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136 Cards in this Set

  • Front
  • Back
actual authority -- expressed vs implied

This is compared to...
When the principle has directly granted authority to agent to act-- Expressed.

Authority is IMPLIED when the surrounding cirumstances demonstrate such authority. Eg, cashier meant to sell groceries.

Compared to APPARENT authority
Apparent Authority

What happens when limitations not clear?
Less clear than Actual... if authority is limited, this must be clear not just to the agent, but also directly expressed to the public.

Even if limitation expressed to agent (eg employee), contracts are still binding -- eg of agency by ESTOPPEL. Where the principal has led the 3rd party to believe the agent has authority, the principle can't later deny that authority.
Certification--- trade unions
For unions seeking recognition as bargaining agent, must apply to labour relations board for certific.

Must show they have certain portion of designated workforce signed up as members of the union (eg bc=45%)
Check-off provision
Most collective agreements will have a clause requiring employer to deduct union dues directly off the employees' pay.

Saves union trouble of collecting directly from their members.
Union shop clause + exception
Unions often insist on this-- the requirement that any future employees to join the union must be included in their job contracts/agreements.
There is an exception made for individuals with religious objections.
Closed Shop agreement

a compromise..
When contracts require the hiring of only members of a union.
the compromise is the rand formula agreement.
Rand Formula Agreement
A compromise in collective agreements where employees don't have to join a labour union..

This means employees need not be union members, but must pay dues and are subject to all terms of the collective agreement negotiation.
What happens when labour parties can't reach an agreement?

What is an interest dispute? How does it work?
Strike/lockouts will follow.

A dispute over the terms to be included into the new collective agreement. This may happen after parties bargain in good faith, all mediators involved have booked out w/out agreement reached. EAch party is free to serve NOTICE of a strike (72 hrs in BC).
Lockout
This involves the employers closing down operation and denying work to employees.

Often done to control timing of work stoppage to lmt impact on the business.
Ratification - labour unions
When parties from both sides meet and negotiate to reach a collective agreement..
Once the agreement is reached, it must be present to the members of the union (employees) for ______________ to make the collective agreement binding.
If an employer assoc involved, they also must do this.
Conciliation - labour unions
If there is deadlock in the negotiation process, Canadian law has imposed this type of mediation into the process in order to assist parties reach an agreement.
During this process neither party and take any further job action.
Rights dispute
If this occurs after the agreement is in place, it must be handled through a grievance process set out in the contract itself and culminate in arbitration.

Strikes/lockouts are not permitted to resolve disputes with respect to current collective agreements - a court injunction will likely be imposed.
Recognition Dispute
Historically, this involved violence/fighting when a union first tried to deal with the employer.

Today, the certification process largely eliminates such confrontation.
Jurisdictional Dispute
This can arise between different trade unions as to which body should represent a particular group of workers/which union's members ought to be doing a particular job.
Examples of unfair labour practices
When an employers attempts to interfere with collective bargaining process. Eg trying to intimidate/threaten employees, creating employer-dominated bargaining units, changing pay/conditions of work to undermine certification drive.

Such actions are prohibited.
Steps to set up a union
Once bargaining unit identified/req'd # employees signed up, application made to board for certiftn.
In most jurisdns, a gov't-supervised certifcn vote takes place. -- in most places, majority of votes makes the union certif'd as official bargaining agent.
From now on, employer must deal w/ union exclusively.
Control Test - Employment
this is used to determine employee status-- they would be subject ot rules and control of a company. Compared to contractors who are independs of those controls.
Sometime this is not adequate to determine employmnt.
Organisation Test
Employee Check: if the individ'l is found to be an integral/essential part of the bus org't'n, they are an employee for the purposes of vicarious liability and termination req'ts.. this is true EVEN IF the actualy control exercised over them is ltd.
What are the factors of notice req'ts to terminate employment.
Keyes Case: REasonableness of the notice must be decided w/ ref to each particular case, 1)having regard to the character of the emplyt, 2) the length of service of the servant, 3) the age of the servant/availability of similar employment, 4) having regard to the experience, training, and qualifiations of the servant.
Progressive Discipline
If employee conduct is not enough to constitute just cause, carefully determining the exact nature of the inappropriate conduct will povide for a program of _______.
After a first offence, provide a reprimand/other discipline while making sure the employee understands what is/isn't acceptable is part of this pgoram.
Dependent contractor
This person operates a separate business but is more like an employee operating in an ongoing dependent relationship with one employer.

