Law Cram

Front 1

What is engineering law?

Back 1

The application of various aspects of law to engineering processes and products.

Front 2

Define: Engineering

Back 2

Engineering: Design, build, & control of the technology & infrastructure that makes modern life possible

Front 3

Define: Morality

Back 3

Morality:

Values & principles that guide individuals' conceptions about what is right & wrong.

• It informs personal attitudes & behaviour about what's right & wrong.
  
• Based on instinct, teaching, & learned experience.
• Is it "natural" or socially constructed? Debatable.

Front 4

Define: Ethics

Back 4

Ethics:

• A reflection of the standards of behaviour in defined social settings.
  
• Socially oriented, guides group interactions.
• Generally describes minimal requirements; implies that conduct falling below standard is undesirable and sanctionable.
  
• Defines the expectations of conduct for particular groups & endeavours.
  

Front 5

Define: Law in terms of morality & ethics

Back 5

Law is a subset of morality & ethics.

• Binding rules of conduct enforceable by coercive power.

Law "floats in a sea of morality & ethics".

Front 6

What social values are reinforced by Canadian law? (8 things)

How else can we describe these things?

Back 6

• Rule of Law
  
• Reciprocity ("golden rule")
  
• Justice (fairness)
  
• Utilitarianism & Positivism
  
• Earned reward (no unjust enrichment)
  
• Predictability & Consistency
  
• Prevent harm
• Promote social progress

These are underlying ethical themes in law

Hint 6

R

R

J

UP

E

PC

P

P

Front 7

Describe the "rule of law"

Part of Underlying Ethical Themes in Law

Back 7

Rule of law:

primacy of law & process

Front 8

Describe the promotion of social progress

Part of Underlying Ethical Themes in Law

Back 8

Promote social progress:

• through individual interests, but the needs of the many outweigh the needs of the individual
  

Front 9

Describe predictability & consistency

Part of Underlying Ethical Themes in Law

Back 9

Predictability & consistency:

• protect reliance
  
• equal treatment of everybody
• everyone should know the law

Front 10

Describe reciprocity

Part of Underlying Ethical Themes in Law

Back 10

Reciprocity:

root of sense of justice

"golden rule"

Front 11

Describe utilitarianism

Part of Underlying Ethical Themes in Law

Back 11

Utilitarianism:

Maximize benefits at minimum cost

Front 12

Name and describe the sources of law in Canada.

Back 12

1. Constitution & Statutes:

Constitution is the bases of the political and legal system.

Statutes are 'codified' (written) regulations legislated & enacted by gov't (federal, provincial, municipal).

2. Courts: Judgement law, based on case experience; Interpretation of statuses & mitigation of disputes according to tradition (common law) aka jurisprudence.

3. Codes of Professional Practise: Rules of ethics; rules within profession.

Generally: Constitution > Statutes > Jurisprudence

Front 13

Define: Jurisprudence

Back 13

Jurisprudence: the study & theory of law

Front 14

Name & describe the types of law (3 general categories + a bonus category).

Back 14

1. Private law: contract, tort, property

2. Public law: constitutional, criminal, administrative, tax

3. International: treaties & conventions between countries

Bonus:

Aboriginal law: Rich history & system predating current legal system. Not a direct part of current common law system. Important consideration in aboriginal rights cases.

Front 15

What are the obligations in private law?

Back 15

Contract (K) - obligations of enforced promises

Tort (T) - obligations to prevent harm

Property (P) - obligations in our relationships with objects/things

Front 16

Define: Jurisdiction

Back 16

Jurisdiction:

Geographical/political area bound by a given set of laws.

The "largest" unit is national but can be provincial, etc.

Front 17

Define: Ratification

Back 17

Ratification:

When each participating country integrates rules into their own domestic law to make international agreements legally enforceable law.

Front 18

Define: Conflict of laws

Back 18

Conflict of laws:

The question of which law applies & which courts have jurisdiction in a given situation.

Front 19

Describe international law.

Back 19

There is no such thing as binding "international law".

The term refers to the study of legal issues & litigation of disputes between countries.

Individual countries may agree to adopt certain standards, rules, or regulations (benefit of international co-operation).

Front 20

Are international agreements legally enforceable law?

Back 20

Not unless ratification has taken place.

International agreements become enforceable law when each individual participating country integrates those rules into their own domestic law.

This is called ratification.

Front 21

Define: Law

Back 21

Law:

• Reflection of norms & rules that allow modern society to function justly & efficiently; also defined as: a system of enforceable rules that govern both individual & group behaviour b/w persons, institutions, & gov't.
• Controlling power derives from coercive force.
  
• Socially constructed from historical & collective elements of morality & ethics.
  
• Specifies/sanctions conduct (behaviour) not thought (ie bridge from concept to consequence).
  
• Aims to promote just outcomes.
  

Front 22

Define: Justice

Back 22

Justice:

The determination & application of consequences in response to behaviour.

• Refers to outcome & process of achieving it.
  
• What is "appropriate" is highly subjective (socially defined); varies over time & culture.
  
• Generally stems from notion of fairness or balanced response (reciprocity).
  
• Responsive: a reply to an action
• Consequence can be reward or sanction.

Front 23

What are the objectives of justice?

(3 general categories)

Back 23

1. Corrective justice

2. Retributive justice

3. Distributive justice

Front 24

Describe corrective justice

Back 24

Corrective justice:

• Ensures that people are held accountable for & remedy harm they cause others.
  
• Private law: torts, contracts, property
  
• Professional ethics
  
• Alternative dispute resolution (ADR)
  

Front 25

Describe retributive justice

Back 25

Retributive justice:

• Punishment for deliberate or wanton hurtful conduct
  
• Deter future conduct by the same offenders & others
• Expresses society's condemnation of conduct
• Criminal law
• Professional ethics standards

Front 26

Describe distributive justice

Back 26

Distributive justice:

• Ensures that assets & rights are shared in society (ie. liberty, equality, opportunity, etc)
• Charter of rights, constitution; Public law
  
• Procedural fairness
  

Front 27

Describe public law in general and give the 4 categories of public law

Back 27

Public law:

• Law of gov't and how it deals with citizens
  
• Federal, provincial, & municipal jurisdictions in Canada
  
• Governed by Charter & Constitutional law & principles
  

4 types:

1. Administrative

2. Tax

3. Criminal

4. Constitutional

Front 28

Describe constitutional law

Back 28

Constitutional law:

• Sets out basic rules of operation of Canadian political & legal systems.
  
• The Constitution also creates the supreme court system.
• The Constitution applies to government action, not to the action of private individuals.
  
• Includes the Charter of Rights & Freedoms ( it is a section of the Constitution).

Front 29

Describe the Charter of Rights & Freedoms

Back 29

Charter of Rights & Freedoms:

• Specifies fundamental rights & freedoms; codifies basic Canadian human rights (ie. freedom of speech/religion/association, prohibits discrimination by race/gender/age, etc.) & gives them the protection of supreme law.
• All Canadian laws must comply with the Charter.
  
  Note: Applies to acts of the government, not to interactions between private parties. Human rights statutes in each province prohibit discrimination by private individuals.
  

Front 30

Describe administrative law

Back 30

Administrative law:

• The delegation of public authority to government bodies
  
• Deals with the delegation of governments public law powers to deal with public law and policy issues
  
• Refers to law and policies of government agencies, boards, commissions, tribunals
• Eg. Licensing, Immigration Board, environmental appeals, etc

Front 31

What is the impact of administrative law with respect to engineering?

Back 31

• Professional licensing bodies are administrative bodies and follow administrative law procedures
  

• Approval of designs, building codes, safety standards, etc.
  

Front 32

Describe criminal law

Back 32

Criminal law:

• Deals with the protection of society
  
• Crimes can be the basis for depriving people of rights to liberty & freedoms; higher legal standard required
  
• Eg. Theft, murder, criminal negligence

Front 33

Define: crime

Back 33

Crime:

A wrongful act or omission that rises to the level of being an offence against the state (society).

Front 34

What is the impact of criminal law with respect to engineering?

Back 34

Deliberate and/or severely egregious acts, decisions, or omissions may incur criminal liability (as well as civil).

Front 35

What is mens rea and actus reus?

Back 35

• Actus reus, "guilty act"; when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law jurisdictions of Canada.
  

• As a general rule, criminal liability does not attach to a person who merely acted with the absence of mental fault (no mens rea). The exception is strict liability crimes.
  

Front 36

Describe tax law

What is the impact of tax law with respect to engineering?

