Professional Practice Examination December 2002 {© Copyright Vantage Profesional Development, 2008, Al ights reserved7 2002 {i Pi, aprofessonal engineer, signed and sealed documents thet were nat prepared by Pi nor by subordinate working under P's direst supervision Are there any possible consequences for P's actions, under the Association's Code af Ethics andlor Definition of Professional Misconduct? Discus, Take oF ote Gi) Tobe eligible to apply forthe “Consulting Engineer" designation in Ontario, applicants must satisfy thee criteria. What are they? List them. (Gi) Define the ‘Sample Answer Sealing documents not actully prepared or checked by the engineet is grounds for professional misconduct (PM, section e). [FP sels this work, he is aking responsibility frit ‘aid must chock it sufficiently to ensure its adequacy i) The eligibility requirements forthe “Consulting Engineering” designtion in Ontario are applicant must be a PEO member, posses acettiate of authriaaion, have a least 5 years ‘experience beyond the 4 years necessary for licenze ~2of which mus be primarily engaged in independent practice, (ii) Ethics is a branch of philosophy which studies right and wrong, good and evil, obligations and rights. The Code of Ethics for licensed engineers in Ontario deseribes the high standard of ‘professionalism to which members are expected to adhere Question 2 ‘A professional engineer (PEng,) is hired ina contact capacity to provide expert advice on the installation of powerplant ina rural northern community. The client, who is also a PE, is responsible fr supervising all construction labour. It soon hecame apparent tothe independent rwsetitioner tha the Tailty has no efety proces in place fork work seews ie no hard safety shoes por eye protection are worn by the workers. Dos the independent practitioner, whois hired only to give technical advice about construction ‘of the power plant, have any obligation in respect ofthe possible danger that he work crew faces? Discuss and give reasons for your ansier. ‘© Copright Vantage Professonal Development, 2008, lights resecved 5Sample Answer ‘Yes the independent practitioner has an obligstion with respect othe danger tothe work crews, Ethically, the engineer must regard her duty othe public's welfare as paramount (Ethics section 2i), Ifthe independent engineer didnot ac, she would fece professional misconduct fr falure ‘actor correcta situation that may endanger public safety (PM, section ¢), ‘The independent practitioner shwld make het concems know tothe elicit who is also a professional engineer, The client may be guilty of prafessional misconduct (sections b). The ‘lignt has filed to make reasonable provision forthe safeguarding of life and health of those alfected by the work. As the safety issues described are also often dictated by government ‘regulations, the client hs likely failed to make responsible provision for complying with ‘applicable regulations (PM, seition d). The client's conduct may also be considered negligent (PM section a and would not ikely meet the standard ofa reasonable and prudent engineer [the client engineer does nat correct this situation immedi ly, te independent practitioner engineer has 2 duty to report and should contact PEO, Office of he Registra, ‘Question 3 Auto-Tran Ine. a manufactring fim, contracted 1 develop and produce flly-automated ‘mass-ransportation system to serve residents of large city, In view of the recognition that a failure could have calastrophic consequences, one of Auto-Tran's mechanical engineers, who isa licensed professional engineer (PEng.), is concerned tht during the installation and isting hase, a major pat ofthe control system did not appear to function propery. The Png, reported ‘he malfunction to the project mansger and recommended thatthe firm engage a licensed software engineering practitioner to look into the problem, However, the projec! manager advised the PEng. that there was no budget available and that is was important for Auto. Tran Inc. to make delivery in order to mee its contractual commitments to the client, ‘The PEag. stremously expressd his concerns tothe project manager and leamed subsequently that shipment to the client had already been made. Does the Png. have any obligation to take further ations under the circumstances? Give reasons for your answer, ‘Sample Answer Ethical, Auto-Tran's licensed engineer's duty tothe pubic welfare is paramount (Ethics, section 2). Additionally, he has an obligation to acto corrector repor a situation that may «endanger public safety (PM, section c). One could argue that the fallure of a contol system ‘would likely create a safety issue and therefore endanger the public, It appears thatthe engineer has attempted to meet hs obligations end has informed the project manager of his concer (© Copyright Vantage Professions! Development, 2008, Al rights reserved, 6‘The product has now been shipped to the client anu the sitution has not yet been corrected. The