The Organisation Test determines this status for liability purposes.
Independent contractor
This person performs specific services descried in a contract. Normally NOT an ongoing obligation. The job is done, then they move on.
Employment Standards Act
A number of different statues setting out various standards for the workplace are brought together into this single comprehensive statute.
Fiduciary Duty
This is an obligation to act in the best interests of the principal. Referred to as an "utmost good faith relationship" and arises where trust place in another by someone particularly vulnerable if that trust is broken.
Undisclosed Principal

If somethings happens?
This is when an agent dosn't disclose to the thrid party that he or she is activng as an agent/refuses to disclose who they are acting for.
If things go wrong, 3rd party must sue the agent. The ID of the principal normally disclosed then the 3rd party must chose who to continue the action against. Once chosen, they can't change their mind.
Human Rights Legislation
Great application of this leg is in employment. Under this, any form of discrimination with regard to hiring/employment is prohibited.
Courts have shown increased wilingness to consider such violations in awarding compensation in other actions eg wrongful dismissal.
Memorandum of Association and Articles of Association
Part of creation of corporations. Nova Scotia uses these in their registration methiod of incorpt'n. They are submitted to appropriate gov't agency which in turn issues a cert. of registn recognising the corp.
Articles of Incorporation
American approach to incorporation-- adopted by most provinces/fed govt. These _____ are filed and the subsequent issuance of a cert of incorp by the appropriate gov't agency.
Letters Patent
Incorporation approach-- Used only in Quebec and PEI. Upon application by subscribers, ______ are issued, thus granting a charter creating a corp.
Broadly held vs Closely held
These are ways bus corps can be "held". One is also referred to as reporting, public, or offering corps.

The other is aka private-- more like an incorporated partnership with few shareholders.
Preferred Shares
This type of shareholder is usually denied voting rights but have a commitment from the company to receive a speciic dividend payment each year. There is still no legal right to a dividend and the shareholder can't sue if no dividend is declared.
Dissent -- Shares/bonds
One of several mechanisms to protect shareholders from abuse. If elected directors make decisions that negatively affect the shareholder, minority shareholders may have a right to _______ and have their shares purchases by the corp at a "fair market rate".
Oppression -- shares
If majority shareholders, though the directors, bestow a benfit onto a company they own, all at the expense of the corp and against the minority shareholders, minority shareholders can apply to the court to seek protection from such ____________.
Representative Action
What must be done first
AKA Derivative Action
The minority shareholder has the right to bring action on behalf of the company to sue someone the directors/majority shareholders may not choose to sue due to some benefit/interest in the party that would be sued.
Shareholder must hae the action certified by the court, then shareholder proceeds with the action on behalf of the corp.
Pre-emptive rights
Whether or not a portion of ay newly issued shares must be offered first to the present shareholders sufficient to maintain their % conrol of the corp.
In jurisdictions where these rights are not includ in the statute, they are often built into incorp docs or shareholders agreement.
Equity vs Debt Financing
Ways to obtain funds outside of operations:
1) Investors purchase shares

