GNG 4170 Lec 1

January 14, 2008

Two Main Sources of Law

1 Legislation
Legislation is rules set down by the government (Acts, codes). At a Provincial level, new legislation or an amended legislation is created. Division of powers: who writes the laws and what the laws are about? (Engineering is provincial legislation, Criminal code is ederal legislation)

Common Law

Common law is Judge made law: past decisions are important to current cases. !Theory of Precedence "#he strongest decisions are made by the $upreme Court o Canada. Criminal Case: %. ''''''' ((ing or )ueen) &.s.

#he state is initiating the action and bringing proceedings against the party. $entence is imposed on the party (when guilty), nothing on the victim.

2.1 Civil Law &ictim &.s. ''''''' #he victim in bringing private legal action against the wrong"doer. * the wrong"doer is liable, the victim gets the money. 2.1.1 Contract Law #he person has breached the contract ! which is a private law between two people, they create the obligations themselves. 2.1.2 Tort Law A set o standards o behavior imposed on all o us. Committing a tort is doing something against one o these standards. Tort Law Intentional Unintentional (+egligence) ,

Intentional
Defamation: %eputation o the victim is damaged by the untrue public statements made by the tort easor. #here are two -inds: "$lander (verbal) "Libel (written)

Negligence
When we get a negligence hypothetical: ,. $tate that it Employer is an unintentional tort (+egligence) icarious Lia!ility: is liable or the employee.s torts (based on the /deep poc-ets 2. 6escribe #ort Law ! provided that the ault is ound= the main goal is to compensate theory0). thereasons victim, +:# punish the wrong"doer. #wo or vicarious liability: 8. *denti y the o parties: ,. 1ost the time, the employee would not have the money to compensate the Plaintiff # person who raises the complaint. victim. Defendant # person who ends their action. we 2 or morebut de the endants 2. %ecogni3es that the de employees do ma-e ;hen money orhave the company, company also has to ta-e responsibility. they are potentially concurrent tortfeasors. (*n this class Employer will be de endant when an employee has done something wrong $hould state that the In"ury # 4ad things that can happen to you (in5ury to car, house, body) case is &icarious Liability) Damages # Amount o money given to compensate you or in5uries. Test for $egligence % ! 6e endant & ! 7lainti & must prove 8 things on a /balance o probabilities0 showing that the 8 things are more li-ely than not (is a lower standard o proo than /prove beyond a reasonable doubt0) As-ing i : ,. '(ach) % owed the & a *Duty of Care+, '-es.$o /uestion) *s it reasonably oreseeable that the plaintiff could be in5ured as a result o the defendant0s wor-? 12 '(ach) % !reached that *D3C+ , Either it was breached or not. 9irst thing that needs to be established is a $#A+6A%6 :9 CA%E ;hat would a reasonable engineering irm have to do (E<. ma-ing sure designs are up"to"date) *n a hypothetical you must define the standard of care *denti y all de endants and those that have breached (or allen below the standard o care). 8. &4s in"uries are a direct result of the !reach'es) 'causal connection) , $tate that it is clear that the plainti .s in5uries are directly caused by the de endant= there ore, the de endant is liable in negligence to the plainti . ,. 7lainti is entitled to /reasonably oreseeable damages0 (but there is a limit to how much compensation in damages) #here ore, add that the plainti is entitled to reasonably oreseeable damages which include >.. 2. * de endants are e/ually at fault (or di erent degrees o ault) e<plain why and split the damages.

7g. 82, o te<tboo-

Case ?2 (+egligence) 2

,. #his is a case o @nintentional #ort (+egligence)= the main goal is to compensate the victim and +:# punish the wrong"doer, provided that ault is ound. 2. *denti y parties: 7lainti : :*L* 6e endants: C%@66* and 1E$$* 8. $tate the test or every +egligence case :*L* must prove 8 things on a /balance o probabilities0 i2 Did each of C5UDDI and 6(77I owe a duty of care to 3ILI, C%@66* owes :*L* a duty o care because it is reasonably oreseeable that :*L* could be in5ured as a result o C%@66*.s wor-. ($ame thing or 1E$$*) ii. Did each of C5UDDI and 6(77I !reach their duty of care to 3ILI, ;e must establish a standard o care: C%@66* ! A reasonable architect would hire an engineering irm that it believed could carry out the design. 1E$$* ! A reasonable engineering irm would have ensured the proper si3e unit was used and that the vents were properly spaced apart. 6(77I fell !elow the standard of care2 8re 3ILI0s in"uries a direct result of each of the !reaches, *t appears that :*L*.s in5uries are directly caused by 1E$$*.s breach o duty o care to :*L*. #here ore :*L* is entitled to reasonably oreseeable damages which include getting a larger unit and repairing damages. 9:2: 6 ; 9<==>=== ? 9@==>===

iii2

GNG 4170 Lec 2

8

January 21, 2008

Duty to Warn (Type of Negligence)

