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98 Cards in this Set
- Front
- Back
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ADR* |
Alternative Dispute Resolution. An alternative way to resolve disputes such as arbitration or mediation. Parties do not have to go to court. Intent: more cost effective and creative than court |
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Appellant |
Party appealing decision of a court |
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Breach of Condition |
Breach of an obligation that is essential or vital to a contract. |
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Breach of Contract |
Where a party fails to perform the obligations in the contract. |
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Breach of Warranty |
A breach of an obligation that is not vital or essential to the contract. Will not result in discharge of contract. |
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Common Law* |
Judge made law; a.k.a "case law" Legal principles that arise from precedents set in past cases. |
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Common Mistake |
Parties have reached an agreement. but recorded provisions incorrectly. May apply to court for an order of rectification to correct the mistake. |
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Concurrent Liability |
Liability both in contract and tort law simultaneously. Typically used to take advantage of different limitation periods. |
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Concurrent Tortfeasors* |
When multiple parties are responsible for the same damages caused in tort. |
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5 Requirements for Enforceable Contract* |
1. Offer & Acceptance 2. Mutual Intention to Contract 3. Capacity (i.e. age of majority) 4. Consideration 5. Lawful Purpose |
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Contract A* |
The contract formed between the Owner and the Contractor during the bid. The request for tenders is the "offer" and the submission of the bid is "acceptance." Concept developed in the case of Ron Engineering (RE). |
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Consideration* |
The reason, motive, cause, or price that causes a person or entity to enter into a contract. |
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Contra Proferentum* |
If a contract provision is unclear or ambiguous, it will be interpreted against the party who drafted the provision. |
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Contract Rectification* |
A court order used to correct an obvious mistake. |
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Construction Contracts* |
If an engineer is empowered to make final and binding decisions regarding the construction contract, he/she must act independently of the owner even if his/her contract is with the owner. |
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Corporation |
A legal entity owned by shareholders, managed by the Officers, and directed by the Directors |
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Copyright* |
Sole right of the author to copy or reproduce original work. Duration is the life of the author plus 50 years |
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Creditor |
Person to whom money is owed |
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Consequential (Indirect) Damages* |
Damages arising as a consequence of breach of contract i.e. lost profits, fines. Indirect damages are recoverable if they could be foreseen by the party responsible. |
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Direct Damages |
Damages incurred as a direct result of the negligence or breach of contract. |
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Liquidated Damages* |
Outlined in the penalty clause of a contract. A prescribed amount to be paid if certain events occur in the project. Must be estimated and agreed upon when contract is entered into. |
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Duty to Mitigate* |
The affected party must take reasonable measures to mitigate the damages suffered. If measures are not taken, the court will take into account when awarding damages. |
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Debtor |
The person who owes money |
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Defendant |
The party defending against the action or claim |
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Defamation* |
The reputation of the plaintiff is damaged by untrue statements publicly made by the defendant. Libel = written Slander = verbal |
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Director's Standard of Care* |
1. To act honestly, and in good faith, with regard to the best interests of the corporation. 2. Exercise the care, diligence, and skill that a reasonably prudent person would exercise in comparable circumstances. 3. Disclose and conflicts of interest |
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Methods of Discharge of Contract |
1. Performance 2. Mutual Agreement 3. Pursuant to Express Terms 4. Frustration 5. Breach 6. Repudiation |
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Discoverability* |
A limitation period begins when the damage is first discovered, or when it ought to have been discovered (reasonably) by the plaintiff. |
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Duress* |
Threat or actual violence, or imprisonment. Contracts entered into by means of intimidation are voidable |
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Duty to Warn |
A manufacturer must warn the consumer of any dangerous potential of the product with specific, appropriate labeling. |
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Economic Duress |
Where a party in a contract is forced to renegotiate due to the threat of greater detrimental result of not renegotiating. |
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Economic Loss |
Monetary damages that were foreseeable at time of execution of a tort. As per Hedley v. Byrne these damages are recoverable in tort. (known as indirect damages in Contract Law) |
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Equitable Estoppel* |
Not performing the obligations of a promise because there was no consideration, thus a contract was not formed. |
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Fraudulent Misrepresentation* |
A statement made knowingly, or without belief in its truth or recklessly, careless of whether it is true or false. Innocent party may rescind contract & claim damages, as well as sue in tort for deceit and negligent misrepresentation (Hedley v. Byrne) |
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Frustration of Contract* |
Where changing circumstances that were unforeseeable, or unpredictable have drastically changed the obligations of the parties. i.e. Force Majeur clause; riot, war, flooding |
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Fundamental Breach* |
Harbutt's Plasticine - If there is a fundamental breach of contract (breach that counters the intent of the contract itself), any clauses limiting liability or damages are void Superseded by Syncrude v. Hunter Eng - If there is clear and direct language in exemption clauses, and parties are of equal power, exemption clause is upheld |
