Ch.1.1

List the 3 primary features of the Constitution.

1.the division of powers

2. the creation of the courts

3. the Canadian Charter of Rights and Freedoms

Ch. 1.1

Private law falls under what jurisdiction?

Provincial

Ch. 1.1

List some areas of Private law.

1. Property rights

2. contracts

3.negligence law

4. construction leins

5. (basically al engineering, architecture and geoscience stuff falls in provincial)

Ch. 1.2

Do federal courts have jurisdiction over procincial courts?

Ch. 1.2 

What is the ultimate level of appeal in Canada?

The Supreme Court of Canada

Ch. 1.2

What os the $ limit to be ion small claims court in BC?

$25,000

Ch. 1.2

List the 3 levels of BC Courts.

1. Small claims

2. BC Supreme Court

3. BC Courst of Appeal

Ch 1.2

What does the 'Charter' do?

Establishes individual rights that apply to all canadians and in many cases non-citizens.

Ch 1.5

List some reasons for claims and disputes

negligence

breach of contract

refusal to pay

(just some)

True. 

This is due to the extensive paperwork and large number of parties involved.

1. Law of contractr

2. Law of negligence

Ch. 1.5

What are some things to help with the allocation of risk?

Contracts

Insurance (shifts risk to third partyh)

Bonds (help against non performance or non payment)

Contractual disclaimers 

Ch 1.7

What are contracts?

Volentary agrements between two or more parties that set out rights responsibilities and liabilities for each party

Ch 1.7

Are oral contracts legally enforcable?

Yes

Ch. 1.7

What is a tort?

Tort:

Acts commited by one party in violations to another.

Considered sufficiently wrong to as to give rise to liabilty.

Ch 1.7 

What constitutes the majority of torts (most common)

Negligence

Ch 1.7

What is negligence.

Failure to take reasonable care of another.

Ch 1.7

Contracts are volentary but Torts are involentary.

True.

Torts are imposed byu the law.

Ch 1.7

What must the plaintiff prove in a Negligence claim?

At the time of event the defendant could have forseen the plaintiff would suffer an injury or loss as a result of the D's failure to take due care.

Also, that the D did not meet the standard of care expected in their position

Finally, the failure to meet the standard of care was legal cause of the loss suffered by the P

Ch 1.8

Is it a good idea to read a case file and assume the same will happen to you?

No, get a lawyer

Ch 2 Overview

Scope of practice means what?

means regulatory authority have the right to regulate exclusive right of its members to practice in a particular field. For example "proffesional engineering"- P eng.

Ch 2

Does each province create a regulatory body to govern each profession?

Yup

Ch 2.1

What is one of the main obligations of the provincial regulatory bodies.

Protection of the right to title. 

Ch 2.1

What does right to title mean?

For engineers it means that graduates of an engineering program are not entitled to call themselves engineers or professional engineers without first obtaining the right to do so through registration.

Ch 2.1

What is the benifits of being a registered member (P Eng)?

You get to use the professional title

Ch 2.3

Regulatory bodies register members based on what?

3 things

experience, education, examinations

Ch 2.5

Does legislation give regulatory bodies the ability to discipline members for incompitence or breaches of codes of ethics

Yessir

These disciplinary proceedings are considered quasi-criminal

Ch 2 Q's

How is the practice of architecture regulated differently than interior decorating

architecture is govered by statute and prohibits practices of the profession by anyone not properly registered

Ch 2 Q's

is a disciplinary hearing a criminal proceeding?

no

quasi-criminal

Ch 3.0

what is conflict of interest?

a situation in which the professional has conflicting obligations to the public, client, employer, profession, him/herself

Ch 3.6

In BC the code of ethics, when talking abiout duty to the profession says what?

To report hazardous, illegal, unethical professional decisions or practices

Ch 3 End Q's

Does duty to public safety govern over buty to the client in all cases?

Ch 6.0

What is a contract?

Enforcable voluntary agreement between two or more parties.

Ch 6.0

Can contracts be oral?

yes

Ch 6.0

what is and express term

words phrases or conditions that have been discussed and agreed to by the parties

Ch 6.0

What is an implied term?

Terms that have not been discussed or agreed to between the parties, but which are taken for granted.

Ch 6.0

Why have a contract?

to set out rights, responsibilities and obligations of the parties involved.