*t is a law that simply indicates that you have a responsibility to warn. 1a-e sure the consumer is aware o the warning on a product. Disclaimer: #a-es away liability that would otherwise be there. Hedley Byrne Case (Advertising Agency) Disclaimer example A4 as-ed their 4an- i Customer (C) is credit worthy or not. A4.s 4an- as-ed C.s ban- i C is credit worthy. C.s ban- sent bac- a letter stating: ,. C is credit worthy. 2. Bou cannot rely on this in ormation (6isclaimer). A4.s ban- sends A4 the letter they received rom C.s ban-. A4 did the wor- but didn.t receive a chec- rom C. A4 iled or negligence against C.s ban-: saying that C.s ban- owed valid in ormation. #he ma5ority o the court decided that C.s ban- did owe a duty o care to the group o A4.s ban-. Ultimately> the plaintiff is relying on the engineer0s specialiAed sBill> Bnowledge and eCperience2 'Dedley Eyrne) 8t the end of the day> the court found that C0s EanB was not lia!le !ecause of the disclaimer2 Questions with Disclaimers ,. 2. 8. D. Loo- at both possibilities: with and without disclaimer. *denti y the tort (+egligence), the plainti , and the de endant(s). *denti y the Euali ying statement as the disclaimer. #hen push it aside and imagine the report did not have a disclaimer. (Continue with the negligence test>standard o care>breach>etc) F. Conclude that i the report did not contain the disclaimer that the de endant would be ound liable, (conclusion o negligence test). G. EUT the report does contain a disclaimer, so the de endant is liable to the plainti because they were warned ahead o time that they were not entitled to rely on the in o.

Thin Skull (or Eggshell) Plaintiff

#a-e the plainti as you ind him or her. * in5ury a ects the plainti more than it simply would as de ined. (E<. Aand in5ury to a pro essional pianist) #he de endant will have to pay the plainti more. The type of in"ury is reasona!ly foreseea!le !ut the type of plaintiff is not2

Contributory Negligence
;hen the plainti is ound by the court to have contributed to hisCher in5uries. #here are two aspects to it: D

,. +ot ta-ing enough care to prevent in5ury. 2. A ter in5ury you don.t ta-e steps to improve in5ury (that a reasonable person would ta-e).

Strict Liability

,. #he court does not as- i a duty o care was owed or i it was breached. 2. *t is e<clusively about whether in5uries are a direct result o actions. 8. *t is simply a causality Euestion. E<. * you -eep something dangerous on your property and it escapes and harms others: $trict Liability applies you are on the hoo-, you are strictly liable. &icarious Liability and 6isclaimer Aypothetical

,. *denti y: @nintentional #ort (+egligence) Compensate victim and +:# punish wrong" doer. 2. E.*nc. ! 6e endant (&icarious Liability) AcEuisitions ! 7lainti 8. If there was no disclaimer: E.*nc. owes AcEuisitions a duty o care because in5uries could>. A+6 ultimately, AcEuisitions is relying on the engineer.s speciali3ed s-ill, -nowledge and e<perience. D. 7tandard of care: E.*nc. should have spent more time ma-ing sure> E.*nc. ell below the standard o care, there ore E.*nc. breached the duty o care. F. If there was no disclaimer: E.*nc. is liable and AcEuisitions is entitled to reasonably oreseeable damages that include: > G. EUT the report does contain a third"party disclaimer so E.*nc I7 $3T LI8EL(2 H. 4rie ly e<plain a disclaimer: *t warned AcEuisitions in advance that it could not rely on the report.

GNG 4170 Lec 3

F

January 28, 2008

Looking back at Contract Law

D. #he court en orces the contract when aced with a contract dispute. F. EEuitable 7rinciple (i applicable) will rule over the common law issue. Privity of a Contract A Contract is a private legal relationship= only parties under the contract can be sewed or can sew. Pre;contract 7tage

A breach o the Contract results rom breaching one or more o the terms.

Misrepresentation (Will only need to know definitions for EXAM)

To maBe an argument we must show: ,. *t was a signi icant part o the decision you made (untrue statement o act that made you enter into the contract) 2. +eed to identi y the type o misrepresentation: Innocent # #he person genuinely believed what they said was true. Fraudulent # ;hen the person -new they were lying or they were not certain o the truth. Innocent :nly possible remedy is 5(CI77I3$ '(/uita!le remedy) the *turning !acB time+ remedy which puts parties in a position as i they had never entered into a contract (:+LB *9 7:$$*4LE). PIGG- E8CH 5emedy # (%elated to %EC*$$*:+) is essentially compensationI inancial ad5ustment between parties (you do not get completely all money bac-: e<. A car). Fraudulent 5(CI77I3$ remedy or 7ew or damages or the intentional tort o deceit.

