Law and Ethics
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What tools does the Professional Association use to manage?
- Regulations - rules that clarify the act
- Bylaws - rules governing the operation of the association
- Code of Ethics
APEG protects the public by:
- Establishing criteria to join the profession
- Establishing standards
- Disciplining members
What is required for admission into APEG?
- Education - Graduation from a certified engineering program
- Experience - four years of supervised experience
- Professional Practice Exam
What is the rubric required for experience to count?
- 1. Application of theory
- 2. Practice experience
- 3. Management of Engineering
- 4. Communication skills
- 5. Social implications of engineering
What are the four types of licences that can be issued by APEG?
- 1. Professional Engineer
- 2. Temporary license - working in another province
- 3. Limited license - faculty members only
- 4. Provisional license - lacking one year of Canadian experience
What is APEGs disciplinary process?
- 1. Evidence Gathering
- 2. Investigation
- 3. Disciplinary Hearing
What are the two ways that APEG polices its members?
- 1. Enforcement Proceedings - for unlicensed individuals
- 2. Disciplinary Proceedings - Licensed individuals
What are the 6 occurrences that trigger disciplinary action by APEG?
- 1. Professional misconduct
- 2. Incompetence
- 3. Negligence
- 4. Breach of the code of ethics
- 5. Physical or mental incapacity
- 6. Conviction of an offence
What is the definition of incompetence?
Lack of knowledge, skill or judgement demonstrating that a member is unfit to be a professional
What is the definition of Negligence?
Carelessness, working below the necessary standard, lack of thoroughness
What is professional Misconduct?
- Any act contrary to the code of ethics, or an act that harms and endangers the public interest.
- ie. signing/sealing a drawing that you did not actually prepare or check
What are the two structures of an employer?
- 1. Project structure - each subgroup contains all functional specialities. boundaries of responsibility are clear.
- 2. Functional Structure - each department is split into its functional speciality. greater technical competence.
What are the business formats for consultants?
- 1. Sole proprietorship
- 2. General Partnership
- 3. Limited partnership
- 4. Corporation
What are the methods of paying consultant?
- 1. Per diem - daily rate
- 2. Payroll costs x factor
- 3. lump sum
- 4. % of cost of construction
By sealing a document what have you agreed to be responsible for?
- Scope of work
- accepted practice (methodology)
What is Liability insurance?
referred to as errors and omissions insurance. Covers the costs of defending and paying a claim. Not mandatory but you must inform your client.
What is secondary liability insurance?
Mandatory in all provinces. included in membership with APEGBC. Does not cover claims made against engineers working as consultants. NOT the main protection against liability claims.
What principles are used to enforce liability?
- 1. Contract Law - compensation for breach of contract
- 2. Tort Law - compensate for damage due to negligence
- 3. Consumer legislation
What is Tort?
Tort is a wrong, an injury/damage caused by wrongful behaviour or defective good. Must prove negligence.
What four things must exist for negligence to be proven?
- 1. The defendant has a duty of care to the plaintiff
- 2. The defendant breached the duty of care
- 3. The plaintiff suffered loss or damage
- 4. The breach was the cause of the loss/damage
What are the two conditions that create a Duty of Care?
- 1. A reasonably foreseeable risk of injury or damage to others exists because of the action
- 2. someone is close enough to be affected by the action
What is Res Ipsa Loquitur?
Means the thing speaks for itself. Is used to prove negligence without requiring any further proof.
How to minimize Hazards in a design?
- Follow standards
- Follow Laws
- Follow sound engineering practice
- Seek alternative designs
- Foresee potential misuse
What are the rights employees have?
- Right to know the hazards
- Right to refuse unsafe work
- Right to participate in workplace safety
What is whistle blowing?
Employee reports inappropriate activities to appropriate authorities. Can exist as internal (upper management), external (public), or anonymous.
What law is being broken when a person illegally uses a software?
- Copyright legislation
- Unprofessional conduct
What types of questions are interviewers not permitted to ask?
Race, colour, sex, religion, national origin, birthplace, age, disability, marital/family status, sexual orientation
What is Utilitarianism?
The correct ethical decision to make is the one that produces the maximum benefit for the greatest number of people. Authored by John Stuart Mill.
What is Duty Ethics?
Every individual has a duty to act in a correct ethical manner (be honest, don't cause suffering, be fair). Authored by Immanuel Kant. Ask yourself "what kind of world would this be if everyone acted this way?"
What is Rights Ethics?
Every individual has rights, simply by virtue of his or her existence, and these rights must be respected. Authored by John Locke.
What is Virtue Ethics?
Do unto others as you would have them do unto you. Authored by Aristotle. Employee the golden mean. Ask yourself, "how would you feel if your action were exposed in the media?"
What is Justice and what are the four principles of justice?
- Conduct/action is both fair and right given the circumstances.