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Gratuitous Promise* |
Not Enforceable A promise made by one party to another that did not include an exchange of consideration. |
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Guarantee |
If a debtor has defaulted, one must look to the debtor to recover loss or debt prior to attempting to obtain from guarantor. |
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Human Rights* |
Grounds of discrimination. i.e. race, ancestry, place of origin, colour, citizenship, sex, sexual orientation, age etc. |
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Implied Terms |
Ex. Moorcock ship Where clearly reasonable, courts may imply terms into the contract Examples of implied terms: - Compliance with local building code - Materials and workmanship of proper standard and quality - Work carried out in proper, workmanlike manner |
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Indemnification |
A promise to directly compensate or reimburse another party for a loss or cost incurred. Different from guarantee since affected party can obtain payment directly from the party that indemnified the debt |
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Industrial Design |
Features, shape, configuration, pattern, or ornament that is applied to finished articles. Strictly appeals to eye. Can apply for protection of only ornamental features, and protection lasts 10 years |
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Injunction |
A court order that prohibits or restrains a party from the performance of an act. i.e. "I agree not to compete near you" |
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Innocent Misrepresentation* |
False assertion made by a person who does not appreciate the falsity of the statement. The deceived party must act on it in a reasonable amount of time, and if acted on soon enough, the affected party is entitled to damages equal to the cost of entering into the contract. |
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Irrevocable Offer |
An offer that may not be revoked for a defined period of time |
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Legislation |
Law codified by government in Bills, Acts, Statutes, and Codes |
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Libel |
A tort action of defamation, where statements have been made in writing |
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Lien Legislation |
Provincial legislation requiring amounts to be held back from Contractors until a specific time. |
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Limitation Period |
Law suits must be commenced within a certain time period. Tort actions, contract actions, and actions against a P.Eng must be commenced within 2 years from date of discovery. Ultimate limitation is reached (regardless of whether issue is later discovered) at 15 years from date of act or omission. |
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Limited Partnership |
Business structure where one partner is a general partner with unlimited liability, and the other partners have limited liability to the extent of their investment in the partnership. |
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Litigation |
Law suit or legal action |
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Lowest Bidder |
In Ontario, owners are permitted to accept any tender, not necessarily the lowest bidder. In other cases, the court suggests that the language should clearly indicate how bids are judged and on what criteria they are accepted. |
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Mediation |
Not a legally binding process. Resolve matters outside the court system; facilitated by an impartial 3rd party. |
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Misrepresentation |
If a false statement or assertion of fact induced a party to enter into a contract, that party may apply to court to rescind the contract. Contract is voidable. |
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Negligence v. Mistake |
Engineers are not liable for every error in judgement. i.e. Using technology/resources/information available at time services were performed is not negligence |
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Non-Compete Clause* |
Agreement that prevents one party from starting or operating a similar business in a specified area over a specified time period. In order to be upheld, court must consider the terms for geographic area and time period reasonable. Also mustn't affect the public interest. |
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Nuisance |
Undue interference with the comfortable and convenient enjoyment of the plaintiff's land. i.e. spraying insecticide that sprays over onto neighbour's property and affects where activities can be performed on neighbour's property |
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Occupier's Liability |
Occupier of a property must exercise a standard of care to ensure the safety of individuals coming onto that property. Guests have higher standard than trespassers. |
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Offer |
Promise made by one person to another communicated in writing. |
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Option Contract |
Offer remains open until the offeree chooses to exercise the option. i.e. contract to buy a business; offeree may negotiate to have the opportunity to review financials prior to purchase |
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Partnership |
Two or more persons who conduct business together with a "view to a profit" |
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Patent |
An invention. Right to exclusive use or to license the patented invention is valid for 20 years from the date of application |
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Parol Evidence Rule* |
Cannot look to external verbal evidence to interpret of vary a contract. Courts will only consider verbal evidence if a contract is conditional upon a certain event occurring. Case: Pym v. Campbell -Two engineers must approve of machine prior to purchase. Only one approved, thus no agreement to purchase |
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Penalty Clause* |
A provision that outlines damages that a party would suffer should certain events occur. Estimate of damages caused if event shall occur must be made when making contract. |
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Performance Bond* |
Contract that indemnifies the obligee if the principal doesn't perform his/her contractual obligations. Typically relied on if the contractor becomes bankrupt, this bond is used to complete the contract |
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Plaintiff |
Person making claim |
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Privity of Contract |
The relationship between parties engaged in a contract agreement |
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Quantum Meruit* |