Elements of Enforceable Contract (Will only need to know list and explanations for EXAM)
,. Intention to create a legal relationship ! needs to have legal relationship in mind. G

2. 3ffer and acceptance ! Contracts are based on /bargaining0, at some point an o er has to be made (verbal or on paper) and then it has to be accepted. 8. (Cchange of something 'of consideration) ! technically the court does not loo- at the value o consideration (could be e<changing gum or a motorcycle, doesn.t matter). D. Parties are adults 'of legal age) F. $ature of contract must !e legal # @nli-e hiring someone to -ill, but he doesn.t do it. Contract does not have to !e in writing to !e enforcea!le can !e ver!al2

Equitable Defenses to Capacity Are of Age of Majority

1- Duress
Actual or threatened violence to you or someone close to you (entering in contract against will).

2- Economic Duress
Economic violence, inappropriate economic pressure is brought ( orced to enter contract).

3- Undue Influence
*mproper in luence= certain types o relationships where there is a dominating party.

Gratuitous Promise and Promissory Estoppel

A gratuitous promise is normally unenforcea!le no consideration was given in e<change 2 e<ceptions: ," A promise made under seal (the seal is su iciently signi icant) 2" Promissory (stoppel ! someone is legally prevented rom doing something. ;ill be a contract based on a deadline. * promissory estoppel applies, the other party will be stopped rom using the contract as an e<planation or action.

3-part Test for Promissory Estoppel

,. #here must be a pre"e<isting legal relationship. 2. #he person was promised or reasonably led to believe that the strict terms o the contract would not be en orced. 8. #he person has to show that they relied on the promise it a ected them in some way. Therefore it would !e unfair for the other party to rely on the contractI the party is stopped from terminating the contract2 JJJJJ 7hould refer to the eCamples in hypotheticals JJJJJ Case: Iohn 4urrows 6ecision $peci ic acts or this case that are to apply (or that are relevant): H

8cceleration Clause # Anytime a person de aults the terms, they have to pay all owed amount (could be debt) Iohn 4urrows. lawyers used eEuitable estoppel on the plainti to prevent them rom using the acceleration clause. Indulgence # $itting bac- passively and not complaining when debtor was late (Iohn 4urrow.s). Cannot be used success ully to ma-e an argument o eEuitable estoppels because: ,. Iohn 4urrow.s was not promised anything 2. Iohn 4urrow.s was not lead to believe that the strict terms were not to be en orced. Aypothetical 8 ! Jratuitous 7romise and EEuitable Estoppel "1ining Contractor "Land :wner #he Euestion raises the issue o gratuitous promise and eEuitable estoppels (need to e<plain each). Jratuitous promise the land owner said there will be an e<tension. EEuitable Estoppel the mining contractor has to show 8 things: A pre"e<isting legal relationship (including the option) #hey were promised or reasonably lead to believe that the strict terms were not to be en orced. #AEB J:# A+ EK#E+$*:+ #hey relied on the promise *t a ected their behavior= would have hired e<tra sta . It would !e unfair for the owner to rely on the strict termsI therefore> the owner is prevented 'stopped) from denying the eCercise of the option2 This is similar to Conwest (Cploration2

GNG 4170 Lec 4

February 4, 2008

Interpreting a Contract
%ules o interpreting (Contract Law) 2 rules: ,. 5ule of contra proferentum ! to choseCselect against L

G. #he court will rule against the party that wrote (or verbal) the contract, when ambiguity arises in the wording o the contract. H. #he party who wrote the contract had the opportunity to be clearer. 2. Porol 'means Kto the side0) (vidence 5ule # prevents introducing any evidence that would suggest the obligations under the contract are di erent rom what is indicated in the written contract. L. *t only comes into play i the parties have reduced their contract to writing M. #he best evidence is the written contract '$o ver!al agreement) :therwise we are lost in he saidCshe said. Eoilerplate Contracts # Advice: ;rite in the e<tra agreement as a term in the contract and both should initial and then sign the contract.

Essential Difference between Porol Evidence and Equitable Estoppel

TD(- $( (5 3 (5L8P I$ TI6( Porol (vidence 5ule: deals with evidence 4E9:%E the contract (/uita!le (stoppel: concerned with statements made A9#E% the contract has been entered into.

Mistaken Tendering
$omeone wants a 5ob to be done, tenders are submitted and there is a mista-e in the tender o the person that was selected.