engineer must continue to correct the situation, Because he hasan ethical duty ta his employer (Bthies, setion 3), he should continue to work with his employer to ensure that the lint is {informed about the problem and thatthe design flaw is corrected. It would not meet his ethical obligation (section 3) to disclose his findings directly to the client (without involving his employer) orto the media. The engineer should work with the employer o determine a cost effective solution, understanding the employer's budgeting constrints, Only if al attempts at persvading the emplayer to correct the situation have failed, the engineer should contsct the PEO, Office ofthe Registrar Questions ‘Gamma, Png. has been inthe employ of UI Engineering, Inc, since his graduation from. ‘engineering schoo! sx years ago, Since obtaining his PEng. licence, two years ago, he has been discussing with his supervisor, Theta, PEng. the possibility of being assigned more chellenging projects. Theta agreed to provide Garnme with the challenge he is seking, however, to Gamma, the oppertunity does not appeer to be forthcoming and he has therefore become frustrated Gamma’s engineering potential is well recognized both inside and outside U & I Engineering. Consequently, while Carn is still waiting to receive the promised challenging assignments at U@ | Engineering inc, he leans of an opening ata regular supplier tot! & 1 Engineering Inc, ABC Engineering Ltd. through Psi, professianal engineer employed at that company’, Gamma is suecessful in an interview with ABC Engineering ad, upon receiving en ofer of employment, 'sbmits his resignation with the required two weeks notice to U & | Engineering, ‘Theta is disturbed by Gamma’s resignation and asked Gamma to reconsider. Gamma advised ‘Theta that his decision is final and, although he was asked, dd not reveal the identy of his new ‘employer; yet he continued to negotiate and evaluate bids, including those submited by ABC Engineering Lid ‘Was it ethical fr: Psi, PEng. to tell Gamma ebout the opening at ABC Engineering Lu? Gi) Gammato interview for a positon with one of U & I Engineering's suppliers? Gil) Gamma not 1 volunteer to U & I Engineering that ABC Engineering would be his new employer? Use the Code of Enis asa guide in answering each part of the above question Sample Answer (Ie was ethical for Psi to tell Gamma about the opening at ABC Fngineering. Recruiting engineers is eoceptable as long as itis done with regard to Ethis, section Ii) and section | i, For example, Psi should not make negative statements about Ui Engineering to influence Gamma’s decision (© Copyight Vantage Profession Develepmant. 2008. Al ahs reserved(i) Is ethical for Gamma to interview with one of his employer's suppliers. Although he has {an ethical obligation to his employer, he also has the righ to seek challenging work and advancement, To meet both obligations he must ensure that he provides apprupratenotie to his original employer and not leave the Company in unceasonable circumstances. For example, the company can’t meet a major contrat that thas already begun, (ii) This is unethical. While he is working at Uf Engineering. Ganuma has placed himself in a confit ofintarst violating Ethics ction 3. Ii fly ubvius dha, Gamme's fod change ABC would be perceived to influence his technical judgement as ABC is one of USEIs supplies. ‘Tris would also be consideced professional misconduet section (). Gamma must disclose this, information to his employer or face disciplinary actions resulting fom professional misconduct, Question 5 ‘You are a professional engineer in the employ of a consulting engineering frm, Recently, you became aware that one of your colleagues, who i lso & profesional engineer, has charged « considerable amount of time and that of a senior manage: to a project tha neither he ‘nor the manager worked on. The time sheet showed that time charged to other work was \eliberately transferred to tis job. You tried to raise the mater with your Png. colleague but you Were ebuled ‘What action(s), if ny, should you tke in tis circumstance? Explain your answer, Sample Answer ‘The conduct of your colleague is unethical, By charging unrelated work to this jb, she is not meeting her duty of faimess and loyalty tothe client (Ethics, section 1) ho is presumably now being charged extr. You must behave with personal honour and integrity (Ethics, section Vit) ‘and maintain the honour and the integrity ofthe profession and without fear or favour expose tonest and unethical bebeviour (Ethics, section 8). You cannot let the situation pass. The «question indicetes that you have taken an appropriate step meeting your obligation of courtesy to other practitioners (Ethics, section 7) -and have raised the mater with your colleague but Ihave been rebuffed. ‘You must continue to pursve the matter as your ethical obligation has not been flille), To meet your ethical duty to your employer, you shawld discuss the matter with the senor manager