Back 36

Tax law:

• Deals with the collection of money from public spending;
  
• Mechanism for transferring wealth from private sector to public sector
  
• Private entities rely on public physical and social infrastructure and owe a duty to pay for that benefit

Engineering impact is "mostly on business side".

Front 37

Give a general overview of private law in Canada.

Back 37

Private law:

• Regulates legal obligations between private parties
  
• Everything is either contract, tort, & property
  
• Canada has a "bijural" (but mostly common law) system. (adversarial legal system)
  
• Can be regulated by statutes or case law or both.
  
• Includes public bodies when acting in private capacity (ie sue the city for faulty sewer line)

Front 38

Define: bijural

Back 38

Bijural:

This means there exists two systems of private law in Canada: common law & civil law (aka civil code).

Front 39

Compare common law vs. civil law.

Back 39

Common law is not based on statutes. They are laws created by judges based on principles of precedented law & equity developed over hundreds of years and originating in England. "Stare decisis" - to stand by things decided.

Civil law is a more codified version of the common law, based on the Napoleonic Code of France, where all is statute-based. It applies in Quebec & Louisiana. If not in written code, it is not against the law. No stare decisis.

Front 40

Describe the impact of private law with respect to engineering.

Back 40

• Most engineering law issues are private law.
  

• Onus is on parties to bring claims and defend them in their own interest.
  

• Private claim does not preclude a public claim. (it doesn't prevent a public claim)
  

Front 41

Private Law

Describe contracts

Back 41

Contracts:

• The law of enforceable promises, reasonable expectations, and the liabilities surrounding them.
  
• A voluntary agreement between parties containing legally enforceable rights & obligations.
  
• Specifies parties rights, responsibilities, liabilities.
• Ensures reliable commerce; society runs on exchanges (transactions) between various members w different skills/assets.

Front 42

Private Law

What is the impact of contract law on engineering?

Back 42

Contracts specify performance requirements and expected results.

• Issues of adequacy, employment, business organizations, etc.
  

Front 43

Private Law

Describe tort law

Back 43

Tort law:

• The law of private obligations to others; purpose is to prevent harm.
  
• Protects reliance on expectation that people won't be exposed to unreasonable danger from each other.
  
• Rules/laws that govern & enforce reasonable conduct between people in society.
  
• Fault may or may not require intent.
  
• Applies to everyone in jurisdiction; not limited by privity.

Front 44

What actually is a tort?

Back 44

Glossary definition: A breach of duty to care for another party where the breach causes injury/loss to that party, independent of whether the two parties involved do not have a contract for which the law provides a remedy.

"Failure to fulfill a private obligation imposed by law"

People & organizations have express and implied obligations not to cause harm. A tort is a relationship that has gone wrong.

Front 45

What are the three general classes of torts?

Back 45

Strict Liability: requires no intent nor carelessness

Intentional: requires intent to harm or act in a harmful way

Negligence: carelessness causing harm/damage

Hint 45

S-I-N

Front 46

Private Law

Describe property law

Back 46

Property law:

• The law of ownership: acquisition, use, disposal of property
  
• A bundle of rights that govern an owner & non-owner's relationship to a thing which includes the rights to possess, use, exclude others, & dispose of a thing.
• Enables things to be owned, valued, exchanged
• Three types: real property, personal property, intellectual property.
  
• Key issues are trespassing, infringement, real property.... NOTES MISSING

Front 47

Describe Separation of Powers (SoP)

Back 47

Separation of governmental powers into three operations:

1. Legislative - makes laws (Parliament)

2. Executive - enforcement (ministries, agencies)

3. Judicial - interpretation (courts)

Front 48

Describe Division of Powers (DoP) *

Back 48

The Constitution specifies which types of government regulate which areas of law (aka, legal jurisdiction over particular types of activities)

Federal (s.91): IP, national, interprovincial, international, criminal, tax, banks, trade

Provincial (s.92): contracts, property, torts, municipalities, most professional standards bodies (so most engr law issues are prov)

Front 49

Describe civil law

Back 49

Civil law has 2 possible meanings:

1. Roman code like in QC

2. The law & legal process between private parties:

• common law has it's own "civil procedure"
  
• rules & process followed in private legal disputes
  
• litigation procedures (start & run a civil lawsuit)
  
• similar but varies by province; also a federal process
  

Front 50

Describe the tiers of the BC court system

Back 50

Note: Hear both criminal & civil issues

1. "Provincial Court of BC"

• Small claims <$25k; family/traffic/small claims/criminal stuff

2. "Supreme Court of BC"

• "superior court"; civil matters >$25k
  

(Courts 1 & 2 are of first instance: trials, evidence, witnesses, etc.)

3. "Court of Appeal for BC" (Ottawa)

• no trials, only appeals of lower courts
  
• generally by "leave" in civil matter
  
• rulings bind lower courts (stare decisis)
  

Next level of appeal: Supreme Court of Canada (by leave)

Front 51

Define: dispute resolution

Back 51

Dispute resolution:

The key function of law & legal system (to provide a mechanism for resolving disputing claims between individuals)

Front 52

Define: lawsuit

Back 52

Lawsuit:

Claim or dispute brought to court for resolution through adjudication

Front 53

Define: litigation

Back 53

Litigation:

The process of resolving disputes in court

Front 54

Define: adjudication

Back 54

Adjudication:

Having a dispute judged by a third party

Front 55

Define: alternative dispute resolution (ADR)*

Back 55

Alternative dispute resolution:

Non-court based methods of dispute resolution such as:

mediation, arbitration, negotiation, internal processes

Note: arbitration is when you submit your dispute to an arbitrator and you have to go along with what they decide should be done

Front 56

What is "natural law"?

Back 56

Natural law:

The idea that morality and law originateindependently from mankind

(externally, through natural order or by deity)

No legal force in Canada

Front 57

What is "natural justice"?

Back 57

Natural justice:

the basic elements of a just (fair) dispute resolution process:

1. Notice - the right to be informed of a claim against you

2. Right to be heard - audi alteram partem

3. Right to a neutral arbiter - nemo judex

4. Decision based on evidence and rules

Front 58

Describe small claims court

Back 58

• Civil issues <$25k
  
• Special rules; slightly relaxed requirements for filing, reply, testimony
  
• Aims to keep costs low & process simple
  
• Enables people to represent themselves in court; judge may help parties along w process
  
• Still follows rules of presentations & evidence
  

Front 59

What is an "adversarial system"?

Back 59

• The basis of the Canadian litigation process
  
• Two sides compete w a neutral judge in the middle; judge listens to sides and makes decisions from there. Either a win or lose.
• Each side can 'test' other's claims/facts/evidence/arguments to show legal reliability & weakness.
  
• Unlike Inquisitorial system (the judge can ask Q's (Europe)), judge can only base decisions on what is presented in court. Aka he only applies facts presented to the law.
• Judge there to ensure that law is properly applied.

Front 60

Define: parties

Back 60

Parties:

• Persons involved in the lawsuit. A corporation is a legal person (can sue/be sued).
  
• Only parties have "standing" in a lawsuit; capacity to participate in the suit; affected directly by suit.
  

Front 61

Define: plaintiff

Back 61

Plaintiff:

The party in a court action who claims to have suffered injury/loss.

Front 62

Define: defendant

Back 62

Defendant:

The party against whom a remedy is sought during litigation.

Front 63

Name some other people involved in a lawsuit.

Back 63

• lawyers
  
• judge
  
• court clerks
• sometimes paralegals
• witnesses

Front 64

Define: Interveners

Back 64

Interveners:

• Third parties granted status to make an argument on public policy that might help court deciding the issues.
  
• Rare - usually only in appeal cases & on wide public interest issues (environment, policy, etc.)
  
• Have limited standing: can't present evidence or examine witnesses
  
• Generally represent an established group/interest
  

Front 65

Define: ordinary witness

Back 65

Ordinary Witness:

• Can only testify about facts they know first hand (direct experience, direct evidence)
  
• What they saw/heard/read/etc directly in this relevant instance
  
• No hearsay evidence: indirect evidence, heard from others; inadmissible in court (untestable).
  
• Inadmissible means not accepted as valid.

Front 66

Define: expert witness

Back 66

Expert Witness:

A person who has skill/expertise from training or experience or both, hired to give a professional opinion to the court or to an arbitration tribunal.