2) Money is loaned to the corp by creditors
Debentures
Another word for bonds
joint ventures
Contractual relationships where two or more businesses get together for some project, usually of lmtd duration.. may be a contractual arangement or can also involve partnership arrangements, corps, corps in partnership, holding companies etc.
Global Compact
Established by the UN to encourage ethics in multintnl corps. This is a network of public and private instituions designed to advance ethical behaviour and to encourage all institutions/corps to align their ops/strategies with 10 principles.
Insider Information
Officers/directors/others in a corp have info of events/situations that wil affect the value of those shares before the info is disclosed to the public. If they act before the info is disclosed, by selling/purchasing, they have acted on ________ and maybe subject to criminal charges for the manipulation of the stock market.
Prospectus
This includes carefully drafted and regulated info that discloses to all potential investors the info they need to decide to invest.
If info is witheld or misleading, criminal charges may be imposed on those responsible.
LLPs
This is allowed in certain professions to overcome liabiltiy problem.
This leg permits this formation. This protects partertner from the liability for the negligent acts/omissions of the other partners.
LImited Partnerships (3 req'ts) vs LLPs
1) there mst be at least 1 general partner in the firm (they hold unlimited liability)
2) the limited partnership must be registered as such with the appropriate gov't agency
3) the anme of the limited partner must not be listed as part of the name of the partnership busness.
Abatement
When the tenant notifies the landlord of a major repair needed, and the landlord fails to make appropriate repairs, the tenant can seek a court order whereby he will be alowed to pay less rent, using the excess to make the required repairs.
Vacant Possession
This is an basic obligation of the landlord to a tenant-- that they wil make sure that any prior tenants are gone before the scheduled time for th enew tenants to ocupy the premises.
Quiet Enjoyment
Another obligation of landlord to tenant-- the tenant has to be able to suse the premises for the purpose for which they were let.
eg construction next door interfereing with sleep, or a major leak making the place uninhabitable.
Distraint (to distrain)
Seizing of a tenant's goods for the rent owing. Tenancy continues as this is inconsistent with the termination of the tenancy since the rent is being paid by the seized property.
Forfeiture
Changing the locks in order to terminate a tenancy-- no court order is needed.
Relief against forfeiture
A tenant has the right to ask the court to allow the tenant to reinstate a lease by paying the back rent due.
Deed of Conveyance
The name of a grant involving the traditional method of transferring land.
At the closing date, this is put under seal, which accomplises the actual transfer. These docs are then dposed to the registry to ensure protection agasint subsequent claimants.
Agreement of purchase and sale
In the traditional method of transferring land, this is the contract concluded between the parties. This may contain conditions that have to be met before a deal is finalised
Prescription - transferring land
Where people regularly cross over land and the ower does nothing to stop them, after 20 years they have acquired the right to continue to cross over by _______.

This is only valid under a land registry system.
Adverse Possession
Aka "Squatters Rights". Where a person occupied property openly without the acual owner taking steps to get rid of them for over 20 years, after that time is was to late and the squatter obtained a right to the land.
ONly valid under land registry jurisdictions.
Bailment
When one person takes possession of and cares for the goods of another.
Bailor
A person who delivers good to another to care for them.
Bailee
A person who is given goods to care for.
Gratuitous Bailment for the benefit of the bailee
WHen someone asks to borrow your goods.

The duty imposed on the bailee is high.
Gratuitous Bailment for the benefit of the bailor
Someone asks you to store things for them.

The duty on Bailee is low.
(duty is affected by the value of the thing being stored-- eg rake vs violin)
Involuntary Bailment
If someone forgets something at someone's house..