wha's time as also been charged. If tums out that his person also doesnot wish fo comet the situation the engineer must report it to an appropriate senior authority within the company. {eis ‘unlikely that the entire company would support the fraudulent billing practices. Ifthe entire ‘company dd support the dishonest billing activity, then it would be necessary to report the siuaton directly to any affected cleats. {© Copyight Vantage Professional Development 2008, Al rights reserved, e‘Part B= Enginecring Law and Professional Liability as) 1, Briefly define and explain any five ofthe following: (a) Rule of contra proferentem (0) Trademark (©) Concurrent tortfeasors (8) Repusintion (©) Defamation (—Liquidated damages (2) Fraudulent mistepresentation (i) Contract A ‘Sample Answers @ © © @ © ow) Conta Proferentem — where a contract is ambiguous, it will be inteepeted against the party who drafted the provision, Trademark ~ dstnetive mark uscd by a person forthe purposes of distinguishing wares 1nd services, manufactured, sold, leased hired or performed by him from those ‘manufactured, sold, leased, hired or performed by others. ‘The duration of trademark is IS years ‘Concurrent Tortfeasors — whe caused, than one person i responsible forthe damages ‘Repudiation ~ where one party by words or actions expressly tll the other party that they have no intention to perform the obligations inthe contract. The ‘naocent party can gore the breach or assume that the contract ls been discharged by repudiation (and claim damages), Defamation ~ the reputation ofthe plaintiff is damaged by untrue statements publicly ‘made by the defendant. Ifthe statements are made in writing, then libel Ifthe Statements are oral, then it sealed slander Liguidated damages -the amount of the oss that has been expressly stated and ugreed "pon by the partes should a certain event occur a the time the contract was entered into Fraudulent Misrepresentation ~a statement made knowingly or without belie in its truth cor rockoasly, careless of whather itis ue of flse, The innocent part is ented. rescind the contact and claim damages. Also permitted to sue ia fon for deceit or ‘negligent mistepresentation (Hedley v. Bye), Contract A = the contract formed by the contractor submitting @ tende othe owner, The jer's request fr tenders i the offer andthe submission ofa bd isthe acceptance This concept was developed ina decision ofthe Supreme Coutt of Canada in Ron Engineering. The question was whether the defendant contractor (RE) was enttied t the (© Copyrgn Varcage Professional Development, 2008. Al rights reserved. °recum ofa deposit. RE made a mistake in the tendering process and an hour afer the tenders opened, notified the plaintfT ofthe mistake. ‘The court decided that a contrect vas formed when Ron Engineering submited is bid. Therefore, any attempt to. ‘withdraw the bid resulted ina breach of contact. RE had to forfeit the deposit 25) 2 long-established manufacturing company, XYZ Lud, contemplating the possibility of sale f some of its properties, retained au sivinonmtntalconsiting fir, E Inc to prepare an eaviconmental compliance audit, ‘The Viee-President of E Ine. a professional engineer, responsible forthe performance of te environmental compliance audi, turned the matter ove fo one aFE Inc.'s employees who had only recently become licensed esa professional engineer: However, onthe basis of previous assignments, the Vice-President had been very impressed by the young engineer's abilities. The Vice-President was also aware that an extremely busy schedule would likely limit the amount of time the Vince-President could spend on th environmental compliance aut and, accordingly, selected the younger employee engineer in te hope that the young engineer's involvement would decrease the Viee-President's supervisory time in connection withthe audit ‘The employee engineer caried out an environmental compliance audit with respect to cach ofthe properties identified and E Inc. submited is reports on each property. Included a the beginning of each report was the folloving qualifying statement “This report was prepared by E inc. forthe account of XYZ, Ltd. The materia init reflects Inc's bes judgement in light ofthe information available to iat the time of Preparation. Any use which athid party makes ofthis report, or any reliance on decisions to be ‘made based oni, are the responsibility of such third parties. E Ine. accepts no responsibility for damages, if any, suffered by any third party asa result of decisions made or actions based on this base ‘Some time late, XYZ Ltd, sold two ots properties to Acquisitions Inc. In negotiating the sale ‘with Acquisitions In, E Ines reports were shown to Acquisitions In. but Acquisitions Tne. had 1 dealings with E Inc. E Inc. had no knowledge of the sale to Acquisitions ine until approximately four years Iater when Acquisitions Ine. commenced a lawsuit ageinstE Inc. Acquisitions Ine. claimed it had commenced the lawsuit