• Mohan test
  
• Exception to the rule that opinion evidence is inadmissible in court.
• Circumstances where subject matter is of technical nature beyond knowledge of a non-professional (to help judge/jury reach conclusion about how the case facts fit the law where judge/jury don't know enough themselves)
• Obligated to remain neutral; Duty of impartiality.
• Often testify about standard of care.
• Provides opinion for consideration only - not binding
• Only provide expert opinion based on knowledge
• Subject to cross-examination & counter-experts
• Usually qualified professionals (doctors, engrs, accountants, etc.)
• Cannot charge a fee that is contingent on case outcome to maintain neutrality.

Front 67

What is the Mohan test?

Back 67

The test for admissibility of expert evidence.

Mohan test arises from a case in the 90's where an expert witness gave inadmissible evidence. (1994 in R. v. Mohan)

The supreme court established a four part test which requires that proposed expert witness evidence be:

1. relevant

2. necessary in assisting the trier of fact

3. not otherwise subject to an exclusionary rule (absence of)

4. given by a properly qualified expert

Front 68

What is the R in something like R. v. Mohan?

Back 68

Regina; means it's a criminal case

Front 69

What is the code of conduct for expert witnesses?

Back 69

Federal Court of Canada - Rule 52.2 (expert witness' affidavit or statement)

Rules of federal court procedure:

• General Duty to courts 1 & 2
  
• Expert witness must be impartial and just present the facts; must be independent & objective, not an advocate to a party.
  
• Mohan test
  

Front 70

Define: pleadings

Back 70

Pleadings:

Documents filed with the court or included in a trial record, which

• identify facts
• describe the legal issues
• describe the remedy sought
  

They are: SoC, SoD, Reply, DFP, Interrogatories, Motions

They are the only docs a court sees prior to trial, giving judge a basic idea of the nature of the dispute

Front 71

Describe Statement of Claim (SoC)*

Back 71

Statement of Claim:

• initiates the legal process
  
• outlines the issues & facts the plaintiff will rely on to support their complaint & proposed remedy (sets out the cause of action)
  
• each element of each cause of action must be proved (ie in a neg case, must show existence of duty, breach of duty, & resulting damage/loss)

Front 72

Describe Statement of Defence (SoD)*

Back 72

Statement of Defence:

• due 21 days after service in BC (after receiving SoC)
  
• defendant sets out their version of facts & how the intend to deny the claim (legal basis for denial of claim)
  

May include a counterclaim (a claim the defendant makes in response to the plaintiff):

Reply: P can dispute facts/issue on SoD (rare), files SoD on counterclaim

Demand for Particulars (DFP): may demand additional information

Front 73

Describe "Proof of Service"

Back 73

Proof of Service:

• Must show court & other side that you adequately gave the court docs to them such that they should have received it and/or copied them on any documents filed with the court (aka served)
  
• Required for almost all filings.
  
• Court = registrar (official keeper of records)
  

Front 74

Define: privity

Back 74

Privity:

A contract cannot confer rights or impose obligations arising under it on any person or agent except the parties to it.

Premise: only parties to contracts should be able to sue to enforce their rights or claim damages as such.

Front 75

Define: default judgement

Back 75

Default Judgement:

If the defendant does not respond to the SoC, the plaintiff can go to court & ask that the D lose & be liable by default

From the book: Failure to deny an allegation in the SoD is considered admission of that allegation & that admission may be impossible to retract later.

Front 76

Describe motions

Back 76

Motions:

• Requests to the court for an order on apreliminary issue of the action, usually procedural matter (ie. extend deadline, produce documents,amend claim, dismiss and action, injunction, etc.)
  
• MovingParty: part making themotion; & RespondingParty
  
• Served to court and parties, heard by judgeor ‘master’
  
• Argued by both sides if required, decisionis final – will need lawyer
  

Front 77

Describe Examination for Discovery *

Back 77

E for D is an oral cross-examination (by lawyer) of a representative (usually employee or witness) of the opposing party conducted prior to trial. Transcript of answers is made & used as evidence at trial. Can take 1 day or several weeks. Very expensive, also necessary. Usually an engineer's first formal appearance in litigation.

• Parties ask eachother questions about their side of the case.
  
• Truth-seeking purpose; parties are expected to disclose all facts & witnesses planned to reduce the likelihood of surprises & also potentially discredit witnesses if their story changes between EfD and trial.
• Happens prior to court (out of court) but under oath
  
• Must answer any reasonably relevant questions therefore open court principle does not apply.
• Implied undertaking of confidentiality applies to party receiving discovery meaning that they can only use it in application to the relevant case & must keep things confidential (because you can be asked anything & dont want it leaked to the public).
  

Front 78

What is discovery as part of legal dispute resolution?

Back 78

Discovery refers to procedures available to all parties prior to trial, including but not limited to:

• examination for discovery
  
• interrogatories
  
• inspection of property
  
• disclosure of documents
  

Discovery processes are designed to allow parties to learn as much about the case as possible to decrease surprises at trial & encourage settlement.

Front 79

Describe settlements

Back 79

Settlements:

• 95% of cases end up settling after discovery because each side has better view of opposing side's case strengths & weaknesses
  
• Usually cheaper to settle; most civil cases are business decisions.
• May lead to negotiations & an agreement.
  
• Rule 49 in Ontario
  

Front 80

What is Rule 49?

Back 80

Rule 49 [Ontario]

if you get an offer tosettle, reject it, then lose or get less at trial, you are liable for extradamages

Front 81

What is a pre-trial conference?

Back 81

Pre-trial Conference:

• Both sides meet with judge (parties andlawyers)
• If obvious, judge will usually give indication of who is likely to win or lose given the evidence and law
  
• Judge may seek agreed statement of factsand limit issues at trial
• Purpose is to encourage settlement; speedup commerce and avoid unnecessary expense to court system

Front 82

Describe mediation

Back 82

Mediation:

• Neutral 3rd party helpsparties reach an agreement
  
• Facilitateddirect communication with parties – not with lawyers
  
• Lookingfor underlying interests – their wants and why they want it
  
• Non-binding,non-prejudicial
  

Mandatory Mediation (some jurisdictions): Rules of civil procedure require parties to attend mediation to encourage settlement prior to trial

Front 83

Describe privelidge

Back 83

Solicitor-Client Privilege: Protects legal advice communications between a lawyer and client; Privilege belongs to client; Lasts indefinitely; Fairly air tight – lawyers ethical rule quite strict (few exceptions)

Litigation Privilege: Protects communication b/w solicitor or litigant & their parties to ensure efficacy of the adversarial process; lasts only during litigation process.

• Covers research, documents, reports, legal strategy of party at trial from disclosure to other side or public
  
• Engineers: expert reports and testimony not usually covered
  
• Must disclose facts but not necessarily strategy
  
• Applies to parties, not court/witnesses etc
  

Front 84

Describe a Construction/Builder's Lien

Back 84

Construction/Builders’ Lien:

• charge against real property that has been improved by construction
• mechanism for securing credit and ensuring payment in construction projects
• involves multiple parties and trades
  Normally, security for a loan is obtained against property (chattel or real) – this is difficult to do in construction, where the service rendered is transient and has no value if removed .

Front 85

How is a Construction/Builder's Lien related to contract & property law?

Back 85

Lien legislation creates a cause of action against owner's property, even though the lien claimant (party) may not have any direct contractual relationship with owner.

It is therefore a specialized variation of contract and property law.

Front 86

What happens when a contractor/trade puts a lien on a property under construction?

Back 86

• Lien: legal notice that a debt is associated with a property
  
• It gets listed on the property 'title' (the registration of ownership of property)
  
• It 'encumbers' the property: makes owner responsible for paying debt out of proceeds of sale of property. Makes it hard to use property for sale/borrowing while it has a lien on it.
  
• Can be used to force sale of property to satisfy the debt
  
• Removed once debt is paid, otherwise illegal
  

Front 87

What is a construction bond?

Back 87

Construction bond can replace a C/B's lien.

It's a form of risk security.

Pay fee for bond & it will cover the debt if the owing party defaults.

Front 88

What is a trust provision?

What happens if it is breached?

Back 88

A Trust Provision of a construction lien statutes creates a trust in the funds paid by the owner to the general contractor. The contractor is deemed a trustee, & all subcontractors/workers/suppliers directly below in chain are deemed beneficiaries.

The terms of the trust require that the contractor pay out all beneficiaries before using the funds for any other purpose.

A similar trust chains down to subcontractors, etc. Can be implied or expressed; the money is treated as property.

A breach may give rise to quasi-criminal penalties (fine/jail term specified in statute other than the Criminal Code - in this case in the Construction lien statute). Directors of corporations may be personally liable to repay trust funds & face criminal sanctions together with the company.

Front 89

Describe holdback

Back 89

Holdback (retainage):

Standard in almost any construction project (all construction liens have holdback requirements).