- 1. procedural justice - fairness in decision making
- 2. corrective justice - fairness in rectifying wrongs
- 3. distributive justice - fairness in social benefits
- 4. political justice - fairness in political rights
What is the purpose of the Code of Ethics?
- designates the standard of conduct expected by members
- distinguishes appropriate conduct
- provides a basis on which allegations of unprofessional conduct are adjudicated
What is ISO 9001?
quality management system
What is ISO 14001?
Environmental Management System
what is CSR and what are the principles?
- Corporate Social Responsibility
- 1. Accountability
- 2. Transparency
- 3. Ethical Behaviour
- 4. Respect for stakeholder interests
- 5. Respect for the law
- 6. Respect for international norms
- 7. Respect for human rights
- 8. Respect for the environment
What is a federation?
Federation is an association of only partially autonomous bodies that share a centralized system of government. Canada is a federation.
In Canada who is our head of state and our head of government?
- Head of state is the Governor General
- Head of government is the Prime Minister
What is the house of commons and the senate?
Both chambers debate and make federal laws.
- 1. House of commons
- - members are elected to represent the interests of the constituents in their riding
- 2. Senate
- - members are appointed by the governor general
How are provincial laws formed?
Debated and passed by the legislative assembly.
What is the Canadian Constitution?
Supreme law in Canada. Consists of many acts and laws including the charter of rights and freedoms. It creates the courts, protects civil liberties, and assigns which areas of government fall under federal/provincial jurisdiction.
List some areas of Federal jurisdiction
- Postal service
- National defence
- aboriginal policies
- criminal law
List some areas of Provincial jurisdiction
- family law
- property and civil rights
- business licenses
- regulation of engineering
How to create a Federal law?
A bill requires the approval of each of the house of commons, the senate, and the governor general (royal assent).
How to create a provincial law?
A bill must be passed by the legislative assembly, and then be approved by the lieutenant governor.
How to change the Canadian Constitution?
Requires approval of the house of commons, the senate, and 2/3 majority of the provincial legislative assemblies representing at least 50% of the population of Canada.
Compare/contrast public vs private law?
- Public Law
- -state/government is involved
- -criminal law, constitutional law
- Private Law
- - designed to resolve conflicts between citizens, without involvement of the government
- - employment law, wills, contracts, family law
Compare and contrast civil and common law?
Civil law - governed by laws which have been transcribed into a code
Common law - governed by a body of precedents (judge made law). Used exclusively by all provinces except Quebec.
What are the levels of provincial court?
- 1. Lower trial court (provincial court)
- 2. Superior trial level court (supreme court of BC)
- 3. court of appeal - highest provincial court
What is the Supreme Court of Canada?
- Hears cases of national importance from all provinces in any area of law
- panel of 5,7, or 9 judges
What are the levels of Federal court?
- 1. Federal court of appeal - hears appeals made from the federal court
- 2. Federal court - only hears specific cases that deal with certain federal stututes
Compare and contrast Trial vs Appellate courts?
- Trial Courts
- -Courts of first instance
- questions of fact and law are debated
- Appellate courts (Appeal court)
- - Questions of law are debated
- - does not hear new evidence in a case
What is the definition of Litigation?
The process of bringing or defending a lawsuit in court
Compare and contrast real vs personal property?
- Real Property
- - rights in relation to land or something attached to the land
- - transferred by government to private owners
- - depreciates slowly
- Personal property
- - Tangible (moveable property) and intangible (intellectual property)
- - depreciates quickely
What is Fee Simple?
- greatest right an individual can have in real property.
- right in law to use of land, includes the right to sell, lease, occupy, and mortgage
Compare and contrast rights that run with the land vs do not run with the land
- run with the land
- - subsequent owners are bound by those rights
- - easements, lease, lien
- do not run with the land
- - subsequent owners are not bound by those rights
- - license to use land in some way
What are the advantages/disadvantages of a sole proprietorship?
- - Relatively low start up costs
- - Greatest freedom from regulation
- - owner has direct control of decision making
- - unlimited liability
- - difficulty raising capital
What are the advantages/disadvantages of a partnership?
- - ease of formation
- - relatively low start up cost
- - additional sources of investment capital
- - tax advantages
- - unlimited liability
- - divided authority
- - difficult finding suitable partners
- - possible conflict between partners
what are the advantages/disadvantages of a corporation?
- - limited liability
- - ownership is transferable
- - separate legal entity
- - tax advantages
- - easier to raise capital
- - closely regulated
- - expensive to form
- - extensive record keeping necessary
what is Intellectual property?
is a legal right that prevents others from exploiting the value in your solutions and enables you to fully exploit the value of your solution.
what are the 5 types of IP?
- 1. patents - national monopoly to make, use, and sell an invention
- 2. trade secretes
- 3. industrial design
- 4. trademarks
- 5. copyright
How long do patent rights last?
patents expire 20 years from date of filing and maintenance fees must be paid.
What are the three key patent concepts required
- 1. must be new
- 2. must be inventive
- 3. must be useful
What is a contract?