Main thing: allocate risk and obligations between parties.

Ch 6.0

Who can enforce a contract?

Only parties to the contract can enforce the contract.

Ch 6.0

What is enforcability?

Likelyhood that a court would uphold a contract or a portion of it.

Ch 6.0

What could make a contract unenforcable?

Flaw in contract

Flaw in formation

Events that occur subsequernt to creation.

Ch 6.0

What are the two key principals that determine whether an enforcable contract exist?

1. Contract formation consisting of an OFFER and ACCEPTANCE, and CONCIDERATION

2. Parties must have legal capacity to contract and an intention to create legal obligations, (the contract must have a lawful purpose)

Ch 6.0

What are some events after the creation of a contract that could make it voidable?

duress

frustration

impossibility

mistakes

misrepresentation

unconscionability

Ch 6.0

who can terminate a voidable contract?

party that is not in breach, can also choose to continue.

Can also use these events as defence to claims that arise during or following the performance of a contract.

Ch 6.1

What is an OFFER?

proposal by an offeror to an offoree, containing the essential terms of a proposed conttract.

Ch 6.1

What is an ACCEPTANCE?

Unequivocal agreement to an offer.

Ch 6.1

List some things that may cause disputes to arise in regards to an offer.

Offer must be capable of acceptance. (vague statement unnaceptable)

If offer does not define essential terms such as parties, price, time, performance, and scope..... probably doesnt pass the test.

Ch 6.1

In a bidding process, invitation for bids may be considered an offer? (t/f)

Ch 6.1

If you decline an offer or counter offer can you later accept it? How could this be possible?

NO. It must be revived

Ch 6.1

T/F

A counter offer is considered a rejection.

true

Ch 6.1

Why is it a good idea to have negotiations explicitly defined as "in good faith"?

If in good faith, there is a statutory requirement to do so.

If not in good faith. either party can simply walk away from negotiations with impunity.

Ch 6.1

When can a party revoke an offer?

Ch 6.1

How to revoke an offer?

Must explicily say it to the offeree.

Ch 6.1

Is the formality of signing or executing the contract necissary?

No, it starts as soon as agreement is reached. ( but signed makes much easier to prove)

Ch 6.1

How can acceptance be communicated by conduct?

By starting the job

Ch 6.1

When is procurement useful/needed?

During bidding process offeree may need time to evaluate the many offers. It can be requested that the offer be irrevocable over a set amount of time to give offereee time to evaluate the offers.

Also used for a said price of a good. must stay that price for a set time.

Ch 6.2

How can an offer be irrevocable?

must contain an enforcable promise not to revoke.

Ch 6.2

What is consideration?

Consideration:

something of value, however small, has been given or promised by each party to the contract.

example.

Consideration A --> B: do a job

Consideration B-->A: Pay said dollars for job

Ch 6.2

Does consideration given by each party have to be equal? what are some issues with this.

No. Courts do not consider who got the better deal.

Issues: if it's such a bad deal for one party, can possibly get tossed due to that party being "unconscionable"

ie. really stupid

Ch 6.2

What should happen if appendments (new considerations ) are added to a contract?

For new considerations demanded by one party, the other party should recieve a new consideation also.

Ch 6.2

If you are a contractor and cannot meet a deadline without more money, how would you request more money, and still be guarenteed to be paid the extra amount.

If you request more money (and they say yes) and finish on the date in the original contract. You are not entitled to the extra amount ( original consideration still in effect) (nothing is new)

If your want to be smart and make the person be required to pay you, you should say you will now finish one day sooner that originally agreed. This means both parties have recieved a new consideration and the now money must be paid.

6.4 

List the ways that a contract can be void (5 things)

1. Mistake

2. Misrepresentation

3. Duress

4. Unconscionability

5. Frustration

Ch. 6.4

Describe "mistake" (means to void contract).

List the 3 features that must be rpresent

Misunderstanding with respect to a term in a contract.

1. Must be significant

2. must be mutual mistake

3. must have existed at the time agreement was made

Ch 6.4

Desctribe 'Misrepresentation' in terms of voiding a contract.

List 3 kinds. 

Untrue factual statement made by one party.

Innocent, negligent, fraudulent

Ch 6.4 

Describe 'Duress" in terms of voiding a contract

Improper pressure, threats, or coercion used to indude a party to enter contract.