Progress draw: % of contract value held back from each payment until project/stage completion (usually 10%); paid out 6 weeks after completion which is designated by inspector/consultant. (Time of payout specified by lien statute)

Purpose: to ensure work is completed & satisfactory; also kept as a reserve to deal w liens at the end of a job & ensure all parties are paid (trust provision is not breached)

Multiple holdback system: trickle-down effect to subcontractors & other parties. This is in BC, Sk, & On.

Single holdback system: Ab, but still usually the trickle down is effected by the general contractor to keep his subcontractors in check.

Hint 89

What is it? What's the mechanism?
Why does it exist?
When/why is it standard?
What types & which jurisdictions?

Front 90

Ethics

Define: profession

Back 90

Profession:

A calling requiring specialized knowledge & intensive preparation, including principles, skills, methods and continued study, maintained by force of organization or concerned opinion high standards of achievement & conduct, to a kind of work the prime purpose of which is the rendering of a public service

Front 91

Ethics

Discuss the regulation of engineering in Canada

Back 91

Engineering in Canada is a regulated profession.

Professional regulation is in provincial jurisdiction, and is part of public (administrative) law.

Admission, standards of practice, & discipline are governed by law (statute).

Front 92

Ethics

Discuss the regulation of engineering in BC

Back 92

• Regulation in BC since 1920
  
• Governing statute is The Engineers & Geoscientists Act [RSBC 1996] Chapter 116
  
• Self -regulated in BC by the Association of Professional Engineers & Geoscientists of British Columbia (APEGBC)
• Closed-membership: only those who have met the requirements & have acquired a license from the provincial association may use the title "Professional Engineer" (P.Eng)
• This is administrative law (public law)
  
• In contrast: the US regulates profession by state government licensing boards; in the UK there is no regulation of profession or titles.

Hint 92

When did it start?

What is the governing statute?

How does it work? What about titles?

What type of law is this?

Compared to other countries?

Front 93

Ethics

What does self-regulated mean?

Back 93

Self-regulated:

The government delegates responsibility for admission, standards of practise, & discipline to members of the profession itself.

Note: Here 'members of profession' means a provincial association which

• administers the law & regulatory duties and
• sets the practise & ethical standards enforced by law.
  

In other words, a non-government organization sets & regulates the law.

Hint 93

Describe the involved parties as well and what they do:

Hint: administers ___ and sets ___

Front 94

What does RSBC stand for?

ex. [RSBC 1996]

Back 94

RSBC stands for

Revised Statutes of British Columbia

Front 95

Ethics

What is the governing statute for regulation of engineering in BC?

Back 95

The Engineers & Geoscientists Act

RSBC 1996, Chapter 116

Hint 95

What's it called?

What document is it part of?

Where in that document?

Front 96

Engineers & Geoscientists Act of BC

Describe the first and third sections of the Act.

Back 96

S.1 (1) contains definitions. It specifies the legal definitions of the regulatory body, engineer, & engineering.

S.3 (1) designates APEGBC as a corporation

S.3 (2) gives APEGBC the powers of a natural person for the purposes of this Act (incl. power to acquire/dispose of property & power to enter contracts).

Front 97

Engineers & Geoscientists Act of BC

Define: Associated

Back 97

Associated:

means the Association of Professional Engineers of the Province of British Columbia

so... just APEGBC

Front 98

Engineers & Geoscientists Act of BC

Define: professional engineer

Back 98

Professional engineer:

means a person who is registered or licensed as a professional engineer under this Act

Front 99

Engineers & Geoscientists Act of BC

Define: Practise of professional engineering

Back 99

Practise of professional engineering:

means the carrying on of miscellaneous disciplines that may be designated by the council and for which university engineering programs have been accredited by the Canadian Engineering Accreditation Board or by a body which, in the opinion of the council, is its equivalent, and includes reporting on, designing, or directing the construction of any works that require for their design, or the supervision of their construction, or the supervision of their maintenance, such experience and technical knowledge as are required under this Act for the admission by examination to membership in the association and without limitation includes reporting on ALL OF THE THINGS UGH THIS IS THE WORST DEFINITION OF ANYTHING IN THE HISTORY OF TIME WTF NO WONDER EVERYONE HATES ENGINEERS

Front 100

Engineers & Geoscientists Act of BC

Describe section four of the Act.

Back 100

This section contains duties & objects of the association.

4.1 (1) It is the duty of the association

(a) to uphold and protect the public interest respecting the practice of professional engineering and the practice of professional geoscience

(b) to exercise its powers and functions, and perform its duties, under this Act, and

(c) to enforce this Act

4.1 (2) The association has the following objects:

(a) subject to subsection (1), to uphold and protect the interests of its members and licensees;

(b) to establish, maintain and enforce standards for the qualifications and practice of its members and licensees;

(c) to promote the professions of professional engineering and professional geoscience.

So (1) is duty to protect & uphold public interest, exercise, & enforce. (2) is object to protect & uphold member interests, establish & enforce, & promote

Hint 100

P-U-P-I-E-E
P-U-M-I-E-E-P

Front 101

Engineers & Geoscientists Act of BC

Describe sections 14 & 16 of the Act.

Back 101

14 has to do with certification & licensing

14.1 and 14.2 are to do with inter-jurisdictional practise (mobility). 14.1 is provincial & 14.2 is international. Both are mainly about letting outsiders come in and practice in BC.

16 has to do with examinations. (4) says you must give notice & fees 2 months before you write. (11) says if you fail 3 times you can only rewrite with permission of the council

Front 102

Engineers & Geoscientists Act of BC

Describe section 20 of the Act.

Back 102

20: certificate and seal.

20 (6) on receipt of certification you are entitled to use the title "Professional Engineer" and must be provided with a seal/stamp w your name & bearing the words Professional Engineer, Province of British Columbia

20 (9) you must use the stamp w sig & date on things that have been prepared by you or under your supervision (estimates, specs, etc)

Front 103

Engineers & Geoscientists Act of BC

Describe section 22 of the Act.

Back 103

22: Prohibition of practise

22 (1) Except as permitted under this act, an individual or corporation, partnership, or other legal entity cannot do P.Eng things, assume the P.Eng title, act as though you're an P.Eng, etc, if you have not been certified

22 (2) says that subsection (1) doesn't apply if you are a licensed member or a corporation that has active members who assume responsibility under the Act

Front 104

Ethics

Describe the general guide to conduct of an engineer.

Back 104

Soft hierarchy of duties as follows:

Society - duty to public to protect safety, wealth, welfare of anyone affected by work

Employers/Clients - fairness, loyalty, confidentiality, conflict of interest (COI)

Colleagues - no COI, inform of review

Employees/Subordinates - recognize their rights

Profession - dignity, avoid unprofessional & dishonourable conduct

Self - payment, maintain competence (update skills), safe work environment

So in short, duties are owed to the public, the client, the employer, the profession, and lastly to the self.

Hint 104

S-E-C-C-E-S-P-S

Front 105

Ethics

Describe the APEGBC Code of Ethics

Back 105

“membersand licensees shall act at all times with fairness,courtesy and good faith to their associates, employers, employees andclients, and with fidelity to the public needs. They shall uphold the values oftruth, honest and trustworthiness andsafeguard human life and welfare and theenvironment. In keeping with these basic tenets, members and licenses shall:

(1) hold paramount the safety, health andwelfare of the public, protection of the environment and promote health andsafety within the workplace

(2) undertake and accept responsibility forprofessional assignments only when qualified by training or experience

(3) provide an opinion on a professionalsubject only when it is founded upon adequate knowledge and honest conviction

(4) act as faithful agents of their clientsor employers, maintain confidentiality and avoid an conflict of interest but,where such conflict arises, fully disclose the circumstances without delay tothe employer or client

(5) uphold the principle of appropriate andadequate compensation for the performance of engineering and geoscience work

(6) keep themselves informed in order tomaintain their competence, strive to advance, the body of knowledge within whichthey practice and provide opportunities for the professional development of theirassociates

(7) …fairness, courtesy and good faithtowards clients, etc, give credit where it is due and accept honest and fairprofessional comment· (8) present clearly to employers and clientthe possible consequences if professional decision or judgments are overruledor disregarded ****!!!!

(9) … report hazardous, illegal orunethical professional decisions…. (10) extend public knowledge andappreciation of engineer and protect that profession from misrepresentation andmisunderstanding"

Front 106

Ethics

Describe the disciplinary process for engineers in general. What is it based on, what can happen?

