engineering law in ontario

8/14/2019 Engineering law in Ontario

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GNG 4170 – Lec 1

January 14, 2008

Two Main Sources of Law

1 Legislation

Legislation is rules set down by the government (Acts, codes). At a Provincial level, newlegislation or an amended legislation is created.

Division of powers: who writes the laws and what the laws are about? (Engineering isprovincial legislation, Criminal code is ederal legislation)

2 Common Law

Common law is Judge made law: past decisions are important to current cases. !Theory ofPrecedence"#he strongest decisions are made by the $upreme Court o Canada.

Criminal Case: %. &.s. '''''''

(ing or ueen)

#he state is initiating the action and bringingproceedings against the party. $entence isimposed on the party (when guilty), nothing on

the victim.

2.1 Civil Law &ictim &.s. ''''''' #he victim in bringing private legal action against the wrong"doer. * the wrong"doer is liable, thevictim gets the money.

2.1.1 Contract Law

#he person has breached the contract ! which is a private law between two people, they createthe obligations themselves.

2.1.2 Tort Law

A set o standards o behavior imposed on all o us. Committing a tort is doing somethingagainst one o these standards.

Tort Law

Intentional Unintentional (+egligence)



Intentional

Defamation: %eputation o the victim is damaged by the untrue public statements made by thetorteasor. #here are two -inds: "$lander (verbal)

"Libel (written)

Negligence

When we get a negligence hypothetical:

icarious Lia!ility: Employer is liable or the employees torts (based on the /deep poc-etstheory0).

#wo reasons or vicarious liability:. 1ost o the time, the employee would not have the money to compensate the

victim.2. %ecogni3es that the employees do ma-e money or the company, but the

company also has to ta-e responsibility.

In"ury # 4ad things that can happen to you (in5ury to car, house, body)Damages # Amount o money given to compensate you or in5uries.

Test for $egligence% ! 6eendant & ! 7lainti

& must prove 8 things on a /balance o probabilities0 showing that the 8 things are moreli-ely than not (is a lower standard o proo than /prove beyond a reasonable doubt0)As-ing i:

. '(ach) % owed the & a *Duty of Care+, '-es.$o /uestion)*s it reasonably oreseeable that the plaintiff could be in5ured as a result o thedefendant0s wor-?

12 '(ach) % !reached that *D3C+ ,Either it was breached or not. 9irst thing that needs to be established is a $#A+6A%6

9 CA%E;hat would a reasonable engineering irm have to do (E<. ma-ing sure

designs are up"to"date)*n a hypothetical you must define the standard of care *dentiy all deendants andthose that have breached (or allen below the standard o care).

8. &4s in"uries are a direct result of the !reach'es) 'causal connection) ,$tate that it is clear that the plaintis in5uries are directly caused by the deendant=thereore, the deendant is liable in negligence to the plainti.. 7lainti is entitled to /reasonably oreseeable damages0 (but there is a limit to how

much compensation in damages) #hereore, add that the plainti is entitled toreasonably oreseeable damages which include >..

2. * deendants are e/ually at fault (or dierent degrees o ault) e<plain why and splitthe damages.

7g. 82 o te<tboo- Case 2 (+egligence)

2

. $tate that it is an unintentional tort (+egligence)2. 6escribe #ort Law ! provided that the ault is ound= the main goal is to compensate

the victim, +# punish the wrong"doer.8. *dentiy the parties:

Plaintiff # person who raises the complaint.Defendant # person who deends their action. ;hen we have 2 or more deendants

they are potentially concurrent tortfeasors. (*n this class Employer will be

deendant when an employee has done something wrong$hould state that the



. #his is a case o @nintentional #ort (+egligence)= the main goal is to compensate thevictim and +# punish the wrong"doer, provided that ault is ound.

2. *dentiy parties:

• 7lainti: *L*

• 6eendants: C%@66* and 1E$$*

8. $tate the test or every +egligence case*L* must prove 8 things on a /balance o probabilities0

i2 Did each of C5UDDI and 6(77I owe a duty of care to 3ILI,C%@66* owes *L* a duty o care because it is reasonably oreseeable that *L*could be in5ured as a result o C%@66*s wor-. ($ame thing or 1E$$*)

ii. Did each of C5UDDI and 6(77I !reach their duty of care to 3ILI,;e must establish a standard o care:C%@66* ! A reasonable architect would hire an engineering irm that it believedcould carry out the design.1E$$* ! A reasonable engineering irm would have ensured the proper si3e unit

was used and that the vents were properly spaced apart.

6(77I fell !elow the standard of care2iii2 8re 3ILI0s in"uries a direct result of each of the !reaches,

*t appears that *L*s in5uries are directly caused by 1E$$*s breach o duty ocare to *L*. #hereore *L* is entitled to reasonably oreseeable damages whichinclude getting a larger unit and repairing damages.