Ch. 6.4 

Describe 'Unconscionability' in terms of voiding a contract.

Contract that is so unfair, oppressive, or one sided that it would be offensive for the court to enforce it. 

Ch 6.4

Describe 'frustration' for viding a contract

occurs when an unforseen event occurs that makes the performance of the contract either impssible or of no value.

Ch 6.5

What is a contract amendment?

Can they be oral?

A change or alteratiuon to a contract.

Yes, but its a bit tricky (basically a mini contract so all the same rules apply)

Ch. 7.1

List some conditions that makes a failure to perform a breach.

- the inability of one party to perform the contract

- inadvertence

- disagreement as the the requirements of the contract

- profit (or lack of)

Ch 7.1 

(Contract Breach)

Describe 'inadvertence'

One party unintentionally failed to carry out an obligation

Ch 7.1

(Contract Breach)

What is performance under protest?

Ch 7.2 

What are damages?

Refers to the compensation the court awards to an injured party

Ch. 7.2 

What is an injunction?

Court order for a party to not do somehting

Ch 7.2 

What is a declaratory order?

Determines rights of parties but does not require parties to do anything.

Ch 7.2 

List 3 limitations to damages and desctibe them.

1. Mitigation: party who sufgfered injury or loss must take reasonable steps to reduce (mitigate), the injury/loss

2. Damages cannot be speculative. (for future profits for example)

3. Remoteness: lack of connection between a wrong aand an injury or loss. (if loss was not reasonably foreseeable when making contract, considered too remotre to claim)

Ch 7.3

A unilateral termination (one party only) will be one of what two things?

A breach of contract

or

Provoked by breach of contract

Ch 7.3

What is a fundamental breach of contract?

Goes to root of contract and deprives innocent party of all or substantially all of the benifit of the contract

Ch 7.3

Describe a simple breach of contract

Does not entitle the innocent partyto treat the contract as ended or permit the innicent party to stop performing their duty of the contract

Ch 7.3

What is repudiation?

one party tell the other they wont be doing their duty in the conract. Can lead to fundamental breach

Ch 7.3

WHat is anticipatory breach?

7.3

What is a termination clause?

Lists the acts by either party that entites the other to be out of the contract

Ch 8.0 

If there is a conflict between the literal interpretation of a clause and the intention of the parties, which governs?

Ch 8

Give an example of a situation in which expert evidence may be required in order to interpret a clause

Ch 9.1

Dealing with contract issues what is an agent?

What is the principal?

A person authorized to act on the behalf of another party known as the Principal

Ch 9.1

Give an example of principal, agent, third party in a construction context.

Ch 9.1

Explain the two kinds of authority a principal has over an agent.

-express authority: (actual authority) created by contract(written or not) between principal or agent

-apparent authority: (inplied authority) created by representation made by the principal to the third party

??

Ch 9.2 

What is an indemnity?

Give a common example.

An agreement by one party to bear the financial loss of another party for a specified event.

"if this happens, you pay me what i lose"

-Insurance policy

Ch 9.3

What would an extra, and credits do the contract price?

Credits: decrease

Extras: increase

These are terms used to changes made to a contract. They are very common. The cause of the change generally determines who pays.

examples. unforseen things, use diff material. design flaws ect..

Ch 9.3

If you misinterpret a building code creating a a desaign flaw are you liable?

Ch 9.3

If a contractor completes a job and it ends up being a lot more expensive than originally quoted, can the owner refuse to pay? (and why)

Ch 9.3

How might a contractor protect himself from impact costs?

Ch 9.3

Why and in what circumstances might a contractor make a change without approval 'Ex. Changing material type, which would result in an increase in cost'

Ch 9.4

What are some additional issues that a subcontractor may be subject to (5): 

1. Subcontract formation through the bidding process

2. Pay if paid clause

3. Encorporation by reference

4. One tier bonds

5. Project delivery

Ch 9.4

Describe the 'subcontract formation through the bidding process' issue

Ch 9.4

Describe the 'pay if paid' clause

Ch 9.4

Describe the 'Incorporation by Reference' issue

As a sub contractor, you must follow the provisions in the prime contract awarded to your general contractor.

