service (approximately 16 years – exacerbating factor), his age (about 58 years of age – exacerbating factor), and the availability of alternative employment (mitigating factor in this case, since “alternative employment” was obtained quickly BUT at a significantly reduced salary), a notice period of approximately 16 months would appear reasonable in this case.

Since Bell obtained “alternative employment”, at a reduced salary, he was entitled to the difference between remuneration he would have received in his old position and salary he actually received in his new position over the 16-month period. The court also accounted for the “pension loss” arising from Bell’s termination of employment, based on 16 months’ notice of termination (i.e., Bell was entitled to pension benefits because, if he had received 16 months’ notice, his pension benefits would have fully “vested” by the end of the required notice period, and he would have been unconditionally entitled to receive such benefits). However, Bell was not entitled to recover the“Christmas bonus” or profit-sharing plan losses, because the “bonus” was discretionary, and participation in the “profit sharing plan” was based on the decision of a Selection Committee (it was highly unlikely that such discretion or such a decision would have been exercised in favour of an employee who was being dismissed).

Question 19

What is mandatory retirement, and what section of the law is it

Answer 19

Section 15 of the Charter of Rights and Freedoms gives rise to “equal protection and benefit of the law without discrimination of age.”