- enforceable and voluntary agreement
- typically written but can be expressed or implied
What are the 6 elements of a contract?
- 1. offer - contain all essential terms(price, description of product)
- 2. acceptance - unequivocal agreement
- 3. consideration - money, objects, services, promised actions
- 4. capacity to contract
- 5. intention to create legal obligations
- 6. lawful purpose
T/F: an agreement to agree is enforceable?
What are the ways of voiding a contract?
- 1. mistake
- 2. misrepresentation - untrue factual statements
- 3. duress - forced under fear
- 4. unconscionability - contract is one sided
- 5. undue influence - abuses of relationships of trust
- 6. Frustration - unforeseen event makes performance of contract impossible
What is Estoppel and what four things must exist for it to suceed?
Estoppel is a shield, prevents parties from reneging on its promise even though a formal contract was not created. Parties arguing estoppel must have relied on the promise.
- 1.needs to be a promise
- 2. must have intention to create legal obligations
- 3. had to be reasonable reliance on promise
- 4. no other reason not to enforce change
What three things must have happened for a contract to be voided due to a mistake?
- 1. the mistake must be material
- 2. the mistake must be mutual
- 3. the mistake must have been made at the time the agreement was made
What is a Breach of Contract?
- Occurs when one of the parties fails to meet its obligations under the contract.
- Damages are the most common remedy
- Inadvertence - unintentional failure to carry out obligation
- Disagreement - disagree over the interpretation of the contract
What governs the recovery of damages?
- 1. mitigation - innocent party must take reasonable steps to minimize the loss
- 2. causation - innocent party can only recover losses that were caused by the breach
- 3. remoteness - only damages that are within reasonable proximity to the breach
What is Contra proferentem?
construe ambiguous provisions of a contract against the party who drafted the contract
What is an agent and what are the three types?
An agent is a person authorized to act on behalf of the client, therefore the client is bound by the actions of the agent. As well as agents are not liable for the obligations which they commit the client to.
- 1. Universal agent (lawyer)
- 2. General agent (conduct transactions over a period of time)
- 3. Special agent (conduct a specific transaction)
What is a labour and material payment bond?
bond taken out by the general contractor to the owner to ensure that at the end of the project everyone is paid (employees, subcontractors, creditors, suppliers)
what does CCDC stand for?
Canadian construction Document Committee
when talking about contracts what are the three P's?
- Parties - who is the contract with
- Project - what are the you contracting for
- Price - how much are you getting paid
What are the four common construction contracts?
- 1. Fixed price contract (CCDC 2) - contractor carries most of the monetary risk
- 2. Cost plus contract (CCDC 3) - owner carries most of the monetary risk
- 3. Unit price contract (CCDC 4)
- 4. Public-private partnership
What does a force majeure mean?
frees both parties from liability when an extraordinary even occurs such as war, fire, flood, strike, riot.
When must you file a builders lien?
- must be filed within 45 days of:
- -certificate of completion
- -head contractor being completed
- -project being abondoned
What does a Lien do?
- ensures the contractor get paid by:
- -preventing the owner from obtaining additional financing
- - prevents the owner from selling the property without paying you
When is the balance of probabilities used?
used to determine the cause of a negligent act
what is required for a fraudulent misrepresentation
- 1. statement is untrue in fact
- 2. defendant knows it to be untrue
- 3. statement was intended to induce the plaintiff to act upon it
- 4. statement which the plaintiff acts upon and suffers damage
What is a duty to warn?
professionals owe a duty to warn of impending damage to people or property even if the danger is not within the scope of the professional's contract
in product liability who is responsible for the burden of proof?
after the plaintiff proves the product is defective, the burden of proof is on the defendant to prove that its conduct did not fall below the standard of care.
What are the common delivery methods?
- construction management
what is the tendering process?
- 1. prepare the bid documents
- 2. submission of bids
- 3. examination of bids
- 4. contract award
what is bid shopping?
using the price from one bid to negotiate a better price from another bid. It is not illegal.
explain what a contract A and contract B is?
- Contract A - contract relating to the tender arrangements, occurs when a bid is submitted.
- Contract B - actual work contract for project
compare/contrast labour vs employment law
labour law - the law that governs union management relations and employee union relations
employment law - law that governs employee-employer relationships where there is no union
what are the implied terms of a contract of employment?
1. Employees duty to mitigate losses - employee is terminated improperly, and must look for suitable alternate employment. The time it takes to find a suitable job can cap the time the employer pays severance.
2. obligation of fidelity for employee to employer - as agents of the employer, must keep things confidential.
3. employees duty of competence - expectation that employee is competent in the area which they were hired
4. employers duty to give adequate notice of termination
what is a restrictive covenant?
forbids employees from working for a competitor, usually for a specified period after termination. rarely enforceable.
what is constructive dismissal?
employer changes the employment contract to the the detriment of the employee, and the employee refuses to accept the changes, and is then terminated.
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