Ex. standards etc

Ch 9.4

What is one thing a sub contractor should do before making a bid to a general contractor

Ch 9.4

Describe the 'One-Tier Payment Bonds'

The general contractor may have to put up 50% of the contract payment up front as a bond before work begins to compensate for labour and subcontractor payment.

The subcontractor needs to be within 'one-tier' to qualify is 'claimant' under the bond

Ch 9.5

What is an 'Unforseen Conditions'

Ch 9.5

How can an owner minimize risk in terms of unforseen conditions

Ch 9.4

What are two problems with shifting the risk to the contractor for unforseen conditions

1. Little available information on the hidden conditions (sufficient geotechnical reports)

2. Courts sometimes recognize that bidding process does not allow for sufficient time to conduct thorough investigations

(courts sometimes rule that insufficient time is given, and puts liability on owner) 

Ch 9.6

What are specifications

Ch 9.6

What are some challenges in interpreting specifications (8)?

1. Inconsistency in terms and language

2. Repetition in material (often containing different information)

3. Incorrect or inconsistent drawing notations

4. Lack of coordination between the drawings and the specifications

5. Use the drawings and specifications without appropriate ammendment 

6. Incorrect use of legal jargon

7. Descriptions containing not only the required result, but also mandating a methodology

8. Using drawings and notes with no written specifications

Ch 9.7

Describe the potential confusing surrounding contract authority

Ch 9.7

Why is timeliness important?

What is a potential consequence of tardiness?

Duties must be completed in a timely fashion, failure to do so can result in delays to contract completion and impact the ability of either party to complete the contract.

These delays can result in impact claims

Ch 9.7 

Sufficient number of field reviews is whos responsibility?

The contract administrator 

(Court may rule that the number of field reviews stated in the contract was not enough)

Ch 9 Summary

To what extent are 'pay if paid' clauses are enforcable 

a) under all circumstances

b) no circumstances

c) in some cases

Ch 9 Summary

Under what circumstances is a subcontractor bound by the terms of the prime contract

Ch 5.0

List the three principal of business organization in Canada.

What is a potential 4th?

1. Sole ownership

2. Partnerships

3. Corporations - "seperate legal person"

4. Joint Venture - "organization where two or more joint ventures act together but retain their separate legal status"

Ch 5.1

Is authority within a partnership public information?

Ch 5.3

How might an independent business owner reduce the risk involved with running a business

Ch 5.4

Who is a corporation owned by

Ch 5.4 

Define dudiligence

Ch 5 Summary

What are two steps that directors and officers can take in a corporation to reduce liability

1. Obtain indemnity from the company

2. Purchase directors/officers liability insurance

Ch 10

Describe 'call for tenders'

A method of forming a contract: A request from a buyer (owner) of goods or services to a group of potential sellers (bidders)

the bidders basically propose a contract

Ch 10.1

What is the most popular construction project delivery method?

Describe it.

 Design-bid-build

owner/consultant conceptualize and design project.

Contractor hired to build through tendering process

Consultant inspects construction and owner finances it.

Ch 10.2

What is the characteristic of a good contract?

optimum/equal level of risk and obligation for each party.

Ch 10.3

After the bidding (tendering) process, is it common for negotiations to happen?

NO. It is illegal in canada to do both tendering and negotiations. Tendering replaces negotiation.

Ch 10.3

Its it POSSIBLE to negotiate after a tendering process?

Yes, but it must be CLEARLY explained that there will be an inclusion of a negotiation step before the call for tenders happens

Ch 10.3

What is the defference between a call for tenders and a request for proposals?

The level of detail varies is the scope of work. 

example. Call for tenders may result in a 500000 page report of high level detail, while a request for proposal will have gereric info.

Ch 10.3

What is a "delivery system"? 

List some.

A delivery system is basically a method for a buyer (owner) to find a seller (contractor)

Some methods include:

-Request for qualifications

-Invitation to tender (tendering)

- Request for quotation

- Request for standing offers

- Request for proposals

- Letter of interest/Pre-qualification

Ch 10.3

Explain "request for qualifications"

Process used to choose a project participant based solely on the wualifications of the respondesnt, rather than on other criteria (eg. price).

Often used for selecting profssionsals

Ch 10.3

Describe "Invitation to tender" (tendering)

(bidding process)

Used when numerous potential sellers can supply goods or services. Owner can evaluate bids against criteria without negotiation.