92 6 ; 9<==>=== ? 9@==>===

GNG 4170 – Lec 2

8



January 21, 2008

Duty to Warn (Type of Negligence)

*t is a law that simply indicates that you have a responsibility to warn. 1a-e sure the consumeris aware o the warning on a product.

Disclaimer: #a-es away liability that would otherwise be there.

Hedley Byrne Case (Advertising Agency) Disclaimer example

• 4 as-ed their 4an- i Customer (C) is credit worthy or not.

• 4s 4an- as-ed Cs ban- i C is credit worthy.

• Cs ban- sent bac- a letter stating:

. C is credit worthy.

2. Bou cannot rely on this inormation (6isclaimer).

• 4s ban- sends 4 the letter they received rom Cs ban-.

• 4 did the wor- but didnt receive a chec- rom C.• 4 iled or negligence against Cs ban-: saying that Cs ban- owed valid inormation.

• #he ma5ority o the court decided that Cs ban- did owe a duty o care to the group o

4s ban-.

Ultimately> the plaintiff is relying on the engineer0s specialiAed sBill> Bnowledge and

eperience2 'edley Eyrne)

• 8t the end of the day> the court found that C0s EanB was not lia!le !ecause of the

disclaimer2

Questions with Disclaimers

Thin Skull (or Eggshell) Plaintiff

#a-e the plainti as you ind him or her. * in5ury aects the plainti more than it simply would as

deined. (E<. and in5ury to a proessional pianist) #he deendant will have to pay the plaintimore.The type of in"ury is reasona!ly foreseea!le !ut the type of plaintiff is not2

Contributory Negligence

;hen the plainti is ound by the court to have contributed to hisher in5uries.#here are two aspects to it:

D

. Loo- at both possibilities: with and without disclaimer.2. *dentiy the tort (+egligence), the plainti, and the deendant(s).

8. *dentiy the ualiying statement as the disclaimer.

D. #hen push it aside and imagine the report did not have a disclaimer. (Continue

with the negligence test>standard o care>breach>etc)

F. Conclude that i the report did not contain the disclaimer that the deendant would

be ound liable, (conclusion o negligence test).

G. EUT the report does contain a disclaimer, so the deendant is liable to the plainti

because they were warned ahead o time that they were not entitled to rely on the



. +ot ta-ing enough care to prevent in5ury.2. Ater in5ury you dont ta-e steps to improve in5ury (that a reasonable person

would ta-e).

Strict Liability

. #he court does not as- i a duty o care was owed or i it was breached.2. *t is e<clusively about whether in5uries are a direct result o actions.8. *t is simply a causality uestion.

E<. * you -eep something dangerous on your property and it escapes and harms others: $trict

Liability applies you are on the hoo-, you are strictly liable.

&icarious Liability and 6isclaimer ypothetical

. *dentiy: @nintentional #ort (+egligence) Compensate victim and +# punish wrong"doer.

2. E.*nc. ! 6eendant (&icarious Liability)Acuisitions ! 7lainti

8. If there was no disclaimer: E.*nc. owes Acuisitions a duty o care because in5uriescould>. A+6 ultimately, Acuisitions is relying on the engineers speciali3ed s-ill,-nowledge and e<perience.

D. 7tandard of care: E.*nc. should have spent more time ma-ing sure> E.*nc. ell belowthe standard o care, thereore E.*nc. breached the duty o care.

F. If there was no disclaimer: E.*nc. is liable and Acuisitions is entitled to reasonablyoreseeable damages that include: >G. EUT the report does contain a third"party disclaimer so E.*nc I7 $3T LI8EL(2H. 4riely e<plain a disclaimer: *t warned Acuisitions in advance that it could not rely on the

report.

GNG 4170 – Lec 3

F



January 28, 2008

Looking back at Contract LawD. #he court enorces the contract when aced with a contract dispute.

F. Euitable 7rinciple (i applicable) will rule over the common law issue.

Privity of a ContractA Contract is a private legal relationship= only parties under the contract can be sewed or cansew.

Pre;contract 7tage

A breach o the Contract results rom breaching one or more o the terms.

Misrepresentation (Will only need to know definitions for EXAM)

To maBe an argument we must show:. *t was a signiicant part o the decision you made (untrue statement o act that made

you enter into the contract)

2. +eed to identiy the type o misrepresentation:Innocent # #he person genuinely believed what they said was true.Fraudulent # ;hen the person -new they were lying or they were not certain othe truth.

Innocent

nly possible remedy is 5(CI77I3$ '(/uita!le remedy) the *turning !acB time+ remedy which puts parties in a position as i they had never entered into a contract (+LB *97$$*4LE).

PIGG- E8CH 5emedy # (%elated to %EC*$$*+) is essentially compensation inancialad5ustment between parties (you do not get completely all money bac-: e<. A car).