,. *denti y the problem (1ista-e in #endering 7rocess) %:+ Engineering did not overrule 4elle %iver: +obody can argue that the law changed, in 4% we had N:bvious. mista-e, %:+ Engineering, and had N@nobvious. mista-e. 2. an 4rie ly tal- about 4%in because it introduces thewe idea o an obvious mista-e and how they JJJJJ 3$Lan KUno!vious0 mistaBes will !e on the (L86 JJJJJ saw only :+E contract was ormed. (Aow the law was loo-ed at', no liability on the tender.s behal . #hen brie ly tal- about %:+ Engineering and that +:; 2 contracts Approaching Mistake Tendering Hypothetical are a seen. +ewin contract is about the #enderingC$electing process itsel (as soon as a tender is submitted, a contract is entered into). *n the case o %:+ E. there was an Nunobvious. mista-e= there ore, the rules o contract A applied :wner got to -eep the tender deposit since the bidder did not sign into the construction contract. 8. 7oint out what signi icant terms are in M contract A in the given hypothetical. D. #hen characteri3e the mista-e as obvious or unobvious. ;ill always get an unobvious mista-e, there ore we go by contract 82

Case: +orthern Construction *n the rules or #enders, it said that the owner had a choice o remedy (in contract A): #o -eep the deposit :% $ew or the di erence between the bid and the ne<t lowest bid. #he only di erence between %:+ and +C is that 53$ had only one remedy: they -eep the deposit.

E<ample #he moment KBO submitted the bid, they entered into contract A. #he only thing to ta-e into account now is i the mista-e is obvious and unobvious. It is uno!vious since the owner could not have igured out the mista-e on his own. #hen go through the $#E7$ to approach the hypothetical. Loo-ing at our case: unobvious mista-e, there ore we apply contract A= the owner is entitled to the tendering deposit.

GNG 4170 Lec 5

February 11, 2008

,P

Ways in Which a Contract Can Come to an End (4 Ways)

1- Performance
7arties per ormed their obligations under the contract

2- Agreement between the Parties

a. 7arties can be in a contract or a certain amount o time and they both agree to end it sooner. b. Condition subseEuent (term o contract): the contract itsel provides a term that de ines a set o circumstances where the contract can be brought to an end.

3- Frustration of a Contract
;hen the contract can no longer be per ormed as originally thought, and an event that occurred was not reasonably oreseen by either party, the law says the contract has been frustrated= parties are not obligated to ollow the contract terms. *n :ntario there is the Frustrated Contract 8ct: provides guidance as to what is the legal answer to some wor- done under a rustrated contract.

4- Operation of Law (Example: Bankruptcy)

7ecured Creditor: 6ebt that is owing is tied to a speci ic asset. #he creditor can go a ter the assets right away.

Breach of Contract
6a"or Ereach: 9undamental breach o contract. (Cemption Clause: #erm o contract that limits liability in some way. Could be a cap (E<. ;e will not pay more than , 1 or the breach) andCor types o damages (E<. :nly responsible or certain types o damages). 6i erence: " Disclaimer: means $3T 3$ D33H 8T 8LL (#ort or +egligence Law) " (Cemption: means IF 3$ D33H, remedies are limited (Contract Law)

Case 1: Harbutts Plasticine

#he court developed the *Fundamental Ereach Doctrine+: * a breach was undamental, the breaching party is not allowed to rely on the e<emption clause (was ollowed in Canada or a while).

Case 2: Photo Production

:verruled the 6octrine in England and then re lected in a case in Canada.

Case 3: Hunter V. Syncrude

#here are M 5ustices in the $upreme Court. M"P is the strongest decision. ,,

*n this case: it was F"D. #he ma5ority o the court said that we don.t need the doctrine. * the e<emption clause is clearly worded and relevant to the dispute between the parties, then the e<emption clause stands and operates. Approaching a Breach of Contract with an Exemption Clause ,. *denti y that we are dealing with a breach o contract and e<emption clause. 2. Can you characteri3e the breach as undamental? E<plain what a undamental breach is. 8. E<plain generally what an e<emption clause is. D. *denti y what -ind (cap or damages or both). F. 6escribe history: Case ,"8 G. #hen apply Law to the problem (E<emption clause clearly worded? And relevant to the dispute?)

Remedies for Breach of Contract

Damages for the Breach of Contract (Classic) (Amount o money to compensate or the breach) ;hat is the distinction between direct and indirect (conseEuential) damages? ;hat is reasonably oreseeable? As- yoursel : ;hat am * speci ically promised under the contract? Direct damages: speci ically promised under the contract. Conse/uential damages: reasonably oreseeable but not speci ically promised under the contract.

Liquidated Damages #he contract itsel provides or the damages in the event o certain types o breaches. $#E7$ 4asic evidence o what contract says and that it is legally binding. Penalty Clause ;hen damages noted in a contract are all out o proportion to what is reasonably oreseeable= courts will not en orce them.

Obligation in Contract Law

Mitigation ;hen a party breaches a contract, the innocent party has the obligation to mitigate or lessen its damages. E<ample: Bou were ired= you have an obligation to ind another 5ob (you need to ta-e reasonable steps to mitigate). ,2

Equitable Remedies to a Breach of Contract

7pecific Performance: #a-es the orm you must do . Courts will rarely grant order. E<ample: $ellingCbuying land (considered NuniEue. historically):rder or speci ic per ormance. In"unction: #a-es the orm you must +:# do . Easily given orders.