Very formal process. 

Ch 10.3

What is "request for quotation"

Informal process through which separate requests are made with no formal closing time or tendering closing conditions. In this process further negotiations after a party is selected is common. 

This is due to the fact full details are not knows before this process starts. 

Ch 10.3

Describe "Request for standing offers"

Process through which the buyer prearranges prices, terms, and conditionswith sellers for frequently ordered goods or services.

The contract is to supply goods or services at a set or predetermined rate if and when they are needed.

Ch 10.3

Describe "request for proposals"

process through which a buyer invites potential sellers to propose a solution to a particualr problem, but the details in these potential solutions are less well develeped than those in a call for tenders

Success of seller usually based on the quality of the solution to the problem, not only price.

Ch 10.3

Describe "letter of interest/pre-qualification"

Screening process for call for tenders. Saves people from putting in a bunch of effort for a bid when they are not good enough for the job. Determines if a seller is qualified.

Ch 10.4

List some procedural issues for formation of contracts.

- fairness and good faith

-openness or transparency

-the cost of fairness and transparency

Ch 10.4

Describe "fairness and good faith"

Courts hve held that there is no obligation of fairness in precontractual negotiations between parties. 

Confusing topic.

process defined in procurement documents does not have to be fair or equal for all parties, but once defined, process must be applied with fairness and good faith.

Ch 10.4

Describe "openness or transparency"

Ch 10.4

What is "cost of fairness and transparency"?

Relates to the fact that sometimes buyers hire "fairness monitors" or other people that make fairness better.

Ch 10.4

Why is it important to follow the rules of the tendering process?

Breaking the rules can result in large fines and penalties.

Ch 10.4

How is a contractor selected in the tendering process?

Subject to terms and conditions of the call for tenders, buiyer must normally accept the lowest bid. 

With out stipulation, picjing the non-lowest bid can result in big consequenses.

Ch 10.4

Describes the steps involved in the bidding process.

1. Prep of the bid documents: get drawings, specifications, conditions, instructions ect for bidders. and invitation to bidders

2. Submission of bids: Sellers prepare responces to invitation. Not usually much time for this step. 

3. Receipt and examination of bids: After closing time of bids. Buyer examines bids and sees if its legit.

4. Contract Award: Winner gets contract. 

Ch 10.4

What is bid shopping?

Practice of using a price submitted by one party to obtain a lower price from another party. Can cause legal action.

Generally considered unethical but not necissarily illegal.

Ch 10.4

If a bidder makes an error and underestimates the price, can they withdraw the bid?

No. Once a bid is submitted the bidder must honor it and pay the additional costs.

Often buyers accept the mistake and will go to the next bidder as they dont want the pottential damages associated with the changes.

Ch 10.4

List some advantages/disadvantages of design-build

Buyer conceptualizes project, hires one party to design and build.

Advantages:

-Buyer gets "one stop shopping"

-Integratinf designer and builder fosters cooperation

Disadvantages:

-concern over level of permissible buyer intervension in design

- Concern for integrity of inspection process

- Possible conflict of interest on the part of the consultant, since consultant is paid by the contractor whose work the consultant is reviewing.

Ch 10 Q's

What can a buyer do in tendering situation without risking legal liability?

A. Accept bids that do not comply with a material req. of the call for tenders

B. It can negotiat with the bidders after tenders close

C. Use criteria other than price in deciding on the successful bidder, as long as the criteria are disclosed

D. Use undisclosed criteria in deciding on the successful bidder

C

Ch 10 Q's

Describe the buyers advantages and disadvantages of using a familiar procurement process.

Ch 10 Q's

When preparing contract documents for tender purpose, what should and engineer include?

Ch 10 Q's

Discuss the statement 

"It is always best to hire consultants who have the lowest price"

Ch 10 Q's

If tender docs state that submitted bids are irrevocable until a specified date, what does this mean?

A bidder can withdraw his bid before tenders cloe, but not after.

Ch 10 Q's

Describe the nature and effect of the privilege clause/

Permits an owner to accept or reject all of the bids, but it does not permit an owner to utilize undisclosed criteria in awarding a bid.

Ch 10 Q's

If an engineer wh ois supervising a contract tender recieves inquiries from a prospective bidders before the close of bids, what action should be taken?

