Are you wondering what kinds of questions might arise for topic E, Law for Professional Practice in the context of your Professional Practice Exam (PPE)?
Video & transcript below.
In this presentation, and the 6 others (for course members), I'm going through all 47 syllabus topics to give you my insights and to highlight terms, definitions, and cases that I believe are relevant.
Let's get started.
This section has the most sub-topics and is worth the second most overall, so let’s dive into it.
E.1 The Canadian Legal System
- What is it? - The basis for all legal authority in Canada. It is composed of a combination of British and Canadian conventions and statutes.
- What does it do? It divides power between federal and provincial governments (e.g. federal would be things like defense, patent & criminal law. Whereas, provincial would cover topics like property rights and construction liens. It also covers the Charter of Rights and Freedoms, which we will cover in more detail in section E.13.
- Court System
- The Court System in Canada is made up of different levels or layers of courts that function independently but are related. Since Federal and Provincial laws are dealt with in their own courts, federal courts don’t have jurisdiction over provincial courts and vice versa. If a court ruling is not agreed with at the provincial level, it can be brought to a higher level until the defendant is satisfied with the decision. As you can see, we have provincial at the bottom, then the provincial supreme court above it, then the provincial court of appeal. Finally, at the top is the Supreme Court of Canada.
- The Supreme Court of Canada is not automatically granted if you are not satisfied with a ruling at the provincial supreme court level. If it is a civil case, to be considered for the Supreme Court of Canada, it must be of “National Importance."
- Creation Of Law
- Creation of Law is an ongoing activity. It is not fixed like the law of nature.
- Statute law - Enacted by provincial and federal governments. These laws must agree with the Constitution. When a judge presides over a case, he/she has to interpret these laws.
- Common Law - Common Law is used in most parts of Canada. It is a type of law where judges use the principles of law and equity to make court rulings. They look at similar past rulings to help them decide current cases. If they come across a unique case, they will make a decision and that will impact future cases like it.
- Civil Law (Quebec)
- Civil Law (Quebec) - Quebec still falls under common law for federal matters (e.g. criminal or patent issues). However, for civil issues between private individuals, it follows the civil law which is a more code-driven version of the common law, with less emphasis on precedent.
- International Law
- International Law could have a textbook all to itself. Here are a couple basic principles: International treaties take precedence over domestic law. As a professional working outside Canada is possible as well. Some other countries have agreements, such as NAFTA, allowing engineers to work in the USA. However, please realize that you can work, but you are not necessarily licensed in the new area. You need to meet the standards of host state or country.
E.2 Contract Law - Elements, Principals, and Applications
- Contract Definition
- Contract definition - A lawful agreement between two or more voluntary parties.
- Elements and Principles
- For a contract to be enforceable by the courts, we must have an offer by a party & acceptance by another party. There must be a mutual intent to do business, there must be something of value being exchanged. This is known as consideration. The parties signing must have the capacity (in other words they need to be over 18 years old and have company signing authority), and it must be for a lawful purpose - you can’t enforce a contract to sell illegal drugs.
- One of the parties may want to void the contract at a point in time. Here are a few ways this can be done. If a significant mistake was made by both parties at the time of agreement, if one of the parties misrepresented themselves to get the contract, if there was duress, which is pressuring someone unfairly into a contract, unconscionable meaning that a contract is very one sided, or frustration is when major unforeseen events happen such as a war or labour dispute.
- Contracts may need to be changed throughout the agreement and that is done with Amendments. An amendment is a mini-contract that should always be in writing and signed off by contracting parties before the new work is performed. It needs to have the same elements of a contract (such as consideration, lawful purpose, etc).
- Waiver & Estoppel - A waiver is giving up rights to the contract in a non-written way. A popular example is a payment. If the contractor on a construction job has mentioned he is flexible about late payments, he/she has given up a contractual right. If the contractor then turns around and says, “hey, you’re 1 day late you owe me interest as per the contract”, then the legal principle of estoppel will protect you from such a waiver.