Muantum 6eruit 'own special remedy): Latin phrase or /amount deserved0. ;hen you reEuest goods or services and they are provided, i there is no agreement about prices, the law implies a promise to pay /Euantum meruit0 what is normally charged or the goods and services.

Aypothetical F " LiEuidated damages " 1a< o QF 1 or damages (limiting liability) 7teps ,. 9undamental breach breach that goes to the root o the contract 2. ;e CA+ characteri3e the breach as a undamental one because what was provided was or less than what was promised (only 2FR). 8. E<emption Clause E<plain is cap or limited damages. *n this case: it is a com!ination2 LiEuidated damages only and the ma< claim is QF 1. D. Aistory: Courts have struggled with these cases. Case :: A. 7lasticine in England where 6octrine was ollowed and Canada ollowed it or a while. #hen it was overruled in England by Case 1: 7hoto 7roduction, which was then re lected in Canada in Case N: Dunter 2 7yncrude2 $ow> the type of !reach does not matter 'fundamental or not)> eCemption clauses matter2 F. *s the e<emption clause clearly worded? -es2 *s it relevant? Part of it is> !ut part of it is not2 3$L- li/uidated damages up to a maC of 9O 62 *n this case, liEuidated damages only amounted to QD 1. G. #here ore 7ulpCo only gets to claim QD 1.

GNG 4170 Lec 6

February 25, 2008
,8

Labour Law
Law related to unions (idea o collective agreement= a group o people who have set agreements).

Employment Law
Each individual has a contract with the employer. #he contract is speci ic to each individual.

Dismissal
*t is for cause or without cause2 For Cause: not entitled to any notice (your job has ended) ,. Incompetence ! do not have the s-ill set to do the wor- e ectively. 2. Ead faith ! e<tremely improper behavior. N2 Diso!edience D. Prolonged illness ! rustration o contract. Without Cause: you have the following rights (meant to represent amount of time to find alternative employment) ,. +otice 2. 7ay in lieu o notice

,D

Employment Standards Act (in Ontario) $ets minimum standards, developed in Common Law *5easona!le $oticeP+ '5$) Human Rights Code #he idea is to prevent discrimination *+CL@6*+J the wor-place. #he government has identi ied :1 characteristics and i discrimination is based on one o them, a case can be brought up under the human rights code. F characteristics are: 7e< 7e<ual orientation 6arital status 8ge Citi3enship

Restrictive Covenant (RC) a term in the contract

A promise restricting you in some respect. 7erson who is selling promises that he won.t do (<y3). 7rovides a period o time that you are out o the employer.s ield o wor- (a ter dismissal). Legal reaction to restrictive covenant area of law is restraint of trade2 Competition is encouraged but this limits competition and limits opportunities as an employee2

Starting Point %estrictive covenants are presumed void (not to apply because they limit competition) #he !urden is on the employer to 5usti y the %C: ,. *t is reasonable in the circumstances 2. 6oes not adversely a ect public interest 5Cs have N parameters: ," #ype o activity 2" Jeographic scope 8" #ime component

#he larger the volume, the more challenging or the employer to 5usti y the %C. EUT D3 $3T 6($TI3$ 3LU6( 3$ TD( (L862 Dypothetical options for court when faced with 5Cs: 'In reality> only two: enforce or refuse) ," En orce it 2" %e use to en orce it 8" Could alter it #he court won.t iddle with the %C we need to thin- o the %C as one unit, 5udge as a whole2 ,F

#he employer is usually loo-ing to get an in"unction (states: you the employee shall not>.). *t is already in the contract, but now the state is bac-ing it up. * the employer does not succeed> there are no restrictions on the employee at all. *t is there ore in the Employer.s best interest to ma-e the %C as minimally restrictive but still can protect his interest= will have a high chance o 5usti ying the %C. Steps in Analyzing an RC Hypothetical ,. $tate that we are dealing with an %C term and area o Law is %estrictive #rade. $tate that the %C they are promised is presumed void because> #here ore the burden is on the employer to generally 5usti y that it is speci ically reasonable and does not a ect public interest. $pea- o the 8 parameters. 2. At the end o the day, the court can en orce or re5ect to en orce, they cannot modi y it= there ore, it must be 5udged as a whole. 8. Lead into your own discussion and what you believe and e<plain why it is 5usti ied or not under the circumstances. D. Conclude that it is: !"ustified (employer will get the in5unctionsame as the term but has the power o the state now) :% !re"ected (no restrictions at all on the employee)