Back 106

• Based on ethical practise and high standards of practice required tomaintain quality and protect public
  
• A “license” to practice = permission from thegoverning authority to perform the work
  
• Permissionmay be revoked and misconduct published
  
• Internalprocess – professional accountability
  
• Unlicensedparties: prosecuted in court for violating provincial law (EGA 22(1),prohibition on practice)
  
• Could still be sued in civil court orprosecuted under CCC
  

Front 107

Ethics

Describe general causes for discipline.

Back 107

Professional misconduct: Not spec'd in EGA but generally "any conduct detrimental to best interests of the public" or that "harms or tends to harm the standing of the profession"

Incompetence: lack of knowledge or skill that shows person is unfit to carry out duties (contextual)

Negligence: carelessness, work below standard of care, flagrant disregard for public welfare

Breach of Code of Ethics: demonstrated unjustified breach; code has force of law in BC

Physical/Mental Capacity: Only if it is of nature and extent that itwould cause member to breach public welfare

Conviction of an Offence: Where nature of offence affects suitability to practice; serious offences not engr related but demonstrate betrayal of trust and/or violation of ethics; std of conduct is higher for professionals

Front 108

Ethics

Describe the steps of the disciplinary process for engineers.

Back 108

Generally occurs in 3 stages.

1. Complaint & gathering evidence (S.29 EGA)

Receive/review complaint, give written reason why complain is rejected, send Investigation Committee to see if further action warranted, confidential

2. Investigation Committee: (S. 30 EGA) 5 member panel, member must supply docs & appear if requested, may dismiss complaint or make recommendations to member (letter of warning), if warranted refer to Discipline Committee (S. 31 EGA), confidential

3. Disciplinary Inquiry: (S. 32 EGA) Court-like process of formal hearing (notice, oath, judge, lawyers, evidence, arg, written decision); "judge" is 5 member panel, one who's not an engineer; functions as administrative tribunal, may be public; "prosecutor" is member of APEGBC but functions independently w separate legal advice

Front 109

Ethics

Describe the penalties of the disciplinary process for engineers.

What section of the EGA covers punishment?

Back 109

Disciplinary actions are in S.33 of the EGA.

Penalties include:

• Suspend/revoke license of member (individual or corporate)
  
• Reprimand member and publish full details of the case (usually not full name tho)
  
• Costs (enforceable by court order)
  
• Require remedial action, retraining, counselling
  
• Pay fine

Front 110

Ethics

Describe the appeal process in response to discipline.

Back 110

Appeal Process:

• Right to appeal decision to BC Supreme Court (Vancouver)
  
• Must file within 42 days all documents, transcripts, etc.
  
• Appeal is formal court hearing, open to public, & follows rules of civil procedure.
  

Front 111

Describe employment law.

Back 111

Governed by basic principles of contract law.

Private contractual relationship

Governed by common law & statutes (provincial law). (includes min. wage, working conditions, etc). In BC it is the Employment Standards Act (unless you work for federal govt or undertaking then its fed)

Basic bargain is to do labor in exchange for compensation. Rights in employment are based on contract. Employee can terminate at any time for almost any reason.

Relationship between employer & employee is governed by a contract of employment. Written or oral or both. May be implied only but rare. Duty on both parties to act in good faith during term of employment.

Front 112

Discuss termination as part of employment law.

Back 112

Union/collective bargaining situations have layoffs.

In common law employment relationships there is no right of layoff. Two types of termination exist:

For cause (aka just/with cause): Employee has committed fundamental breach of contract which justified termination. Generally to do with compromising integrity/viability of employer (theft, gross incompetence, insubordination, etc). No obligation to give employee notice or severance, but must pay wages & vacation for work done up to termination w/in 48 hours.

Without cause: Any reason that is no 'cause'; reorganization, downsize, economic redundancy - layoff reasons. Obligation of reasonable notice implied on termination without cause.

Front 113

Describe 'reasonable notice'

Back 113

Reasonable notice: duty to give employee compensation (money or time) upon termination without cause. In BC, per ESA, if term less than 3 months no reasonable notice needed, otw:

3 months = 1 week

12 months = 2 weeks

3 years = 2 wks + 1wk/year to max of 8 yrs

If severance (paid "money in lieu"), payout w/in 48 hours.

Both parties have duty to act professionally and in good faith during term of employment & termination. Malicious conduct can lead to aggravated damages via lawsuit.

Employees have duty to mitigate losses - must find new employment once term ends.

Exceptions: when hired for specific project less than 12 months; when hired for specific term or if independent contractor (usually laid out in K), refused reasonable alternate job offer from employer, force majeure (flood/fire/natural disaster)

Not covered by ESA provisions: professionals, real-estate agents, work study, incentive programs, teachers, student nurses, newspaper carriers (<$15k)

Front 114

What are prohibited grounds for termination?

Back 114

Religion, ethnicity, colour, age, gender, disability

protected by Human Rights statute, go to HR tribunal

Front 115

What are common implied terms in employment law?

Back 115

Implied terms include:

• employer's duty to give adequate notice of termination or pay severance
  
• employee's obligation of fidelity (loyalty) - no COI, stay confidential, act in best interests of employer
  
• employee's duty of competence since employer vicariously liable for employee's performance; cannot misrepresent qualifications/experience (would be breach of agreement & just cause).
  

Front 116

Define: agency

Back 116

Agency: law of shared authority & liability among persons

• delegation of authority to make decisions
  
• exists to facilitate implementation of projects & services
  

Front 117

Define: Agent

Define: Principal

Define: rule

Back 117

Agent: person authorized to act on other person's behalf. All agents must have duty to act in Principal (employer's) best interests, & only within scope of their express/implied authority. Exceeding authority = personal liability.

Principal: other person who is served/acted for by Agent

Rule: Principal is bound by the actions of the authorized Agent

-contact, tort, property, criminal, regulatory issues, etc

Front 118

Define: authority

Back 118

Express Authority: created by contract/regulation; defines limits of authority & Agent's discretion; principal liable for all actions w/in express authority of agent

Implied Authority: based on representations made by Principal to 3rd party. Employees usually have implied agency when performing work for their employer.

Front 119

Describe confidential information (CI)

Back 119

• Information,data, industrial/trade secrets obtained or learned through employment relationship
  
• May be peculiar or not well known in industry; Value of CI is that it is secret – doesn’t have to be innovative
  
• Company takes steps (express, implied) to keep it secret and communicate it in confidence
  
• Employee has duty to maintain employer’s confidential information during and after job BUT: employee is free to use “any skill and general knowledge” acquired during course of employment (“mental residuals”)– not specific information
  
• Maintaining CI is implied, but now is usually also secured via NDA or confidentialityclause in K
  

Front 120

Describe work products. What is the default rule?

Back 120

Generally IP, including physical prototypes, expt'l design, etc

Default rule:

IP belongs to employer if made withemployer materials and on employer paid time

Work product created “in the course ofemployment” and “under a contract of service”

Employee(s) is author/inventor/designer,but has K-obligation (express or implied) to transfer IP to employer (owner).

Generally stipulated in K (transfer clause) otw court will consider several factors such as does job description include innovation/design etc, situational circumstances, use of confidential information to produce, use of paid time & materials, etc, employee conduct, etc

• If you came up with thing at home but for work then that's potentially a breach of fidelity
  

Front 121

What are the three main types of business organization and give a brief description of each.

Back 121

Sole Proprietorship: Simplest form of business to operate, can operate under person or business name; individual assumes personal liability, profits, and losses, and income is taxed as personal.

Partnership: group pool skills, each can act as Agent for other in duty of good faith, partners share profits, losses, & liabilities jointly, taxed as individuals based on share, LLP (limited liability partnership) where partner's liability is capped by their share of partnership

Corporation: statutory creation, requires registration & compliance - formation docs are "Articles of Incorporation" either prov (BCA) or fed (CBCA). Indicated by Corp., Inc., Ltd.; most common form & basis of modern economy. Almost any biz type, non profit or profit. Public corps are heavily regulated. Structured entity. Shareholders can control it (corp officers are accountable to shareholders). Separate legal entity but must still comply with all applicable laws & corp officers can be personally liable for conduct of corporation & face legal penalties in cases like insider trading, fraud, COI, etc.

Front 122

What are the main advantages of incorporation?

Back 122

Limited liability ie corporate "shield" or "veil"

No personal liability - functions separately from ppl who own it, acts as separate legal entity (legal person) with its own legal "capacity" to make contracts.

Can own property, legal rights, make profit/loss

Assumes liabilities for it's acts

Separate taxation at different rates than owners personal

Front 123

Describe the relationship of engineers & corporations.