Fraudulent

5(CI77I3$ remedy or 7ew or damages or the intentional tort o deceit.

Elements of Enforceable Contract (Will only need to know list and explanations for

EXAM)

. Intention to create a legal relationship ! needs to have legal relationship in mind.

G



2. 3ffer and acceptance ! Contracts are based on /bargaining0, at some point an oerhas to be made (verbal or on paper) and then it has to be accepted.

8. (change of something 'of consideration) ! technically the court does not loo- at thevalue o consideration (could be e<changing gum or a motorcycle, doesnt matter).

D. Parties are adults 'of legal age)F. $ature of contract must !e legal # @nli-e hiring someone to -ill, but he doesnt do it.

Contract does not have to !e in writing to !e enforcea!le can !e ver!al2

Equitable Defenses to Capacity Are of Age of Majority

1- Duress

Actual or threatened violence to you or someone close to you (entering in contract against will).

2- Economic Duress

Economic violence, inappropriate economic pressure is brought (orced to enter contract).

3- Undue Influence

*mproper inluence= certain types o relationships where there is a dominating party.

Gratuitous Promise and Promissory Estoppel

A gratuitous promise is normally unenforcea!le no consideration was given in e<change

2 e<ceptions:

" A promise made under seal (the seal is suiciently signiicant)

2" Promissory (stoppel ! someone is legally prevented rom doing something. ;ill be

a contract based on a deadline.

* promissory estoppel applies, the other party will be stopped rom using the contract as an

e<planation or action.

3-part Test for Promissory Estoppel

7hould refer to the eamples in hypotheticals

Case: Iohn 4urrows 6ecision$peciic acts or this case that are to apply (or that are relevant):

H

. #here must be a pre"e<isting legal relationship.2. #he person was promised or reasonably led to believe that the strict terms o the

contract would not be enorced.

8. #he person has to show that they relied on the promise it aected them in some

way.Therefore it would !e unfair for the other party to rely on the contract the party



8cceleration Clause # Anytime a person deaults the terms, they have to pay all owed amount(could be debt)

Iohn 4urrows lawyers used euitable estoppel on the plainti to prevent them rom using theacceleration clause.

Indulgence # $itting bac- passively and not complaining when debtor was late (Iohn 4urrows).

Cannot be used successully to ma-e an argument o euitable estoppels because:. Iohn 4urrows was not promised anything2. Iohn 4urrows was not lead to believe that the strict terms were not to be enorced.

ypothetical 8 ! Jratuitous 7romise and Euitable Estoppel"1ining Contractor"Land wner

#he uestion raises the issue o gratuitous promise and euitable estoppels (need to e<plain

each).

Jratuitous promise the land owner said there will be an e<tension.

Euitable Estoppel the mining contractor has to show 8 things:

A pre"e<isting legal relationship (including the option)

#hey were promised or reasonably lead to believe that the strict terms were not to beenorced. #EB J# A+ EK#E+$*+

#hey relied on the promise *t aected their behavior= would have hired e<tra sta.

It would !e unfair for the owner to rely on the strict terms therefore> the owner isprevented 'stopped) from denying the eercise of the option2 This is similar to Conwest(ploration2

GNG 4170 – Lec 4

February 4, 2008

Interpreting a Contract%ules o interpreting (Contract Law) 2 rules:

. 5ule of contra proferentum ! to choseselect against



G. #he court will rule against the party that wrote (or verbal) the contract, whenambiguity arises in the wording o the contract.

H. #he party who wrote the contract had the opportunity to be clearer.2. Porol 'means Kto the side0) (vidence 5ule # prevents introducing any evidence that

would suggest the obligations under the contract are dierent rom what is indicated inthe written contract.

. *t only comes into play i the parties have reduced their contract to writingM. #he best evidence is the written contract '$o ver!al agreement) therwise we are

lost in he saidshe said.

Eoilerplate Contracts # Advice: ;rite in the e<tra agreement as a term in the contract andboth should initial and then sign the contract.

Essential Difference between Porol Evidence and Equitable Estoppel

T(- $((5 3(5L8P I$ TI6(Porol (vidence 5ule: deals with evidence 4E9%E the contract(/uita!le (stoppel: concerned with statements made A9#E% the contract has been entered

into.

Mistaken Tendering

$omeone wants a 5ob to be done, tenders are submitted and there is a mista-e in the tender othe person that was selected.