in tort against E Ine. because it had ‘encountered hazardous substances on one ifthe properties and had subsequently obtained the ‘pinion of snother environmental consuking frm who confirmed that the report in question by E Ine. contained negligent misstatements which, in the opinion ofthe second consulting frm, hed resulted from F ne" repracentatives having spent to litle ime investigating the property for hazardous substances. Acquisitions Inc. clnimed in its lawsuit that F Ine. was aware tat the ‘report might be shown to prospective purchasers and, accordingly, E Inc. shouldbe responsible or damages arising asa result of reliance by Acquisitions Ine. on the negligent misstatements in E Inc's report, ‘What potential lisbilies in tort law arse inthis cae? In your answer, expan what principes of ‘ort aw are relevant and how each applies to the ease Indicate a likely outcome to the mater In (© Copyriom Vantage Professlonal Development, 2008, Al ighis reserved, 10‘your answer indicate if your contusion would diffe ifthe reports by E Inc. had not contained ‘the qualifying statement identified sbove and, ifyour conclusion would difer, explain why. ‘Sample Answer Introduction ‘+ The tundamentat purpose of tort law is fo compensate party that has suffered demages as a result of negligent act of omission, ‘There is no need fora contractual relationship to exis between the partes, - In otder fora tort action to succeed, i is essential to prove the following on a balance of probabilities: 1. The defendant owed a duty of care to the plant 2. The defendant breached the duty af eae by hisfier conduct 3. The defendant caused the plaintiff's injuries Analysis Parties ie (Sts cass eguistons ns te plait and he envicomenl consulting fra, ae the defndant Breach of Duty of Care ‘+ An environmental consulting firm's duty of care is to perform services using areesonable degree of eare and skill of a prudent and diligent environmental consulting firm in the cireumstances. ‘+ The environmental consulting frm Knew or ought to have reasonably known the following: © Failing to take the necessary time to investigae the properties for hazardous substances. © Failing to assign the project to an experienced end knowledgeeble enginecr © ailing to property supervise the junior engineer. ‘© Reliance would be placed on F line. expertise inthe form of ts advice, opinion and report. (© Damages could be incurred by the plaintiff by vee of E Inc.'s negligence ot failure to exereise the requisite degree of cae and sil, : ‘+ Asa resull, the consulting frm breached the duty of eare owed tothe plain, In addition, the vice-president of E Ine, owed a duty of care to Acquisitions Ine. to perform their services using a reasonable degree of care and skill, He breached this duty by failing to ‘sdeguately perform ther duties under ie wulsec {In paticulay, the vice-president knew or should have know that: + Assigning the task toa mote knowledgeable engineer was appropriate +The engineer did not have enough time todo the proper investigation ‘+ He was being relied on by Acquisitions to supervise the eport + Damages would result because af his actions Employer Liability (© Copyright Vantage Professional Development, 008, Al igh reserved "+ As the vice-presidents and engineer's employer, the consulting frm is vicariously liable for the employee's negligent actions or omissions. sa result the employer is eso negligent and responsible for the damages suffered by the pint. Proof ‘+ Expert testimony could be intoduced to substantiate the fact thatthe defendants filed to provide services equivalent roa prudent and diligent profesional in the circumstances, Damages ‘+The defendants could have reasonably foreseen that ts aetions or omissions could have caused damage, +The defendant caused he plinsi’s damages by beaching its duty of care. +The damages areas follows: cost ro remove hazardous materials onthe property and cnvironmenta clean-up, usion Clause ‘A defendant i nc liable to al third partes for damages because it does not know thet another patyis relying on is special skill + Addefendant can disclaim responsibility via an express term relating to third parties such as ‘he case of Wolverine Tube, ‘+ Inthis case, E Inc. disclaimed responsiblity to any third partes by stating “any use which @ third party makes ofthis report, or any reliance on dessions to be made based on it ate the responsibilty of such third parties. E Ine. accepts no responsibil for damages, if an, sullered by any third party 98a result of decisions made or actions based on tis report.” ‘+ If there were any health or safety concerns tothe occupants, then E Inc. may be responsible to subsequent purchasers of property where the failure to take reasonable care would create defects that pose a substantial danger tothe health and safety ofthe occupants, Conclusion + In this case there are health and safety concerns that pose a substantial danger to future ‘ceupants. Therefor, the disclaimer isnot