Duty of care required of bailee is only what would be expeted of him with respect to caring for their own goods, and only if bailee takes control of item in some way. Judge will impose reasonable persons test.
Bailment for Value
a mutually beneficial bailment. The duty of care is imposed on the bailee, unless otherwise specified, is that of the reasonable person in the circumstances eg normal standards in the industry.
THe court usually applies exculpatory clauses limiting liability of one party at the expense of the other in favour of the person disadvantaged by the provision.
Bonding
This is similar to insurance and involves the business purchasing a fidelity bond to cover wrongful conduct by employees. If an empoloyee steals/cheats clients, the bonding company will provide compensation, but retians the right to go after the employee to recover what was paid out.
Right to Salvage
Insurance companies retain the right to get whatever value they can from parts replaced.
Subrogated
AKA the transfer of rights of the insured. Once insurance companies have paid for the claim, they will take over the rights of the insured to sue whoever caused the loss in the first place.
Business interruption insurance
THis insurance provides some compensation for the lost business opportunities caused by delays in sorting out the rights of parties/rebuilding/repairing premises.
LIability insurance
This insurance provides coverage for personal liability to others.
As a rule, insurance will only cover negligence in these situations, not the wilful actions of the insured or their employees.
Fidelity bond
The type of bond offered by a bonding company to provide compensation if an employee steals or cheats clients.
Surety Bond
Construction companies may be required to put up this type of bond to ensure they will perform as required in a contract.
This bond guarantees performance of a contract than compensation for wrongful conduct
Life Insurance
This provides compensation to named beneficiaries when the insured dies.
Partners in firms will often take this out on their partners to sustain the business if one dies. Largers businesses will also do this for key personnel.
Term Insurance
this involves a premium paid strictly to insure against the death of the insured.
Whole life insurance
this involves a certain investment aspect as well as the insurance coverage, so that the insured will receive a return on that investment to assist in their retirement.
Disability insurance
provides an income for the insured when, beecause of accident or sickeness, they can no longer work.
Good-faith relationship - insurance purposes
IN an insurance relationship, there is an obligation on the part of the insured to provide full disclosure of any condition or circumstance that might affect the creation of the policy or the cost of the premium. If info is intentionally withheld, it constitues misrepresentation and may void the policy.
Broker
This person represents the insured and arranges insurance for them with the companies.
For purposes of vicarious liability and authority to contract, this person can still be considered the agent of the insurer when it appears to the insured that they are representing the company.
Insurance Agent
This person represents the insurnace company itself, either as an employee or an independent agent.
Premium- insurance
this is a relatively small sum to cover a specified type of risk eg fire/lost property.
What is the main principle of insurance
What is the spreading of risk?
Reinsurance
Often, insurance companies providing coverage against various types of risk will insure themselves against unusual losses cuased by unexpected circumstances.
Rider
This provides added coverage related to unique needs of particular customer, to be attached to the standard form contract of an insurnace policy.
endorsement
This outline of a specific change is added to an existing insurance policy if modifications are needed.
Difference between insurance and waiver
These two things are similar, however in one, compensation is only to cover a loss if damage were to occur, the other would offer a windfall. The insured must have an insurabe interest in the thing covered.
Co-insurance clause
This is when insurance companies only pay a percentage of the loss. This usually requires that only a certain percent of loss is maintained.
eg if house worth 400,000 is insurance for 300,000, if 350,000 of dmg occurs, only 300,000/400,000 (75%) of 350,000 will be covered.
Building Scheme
Similar to a restrictive covenant- all properties in a dvlopmt have same restrictions put on them. All properties are benefited/all are restricted.
Wording must be negative in nature so all builiders are forced to build to certain specifications.
Easement
This is a legal arrangement made with the property owner to allow some service/line to cross over their property.
This is an "interest in the land" - formalities should be complied with.
Restrictive Covenant
When land is sold, the seller might but some sort of restriction on what the land can be used for/what can be built on it. eg in subdivision- restricting commercial vs residential use.
MUST be NEGATIVE wording to bind to all future owners and to "run with the land".
Dominant Tenement vs Servient tenement
Restrictive covenants have one property that benefits and one that is restricted.
Licence vs interest in land
When someone is given the right to use/access property for some particular purpose however this use doesn't convey interest
Profit a prendre
This is a licence to remove something such as gravel or trees from the land.
Joint Tenancy
For those wishing to share ownership of property-- This method is often used by families/spouses to get around inheritance taxes/probate fees. Both tenants own whole property(no specific portion). when one does, the other still owns al of the property, only now exclusively. Title by survivorship. Cannot be severed in a will as survivorship has already taken place.