- Breach - Failure of a party to perform some or all of its contractual obligations. This can happen for a number of reasons such as inability (they are in over their heads), not making money (thought they could make it up on change orders but it didn't work out), or disagreement over the meaning of the contract. Once the contract has been breached, it is typically turned over to a judge or arbitrator to find a solution to move forward.
- Change & Unforeseen Conditions - Changes are similar to amendments in that they should be in writing and follow similar principles of law abiding contract rules. Changes can occur when conditions change, causing the costs to the contract to change. Also, changes to the scope of work by the owner will also generate change orders.
- There are a number of different ways to set up a contract, whether you provide a product or service. A few of the more popular ones are: Fixed Price (lump sum for all materials and services, including overhead and profit. This transfers the risk and obligation to the contractor), Cost-Plus (actual costs of goods and services, plus overhead and profit), Unit Price (agreed upon amount for each unit or quantity of work completed. Common when the quantity is unknown, like earth removal), Construction management (hiring a construction manager to deal with all the trades on a project. More common on smaller projects.), Design-Build (allows the owner to speed up the construction process by overlapping the design and construction phases and having one party responsible for both), PPP (giving private companies a long-term contract to generate profit if they provide some or all of the capital on a project. E.g. charging tolls for building the highway.)
E.3 Tort Law - Elements, Principles, and Applications
- Tort - When a duty of care is breached and someone else is injured or suffers a loss, even if there is no contract between the parties.
- There are 4 Elements that need to be satisfied by a breach.
- Duct of Care - Did the engineer exercise good and reasonable judgment to protect others?
- Defendant Breached That Duty - Would someone with the same skills and training have made similar decisions?
- Plaintiff Suffered Loss or Damage - Was it an actual loss or damage suffered? There is no tort if someone was almost injured or could have suffered a loss.
- Breach Caused the Loss or Damage - Is there a clear link between the breach and the loss or damage? If all those points to ‘yes’, then a tort claim is valid.
- Misrepresentation is a false statement - There are 3 types of misrepresentation: innocent, negligent and fraudulent. These statements can be dangerous, as they can lead to loss or injury in the case of tort. Misrepresentation can extend to things left unsaid. If the professional left out a key safety precaution, that can be a Misrepresentation.
- Rescission - If there has been an innocent misrepresentation, the plaintiff may cancel the contract.
- Fraud - A type of intentional tort. Misleading others with untrue facts. It can also occur if you leave information out (e.g. if you are releasing a financial statement for a publicly traded company and forget to mention that the company is being sued for $5M.)
- Fiduciary duty - A relationship in which someone should be acting in the best interest of other. E.g. your lawyer.
- Trespass - When someone enters into the land of someone else without authorization. This is not just about your neighbour hopping over your fence, it is also about work too. You could trespass when you fly aircraft above people’s property, OR when you set up your work fence OR when you drill wandering boreholes.
- Product liability - Means manufacturers are liable to consumers for defective products.
- Concurrent liability - Explains that more than one defendant can be responsible for their share of liability.
- Vicarious liability - Is shifting the liability to another person based on those who are profiting from the work and have the best ability to compensate for loss or damage.
E.4 Civil Code in Quebec and Common Law in Canada
- Common Law
- Not statute based decision making. It’s judges and courts applying law & equity principles to make case decision.
- This is often referred to as “judge-made” law because the judge or court decision on a particular case will impact future ones just like it.
- Civil Code
- The civil code relies on the strict wording of statutes and remember that statutes are laws.
- In Canada, it is used in Quebec only for civil matters between people and for issues like property.
- It covers private Matters Only, so federal issues like criminal or patent law still fall under Federal jurisdiction and use common law.
E.5 Business, Employment, and Labor Law
- Business Law
- Business law is a very broad topic that touches many laws that impact the creation, buying, and managing of a business.