effective a protecting E Inc. from labilt Conclusion without an Exclusion Clause + Ifthere was no exclusion clause then a court would, on a balance of probabilities, determine thatthe defendants were negligent as: there was a duty of care owed, the engineering firm, the vice-president and the architect breached their duty of eare and caused injuries to the plains + Damages were sustained by the plaintiff and should be recovered against the defendants, 25) _ 3. Equipment Inc, (“Equipment”) is «company engaged in the business of supplying hheayy equipment use in the olf exploration and drilling industry, Equipment had become aware that Oi! Company Ld. (“Oileo”) required a contractor to design, ‘manufacture, supply and install specialized gear boxes. The gear boxes would be used to drive a {© Copyright Vantage Professional Development, 2008. Al ight reserved, 2‘numberof bucket wheel conveyor belts tht transported sand at Oil's oil extraction tar sands plant in Alberta Equipment decided to tender on the Oileo contract [In order to tender on the contract, Equipment stout to purchase the gearboxes. Equipment was ‘contacted by a representative of Manufacturing Lu, Manufacturing”) 2 company which ‘manufactured similar equipment. After visting Oil's ste and examining the eamveyors, the representative of Manufacturing became familiar with te requtemeats ofthe gear boxes Manufacturing represented to Equipment that Manufacturing Would be ale todesin aed ‘manuftctate the specialized gear boxes and thatthe gear boxes would be suitable fr the purpose intended, On the basis ofthese representations, Manufacturing and Equipment entered into contract. Manufacturing would provide the equipment for a price of $600,000. The contrac eso contained a provision limiting Manufacturing’ total liability to $600,000 for any los, damage or injury resulting from Manufacturing’ performance offs services under the contract. Based on the information provided by the manufacturing representative, Equipment prepared and submitted its tender to Oileo. Oileo accepted the Tender and entered ino a contact with Equipment forthe gear boxes, The gear hexes were installed at Oivo’s site by employees of Equipment according to ‘Manutacturing’s instalation procedures. Shortly after the gearboxes were put into service, main ears inside them failed. As a result ofthis failure, the conveyors were damaged and ft wae impossible for Oiteo to operate the conveyors, Manufacturing made several unsuccessful attempts to correct the gear boxes. In onder to meet its obligations under the Oileo contrat, Equipment hired another supplier to correct the defets inthe gear boxes. Foran additonal $800,000 Equipment was able to correct the problem by replacing the gear boxes with geat boxes manufactured by another company and by repairing the damage tothe conveyors. The total amount which had been paid ky Equipanent to Manufacturing prior to discovering the defects was $450,000. Explain and discuss what claim Equipment can make against Manufacturing in the circumstances. Would Equipment be successful in ts elaim? Why? In answering, please include 1 summary of te development of relevant case precedents. ‘Sample Answer Inwoducton ‘+ This is a contrat case involving a fundamental breach ofthe contact ‘+ The contract included an exemption clause tha linited Manufacturing’ ability to $600,000 fr any loss, damage or injury resulting from Manufscturing's performance ofits services under the corract ‘+ The question is whether the exemption clause is enforceable and the amouat ofthe clam that ‘can be made against Manufieturing Legal Principles © Copyright Vantage Professional 3+ Fundamental breach was introduced by an English case called Harbutt’s Plasticine. This case sui that if there was a fundamental breach of a contract, then an exemption clause could not be relied on to protect a party from labiliry. +A fundamental breach of conract is defined as a breach of such significance as to “go to the roat” ofthe contract. + Subsequently, this English case was overraled by a case called Photo Production. In Photo Production, the court sai that the partes should be bound by the strict wording ofthe contrat called the tc construction approach. I idn't matter that there was fundamental breach of contract. ‘+ In Canada, the cours initially followed the English precedent in Harbut's Plasticine. Homeves, more recenly, he Supreme Court of Canada followed the decision in Photo Production, ‘+ The imporeant Canadian case is Synevude v. Hunter Engineering, In that case, the Supreme Court of Canada stated that in cases where tere was a breach of contract they would not sutomatically ignore an exemption clause, Instead, the courts look atthe wording of the «exemption clause and ask whether the partes had intended thatthe iility pro sion epply in the circumstances ofthe breach ‘+ Essentially, the cout prefered to allow partie to egree on whatever terms they wanted to, provided that they had equal bargaining