Law and Ethics: Post Midterm
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What is the Canadian Constitution?
Source of all legal authority in Canada. Made up of several statutes and laws.
- Has three features:
- 1. division of power (assign jurisdiction)
- 2. creates courts
- 3. Canadian charter of rights and freedoms
What falls under Federal Jurisdiction?
- National defence
- Postal service
- criminal law
- patent law
What falls under the provincial jurisdiction?
- property rights
- negligence law
- construction liens
- laws affecting engineering
- labour law
What are the provincial level courts?
- 1. Provincial court (small claims court)
- 2.Trial-level court (supreme court of BC)
- 3. Court of appeal (BC court of Appeal)
What are the Federal level courts?
- 1. Federal Court
- 2. Federal Court of Appeal
What is the Supreme Court of Canada?
- ultimate level of appeal
- rule on issues of national importance
Compare and contrast Statute Law vs Common Law?
- Statute Law
- -based on statutes
- -law is written into code
- Common Law
- -based on precedent created by previous rulings
- -law is not transcribed into code
How can parties minimize risk in a construction project?
- 1. design of the contract and disclaimers
- 2. insurance
- 3. bonds to protect parties
What is a contract?
a voluntary agreement between two or more parties that set out the rights, responsibilities, and liabilities of each party.
What is a Tort?
- acts committed by one party in violation of the rights of another, which are considered sufficiently wrong as to give rise to liability.
- No contractual relationship has to exist between the plaintiff and defendant.
What are some examples of intentional torts?
- fraudulent misrepresentation
Compare and contrast contract vs tort law
A contracts is a voluntary enforceable agreement between two or more parties. Can be written and/or oral and consist of expressed and implied terms. A tort obligations are involuntary.
What are the principle functions of APEG?
- 1. register members
- 2. regulate the practice of its members
- 3. discipline members
- 4. enforce the legislation against nonmenbers
What is a conflict of Interest?
a situation in which the professional has conflicting obligations to the public, client, employer, profession, or himself.
Compare and contrast real vs personal property?
- Real property
- -refers to land and anything attached to land.
- ie: land, buildings, fixtures
- Personal property
- -Tangible/chattels (physical)
- -intangible (intellectual property)
- ie: vehicles, stuff, ideas
What is expropriation?
the government holds the right to take the land, but must subsequently pay fair compensation.
What is Fee simple right?
greatest possible right to real property. Owner has the right to selling, leasing, occupying, or mortgaging.
Compare and contrast joint tenants vs tenancy in common?
Joint tenants mean that each owner has the right to the land concurrently. If one dies the other inherited their portion.
Tenancy in common means that each owner has a set portion of the land and when one dies it is passed to the deceased heir.
Compare and contrast rights that run with the land vs rights that do not run with the land?
- Rights that run with the land
- -rights that continue to affect the land despite a sale of the property to a new owner.
- -lease, easement, restrictive covenant, lien
- Rights that do not run with the land
- -contracts between two parties and are only valid as between the parties to the contract and not binding on future owners.
What are the forms of protecting intellectual property?
- 1. Copyright - protects words and data
- 2. patent - protects inventions
- 3. trademark - protects marks used to distinguish goods or services
- 4. industrial design - protects shape, configuration, and general look of mass-produced items
- 5. Trade secrets
What are the typical business organizations?
- 1. Sole proprietorship
- 2. Partnership
- 3. limited partnership
- 4. corporation
What is a sole proprietorship?
individual carrying on business under a company name. No difference between an individual and a sole proprietorship.
- -easy to start up
- - complete control over the company
- -may be tax benefits
- -difficult to raise capital
- -total liability
What is a partnership?
partnerships are an agreement between two or partners. Each partner has authority to enter into contracts and carry on business in the name of the partnership. Each partner has joint liability.
- -easy to start up
- -tax benefits
- -share in the expenses and profits
- -low start up costs
- - each partner is liable for the entire company
- -difficult to find good partners
What is fiduciary duty?
each partner in a partnership owes a duty to the other. For example, forbids partners from operating separate competing businesses. Must always act in the best interest of the partnership. Partnership agreements cannot negate or alter fiduciary duties.
What is a limited partnership?
at least one partner has unlimited liability while some of the partners can be limited. Limited partners cannot actively participate in the business.
What is a corporation?
a legal entity that permits large numbers of individuals to invest in a common business venture while limiting the liability of the business. Created based on the Canada business corporations act and must be registered in every province that it operates in.
- -tax benefits
- -limited liability for all partners
- -availability of capital
- -ownership is transferable
- -requires separate tax records
- -expensive to start up
- -closely regulated
What is the purpose of a contract?
Contracts are used to set out the rights, responsibilities, and liabilities of the parties involved.
What must a contract have to be enforceable?
- 1. offer - proposal containing the essential terms
- 2. acceptance - unequivocal agreement to an offer.
- 3. consideration - client promises to pay the consultant, consultant promises to perform the work.
- 4. legal capacity to contract
- 5. intention to create legal obligations
- 6. lawful purpose
What can make a contract voidable?