Back 123

If corp objective is to provide engineering/design services:

• Provincial and Federal statutes may require that majority of directors and/or officers be licensed engineers
  
• Corporation may need to separately register, receive and renew license to operate as a company
  
• Carry minimum amounts of error and omission insurance
  
• … in addition to all other regular corporate filings
  

Front 124

Discuss Tender & Bids

Back 124

part of realm of contract law. Read page 92.

Front 125

Define: tender

Back 125

• “to present formally for acceptance” (dictionary)
  
• Offer to undertake a project on particular terms (practical)
  
• Form of ‘invitation to treat’ – not an offer itself, but an opportunity to receive offers to contract
  
• Presents a specification and/or intention for projects and invites monetary ids form parties to perform the actions necessary to complete the project
  
• Terms ‘bid’ and ‘tender’ – fairly interchangeable
  

Front 126

Define: tendering

Back 126

• Buyer/ProjectManager presents specs/requirements and invites bids form competing suppliers/contractors
  
• Bids are sealed – Buyer and other suppliers don’t know other’s offers until they are opened for examination at end of process deadline
  
• Theory: suppliers complete independently to offer services at lower price, Buyer gets project done at fair market price
  
• BUT: bids are offers that a be revoked before K formation – creates uncertainty about price and performance of project
  

Front 127

Describe the process of tendering

Back 127

Hasown rules – confirmed by SCC in R. (Ont.)v. Ron Engineering, [1981]

2 parts to process:

Response to Tender (submission of Bid) =“Contract A”

Acceptance of Best (compliant) Bid =“Contract B”

Contract A: Bidders (potential suppliers)submit their bids: Where they agree their offers are valid andopen to acceptance under the terms of the Tender i.e. there are multiple Contract A’s fromvarious bidders

“Unilateral contract” – bidders cannotwithdraw their offers unilaterally, except on terms of Tender

Also: Buyers cannot change terms of Tenderw/o rebids by all bidders + possibly paying damages (quantum meruit). If they win the Tender, their offer isaccepted and binding K is formed with Tendering party (buyer).

Contract B: only formed with winning bidder. Now obligated to sign contract to do work.

Front 128

Describe tendering strategies

Back 128

• All Bidders must be treated fairly, in good faith, and consistent with terms of K-A (use escrow/bid depository)
  
• Use precise wording for required specs and clearly mark variable specs/ranges – so bidders can adjust
  
• AwardK-B only on terms set in Bid (avoid liability)
  
• Keep language open to allow Buyer to reject all bids if deemed unacceptable, or enable calls for adjustments based on submitted bids (i.e. bid shopping)
  
• Negotiate adjustments after awarding K-B with winner
  

Front 129

What is a trademark?

Back 129

Trademark

• A mark(name, symbol, design, sound, colour, smell…)
  
• Certification(e.g. Woolmark, CSA, DVD symbol, etc.)
  
• Distinguishing guise (aka ‘trade dress’ – architectural design, uniforms)
  
• A proposed trade-mark (in development)
  
• Includes service marks and trade names
• Cannot be false, offensive, similar, prohibited mark
  

Front 130

What are the 3 required elements for a valid trademark?

Back 130

3elements required of valid trademark:

1) Mark – any sign or combo of signs

Refersto something visible and distinct from the produce itself

Caninclude sound, smell, etc.

2) Distinctiveness

Markmust actually distinguish produces/services between different providers

3) Usage

Thedistinctive mark must actually be used in commerce as a trademark (hence use ofTM symbol) Goods:appears on product or package Services:

Front 131

What are the types of distinctiveness?

How can distinctiveness be lost?

Back 131

3types of distinctiveness:

Inherent distinction: e.g. KODAK, Lexus,Acura

Adapted distinction: via juxtaposition,e.g. Razor, chocolate (cell phones)

“Secondary meaning”: identify a trademarkwith your particular company or product/service over time and exposure (e.g.Canadian (i.e. form of common-law TM))

Distinctivenesscan be lost:

• If no longer distinguishes a particularsupplier’s product, it no longer serves as a trademark E.g. ‘genericide’ – multiple use (vagueness)= no longer reflective of a particular brand/character (e.g. Kleenex, Band-aid)
• If the brand/product is no longer availablein market

Front 132

What are the differences between a registered & non registered trademark?

Back 132

Registered trademark:

• Filed with TM office
  
• Meets essential 3 elements
  
• ® symbol
  

Unregistered trademark:

• Not filed/registered but meets 3 basic TM elements
  
• TM symbol

TM cannot be registered if it is descriptive of the underlying product or service, or its conditions of use or production E.g. Orange Maison, German, Calgary, Staz-on No geographic names (unless regional TM) But you can take your chances and use it as an unregistered TM (i.e. hope to get ‘secondary meaning’)

Front 133

What are the rights, exceptions, & term of protection for a trademark?

Back 133

Rights: Prevent confusion: Definition:prevent use of a similar trademark that interferes with or otherwise causes doubt about the product’s source of origin

GeneralLegal Test: “whether the ordinary customer or unwary purchaser would believe the product or service of one trader is likely to be related to the produce or service of another trader”

Exception:nominative fair use’ of a trademark. Use the trademark to describe a specific product, service, or object normally associated with a mark in ordinary speech or communication, news, advertising (goes to truth) E.g. “We repair cars includingFord, VW, Honda, BMW…”

Can use the name in print but not the logos

Term of Protection:

For a registered trademark: 15 years(renewable)

Unregistered – for time of use (indefinite)

Front 134

Describe patents

Back 134

FederalStatue (Canada)

Definition:a monopoly property right granted to an inventor for an invention.

Invention: “any new and useful art,process, machine, manufacture or composition of matter” (or any improvement thereof)

Front 135

Describe the 4x4 requirements for patentability

Back 135

Categories:

1.‘Art’: “an act or series of acts performed by some physical agent upon somephysical object and producing in such object some change either of character orof condition” Applied learning or knowledge and its endproduces

2.‘Process’: a systematic series of interdependent actions or steps directed tosome useful end. Doesn’t include the end product/object

3.‘Machine’: mechanism or other device that modifies force or motion and that..can achieve some useful end

4.‘Manufacture or composition of matter’ Manufacture: product made manually or byindustrial process that changes the character or condition of material objects Composition: any composite article orsubstance produced from two or more substances

Qualities – must have all 4

1.New: not already known or in active use (“novelty”) Not public prior to application

2.Non-obvious: not readily obvious to somebody ‘skilled in the art’. Requires some imagination or inventiveness(“inventive step”)

3.Useful: requirement for some form of industrial/commercial application. More than just scientific curiosity. Public benefit not required.

4.Described: invented and its process for its production must be described in theapplication. Could somebody skilled in the art reproducethe invention from description? Most patents are improvement on existinginventions

Front 136

Why do we have patents?

Back 136

Rationale:

• Protects practical application of ideas inindustry, trade or commerce
  
• Monopoly gives inventor time to recoup investment
  
• Incentivizes creation of technology andprogress
  

Ideal:

• patents encourage broader scientific research hand development for improvementof society
  

In reality: good because provides legal stability for useful inventions, but bad because can stifle innovation for fear of infringement

Front 137

What are the obligations of the patent holder and what is the patent bargain?

Back 137

Obligations:

• Patentee must provide full disclosure of invention to public
  
• At end of patent term, invention is granted to public domain
  

Patent bargain: owner gets strongmonopoly protection during term in exchange for public disclosure, enhancementand reversion to public domain at end of term

Front 138

What is the term of protection for a patent?

Back 138

In BC, 20 years from date of application. (Claim date, date claim is filed).

Front 139

What is the patent prosecution process?