%+ Engineering did not overrule 4elle %iver: +obody can argue that the law changed, in 4%

we had an Nbvious mista-e, in %+ Engineering, and we had an N@nobvious mista-e. 3$L- an KUno!vious0 mistaBes will !e on the (86

Approaching a ‘Mistake in Tendering’ Hypothetical

M

. *dentiy the problem (1ista-e in #endering 7rocess)

2. 4riely tal- about 4% because it introduces the idea o obvious mista-e and how theysaw only +E contract was ormed. (ow the law was loo-ed at', no liability on the

tenders behal.#hen briely tal- about %+ Engineering and that +; 2 contracts

are seen. +ew contract is about the #endering$electing process itsel (as soon as a

tender is submitted, a contract is entered into). *n the case o %+ E. there was an

Nunobvious mista-e= thereore, the rules o contract A applied wner got to -eep

the tender deposit since the bidder did not sign into the construction contract.

8. 7oint out what signiicant terms are in contract A in the given hypothetical.

D. #hen characteri3e the mista-e as obvious or unobvious.;ill always get an

unobvious mista-e, thereore we go by contract 82



Case: +orthern Construction*n the rules or #enders, it said that the owner had a choice o remedy (in contract A):

• #o -eep the deposit %

• $ew or the dierence between the bid and the ne<t lowest bid.#he only dierence between %+ and +C is that 53$ had only one remedy: they -eep the

deposit.

E<ample

#he moment KBO submitted the bid, they entered into contract A.

#he only thing to ta-e into account now is i the mista-e is obvious and unobvious. It is

uno!vious since the owner could not have igured out the mista-e on his own.

#hen go through the $#E7$ to approach the hypothetical. Loo-ing at our case: unobvious

mista-e, thereore we apply contract A= the owner is entitled to the tendering deposit.

GNG 4170 – Lec 5

February 11, 2008

P



Ways in Which a Contract Can Come to an End (4 Ways)

1- Performance

7arties perormed their obligations under the contract

2- Agreement between the Partiesa. 7arties can be in a contract or a certain amount o time and they both agree to end it

sooner.

b. Condition subseuent (term o contract): the contract itsel provides a term that deines a set

o circumstances where the contract can be brought to an end.

3- Frustration of a Contract

;hen the contract can no longer be perormed as originally thought, and an event that occurred

was not reasonably oreseen by either party, the law says the contract has been frustrated=

parties are not obligated to ollow the contract terms.

*n ntario there is the Frustrated Contract 8ct: provides guidance as to what is the legal

answer to some wor- done under a rustrated contract.

4- Operation of Law (Example: Bankruptcy)

7ecured Creditor: 6ebt that is owing is tied to a speciic asset. #he creditor can go ater the

assets right away.

Breach of Contract6a"or Ereach: 9undamental breach o contract.

(emption Clause: #erm o contract that limits liability in some way. Could be a cap (E<. ;e

will not pay more than 1 or the breach) andor types o damages (E<. nly responsible or

certain types o damages).

6ierence:" Disclaimer: means $3T 3$ 33H 8T 8LL (#ort or +egligence Law)" (emption: means IF 3$ 33H, remedies are limited (Contract Law)

Case 1: Harbutt’s Plasticine

#he court developed the *Fundamental Ereach Doctrine+: * a breach was undamental, the

breaching party is not allowed to rely on the e<emption clause (was ollowed in Canada or a

while).

Case 2: Photo Production

verruled the 6octrine in England and then relected in a case in Canada.

Case 3: Hunter V. Syncrude

#here are M 5ustices in the $upreme Court. M"P is the strongest decision.



*n this case: it was F"D. #he ma5ority o the court said that we dont need the doctrine. * the

e<emption clause is clearly worded and relevant to the dispute between the parties, then the

e<emption clause stands and operates.

Approaching a Breach of Contract with an Exemption Clause

Remedies for Breach of Contract

Damages for the Breach of Contract (Classic)

(Amount o money to compensate or the breach) ;hat is the distinction between direct and

indirect (conseuential) damages? ;hat is reasonably oreseeable? As- yoursel: ;hat am *

speciically promised under the contract?

• Direct damages: speciically promised under the contract.• Conse/uential damages: reasonably oreseeable but not speciically promised under

the contract.

Liquidated Damages

#he contract itsel provides or the damages in the event o certain types o breaches.

$#E7$ 4asic evidence o what contract says and that it is legally binding.

Penalty Clause

;hen damages noted in a contract are all out o proportion to what is reasonably oreseeable=courts will not enorce them.

Obligation in Contract Law

Mitigation

;hen a party breaches a contract, the innocent party has the obligation to mitigate or lessen its

damages. E<ample: Bou were ired= you have an obligation to ind another 5ob (you need to ta-e

reasonable steps to mitigate).

2

. *dentiy that we are dealing with a breach o contract and e<emption clause.

2. Can you characteri3e the breach as undamental? E<plain what a undamental

breach is.

8. E<plain generally what an e<emption clause is.

D. *dentiy what -ind (cap or damages or both).

F. 6escribe history: Case "8

G. #hen apply Law to the problem (E<emption clause clearly worded? And relevant to



Equitable Remedies to a Breach of Contract

• 7pecific Performance: #a-es the orm you must do . Courts will rarely grant

order. E<ample: $ellingbuying land (considered Nuniue historically)rder or speciic

perormance.