%C Aypothetical Engineer wor-ing or a irm and in the contract there is a term that says 'if he leaves the company) he cannot practice engineering or hold shares in the city of Toronto2 A ter 8 years he decides to leave the company and sets up an engineering business in #oronto. #he Engineer.s ormer employer raises a case against him. 7teps: :2 $tate that we are dealing with an %C and the area o law is Nrestrictive trade.. 12 $tate that %Cs are presumed void because they go against the public interest by limiting competition. #here ore the owner must show that it is generally "ustifiedI it is reasona!le in the circumstances> and it doesn0t adversely affect the pu!lic interest2 N2 %Cs have 8 aspects (parameters) list them <2 At the end o the day, the court can only en orce or re5ect. #here ore the %C must be "udged as a whole2 O2 Jive your own reasoning behind it whether it is 5usti ied (the employer gets the in5unction) or not 5usti ied (no restrictions on the employee) under the circumstances. E<plain your reasoning: ,G

*n this case, the space (city o #oronto) seems reasonable, but the type o activity (engineering in general is not speci ic) and F years is a very long time in someone.s career. As a whole, or those reasons, it is not completely "ustified2 Q2 Conclusion

Civil Procedure
$teps involved in determining a legal issue very structured process leading to the decision. *n :ntario now, there is a mandatory mediation.

ADR: Alternative Dispute Resolution (alternative to traditional court process)

#wo types: ,. 6ediation ! A neutral igure (mediator) who does not ma-e the decision, they use their e<perience and training to acilitate communication between parties, 8 hour mandatory mediation. 8 options result rom mediation session: ," +othing happens a ter mediation 2" Everything is resolved 8" *ssues are ocused down (lessened) 2. 8r!itration ! A neutral arbiter ma-es a decision (li-e a private 5udge). #he arbiter can be e<perienced and time can be saved by not having to e<plain concepts to the 5udge. Can be a !inding arbitration: whatever decision is made is inal. Can be non!inding arbitration: parties can still go to court a ter, but it gives them an idea o how a neutral party went about the analysis and decision process.

Statutory Holdback (DEFINITION WILL BE ON EXAM)

%emedy under the Construction Lien Act. Jovernment rule comes rom the construction lien act, which has many remedies but we will only ocus on the statutory hold!acB2 Construction Lien: says that the owner must holdbac- ,PR o the total pro5ect cost. #he owner is personally liable or only ,PR o the value o materials or services on the 5ob site. *deally the owner puts the ,PR in a ban- account (aside to pay any claims that will be made), even though no contract e<ists between the owner and the person ma-ing the claim. #ime Jeneral statutory holdbacperiod completed) K B 9inishing holdbac- period (,PR o the value o the wor- still le t to be

L ? N7u!stantial Completion0 of the pro"ect #he holdbac- (,PR o the entire pro5ect cost) can be paid DF days a ter this time stamp, provided no claim is made or a lien. ,H

- ? KJo! Complete0 #he inishing holdbac- can be paid DF days later the completion o the pro5ect, provided no claim is made or a lien. Limitations Act, 2002 Limitation Period: Amount o time you have to bring a claim. < main points: :2 #here is a general 2 year limitation period to bring a claim (there are some e<ceptions). 12 Discovera!ility principle: the limitations cloc- doesn.t start tic-ing until a reasonable person -nows about the in5ury. N2 #here is an ultimate ob5ective o ,F year limitation period, discoverability principle does not help= it only helps up to ,F years. <2 a) Bou cannot contract out o the Limitations Act 2PP2 b) Access to the Iustice Act was put into play , year ago: parties can now state limitation periods in the contract.

GNG 4170 Lec 8

March 10, 2008

Practice and Ethics Issues

;e are dealing with engineering act in regulations Practice: day"to"day administration o wor- that engineers do. ,L

PEO
D *ssues concerning the 7E:: :2 Primary Goal of P(3: $ection 2.2 o the Act $erve and protect the public interest. (#o regulate the holders o any o the licenses the holders o certi icates o authori3ation in accordance with the act, the regulations, or the bylaws, to serve and protect the public interest). 3$L- $((D TD( P5I685- G38L F35 TDI7 CL8772 12 7elf 5egulation: #he 7E: is itsel composed o engineers. #he 7E: has the responsibility to administer (on the government.s behal ). 6i icult to change AC# Jeneral rules that are applicable

Easy to change and day" to acts.