Back 139

1. Claim/filing date

Claimdate: date patent filed in another convention/treaty country

Filingdate: date of national filing of application (i.e. submission of formal patent‘specification’) Patentspecification: 2 parts: claims + disclosure

Claims: legal enclosure (what ismonopolized and enforced) Disclosure: science (how it works)

2. Publishing date

18months after submission – patent is ‘laid open’ to public

Publishedin patent gazette

3. Examination

Performedby Patent Examiner at CIPO

Checkprior art, evaluation of new, non-obvious, useful and proper description (i.e.such that a person ‘skilled in the art’ can reproduce the described invention)

Appeals:3rd parties can object to patent application. Hearing by PAB, Federal Court, or Supremecourt. A verytechnical process that can take a long time – generally requires agent and/orlawyer ($$$)

4. Issue date

Federalgovernment puts its seal on the patent specification

Patentis generally granted if it meets basic requirements and withstands anyobjections Issuemarks the beginning of enforcement rights (can be retroactive to filing date or6 years, which ever is less). Paymentof ongoing maintenance fees required

5. Expiry date

datepatent expires – invention goes to public domain. ownercan still retroactively sue for infringement during patent term for 6 moreyears

Front 140

Describe tort law

Back 140

Derived from contract law tho many are now statutory

Tort law: law of private obligations to others

“failure to fulfill a private obligation imposed by law”

Essentially a set of rules/laws that govern and enforce reasonable conduct between people in society

[Crime = failure to fulfill a public obligation imposed by law]

Torts and crimes can coexist from the same conduct

Tortfeasor = person who commits the tort to

ex. Hitting someone is a crime, but also a tort – battery, which can be sued for

Liable for two things: criminal act and money

Front 141

Compare tort & contract law

Back 141

Similarities: Both involve “primary” + “secondary” obligations (“if – then” – if you don’t meet obligations, then you are liable for penalty); Primary = tells you how to act (rule); Secondary = consequences

Differences:

Obligations in Contract are created by the parties:

• Purpose is to exchange benefits
  
• Protects reliance on the promise to exchange benefits
  
• Applies only to the parties of the contract (“privity”)
  

Obligations in Tort are created by law:

• Purpose is to prevent harm
  
• Protects reliance on expectation people will not be exposed to unreasonable danger from each other
  
• Applies to everyone in the jurisdiction
  
• Key: by LAW in JURISDICTION to EVERYBODY
  

Front 142

What are the types of torts & which are engineers mostly likely to deal with?

Back 142

intentional, negligence, strict liability

engineers usually deal w negligence

Front 143

Describe intentional torts

Back 143

Intentional torts: requires intent to harm or simple intentto act (regardless of whether party knew it would be harmful)

E.g. assault, battery, false imprisonment,trespass to land, interference with chattels (interference with peoplesportable property), interference with contractual or economic relations,conspiracy, fraud, deceit, intimidation, defamation

Front 144

Describe negligence torts

What are the 3 main types of negligence?

Back 144

carelessfailure of ‘duty of care’ toward another party

Duty imposed/recognized by law

Three main types of negligence: negligence,professional negligence, and product liability

Front 145

Describe strict liability torts

Back 145

• defendant is responsible for situation in which plaintiff was injured
  
• Does not require intent or carelessness
• Fairly rare in Canada
  
• Mostly issues with animals or extraordinarily risky activities
  

Front 146

Define negligence & give it's history

Back 146

Definition: breach of ‘duty of care’ to another party that causes injury or loss

History: Donoghue vs. Stevenson, 1932, UK

• Victim finds snail in ginger beer and hassever physiological reaction
  
• Beginning of modern tort law and productliability litigation
  
• Removed liability from the chain of contract
  
• Introduced the ‘neighbour’ principle: You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injury your neighbour = persons who are so closely and directly affected by your act that it is reasonable to contemplate their wellbeing when performing the act
  
• Creates an obligation to a third party based on duty of care
  

Front 147

What are the 4 elements of a negligence claim?

Back 147

4 elements of negligence claim:

• Duty of care – does this exist between P and D? based on reasonable foreseeability; defence would be remoteness
  
• Breach of DOC (duty of care) - when behaviour falls below SoC
  
• Demonstrable damage or loss caused by breach of DOC
• Breach of DOC is the proximate cause of damage/loss - based on "but for" test as in "but for the breach would this damage have occurred?" p137

If any one fails, the claim fails. All or nothing.

Front 148

What are limitation periods in the legal process?

Back 148

Time frame for commencing a legal action

Aka: “statue of limitations”

In BC: per limitations Act (2013)

Civil Litigation: LA (2013) changed complex time limits to a general 2/15 rule (with specific exemptions)

Criminal Law: varies based on type of offence. 6months for summary conviction offences. None for indictable offences.

Basic Limitation Period: (BC, LAs.6(1)) 2years after the day on which claim is discovered (event date)

• Government gets 6 years
  

Ultimate Limitation Period: (BC, LAs.21(1))

15 years after the day on which the act or omission on which the claim is based took place, regardless of discovery

• Exemption for willful concealment
  

Claims commenced beyond the 2/15 years = “statute barred” (no go)

Front 149

List the steps of a trial in the legal process (9 steps)

Back 149

1. Opening statements
   
2. Evidence
   
3. Examination in Chief
   
4. Cross-Examination
   
5. Reply
   
6. Closing statements
   
7. Legal Standard
   
8. Outcome
   
9. Remedy
   

Front 150

Describe opening statements in a trial

Back 150

Opening Statements:

• By Plaintiff, then Defendant
  
• Outline their position, facts and evidence– no argument
  
• Plaintiff starts to present their case(evidence)
• Then Defendant after P is done
  

Front 151

Describe the evidence stage in a trial

Back 151

Evidence:

• Information provided in support of legal arguments
  
• Facts and testimony to factual events
  
• Key issues: relevance and reliability
  

Front 152

Describe the Examination in Chief

Back 152

• Party calls its own witnesses and asks them questions about facts in question
• Cannot be ‘leading questions’ – a question that presupposes the answer

• All witnesses are ‘sworn’ – agree to tell the truth to court
  

Front 153

Describe the Cross-Examination in a trial

Back 153

• Other side (party) is allowed to ask questions of the opposing side’s witnesses
  
• Purpose is to test witness credibility,show weaknesses in other side’s facts and argument, seek alternate or supporting facts that support your side
  
• “The greatest engine of truth” in the adversarial process
  
• Can make or break case – can help reveal weaknesses in other side’s argument
  
• Can ask leading questions – generally framed so the witness just provides a yes or no answer
  

Front 154

Describe the reply stage in a trial

Back 154

Brief opportunity to clarify answers given by your witness under cross examination

Optional – may not be granted

Front 155

Describe the closing statements stage in a trial

Back 155

Each side puts the facts and testimony attrial in context of their theory of the case to convince court its version of events and legal argument is most legally correct and just

Front 156

Describe the Legal Standard stage in a trial

Back 156

• “Balance of probabilities” – legal standard in civil cases
  
• For each important element of the claim or defence, the party has proven their version is more likely to be true than not(i.e. the 51% rule)
• Contrasting the criminal one which is “beyond a reasonable doubt”
  

Front 157

Describe the Outcome of a trial

Back 157

Court finds ‘for the plaintiff’ or ‘for the defendant’

Defendant is liable or not liable to the plaintiff – not “guilty” or “not guilty”

Front 158

Describe the remedy of a trial

Back 158

• The compensation or relief sought by thePlaintiff (or Def by cc)
  
• “Remedy in law” = monetary award (aka “damages”)
  

Three types: compensatory (for the act done to do – put back in place to where you were before), aggravated (harder to get, additional monetary value awarded to you if act was malicious – deliberately harmful or hateful), punitive (rare,extra damages added to deter from this conduct in the future).

Accounting for profits.

“Equitable relief” = action required.

• Specific performance (party must do something).
  
• Injunction(court order to stop an action/process)
  
• DeliveryUp (turn over goods)
  

Damages become a legally-recognized debt owed by the loser to the winner that can be reinforced against.

Remedy may be a separate hearing.

Front 159

Describe the legal process, post-trial.

Back 159

Appeal:

Party may be entitled to appeal or require permission

“Seek leave” to appeal –petition the appeal court, reasonable claim there was an error of fact (got facts wrong) or law that makes the case worthy of appeal

Usually have to file within 30 days of end of trial

Appellant:party appealing the trial decision

Respondent:party defending the trial decision

Appeal court can confirm, reverse, send back to court but most get rejected

Costs: Everything in legal process has costs,beyond damages! Filing pleading, motion, disbursements,witnesses, mediation, lawyers – all cost money. Canada uses the British tradition of loser pays costs of other side (‘costs in the cause’). Party and party/partial indemnity = 40-50%. Solicitor client/substantial indemnity =70=80% – not as common. Even if you win you never get all your costs.

Front 160

Describe the "FIRAC" legal analysis/briefing style**

What is it & why is it used?

Back 160

FIRAC = Facts + Issue + Rule + Application+ Conclusion

(Or just “IRAC” method if you’re writing an exam)

• Basic reading, writing, analysis methodology and format used by lawyers and judges
  
• Used to evaluate cases at trial
  
• Also for writing brief – core to all lawyers

Front 161

Describe the letters of FIRAC

Back 161

F – Facts: relevant circumstances andbehaviour that led to an issue between parties (the five W’s)

I – Issue: the legal issue(s) raised by the facts

i.e. what law(s) have been possibly infringed?