• In"unction: #a-es the orm you must +# do . Easily given orders.

• Muantum 6eruit 'own special remedy): Latin phrase or /amount deserved0. ;hen

you reuest goods or services and they are provided, i there is no agreement about

prices, the law implies a promise to pay /uantum meruit0 what is normally charged

or the goods and services.

ypothetical F" Liuidated damages" 1a< o QF 1 or damages (limiting liability)

7teps

. 9undamental breach breach that goes to the root o the contract

2. ;e CA+ characteri3e the breach as a undamental one because what was provided wasor less than what was promised (only 2FR).

8. E<emption Clause E<plain is cap or limited damages. *n this case: it is acom!ination2 Liuidated damages only and the ma< claim is QF 1.

D. istory: Courts have struggled with these cases. Case : . 7lasticine in England where6octrine was ollowed and Canada ollowed it or a while. #hen it was overruled inEngland by Case 1: 7hoto 7roduction, which was then relected in Canada in Case N:unter 2 7yncrude2

$ow> the type of !reach does not matter 'fundamental or not)> eemption clausesmatter2

F. *s the e<emption clause clearly worded? -es2 *s it relevant? Part of it is> !ut part of itis not2 3$L- li/uidated damages up to a ma of 9O 62 *n this case, liuidateddamages only amounted to QD 1.

G. #hereore 7ulpCo only gets to claim QD 1.

GNG 4170 – Lec 6

February 25, 2008

8



Labour LawLaw related to unions (idea o collective agreement= a group o people who have set

agreements).

Employment LawEach individual has a contract with the employer. #he contract is speciic to each individual.

Dismissal

*t is for cause or without cause2

For Cause: not entitled to any notice (your job has ended)

. Incompetence ! do not have the s-ill set to do the wor- eectively.2. Ead faith ! e<tremely improper behavior.N2 Diso!edienceD. Prolonged illness ! rustration o contract.

Without Cause: you have the following rights (meant to represent amount of time to find

alternative employment)

. +otice2. 7ay in lieu o notice

D



Employment Standards Act (in Ontario)

$ets minimum standards, developed in Common Law *5easona!le $otice+ '5$)

Human Rights Code

#he idea is to prevent discrimination *+CL@6*+J the wor-place. #he government has

identiied 1 characteristics and i discrimination is based on one o them, a case can bebrought up under the human rights code.

F characteristics are:7e<7e<ual orientation6arital status8geCiti3enship

Restrictive Covenant (RC) a term in the contract

• A promise restricting you in some respect. 7erson who is selling promises that he wont

do (<y3).• 7rovides a period o time that you are out o the employers ield o wor- (ater

dismissal).

• Legal reaction to restrictive covenant area of law is restraint of trade2 Competition isencouraged but this limits competition and limits opportunities as an employee2

Starting Point

%estrictive covenants are presumed void (not to apply because they limit competition)

#he !urden is on the employer to 5ustiy the %C:. *t is reasonable in the circumstances2. 6oes not adversely aect public interest

5Cs have N parameters:" #ype o activity2" Jeographic scope8" #ime component

#he larger the volume, the more challenging or the employer to 5ustiy the %C. EUT D3 $3T6($TI3$ 3LU6( 3$ T( (862

ypothetical options for court when faced with 5Cs: 'In reality> only two: enforce orrefuse)

" Enorce it2" %euse to enorce it8" Could alter it

#he court wont iddle with the %C we need to thin- o the %C as one unit, 5udge as a whole2

F



#he employer is usually loo-ing to get an in"unction (states: you the employee shall not>.). *tis already in the contract, but now the state is bac-ing it up.

* the employer does not succeed> there are no restrictions on the employee at all.

*t is thereore in the Employers best interest to ma-e the %C as minimally restrictive butstill can protect his interest= will have a high chance o 5ustiying the %C.

Steps in Analyzing an RC Hypothetical

%C ypothetical

• Engineer wor-ing or a irm and in the contract there is a term that says 'if he leaves thecompany) he cannot practice engineering or hold shares in the city of Toronto2

•

Ater 8 years he decides to leave the company and sets up an engineering business in#oronto.

• #he Engineers ormer employer raises a case against him.

7teps:2 $tate that we are dealing with an %C and the area o law is Nrestrictive trade.

12 $tate that %Cs are presumed void because they go against the public interest by limitingcompetition. #hereore the owner must show that it is generally "ustified it isreasona!le in the circumstances> and it doesn0t adversely affect the pu!licinterest2

N2 %Cs have 8 aspects (parameters) list them

<2 At the end o the day, the court can only enorce or re5ect. #hereore the %C must be "udged as a whole2

O2 Jive your own reasoning behind it whether it is 5ustiied (the employer gets thein5unction) or not 5ustiied (no restrictions on the employee) under the circumstances.E<plain your reasoning:

G

. $tate that we are dealing with an %C term and area o Law is %estrictive #rade.