%EJ@LA#*: +$

: ten are putting ine points to"day speci ications

7E: has the power to dra t and place regulations. #he Jovernment has given the 7E: a bit o its legislation. N2 Fees 6ediation Committee: 6oesn.t ma-e a decision= it is there to mediate disputes about ees. * both parties agree, the committee will act as an ar!iter and render a decision relating to the issue. <2 Types of Licenses 'P(3 given) :; License /9@LL0 license ( or engineers who want to wor-) #here are no limits= it does not indicate what type o engineering. Five re/uirements 'from the act) to o!tain the license: ,) Age o ma5ority 2) Citi3enCpermanent resident o Canada 8) Aave to have completed a recogni3ed engineering program and have to pass the pro essional practice e<am. D) 9our years o directed engineering e<perience (2 sub"rules that come rom the regulations) , o the years has to be under a 7Eng. , o the years has to be a /Canadian0 year. F) Establishing good character through re erences. 1; Temporary License: ;or-ing in another province temporarily. Limited to a speci ic employer and speci ic pro5ect. 1ust wor- under a 7Eng. and signed and seal the wor-. 6aCimum of :1 months2 N; Provincial License: *ntended or people who meet the reEuirements o the /9@LL0 license e<cept or the , year o /Canadian0 e<perience. Can wor- under a provincial license or a year and then apply or a /9@LL0 license. Aave to wor- under supervision o a 7Eng. #he 7Eng. must additionally sign, seal and date all the worthat is done (other than the engineer.s own seal). ,M

<; Limited License: +ot or engineers. 6esigned or people who have engineering" related e<perience (technology). Limited to speci ic services that are written on the license. * the services are stopped, the license must be returned to the 7E: *11E6*A#ELB. Use of the Engineers Seal (Each license holder has a seal) P(ng: only ull and temporary license holders can be called 7Eng (the de inition is in the AC# itsel ). Applying the seal is not voluntary= the AC# says that you $AALL apply your seal has to be signed and dated. Why have the seal, ," $howing that a person has e<perience and the license to provide. 2" $hows responsibility or the wor-. Certificate of Authorization *t is li-e a !usiness license2 Bou need it to o er services= to do engineering wor- or the public. 3nly P(ngs are listed on it 4e ore being listed on a C:A, you need O years of eCperience2 Professional Indemnity Insurance @sually i you or the irm has C:A, you have to have the insurance. 1 eCceptions: :; ;hen we are dealing with a dangerous ield (e<. nuclear, aviation). 1; * you tell the potential client in writing that you don.t have the insurance and they authori3e you in writing. Consulting Engineer Aas nothing to do with the wor- you do on a day"to"day basis. Can have the title o Consulting Engineer. < re/uirements to be designated as a consulting engineer: :; 9ull license holder. 1; ;hen you apply, you have to be listed on a C:A and have to have been on a C:A or the past 2 years. N; At least M years o engineering e<perience (including D to have gotten the license). <; 7ass or be e<empted rom the e<ams the 7E: might set or you.

Complaints Committee
Composed o at least 8 members o the 7E:. *ts role is to receive and evaluate complaints about engineers. 2P

#hey either decide: "#he complaint has no merit (they have to e<plain why not) :% "#hey pass the matter to the discipline committee. Discipline #he discipline committee has at least F members (li-e a 5udge). A member o the 7E: is bringing an action and the engineer is de ending himsel . The discipline committee only has power over FULL and Temporary license holders or those that have a C382 7roceedings are held in #oronto at the 7E: head o ice. 7anctions of the Discipline Committee 'general options they can taBe) ," %evo-e the license or C:A 2" $uspend the license or C:A or up to 2 years 8" *mpose a ine o up to QFPPP D" :rder you to provide an underta-ing legal document promising limiting worF" *mpose terms or conditions on the license G" #a-e away any special designation or title used (e<. Consulting Eng.) H" :rder an admonishment or reprimand Enforcement En orcement A broader remedy. 7roceedings are only brought into the provincial court (provincial o enses). *t applies to every!ody in :ntario (en orcement proceedings are initiated by the 7E:). En orcement will occur i you are: :; 7racticing 7ro essional Engineering without a license 1; : ering 7ro essional $ervices to the public without holding a C:A N; @sing the term Engineer or 7ro essional Engineer that ools people into thin-ing that they are dealing with a licensed individual. 7:$$*4LE )@E$#*:+ :+ EKA1: 6oes the 7Eng. Act apply to anybody other than engineers? -(7 IT D3(7 Conse/uences of (nforcement: generally a ine, i o ense is done again the ine will increase.

Advertising
%estrictions on advertising engineering wor< restrictions: ," Can only be in a actual manner without e<aggeration 2" *n a manner that doesn.t directly or indirectly critici3e another license holder (any o the D licenses) or a C:A holder 8" Can only be in a pro essional and digni ied manner D" 6: +:# give any representation o the seal in advertising 2,

Ethics (Handouts PEng Act 72 and 77)

@1'1)'g): * you are o ering services to the public and have a provisional not have a 7Eng seal (or then by

license and do L7Eng.), supervised by a S de inition you have !reached the act or R@1 regulations2 R@@ '@@) is