Tenancy in Common
Method to share owndership of property.
Both parties have undivided interest in property-
If one dies, the other still only owns only their part interest and the deceased person's interest wil go to their heirs. If joint tenancy is severed, this is what results.
Dower Rights and Homestead Rights
Traditional ways that spouses were protected in event of marriage breakdown with regards to shared claims to property created by statute.
Certificate of indefeasible title
This is the key part of the land titles sytem. It is guaranteed and is conclusive evidence of who has title ot the property in any court. eg mortgages, liens, judgements, other intersts are noted on this as a CHARGE against the title.
Land Registry
This is the traditional system to register land, invovling the creation of a depository/registry to keep copies of documents that affect the title of the land. The purchaser/lendr has the assurance that only those docs registered to this will affect them, but they have to search teh docs themselves to determine rightful owner/what claims are agains the property. Unregistered claims have no effect on subsequent purchasers.
Land Titles System
System of land registry-- first adopted in BC. This guarantees title: when property is transferred, a form is filed with the land titles office, which generates "certificate of indefeaible title" ciertifying the purchaser as the registered owner of the property.
Option to purchase
This is a subsidiary contract where, for a fee, the offeror commits to hold their offer open for a given period of time-- the offereor is bound by its terms and cn't revoke the offer during that period. Often used by developers looking to buy multiple lots/speculators looking to resell/flip these for a profit.
Chose in Action
Intangible, personal property is referred to as this.
Property
this referes to a person's rights in relation to a thing. This separates the thing for the title/right to it so one can loana car/rent a house and still be the owner.
Dead transfer
When land is used to secure debt, the title is trasnsferreda s secuirty, but possession reamisn with the debtor. AKA mortgage.
Equity of redemption
REcognised by the court, this is a right in the debtor to redeem their property from the creditor even after default by paying what was owed. This has a distinct value. Because of this value, it too can be transferred to a creditor as security- aka a second mortgage.
Foreclosure - origin/process (2 stages):
Rooted in "right to redeem" which was unfair to creditor if debtor could redeem property even years after default. Courts of Chancery put a time limit on this right. If there is a default, 1st-creditor/mortgagee asks court for time limit on excrcise of equity of redemption (eg 6 months) 2nd- when that expires/payment is still not made, mortgagee returns to court and asks that forecloure be made absolute.
Second mortgage
AKA equitable mortgage, it is the euquity of redemption that is being used as secuirty, rather than the legal title ot the property. If this claim exists against a property, during the redemption period in the foreclosure process the court gives these parties the right to try to sell the property.
An order for Judicial Sale/exercise of the power of sale
This is the right of second/subsequent mortagees/other creditors to attempt to sell the property during the redemption period of a foreclosure process.
Judicial Sale
This is where an application is brought before the court during hte forecloure period and the judge orders the property to be sold.
Power of Sale
In Ontario, the court endorses the exercise of the provision contained in the mortgage agreement to sell in the event of default. This occurs during the redemption period.
Process of the redemption period
1)the forist mortgagee upon default goes to court to get an order of foreclousre setting the redemption period
2)the 2nd mortgagee/other claimants at same hearing apply for court order (order of judicial sale/power of sale) to sell property immediately
3) the property might be sold in the next week even though redemption period has months to run.
Leasehold Estate
This provides tenants the right to exclusive possession and use of a premise for a specfied period of time.
Periodic leases
this is when a lease on a premise is only for 1 month but then automatically renewed every month until notice given to terminate.
Commercial Tenancy Act vs REsidential Tenancy acts
Leasehold Estates: One provides more ability to negotiate contract while the other is more about consumer protection legislation. There is mush less room to modify these contracts.
Reversion- fee simple estates
In the case of a fee simple interest split, after beneficiaries holding a life estate pass, the interest then passes to the other heirs. This ensures that a beneficiary in a will eg a spouse will be cared for during their remaining life. AKA remainder interest.
Fee simple estate
We do not "own" land. Instead, this is the estate/interest we have in land which gives the same kinds of rights as ownership, including right ot develop, use, sell, and will it to others.
term insurance
this is a premium paid strictly to insure against the death of the insured.
Condomium
A form of common ownership-- this allows people to own property that is separated vertically as well as horizontally. This gives them a fee simple interest in their individual unit and share an interest in the common elements of the devleopment.
Balance of Convenience
This means that the court has to be convinced that more damage will be suffered by the applicant if the injunction were not granted than would be suffered by the defendant if the injunction were issued.
This is used in trademark law.
interim injunction