$tate that the %C they are promised is presumed void because> #hereore the

burden is on the employer to generally 5ustiy that it is speciically reasonable and

does not aect public interest. $pea- o the 8 parameters.

2. At the end o the day, the court can enorce or re5ect to enorce, they cannot modiy it=

thereore, it must be 5udged as a whole.

8. Lead into your own discussion and what you believe and e<plain why it is 5ustiied or

not under the circumstances.

D. Conclude that it is: ! "ustified (employer will get the in5unctionsame as the term but

has the power o the state now) % !re"ected (no restrictions at all on the employee)



*n this case, the space (city o #oronto) seems reasonable, but the type o activity(engineering in general is not speciic) and F years is a very long time in someonescareer. As a whole, or those reasons, it is not completely "ustified2

Q2 Conclusion

Civil Procedure

$teps involved in determining a legal issue very structured process leading to the decision.*n ntario now, there is a mandatory mediation.

ADR: Alternative Dispute Resolution (alternative to traditional court process)

#wo types:. 6ediation ! A neutral igure (mediator) who does not ma-e the decision, they use their

e<perience and training to acilitate communication between parties, 8 hour mandatory

mediation.8 options result rom mediation session:" +othing happens ater mediation2" Everything is resolved8" *ssues are ocused down (lessened)

2. 8r!itration ! A neutral arbiter ma-es a decision (li-e a private 5udge). #he arbiter canbe e<perienced and time can be saved by not having to e<plain concepts to the 5udge.

Can be a !inding arbitration: whatever decision is made is inal.

Can be non!inding arbitration: parties can still go to court ater, but it givesthem an idea o how a neutral party went about the analysis and decisionprocess.

Statutory Holdback (DEFINITION WILL BE ON EXAM)%emedy under the Construction Lien Act.Jovernment rule comes rom the construction lien act, which has many remedies but we will

only ocus on the statutory hold!acB2

Construction Lien: says that the owner must holdbac- PR o the total pro5ect cost. #he owneris personally liable or only PR o the value o materials or services on the 5ob site.

*deally the owner puts the PR in a ban- account (aside to pay any claims that will be made),even though no contract e<ists between the owner and the person ma-ing the claim.

#ime K B

Jeneral statutory holdbac- 9inishing holdbac- period period (PR o the value o the wor- still let to be

completed)

? N7u!stantial Completion0 of the pro"ect #he holdbac- (PR o the entire pro5ect cost)can be paid DF days ater this time stamp, provided no claim is made or a lien.

H



- ? KJo! Complete0 #he inishing holdbac- can be paid DF days later the completion o thepro5ect, provided no claim is made or a lien.

Limitations Act, 2002

Limitation Period: Amount o time you have to bring a claim.

< main points:2 #here is a general 2 year limitation period to bring a claim (there are some

e<ceptions).

12 Discovera!ility principle: the limitations cloc- doesnt start tic-ing until areasonable person -nows about the in5ury.

N2 #here is an ultimate ob5ective o F year limitation period, discoverability principledoes not help= it only helps up to F years.

<2 a) Bou cannot contract out o the Limitations Act 2PP2

b) Access to the Iustice Act was put into play year ago: parties can now statelimitation periods in the contract.

GNG 4170 – Lec 8

March 10, 2008

Practice and Ethics Issues

;e are dealing with engineering act in regulations

Practice: day"to"day administration o wor- that engineers do.



PEO

D *ssues concerning the 7E:

2 Primary Goal of P(3: $ection 2.2 o the Act $erve and protect the public interest.

(#o regulate the holders o any o the licenses the holders o certiicates o authori3ation

in accordance with the act, the regulations, or the bylaws, to serve and protect the publicinterest). 3$L- $((D T( P5I685- G38L F35 TI7 CL8772

12 7elf 5egulation: #he 7E is itsel composed o engineers. #he 7E has the

responsibility to administer (on the governments behal).

6iicult to change Jeneral rules that are applicable

Easy to change ten are putting ine points

and day" to"day speciications

to acts.

7E has the power to drat and place regulations. #he Jovernment has given the 7Ea bit o its legislation.

N2 Fees 6ediation Committee: 6oesnt ma-e a decision= it is there to mediate disputesabout ees.* both parties agree, the committee will act as an ar!iter and render a decision relatingto the issue.

<2 Types of Licenses 'P(3 given)

; License /9@LL0 license (or engineers who want to wor-)

#here are no limits= it does not indicate what type o engineering.Five re/uirements 'from the act) to o!tain the license:

) Age o ma5ority2) Citi3enpermanent resident o Canada8) ave to have completed a recogni3ed engineering program and have to pass the

proessional practice e<am.