- We’ll discuss those other topics somewhere else so that we don’t talk about them twice. Here is the different syllabus section you can find them at.
- Employment Law
- Employment Law deals with the working arrangements between employees and employers.
- There are Implied Terms to a contract, even if not specifically stated within. These are common sense things like being loyal to your employer, do your work competently and maintain your skills and training, and give adequate notice when terminating or severance pay.
- Independent contractor - Are treated differently than employees, so you want to be clear in your contract if you are drafting or signing one. If you are a contractor, you likely won’t receive benefits or vacation pay, but you will have other perks like making your own schedule, working for multiple people and claiming expenses as business deductions.
- Employment Standards exist in every jurisdiction in Canada and address safety, wages and working conditions. Human Rights is another issue that arises from work, commonly regarding discrimination.
- Termination - Termination happens all the time. Employees have rights if they have been wrongfully terminated and may access remedies depending on the situation.
- Labor Law
- Labor law helps us define the relationships between the union and employees/management.
- The purpose of it enables employees to organize and bargain as a group. A few terms you should be familiar with are:
- Rand Formula - A collective agreement term that requires employees to pay dues, but doesn't force them to join the union. Dues are paid because they still benefit from the bargaining powers.
- Work Stoppages - Can happen by lockouts or strikes when a collective agreement ends and an agreement can not be made.
- Grievance - A complaint from the union or from the employer in reaction to the other party breaching the collective agreement. Arbitration is usually used to solve such grievances.
E.6 Arbitration and Alternative Dispute Resolution (ADR)
- Arbitration - A great alternative to the court system. It's private litigation where the contracting parties select the arbitrator and agree on rules.
- Arbitrator - Is a private judge and jury selected by both parties. A person with adequate training and experience in the subject matter and has experience with arbitration. If you’re not sure where to find one, you can search for an arbitration association in your area.
- Questions - Who will be the arbitrator? What will the terms be of the arbitration? Will it be binding or non-binding? Will we follow strict rules like a courtroom or more relaxed? What type of law will apply?
- Alternative Dispute Resolution
- Purpose - To avoid the legal fees and public exposure of litigation.
- Most popular methods are:
- Arbitration which we just discussed.
- Mediation - Which uses a 3rd party to aid settlement discussions. Can lead to a satisfactory solution for all, rather than a win-lose arrangement with litigation. Works well for a variety of disputes when parties are committed to reaching a settlement.
E.7 Intellectual Property - Patents, Trademarks, Trade Secrets, Software Issues and Copyright
- Patents are for an invention. Something that is new, useful and innovative. It doesn’t have to be completely new, most inventions are an improvement to existing ideas. You are granted a patent for 20-years. In exchange for making for your invention public knowledge, you get this 20-year non-renewable timeframe to have a competitive advantage. Within your patent, there are different sections. The most important are the Claims section that is enforceable in court because it defines the features of your invention.
- Trademarks is a logo, symbol, name, slogan, design or combination that identify a company’s goods or services. You are probably familiar with the ™ symbol that you can use identify your mark, but it’s the ‘R’ symbol that shows others that it is registered. Let’s say you have a great slogan for your new product and are wondering if it will pass the test. To find out, it is often helpful to know what you can’t register: names (e.g. John), geographic location (Alberta), clearly descriptive names (e.g. “sweet” candy, deceptively misdescriptive (“riceables” your cereal made with oats), or something already registered. You are granted a ™ for 15 years and it is renewable.
- A copyright covers many things, such as written works (e.g. books, musical works, literature), computer programs, and works of art (such as paintings, drawings, sculptures). A copyright gives the owner the right to copy their work or allow others to copy it. A copyright is granted upon creation of the work, although, it is a good idea to have it protected (this will make the defense of it much easier in court). Life plus 50 years for most types of work and it is non-renewable.