Ch 10 Q's

Describe the impact of international treaties on gov tendering practices

Ch 10 Q's

If durring the tender period an engineer discovers deficiencies or errors in the tender documents, which actions should he/she take?

Ch 11.0

What is a cost-plus payment type?

Ch 11.1

What is a standard form contract?

What are some pros/cons

These are general contracts made for common types of jobs. 

They are good because they are cheap (premade) but can often not coverall aspects necissary. They often need to be tailoted for a specific use which costs money

Ch 11.2

Describe a fixed-price contract.

Goods and services are provided for a lump sum amount, including overhead and profit.

Ch 11.2

Wat is a unit price contract?

Payment is given per unit or quantity of material or work. eg. $1000/ tonne of gravel

Ch 11.2

Explain the alliance agreement type of contracts. what is the intention?

typically involves all major parties including the owner ect.. all parties agree that there will be no liability for poor performance or defective work, and that all parties will share in th success and failure of the project.

Intended to difuse historically adversairial relationship of parties in construction projects.

Skipped:

Public-private partnersips

Ch 11.6

List and describe some standard clauses in contracts.

a) Scope of work: Contract must clearly define the scope of the services and materials to be provided. Usually done through details specs and drawings

b) Contract time: applies to both parties. schedule is important

c) changes: need to define methof for modifying general terms and scope of work as circumstances may change

d) Damages and bonuses: Liquidated damage clauses define amount payable for specific things

e) Warranty: contractual promise to repair defects in goods and services for a specific period

f) termination: set out circumstances under which the parties can terminate the contracts before completion

g) indemnification: each party indemnifies the other against their negligence or breach of contract

h) exclusion, limitation, waiver clauses: clause that purports to completely exclude the damages or remidies available to the innicent party upon the occurrence of specified events

Ch 11 Q's

Describe the circumstances where a contractor is able to seek increased unit prices.

when there is a significant change in quantities from the estimate provided by the owner.

Ch 12.0

Define Tort.

Ch 12.0

What re the two categories of torts?

Unintentional and intentional

Ch 12.0

What must the plaintif prove in a negligence claim to be successful?

1. the defendant owed the plaintif duty of care

2. The defendant breached that duty

3. the plaintif suffered loss of damage

4. The breach was the proximate cause of the plaintiffs loss (causation)

Ch 12.1

What is duty of care?

is an element of negligence based upon reasonable forseeability. 

If at the time he commited negligent act, the D could have reasonably forsaw that the P might suffer loss or damage, then a duty of care is owed to the plaintiff

Ch 12.1

Does an engineer designing for an owner in a bidding process owe duty of care to the successful contractor?

Ch 12.1

Can a negligent contractor plame a designer for failing to point out a mistake they made? who can?

Ch 12.1

Can negligence claims be filer for econimic loss?

Ch 12.1

What is one way an engineer can reduce the risk of negligence claims. explain

They can use contractual limitation and exclusionary language. 

can restrict the duties owed to buyer. 

Ch 12.2

What is breah of duty. What is another name for it?

aka Standard of care.

Menas the level of skill and care required to a person. generally based on the level of skill and care expected of a reasonable and competent member of that profession or occupation.

Ch 12.2

How is Breach of duty generally argued in the courts?

Expert witness is usually called to claim that a normal person in that profession should have forseen the danger.

Ch 12.3

What is the 'but for' test for proximate cause?

'but for' the act, the results would not have occured

"Would the damage or injury have occured without the negligent action of the defendant?"

Ch 12.3

What is proximate cause in regards to negligence?

 its the most significant cause that plays role in producing the damage or injury. (probable, does not need to be beyond a reasonable doubt)

this would be the person responsible for the negligence

Ch 12.4

What is the difference between the losses associated with contractual breaches and negligence breaches

contractual breach: the compensation can be made for just monetary loss

negligence breach: there must be damage (to vehicle for ex) or injury

Ch 12.5

List three categories of misrepresentation

What is the most serious? 

1. Innocent

2. Negligent

3.  Fraudulent **** most serious

Ch 12.5

What is special about negligible misrepresentations in tort law

Ch 12.5

What is a good defense against negligence misrepresentation claims

Ch 12.5 

With innocent misrepresentation, what may the defendant be entitled to? (Contractual)

Remedy of rescission - the cancellation of contract

The best thing you can get out of an innocent misrepresentation is the cancellation of the contract

Ch 12.6

What are the four requirements for fraud?