R – Rule: specific law(s) governing the issue (conduct and consequence) If/then statement – if conduct in rule is what happens in the facts, then conclusion

A – Application: how well does rule fit to conduct/behaviour described in the facts (aka ‘analysis’)

C – Conclusion: the likely consequences of applying the rule to the facts in this circumstance: What is the logical outcome(s) based on the law? Should point out possible outcomes for and against your interests

Front 162

Define contracts & give the history, purpose, & obligations of them.

Back 162

Definition: voluntary agreement between parties containing legally enforceable rights and obligations

Historically: part of the law of‘ obligations

’Purpose: to facilitate exchange of goods and services between parties by giving legal protection to reasonable expectations and reliance. (benefit); Specifies parties rights, responsibilities, liabilities

Obligation: to ‘perform’ terms of agreement or provide adequate restitution. (penalty)

Courts will generally enforce contracts.

Front 163

What are the formalities or elements of a contract?

Back 163

“Formalities” or elements of Contract:Require all of (top 3 are core elements):

• Intention to create legal relationship
  
• Offer and acceptance
  
• Consideration
  
• Capacity
  
• Lawful purpose
  
• Optional: Written** (commercial reality must be written but they can also be verbal (although hard to prove))
  

Front 164

Describe the 1st core element of a contract: intention to create legal relationship

Back 164

Intention to Create Legal Relationship:

• Usually based on expressions of interest or negotiation
  
• In commercial realm: can be based on ‘letters of intent’ – form of “agreement to agree”
  
• The famous “meeting of minds”
  
• Based on a ‘reasonable person’ standard –context dependent
  
• E.g.family and casual discussions: don’t normally expect contractual relations
• Commercial discussion – different standard and expectations

Front 165

Describe the offer as an element of a contract in general

What do you call the involved parties?

Back 165

Formal indication of mutual agreement tocreate legal relationship

Offer: indication of willingness to enter into a contract oncertain terms

Terms include some kind of exchange between parties

Creates Risk: K comes into effect as soonas offer is accepted

A statement (written or oral) is not an offer unless its communicated as an offer (i.e. context is important)

“Offeror”: party making the offer

“Offeree”:receiver of offer

“Invitation to Treat” e.g.advertisements, produce displays, price tags, tenders. Not anoffer itself: indication of willingness to receive an offer. Basedon reasonableness and commercial reality. Note:in a shop, customer is offerer and shop is offeree

Front 166

Describe the life of an offer and the methods of termination before acceptance *

Back 166

Life of an offer:

• Temporary– does not last forever
  
• Can be terminated before acceptance through: revocation, time lapse, death/insanity,rejection, counter-offer
  

Revocation: Offer can be revoked anytime before acceptance, unless it contains an open duration clause. Must reasonably communicate revocation to offeree.

Lapse of Time: Offer can be limited explicitly. Reasonable period – depends on context of nature of offer (type, underlying goods/services)

Death or Insanity: Either party – causes automatic revocation of offer. Because you can’t have the intent, the“meeting of the minds”

Rejection: Offer terminates on rejection by offeree. Once communicated, cannot be revived –needs new offer

Counter-Offer: Offeree responds with variations tooriginal offer. Terminates (rejects) original offer and replaces it. Reverses roles – the varied offer is the new offer. Original offeree becomes offeror and vice versa.

Front 167

Describe offer acceptance

Back 167

• Offeree agrees to enter into contract proposed by offeror
  
• Communication of acceptance activates the contract. Both parties become bound to the K in law
  
• Can be communicated by words, conduct, even silence
  

Instantaneous Communication: K activated when received by offeror

Distance Communication has “Postal rule” – acceptance effective as soon as posted; Should ‘master’ acceptance with specific language

Front 168

Describe K consideration & the exemptions from consideration

Back 168

Mutual exchange of value in a contract

Exists when either party gives or promises to give

• Benefit to someone else (agree) or
• Suffer a detriment to themselves (not agree)
  Moves from each party, but not necessarily to other party
• Must be ‘sufficient’ but does not need to be ‘adequate’
  “Mutuality of consideration” – each party must provide consideration in return for other party’s consideration
• ‘past consideration is no consideration’
  Exemptions: Seal & Promissory Estoppel

Front 169

What is a "promise under seal"?

Back 169

• Allows parties to enter into valid K without consideration
  
• Mark on a written K – often a red wafer/wax impression
  
• Indicates overtly that both parties have agreed to make an enforceable bargain outside the normal K process
  
• Must be applied at the time document is signed, not after
  

Front 170

What is the "reasonable person" standard?

Back 170

“Reasonable Person” Standard:

Objective: standard for comparing actual behavior vs. expected conduct in relevant circumstances

Highly debated; subjective; "legal fiction"

Essentially: what a normal person would/should have done

Front 171

What are the rights included in the property rights bundle?

Back 171

1. possess

2. use

3. exclude others

4. dispose of

Front 172

List 8 types (& briefly describe) of Intellectual property

Back 172

1. copyright - creative works
   
2. TM - origin of source
   
3. Patents - useful inventions
   
4. Industrial Design - shapes/patterns (aesthetics)
   
5. Trade Secret - confidential info
   
6. Personality - public image
   
7. Integrated circuit topography - microchips
8. Plant breeders rights - new varieties

Front 173

What are the common elements of IP

Back 173

all types of IP rights involve:

• some element of novelty (creativity)
  
• tangible expression (fixation)
  
• public interest in the right (bargain)
  
• creates exclusivity (monopoly)
  
• limited terms
  
• territoriality
  

Front 174

Define IP and why does it have value?

Back 174

Intellectual Property:

Artificial form of property, intangible but imbued by law w scarcity trait to give it value so it can be owned/exchanged.

Has value because

-not readily obvious

-requires application of some insight (active human mental intervention)

-exhibits a perception of benefits/interest from others

Front 175

What is copyright law?

What legislation?

What are the requirements?

What are the essentials? What are the terms?

What rights does it give?

What are the defences?

What are the key terms?

Back 175

What: right to copy - applies to creative works

Legislation: Copyright Act C-42. federal, statutory

Requirements: originality, fixation, nationality

Essentials: "skill & judgement"

Term: life of author + 50 yrs; 50 yrs from first publication

Rights: reproduce, publish, perform, recite, authorize, & moral rights (paternity, integrity, association)

Defences: fair dealing, independent creation, etc

Key terms: originality, fixation, works, skill, judgement

Front 176

What is trademark law?

What legislation?

What are the requirements?

What are the essentials?

What are the terms?

What rights does it give?

What are the defences?

What are the key terms?

Back 176

What: distinguishing mark for goods in market (word, name, slogan, sounds logo) denotes origin of source

Legislation: Trademark Act T-13, fed, statutory, common law

Requirements: mark, distinctive, usage, registration optional

Term: 15 yrs if reg, renewable; life of use if unreg

Rights: exclusive use; prevent confusion, depreciation of goodwill

Defences: fails to distinguish, not used, lapsed, nominative

Limitations: can't be descriptive, surname, offensive, confusing SoC

Key Terms: mark, distinctive, use; origin of source, passing off, genericide, branding

Front 177

What is patent law?

What legislation?

What are the requirements?

What are the essentials?

What are the terms?

What rights does it give?

What are the defences?

What are the key terms?

Back 177

What: inventors rights to an invention

Legislation: Patent Act, fed, statutory

Requirements: 4x4; new, non obvs, useful, described

Essentials: applies to art, process, machine, manu/comp

Term: 20 years from priority date; non renewable

Defences: expt, stock piling, private/non comm use, repair, existing use, shouldn't have been initially patentable

Limitations: other's IP, business plans, ideas/discoveries, medical techniques, SW

Key Terms: public disclosure, bargain, trolls, biopiracy, exclusivity

Front 178

What is industrial design law?

What legislation?

What are the requirements?

What are the essentials?

What are the terms?

What rights does it give?

What are the defences?

What are the key terms?

Back 178

What: shape/config/general aesthetic of mass produced products

Legislation: Industrial Design Act, fed, stat

Requirements: design must be novel, original, not purely utilitarian

Essentials: look must have aesthetic purpose

Terms: 10 years from registration date

Rights: exclusive right to use design

Defences: ?

Key terms: novel, original, not utilitarian, aesthetic

Front 179

What are chattels?

Back 179

Chattels are tangible personal property aka goods (like a car).

• No registry for ownership.
  
• Charges or interests are registered as soon as it is obtained.
  
• Governed by sale of goods statute; provincial.