- 1. duress - improper pressure, threats, or coercion
- 2. frustration - unforeseen events make the performance of the contract impossible.
- 3. impossibility
- 4. mistakes - material, mutual, made at the time of the agreement.
- 5. misrepresentation - untrue statement that induced a party to enter into the contract (innocent, negligent, and fraudulent).
- 6. unconscionably - unfair, oppressive, one sided
What is a fraudulent misrepresentation?
When a party makes a statement that they know to be false, and a party enters into the contract relying on that statement.
What is a force majeure clause?
provides relief due to events that parties agree are beyond their control. such as acts of god, labour disputes, fires, casualties.
What is an amendment?
a change or alteration to a contract. is in some ways a mini-contract and must contain the same requirements as a contract.
What is estoppel?
other party in the contract starts relying on the representation or action of the first party, rather than on the contract.
for example, paying rent late.
What is a breach of contract, and what are the four main causes?
when one party does not complete its obligations in a contract.
- inability - one party is unable to complete its obligations for reasons such as lack of financial resources.
- inadvertence - unintentional failed to carry out one of its obligations.
- disagreement - interpret the contract differently.
- lack of profit - more costly to perform than to face legal consequences.
what limits the recovery of damages due to breach of contract?
- 1. mitigation - party who suffers the loss must take steps to limit that loss
- 2. not speculative - must prove that the loss could in fact occur
- 3. remoteness - the loss must be reasonably foreseeable at the time the contract was formed.
Compare and contrast consequential vs liquidated damages?
Consequential damages - indirect losses. for example, a component costs $5 but if it fails it could cost the owner millions is lost revenues.
Liquidated damages - genuine estimates of loss written into the original contract. parties agree to specific damages for each type of breach
What is a penalty in a contract?
sum of money as punishment for breach of the contract. not based on the damages caused by the breach and is rarely enforceable.
What is a bonus clause?
entitles one party to additional payment if its performance exceeds what has been promised.
Compare and contrast fundamental vs simple breach?
fundamental breach deprives the innocent party of all of the benefit of the contract. has two options: continue work and sue for damages, terminate and sue for damages.
Simple breach only permits the innocent party to sue for damages, not end the contract.
What are the canons of contract construction?
principles employed by the courts to assist in determining the objective intention of the parties.
- 1. plain and ordinary meaning - words assigned their plain and ordinary meaning
- 2. special meaning - special meanings take the place of ordinary meanings
- 3. reading the contract as a whole - each clause should be considered in context as a whole
- 4. giving effect to all parts of a contract - no part of the contract should be treated as meaningless.
- 5. restriction by express provisions - greater importance to special conditions over standard conditions.
- 6. commercial purpose - interpreted in the most commonly accepted business principles
- 7. context - determine the meaning of words by their context.
- 8. Contra preferentem - when ambiguous, the court chooses the interpretation that favours the party that did not write the contract.
What is an agent and what are the three types of agents?
An agent is a person authorized to act on behalf of another party known as the principal. Agent must act in the best interest of the principal.
Compare and contrast pay-if-paid vs pay-when-paid clauses?
- -shift risk of non-payment by the owner from the GC to the subcontractor. payment is contingent on the GC being paid by the owner.
- - subcontractors will be paid by the GC regardless if the GC gets paid, just a question of when.
What is a labour and materials payment bond?
bond required by the prime contractor to cover the costs of paying subcontractors and suppliers. Typically equal to 50% of the contract price.
what are the common project delivery methods?
- construction management
compare and contrast contract A and B?
- contract A
- - created upon submission of a bid.
- -can be many of these for one project.
- Contract B
- - construction contract created upon acceptance of the bid.
- -can only be one between the owner and the successful bidder.
What are the steps to the bidding process?
- 1.preparation of the bid documents - include drawings, specifications, conditions, instruction and invitation.
- 2.submission of bids
- 3.recipient and examination of bids
- 4.contract award
Explain the Design-Bid-Build structure?
buyer and consultant design the project and hire a general contractor to build it.
- -well known
- -allows the buy to shift risks
- -separates the designer form the builder
- -requires choice of lowest bidder
- -forces bidder to accept risks
- -reduces innovation
- -time consuming
Explain the Design-build structure?
buyer conceptualizes the project and then engages one party to design and build it.
- -buyer has one stop shopping
- -integrates design and construction
- -fosters cooperation
- -possible conflict of interest
- -buyer has less control
explain the construction management structure?
owner contracts directly with the trades instead of hiring a general contractor. owner also hires a construction manager to manage trades.
- -removes the middle man
- -buyer has a closer relationship with trades
- -requires heavy involvement by the buyer
What are the typical construction contracts?
- Fixed price contracts (CCDC 2)
- cost plus contracts (CCDC 3)
- Unit price contracts (CCDC 4)
- Construction management contracts (CCA 5)
What is a public private partnership?
partnership between the public and private sectors where there is a sharing of risks, responsibilities, and reward, and where there is a net benefit to the public.
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