This is a remedy for tradement infringement -- this will only be granted when the applicant can demonstrate a strong likelihood of success in trial and the balance of convenience is in the applicants favour.
Under what conditions will the Anton pillar order be granted?
When the court orders offending products/records be seized before they can be seized/removed.
This must be proven:
1) strong prima facie case
2) danger of considerable further damage to the applicant
3) it is clear offending party has docs in their possession and they are likely to be destroyed before trial/hearing.
Statutory damages
These may be awarded under the copyright Act without the necessity of proving actual loss. This is due to the difficulty of assessing actual losses.
certification marks
These are the specialised marks on Trademakrks associated with quality/standards eg CSA.
Official Marks
These trademarks are for organisations associated with the govermnet eg Canada Post. They prohibit all others from using marks that may be confused with them, pre-existing or otherwise.
Distinguishing Guise
This is the registration of distinctive shape of a product or its container eg Coca-cola
Proposed trademark
Under the trade-marks act, an application can be made for this where the mark has not yet been used and is not known to the public but will be used in the future.
Registrar of Trademarks and the Trademarks opposition Board
This body handles disuptes regarding the registration of trademarks. An application can be brought to have a trademark expunged where there has been misrepresentation with respect to the application/some other reason the mark doesn't qualify for registration. The challenge may be brought up to 5 years after registration
Evergreening
This involves developing some smal change in the already successful patent to that it can be treated as a new drug with a new span of patent protection.
Reverse engineering
A patent application will not succceed if the nature of the invention can be discovered by examination of the product. This is called __________________.
Fair dealing
This is when portions of work are repoduced for review, criticism , or news reporting. This is permitted under the Copyright act.
Moral Rights
In copyright protection, this consists primarily of the author having the right ot continue to have their name associated with a work as creater, and to have the integrity of the work preserved.
How long does copyright protect a body of work?
This protection is applied for 50 years after the death of the creator of a work. This is reduced to 50 years when a coproation is involved, the authoer is not known, or the work involves such things as movies, photographs, or sound recordings.
Cybersquatting
This is when an individual registers a domain name in order to hold it for ransom later. It is often cheaper for a business to simply purchase thea ddress from this person who has managed to register it first.
CIRA
This body established a policy for arbitration of bad-faith domain name registration disputes, which gives preference to the business with the more lgeegit claim.
WIPO - the World Intellectual Property Organisation
This is a subsidiary of the WTO. It handles international arbitration of domain name disputes. This is only for very large disputes so most disputes involving legit conflicting interestes can often be handled through traditional trademark/passing-off legislation.
Long-arm statutes
Many jurisdictions have passed these, allowing them to take juridiction even when no resident is directly involved, with the result that someone providing an internet service in one area where the activity is legal will find themselves being sued/prosecuted int eh jurisdictions they were not aware of.
What are the limitations of jurisdictional liabiltiy
Only if the business can demolnstrate 1)the internet message was passive (no interaction in that jurisdcition, 2) no bets were taken, 3) no orders/subscriptions were sent will there be little likelihood that an action could be brought against that business in the courts of that state/province.
dumping
This is when the sale of products manufactured in other countries that unfairly compete with products manufactured in their own, either because of subsidies, unusually low wages, or simply because the foreign manufactures is selling below coast to get rid of excess production.
Grey Market
this involves importing materials from another jurisdiction in violation of a local distributor's exclusing right to distribut the product. eg brand-name election goods, watches, fashion accessories brought in from another jurisdiction where they sell for less.
What are some common legal considerations that must be kept in mind re international business activities
Things to include in an int'l business contract:
1) properly drawn contracts controlling as many varibables as possible
2) parties must carefully comply with govt regs both in canada and in foreign juridsction
3) all possible steps must be taken to ensure that when disputes arise they are resolved favourable with as little time delay as possible. Eg terms to limit liability, provide insurance, require arbitration, consistent with int'l trade agreements.
Most Favoured Nation Status
Through GATT, members were required to rant all other members the same tariff advantages as the lowest tariff they charged on similar goods from any namtion.
Objectives of the WTO
Incorporated from GATT -- objectives:
To reduce trade barriers, thus encouraging inter'l trade; to foster cooperation; and to contribute to the process of globalisation generally.
Territorial Competence
In a jurisdictional dispute, this term regards close connections between the province and the facts giving rise to the case/where 1)the party being sued has agreed that the court will have juridiction 2)they have attorned (submitted) to that jurisdiction or 3) they are ordinarily resident in BC.