8ccording to @1'1)'g): The code of ethics D(P($D8EL- ($F35C(8EL(2

L 'Uni/ue to R@1) $egligence @1'1)'f): $ays that i you propose something to a non"technical client and they want a change applied to it, you have the obligation to in orm them o the technical conseEuences. - 'Uni/ue to R@@) @@'1)'iv): (#he :+LB part that is uniEue to HH) #here ore it is $3T professional misconduct if !reached2 Parts of @@ that are in - and S at the same time: 'they depend on the degree of the !reach which will trigger @1'1)'") HH(,)(i) HH(,)(iii) HH(8) HH(G) HH(H)(i) HH(H)(v) S '3verlap !etween @1 and @@) Incompetence: H2(2)(h) and HH(,)(v)

$et o standards you are 5udged by Always stated as a positive obligation HH(,)(iv) can also be tied with the previous issue o incompetence. Conflict of Interest: H2(2)(i) and HH(8) S HH(D) 5elationship with clients

5elationship with employer

6oonlighting 'doing worB for someone else in your own time while employed): H2(2)(i)paragraph D and HH(F) HH(,)(ii) and HH(2)(i) are o ten re erences together.

22

GNG 4170 Lec 9

April 7, 2008

Definition of Professional Misconduct

@1'1)'1) !>c>d are linBed: the public is negatively a ected in some way. Distinctions Eetween !>c>d !: Aealth is a ected by the wor- done by the engineer. c: :bligated to correct or report something that will a ect the sa ety o others. d: $ome law or o icial standard being bro-en. A bit more limited than c. HH(2)(ii) , (iii) 4oth address the idea o communications: ii" 6iscourages untrue, un air, or e<aggerated statements. iii" $tatements have to have: "su icient -nowledge "honest conviction H2(2)(i) paragraph F: $aying the statements because you were inspired by other interests (or paid or it). Triggering 72(2)(j) HH(8): (put a comma a ter Ncon idential.) HH(H)(ii) %eviewing a co"wor-er.s wor- it cannot be a secret review= but you do not need their permission (5ust need to in orm them) (iii) 1alicious with evil intent (iv) ;e are in a competitive society, you should not be paying or accepting something to secure wor-. (viii) #attle"tail you have an obligation to report to the 7E: i someone is de rauding clients On Exam Aave to integrate the relevant sections o H2 and HH 6on.t start o your answer by giving a list o relevant sections must give your 5usti ication irst. 6on.t use pinpoint re erences as an answer always give the re erence as an a terthought, they are li-e ootnotes that must be included. Important Types of Questions for PEO Exam :2 Whistle Elowing: public maybe negatively a ected by engineer.s wor- or what they have ound. :bligation to public wel are is paramount= rules over con identiality (consider @1'1) !>c>or d) Plan of action: 28

"1ust have meaning ul communication with employer andCor client to ully articulate what is going on. ($howing airness to employer andCor client @@':)'i)) "* there is an illegal action, mention that you will contact the respective authorities as part o your action plan. 12 Conflict of Interest: can be aced with it easily in your career (unli-e whistle"blowing). Approach it thin-ing how it would a ect your 5udgment in a situation or how it can be seen (by others) to a ect your 5udgment. HH(2)(i) : ;hen you have an interest directly or indirectly that could be seen as a ecting your neutral 5udgment. (E<. * someone that sells 9ord cars is giving someone else advice on which car to buy) 6e ine that it is a con lict o interest and how it applies (i employer then HH(8), i client then HH(D)). HH(2)(i) : Also says that you cannot -eep it a secret (does not say that it is bad i you have a con lict o interest). (E<. Bou could say N* am in act not the right person to advise you on this because * sell 9ord cars..) #he person hearing this can then ma-e an in ormed decision. #here are F paragraphs about speci ic types o con lict o interest Daving one of those conflicts is $3T E8D EUT having them without prompt> voluntary> and complete disclosure is E8D 'not informing others of conflict of interest)2 N2 6oonlighting: :bligations (listed in HH(F)) 1 o!ligations to main employer: 'Failure to do so will result in !reaBing @1'1)'i) Professional 6isconduct) $atis y that the additional wor- will not con lict with your obligations to main employer.s wor *n orm employer o the wor- (do not need permission though) : o!ligation to client: 'Failure to do so will result in !reaBing @1'1)'i) Professional 6isconduct) 7rovide the client with written noti ication o your wor- and the limit o devoted time or them (HH(F)). Always -eep in mind the Certi icate o Authori3ation (C:A) in your own name and the insurance (practice issues) Dypothetical Muestion < *nvolves 6.@.7licitous. employer comment on con lict o interest (HH(8)) 7ro essional 1isconduct because 6.@.7licitous did not provide prompt, voluntary, disclosure prior to doing the evaluation. Also changing the bidding structure triggers 5 (HH(,)(iii) integrity). Also 6.@.7licitous. comments about KBO (i untrue) are trying to maliciously in5ure the company (triggering 5).

2D