power, Analysis Fundamental Breach + Ttappears that the defendant's actions resulted in a fundamental breach of contract. The main _gers inside the specialized gear boxes failes causing damage tothe comveyors such that Cileo could not operate the conveyors. This is significant, fundamental breach, Exemption Clause +The wording ofthe exemption clause and the contract appears to be quite cles. There is no evidence of unfair bargaining power. ‘+ _Ttappears tht the partes intended the exemption clause to be effective should a breach of contract occur otherwise these terms would net have been agreed to Damages ‘+ Damages arising from a breach of contac are determined asthe amount arising naturally fiom the breach oF as may reasonably be contemplated by the partes at the time they entered into the agreement. The question is whether the damages were foresceable. ‘+ Inthis case, the original contract price was for $600,000. The exemption clause stated nt the defendan's ibility was limited to $600,000. Because the amount was contemplated at the time of entering into the contact, damages were foreseeable, ‘+ Even though the plaintiff paid more than it ha originally contemplated to correct the defects in the goat boxe, the defendants Liability is limited by the exclusion clause. Therefore he «defendant is only responsible forthe amount outlined by the exemption clause rather than the fall amount pad by the plant to repair the probiem. (© Cepyiaht Vantaye Profesional Development, 2008, Al ight reserved, 4‘+ Inthis case, the plaintiff would onty be entitled to recover a maximum of $600,000 from the sdfendant as a result ofthe breach af contract. Conclusion + Given the decision ofthe Supreme Court of Canada in Synerude v. Hunter Engineering, the ‘wording ofthe contract between the partes was clear ‘+ Asa esuh, the exemption clause is effective and inthe circumstances of fundamentat tneach of contract and he detendant is responsible Yor $600,000 @5)_ 4. __A.supplierof information technology hardware, ABC Hardware GABC"”), submited a fixed price bid fora computer installation project fr a large accounting fins, ABC's bid price of six million dollars was very low in comparison tothe other bidders In fact. the tues ‘other bidders had each bid amounts in excess of nine million dollar ‘The coniract was awarded tothe lowest bidder. The contract conditions expeessy entitled the contractor o terminate the contact ithe owner did nat pay monthly invoices within hit days following receipt of a invoice. ABC commenced supplying computes hardware on the project and soon determin that would Jikely sufer a major loss on the projet, as it had made significant judgement errors in arriving at its bid price, ABC also learned that, in comparison with te other bidders, ABC had “left tree million dollars onthe cable”. Alter the fiflh invoice was delivered, ABC was approached by the accounting fii for ‘ditional information and explanation of bills fom an equipment parts supplict, te cost of ‘iit comprised a portion of the filth invoiced amount, The accoutting fim requested that the “xkdtional information he provided prior to payment ofthe fifth invoice being due, Although the signed contract di not obligate ABC to obtain such additional information, a representative of ‘ABC verbally informed the accounting firm that ABC would provide the edtional information, However, ABC never did so, “Thiny-one days alr the HA invoice had been received, ABC notified the accountng firm that ABC was terminating the contract asthe accounting firm had defaned in is payment ‘obligations under the specific wording ofthe contract. ‘Was ABC entitled to terminate the contract? Explain the relevant legal principle and how it should be applied in this situation, ‘Sample Answer Introdveton + This i a contract law case involving the princi equitable estoppel. © Copyright Vantage Professional Development, 2008, lights reseed 6‘+ Equitable estoppel is a concept that prevents x party toa contract fom enforcing the strict contractual terms ofthe contract where doing so would produce an unfair and inequitable result + This principle is applied when parties re-negoiste terms of contact but donot exchange “new” consideration. AS. result, promise rather than contract is made, Analysis ‘+ ABC is trying to rely on the stit terms ofthe contrac and terminate the contact because the aeounting firm did not pay the monthly invoice widin 30 days of receiving it ‘+The contract stated tat ABC could terminate the contact it was not pid within 30 days of receipt ofthe invoice. + Clearly the terms of the contract were not followed. + However, the accounting firm relied on the actions of ABC. When the fh invoice was delivered, the accounting firm asked for addtional information before payment. A representative of ABC verbally informed the accounting firm tha this ational information would be provided ‘+The accountng frm relied on those comments and it seemed reasonable to do so. Conclusion + Normally