If there is no express agreement, courts will imply that the party should be paid a reasonable amount for time spent and materials supplied. |
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Rescind |
To avoid or cancel a contract. Ends contract as if it never existed. |
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Repudiation |
When one party by words or actions expressly communicates that it has no intention to perform contract obligations. Opposite party can ignore the breach, or assume contract has been discharged by repudiation and claim damages |
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Respondent |
Party responding to an appeal |
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Secret Commission* |
A bribe or kickback received by an engineer. It is a criminal offence to accept a secret commission, and punishable by fines and imprisonment. |
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Slander* |
Defamation in the form of verbally damaging a plaintiff's image. |
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Sole Proprietorship |
Business owned by a single individual |
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Standard of Care* |
An engineer must conduct his/her services in accordance with the conduct of a prudent and diligent engineer in the circumstances |
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Statutory Holdback* |
By provincial Lien Legislation, the legal requirement to withhold 10% of the price of the services or materials as they are supplied. Holdbacks are released when all liens that may be claimed have expired, been satisfied or discharged or paid into court otherwise the owner may be liable to the lien claimants. |
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Strict Liability |
No requirement to prove fault |
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Substantial Compliance |
Where the contract deficiencies are minor, the contractor should be paid for everything less the cost of damages by any minor deficiencies. |
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Tendering Process |
Contract A - Request for bids by owner ("Offer"), submission of bid ("Acceptance") Owner has a contract with all bidders. |
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Theory of Precedent* |
Apply legal principles established by the courts from similar or analogous fact situations to the present case. |
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Tort |
A wrong committed by one person against another. Fundamental purpose of tort law is to compensate a party that has suffered damages as a result of a negligent act or omission. No need for contract between parties for tort law to apply. |
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Three Essential Criteria for Tort Action |
1. The defendant owed a duty of care to the plaintiff 2. The defendant breached that duty of care by his/her conduct 3. The defendant caused injury to the plaintiff |
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Trademark* |
A distinctive mark used by a person for the purposes of distinguishing wares and services by him from those that are by others. Duration of trademark is 15 years |
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Trade Secret |
Formula, pattern, device, or compilation of information that is used in one's business which gives an advantage. Not disclosing trade secrets is an implied term of employment. |
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Undue Influence* |
At the time of making a contract, one person dominates the free will of the other party so as to coerce the person into an unfair contract. The innocent party may repudiate the contract. |
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Unilateral Mistake |
Mistake made by one party to a contract. Traditionally, courts have said that if a mistake is made, too bad. More recently, Belle River case set a precedent that an offeree cannot accept a contract where he knows of a mistake within that affects the fundamental terms. Supreme Court mortally wounded the Belle River precedent in Ron Engineering. |
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Vicarious Liability* |
An employer is responsible and liable for any negligent acts or omissions of its employees while in the course of their employment and the scope of their authority. |
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Principal Object of PEO |
To regulate the practice of professional engineering, & to govern its members so that the public interest may be served and protected. |
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PEO Main Functions |
1. Enforcement - Taking legal action against those unlawfully practicing, or leading the public to believe they are licensed to practice P. Eng 2. Licensing - Providing licenses to qualified individuals and companies 3. Complaints |
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Requirements to Obtain P.Eng |
1. Good Character 2. Minimum 18 Years of Age 3. Passed the PPE 4. Four Years Work Experience (1yr under P.Eng in Canada) 5. Education Under C.E.A.B, or Foreign Education w/ Equivalency Exams |
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Professional Engineering |
Performing an act requiring the application of engineering principles, and concerning the safeguarding of life, health, property, economic interests, public welfare, or the environment. |
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Temporary License |
For individuals from other jurisdictions undertaking a project in Ontario. 12 month duration. Other Canadian jurisdictions simply apply and pay fee. Foreign jurisdictions must: - have 10 yrs experience - provide academic transcripts - Have equivalent P.Eng membership - Collaborate with licensed PEO member |
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Provisional License |
Aids international candidates in obtaining Canadian experience. Must meet all other qualifications for P.Eng. 12 month duration |
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Limited License |
Individuals w/ specialized skills in a particular engineering field can obtain. No need for engineering degree to practice in their sector of specialty. - Must pass PPE - Has B.Sc Hon, or 3 yr Eng. Tech - 13 years specialized experience - Good character |
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Certificate of Authorization |
License for business to provide engineering services to the public. Must designate a P.Eng (w/5 years exp) responsible for engineering services. Must have liability insurance, or disclose lack thereof to all clients. |
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Consulting Engineer |
1. Use of title requires PEO authorization 2. 5 additional years experience required after P.Eng 3. May need to write exams 4. Must have CofA 5. Must be PEO Member 6. Primarily engaged in independent practice for 2 yrs |
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Public |
Anyone other than the practitioner or the practitioner's employer. |
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Advertising Guidelines |
- Professional and dignified manner - Factual, without exaggeration - Does not criticize other engineers - No use of the seal |