1. Untrue fact

2. Defendent knows its untrue

3. He intended to induce the plaintiff to act upon this untrue fact

4. the plaintiff does act and suffers damage

Ch 12.7

What is a Fiduciary Duty?

Ch 12.7 

List some circumstances where Fiduciary Duties apply?

1.One party ("the fiduciary") has the ability to exercise some discretion or power

2. The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary's legal or practical interests

3. The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary

4. A fiduciary relationship does not normally arise between arm's lenght commerical parties

Ch 12.8

What is Trespass?

What kind of tort is this in relation to?

the unauthorized entry onto the land of another person

it is a strict liability tort - meaning that in order to prove liablity, the plaintiff need only prove that the defendent entered or encroached onto the plaintiffs land without authorization. 

Ch 12.8

What four things must be proven to find liability in nuisance?

1. The defendent made a non natural use of his land

2. The defendent brought onto his land something which was likely to do mischief if it escaped

3. The substance in question escaped

4. damage was caused to the plaintiffs cause as a result

Ch 12.9

What is duty to warn?

Ch 12.10

What is product liability?

The liability of the manufacturer to a consumer for a defective product

(if the consumer buys it directly from the manufacterer)

because of this, the consumer must go after the manufacterer under tort law instead of contract law if they didn't buy it straight from da factoray

Ch 13.2

What is the limitation period for commencing legal action in BC for:

1. injury to person or property

2. breach of contract  

3.tort causing economic loss

1. injury to person or property - 2 years

2. breach of contract - 6 years

3.tort causing economic loss - 6 years (misrep)

the limitation begins when the plaintiff knows about about the damage or breach, or ought to have known through reasonable diligance

Ch 13.2

List and explain three potential protections from liability that a professional can use?

1. The parties to a conract can generally agree to a shorter (or longer) time period than is contained in the statute by agreeing to limit liability for claims to the following:

- a defined time period (e.g. six years from substantial completion of the construction project or delivery of the software)

-a defined financial limit (e.g. 250000 dollars)

- insurance available at the time 

- the re-performance of the services or

- a combination of the above

2. Each limitation statute contains an "ultimate" limitation period, beyond which claims cannot be brought even for latent defects (as short as 10 years or as long as 30 years)

3. The defendant can purchase insurance, recognizing that this must generally be maintained throughout his or her lifetime, because professional liability insurance is issued on a claims-made basis 

Ch 13.3

What is several liability?

Where the plaintiff is partially at fault. The parties are responsible only for their portion of the loss

If its entirely a different parties fault, the plaintiff can try to recover the entire amount from any of the at fault paties

Ch 13.4

What is vicarious liability?

Ch 18

What are two things that a contractor/subcontractor can do to encourage payment from an owner

1. Register a construction lien

2. Sue them under contract law

Ch 18.1

What is the process in starting a construction lien claim?

1. Filing 1 or more documents with the land registry office (depends on what province you are in)

** very prudent to get legal advice first thing or you might lose your lien rights **

Ch 18.1

What is perfecting a lien?

Ch 18.4

Describe Trust Provisions?

The trust provisions of the construction lien statute outline the responsibility of the general contractor to pay the sub contractor their wage.. the responsibility is deferred from the owner to the lower tier by doing this

failing to do so, results in heavy fines or even jailtime! don't doo itt

Ch 18.5

Describe "holdback" or retainage in construction lien law

Ch 21

What are some implied terms in the common law employment contract

1. the employees obligation of fidelity (loyalty)

2. the employees duty of competence

3. the employers duty to give adequate notice of termination or to pay severence in an amount equal to the salary and benefits that would accrue during the notice period

Ch 21

What are some specifications of a trade secret or confidential information?

- it is or may be used in a particular industry

- it is not widely known in that industry

- it has value because it is not widely known

- The company tries to maintain it as a secret through reasonable efforts

Ch 21

Describe a restrictive covenenants (in regards to employement law)

Ch 21

What three reasons for refusal of work would not be classified as insubordination (therefore not just cause for termination)?

Ch 21

What is constructive dismissal