rights set out in a contract are enforceable in accordance with the terms ofthe contract. ‘+ However, inthis case, the accounting firm reasonably assumed trough their negotiations ‘hat the contract had been amended and the other party was not going 1 enforce its strict rights under the contract, +The courts would apply the principle of equitable estoppel and prevent ABC from {terminating the contract as it would be unfaie to do so, ‘+ Therefore, ABC isnot entitled to terminste the contract. (5) 5. (a) _ The Ontario Human Rights Code protects employees against certain types ‘of behaviour inthe workplace. Briefly identify (list) five examples of inappropriate conduct in the workplace tht are prohibited by the Ontario Human Rights Cade. 10) () A professional engineer entered into & writen employment contract with « ‘Toronto-based civil-engincering design firm. The engineer's contact oF employment stated thet, {or a petiod of five years after tne tenmination of employment, the engineer would not practise professional engineering either alone, or in conjunction with, or as an employee, agent. principal, ‘or shareholder of an enginezrng firm anywhere within the City of Toronto During the engineer's employment withthe design firm, the engineer dealt directly with meny of the firms clients, The engineer became extremely skilled in preparing cost estimates, and ‘established a good personal reputation within the City of Toronto, ‘The engineer terminated the employment contract withthe consulting frm after three years, and immediately set up an engineering frm in another part ofthe City of Toronto. The ‘engineer's previous employers then commenced a court action for an injunction, eleiming tht © Copyright Vantage Professional Developmen, 2008. Al ght reearved 18the engineer had breached the employment contract and should not be pefmited to practice within the City Limits Do you think the engineer’ former employers should suoceed)in an action against the engineer? In answering, state the principles a court would apply in ayiving ata decision, (80) (© The question of how long an engineer or @ contractor can be sued for negligence ‘or breach of contract i one that is of concer to profesional engineers and to contractors, Deserve the limitation periods during which engineers and contractors ean be sued in tort and in Sample Answers 5(a) |The Ontario Human Rights Code prtects employees from discrimination based on any of the following grounds: race, ancestry place of origi, colour, ethnic origi, vtizensip, creed sex, sexual orientation, age, marital status, family statu, record of offences ov handicap. Ulist'S in answering) 5.46) Introduction + This isa contact law question invalving the principle of legality of purpose + Legality of purpose is one ofthe essential elements ofan enforceable contract, + Acontract cannot be enforced if its against publi policy and prevents an engineer from earning aliving ‘+ ‘The court must determine whether the non-compete clause is reasonable in terms of time and ‘geography. [fit s reasonable, then itis enforceable Analysis In this ease, the engineering company isthe party trying to enforce the terms ofthe contrac. ‘The contrat states that the engineer cannot workin the City of Toronto for 5 years following the termination of ee employment. When the engineer stopped working, she immediately set up Ker company within the City of Toronto. She did not follow the terms ofthe contrac. the conrace is enforced, then the engineer would not beable to work in the City of Toronto which afets her biligy 6 eam ving ln my opinion, five years is too long to prevent the engineer ftom earning a living. Furthermore, Toronto i large city and, therefore, she shouldbe able to setup her owm engineering frm inthe same city and not significantly impact the sles of he previous employer. Asa result the term ‘not reasonable in terms of time or geography. Conclusion (© Copyright Vantage Professional Development, 2008, Al rights reserved. 1.+ Normally rights set out ina contract are enforceable in accordance with the terms ofthe contract. ‘+ However, the contract contained a non-compete clause which prevented the engineer from camming a living ‘+ In this case, the courts would prevent the engineering firm from relying on the tems ofthe employment contract because the clause is unreasonable in terms of time and geography. + Therefore, the engincer didnot reach the contrat, 5(@)__A limitation period requires that any action of lawsuit mus be commenced within & ‘certain period of time or, ypically, they wil fil. For example, tort and contract aetios es well 4s actions against a professional engineer must be commenced within 2 years fom the date the claim is discovered (ven the plaintiff discovered or ought with reasonable diligence to have been discovered). Ther is now an ultimate limitation period of 15 yeas runing from the date ofthe actor omission, ‘© Copysight Vantage Professional Development, 2008. Al sighs resaved. 8