D) 9our years o directed engineering e<perience (2 sub"rules that come rom theregulations) o the years has to be under a 7Eng. o the years has to be a/Canadian0 year.

F) Establishing good character through reerences.

1; Temporary License: ;or-ing in another province temporarily. Limited to a speciic

employer and speciic pro5ect.1ust wor- under a 7Eng. and signed and seal the wor-. 6aimum of 1 months2

N; Provincial License: *ntended or people who meet the reuirements o the /9@LL0license e<cept or the year o /Canadian0 e<perience. Can wor- under a provincial

license or a year and then apply or a /9@LL0 license.ave to wor- undersupervision o a 7Eng. #he 7Eng. must additionally sign, seal and date all the wor-that is done (other than the engineers own seal).

M

AC#

%EJ@LA#*



<; Limited License: +ot or engineers. 6esigned or people who have engineering"

related e<perience (technology).Limited to speciic services that are written on thelicense. * the services are stopped, the license must be returned to the 7E*11E6*A#ELB.

Use of the Engineer’s Seal (Each license holder has a seal)

P(ng: only ull and temporary license holders can be called 7Eng (the deinition is in the AC#itsel).

Applying the seal is not voluntary= the AC# says that you $ALL apply your seal has to besigned and dated.

Why have the seal," $howing that a person has e<perience and the license to provide.2" $hows responsibility or the wor-.

Certificate of Authorization

*t is li-e a !usiness license2 Bou need it to oer services= to do engineering wor- or the public.

3nly P(ngs are listed on it 4eore being listed on a CA, you need O years ofeperience2

Professional Indemnity Insurance

@sually i you or the irm has CA, you have to have the insurance.

1 eceptions:

; ;hen we are dealing with a dangerous ield (e<. nuclear, aviation).1; * you tell the potential client in writing that you dont have the insurance and they

authori3e you in writing.

Consulting Engineer

as nothing to do with the wor- you do on a day"to"day basis. Can have the title o Consulting

Engineer.

< re/uirements to be designated as a consulting engineer:; 9ull license holder.1; ;hen you apply, you have to be listed on a CA and have to have been on a CA or

the past 2 years.N; At least M years o engineering e<perience (including D to have gotten the license).<; 7ass or be e<empted rom the e<ams the 7E might set or you.

Complaints Committee

Composed o at least 8 members o the 7E. *ts role is to receive and evaluate complaints

about engineers.

2P



#hey either decide:"#he complaint has no merit (they have to e<plain why not) %"#hey pass the matter to the discipline committee.

Discipline

#he discipline committee has at least F members (li-e a 5udge). A member o the 7E isbringing an action and the engineer is deending himsel.

The discipline committee only has power over FULL and Temporary license holders orthose that have a C382

7roceedings are held in #oronto at the 7E head oice.

7anctions of the Discipline Committee 'general options they can taBe)" %evo-e the license or CA2" $uspend the license or CA or up to 2 years8" *mpose a ine o up to QFPPP

D" rder you to provide an underta-ing legal document promising limiting wor-F" *mpose terms or conditions on the licenseG" #a-e away any special designation or title used (e<. Consulting Eng.)H" rder an admonishment or reprimand

Enforcement

Enorcement A broader remedy. 7roceedings are only brought into the provincial court(provincial oenses). *t applies to every!ody in ntario (enorcement proceedings are initiatedby the 7E).

Enorcement will occur i you are:

; 7racticing 7roessional Engineering without a license1; ering 7roessional $ervices to the public without holding a CAN; @sing the term Engineer or 7roessional Engineer that ools people into thin-ing that

they are dealing with a licensed individual.

7$$*4LE @E$#*+ + EKA1: 6oes the 7Eng. Act apply to anybody other than engineers?-(7 IT D3(7Conse/uences of (nforcement: generally a ine, i oense is done again the ine will increase.

Advertising

%estrictions on advertising engineering wor-

< restrictions:" Can only be in a actual manner without e<aggeration2" *n a manner that doesnt directly or indirectly critici3e another license holder (any o the D

licenses) or a CA holder8" Can only be in a proessional and digniied mannerD" 6 +# give any representation o the seal in advertising

2



Ethics (Handouts PEng Act §72 and §77)

@1'1)'g): * you are oering services to

the public and have a provisional

license and do not have a 7Eng seal (or

supervised by a 7Eng.), then bydeinition you have !reached the act or

regulations2

8ccording to @1'1)'g): The code of ethics

'@@) is D(P($D8EL- ($F35C(8EL(2

'Uni/ue to R@1) $egligence@1'1)'f): $ays that i you propose something to a non"technical client and they want a

change applied to it, you have the obligation to inorm them o the technicalconseuences.

- 'Uni/ue to R@@)@@'1)'iv): (#he +LB part that is uniue to HH) #hereore it is $3T professional

misconduct if !reached2

Parts of @@ that are in - and S at the same time: 'they depend on the degree of the

!reach which will trigger @1'1)'")

• HH()(i)

• HH()(iii)

• HH(8)

• HH(G)

• HH(H)(i)

•

HH(H)(v)

S '3verlap !etween @1 and @@)

• Incompetence: H2(2)(h) and HH()(v)

$et o standards you are 5udged by Always stated as a positiveobligation

HH()(iv) can also be tied with the previous issue o incompetence.

• Conflict of Interest: H2(2)(i) and HH(8) S HH(D)

5elationship with 5elationship with

employer clients

• 6oonlighting 'doing worB for someone else in your own time while employed):H2(2)(i)paragraph D and HH(F)

HH()(ii) and HH(2)(i) are oten reerences together.

22

- R@@

SR@1



GNG 4170 – Lec 9

April 7, 2008

Definition of Professional Misconduct

@1'1)'1) !>c>d are linBed: the public is negatively aected in some way.

Distinctions Eetween !>c>d!: ealth is aected by the wor- done by the engineer.c: bligated to correct or report something that will aect the saety o others.d: $ome law or oicial standard being bro-en. A bit more limited than c.

HH(2)(ii) , (iii) 4oth address the idea o communications:ii" 6iscourages untrue, unair, or e<aggerated statements.iii" $tatements have to have: "suicient -nowledge

"honest conviction

H2(2)(i) paragraph F: $aying the statements because you were inspired by other interests (orpaid or it).

Triggering 72(2)(j)

• HH(8): (put a comma ater Nconidential)

• HH(H)(ii) %eviewing a co"wor-ers wor- it cannot be a secret review= but you do notneed their permission (5ust need to inorm them)

(iii) 1alicious with evil intent (iv) ;e are in a competitive society, you should not be paying or acceptingsomething to secure wor-.

(viii) #attle"tail you have an obligation to report to the 7E i someone isderauding clients

On Exam

• ave to integrate the relevant sections o H2 and HH

• 6ont start o your answer by giving a list o relevant sections must give your 5ustiication irst.

• 6ont use pinpoint reerences as an answer always give the reerence as anaterthought, they are li-e ootnotes that must be included.

Important Types of Questions for PEO Exam

2 Whistle Elowing: public maybe negatively aected by engineers wor- or what theyhave ound.

bligation to public welare is paramount= rules over conidentiality (consider @1'1)!>c>or d)

Plan of action:

28



"1ust have meaningul communication with employer andor client to ully articulate whatis going on. ($howing airness to employer andor client @@')'i))"* there is an illegal action, mention that you will contact the respective authorities aspart o your action plan.

12 Conflict of Interest: can be aced with it easily in your career (unli-e whistle"blowing).

Approach it thin-ing how it would aect your 5udgment in a situation or how it can beseen (by others) to aect your 5udgment.

HH(2)(i) : ;hen you have an interest directly or indirectly that could be seen asaecting your neutral 5udgment. (E<. * someone that sells 9ord cars is giving someoneelse advice on which car to buy)

6eine that it is a conlict o interest and how it applies (i employer then HH(8), i clientthen HH(D)).

HH(2)(i) : Also says that you cannot -eep it a secret (does not say that it is bad i youhave a conlict o interest). (E<. Bou could say N* am in act not the right person to adviseyou on this because * sell 9ord cars.) #he person hearing this can then ma-e aninormed decision.

#here are F paragraphs about speciic types o conlict o interestaving one of those conflicts is $3T E8DEUT having them without prompt> voluntary> and complete disclosure is

E8D'not informing others of conflict of interest)2

N2 6oonlighting: bligations (listed in HH(F))1 o!ligations to main employer:'Failure to do so will result in !reaBing @1'1)'i) Professional 6isconduct)

• $atisy that the additional wor- will not conlict with your obligations to main employers wor-

• *norm employer o the wor- (do not need permission though)

o!ligation to client:'Failure to do so will result in !reaBing @1'1)'i) Professional 6isconduct)

• 7rovide the client with written notiication o your wor- and the limit o devoted time orthem (HH(F)).

Always -eep in mind the Certiicate o Authori3ation (CA) in your own name and theinsurance (practice issues)

ypothetical Muestion <

• *nvolves [email protected] employer comment on conlict o interest (HH(8))

• 7roessional 1isconduct because [email protected] did not provide prompt, voluntary,

disclosure prior to doing the evaluation.• Also changing the bidding structure triggers 5 (HH()(iii) integrity).

• Also [email protected] comments about KBO (i untrue) are trying to maliciously in5ure thecompany (triggering 5).

2D

engineering law in ontario

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