- Copyright, trademark and patent protection rules vary by country. You may have a legal case in one country, but not in another. You typically have to see protection for every country where want protection. Working with an IP lawyer to define your business plan is a must.
- Trade Secrets
- Trade secrets are anything that a company wants to keep confidential. For example, Coca-Cola's recipe for coke. It could be manufacturing process (when I was in Japan, I visited the Mazda assembly line and we couldn’t take pictures). Or what about a material composition, such as the ratio of metals in a loonie or toonie? You don’t want others copying your currency, so that is protected too. Since there is no legal protection if someone outside the company discovers your secret, it is up to the company to protect it. This is typically done by having employees sign employment contracts that have confidentiality clauses.
- Software Issues
- If your company uses software by copying or stealing it, your company can face serious fines and even lose your professional license as software is protected Under the Copyright Act and enforced by your Association. Make sure the person in charge of IT at your company understands the importance of using legal software. Employee computers and laptops should either be prevented from downloading software or scanned on a regular basis to ensure they have not downloaded anything that could put the company at risk.
E.8 Expert Witness
- An expertise is someone with the expertise, skills, training and experience to comment on case details.
- Opinion evidence from an expert witness is not admissible, meaning it can’t be taken as facts. However, their opinion does help to clarify complex matters for the judge/jury, so that it can for its own independent judgment.
- As an Expert Witness, you have the obligation to remain neutral and simply provide an honest and professional opinion.
- You can’t act as a “hired gun” and support the party that is paying for your time.
- Your fee has to be a set amount. It can’t be dependent on outcome, otherwise, there would be a conflict of interest.
- Your opinion must stand up to scrutiny (and will be cross-examined). This comes back to being honest and professional.
E.9 Construction Liens
- Construction/Builders Lien
- The construction or builders lien is a payment mechanism in construction where a claim is made against real property that has been improved by the activity of construction.
- The purpose of it is to ensure there is credit in the construction industry and give some security to material and labor suppliers.
- To make a claim, you typically file a claim of lien with the land registry office. You then ‘perfect the lien’ by commencing legal action on the lien. You have to follow a procedure, file within a certain time and prove that you have provided materials or services in compliance with the lien act.
- Making a Claim and Who Can Claim
- Many parties can claim a lien. Typically, contractors, workers, subcontractors and suppliers of materials. But, professionals like architects, engineers and geoscientists can also claim for services as long as they are not sub-consultants, which are excluded by lien legalization. You can’t be more than two degrees of separation away from the owner. So, a subcontractor is okay since that is two away from the owner, but a sub to a subcontractor is too far removed.
- Holdback is a percentage of the contract value that is held by the owner from every progress draw. The holdback amount is not paid until certain conditions have been met or time has passed. They may wait until a milestone has been completed, as-built drawings have been marked up, or substantial completion of the contract has been reached.
- Alternatives to a Claim
- An alternative to the lien route is for the unpaid party to sue for breach of contract. Such a situation requires proper legal advice before proceeding.
E.10 International Law
- International law dictates working relationships between nations. Agreements like NAFTA deal with topics like environment, IP, agriculture and work mobility between Canada, USA, and Mexico. There is also United Nations Convention on the Law of the Sea (UNCLOS) , which is considered the “Constitution” of international oceans law and deals with ownership of things like the continental shelf. There is also the International Criminal Court (ICC), which is an international court that handles matters of crimes against peace, and crimes against humanity.
- What you need to know is that these international treaties are typically governing over local laws. If you’re dealing with an international issue or project, ask yourself, “what is the international law or agreement in place here?”
- There are a few things to consider: the first is that there might be an agreement, like NAFTA, that allows you to work legally in the USA, but that doesn’t permit you to practice engineering (you’ll still need to meet local licensing requirements).
- If you’re moving products back and forth, you need to know the trade agreements in place, so that you can handle the tax and duty implications.
- If you’re working oversea, you want to avoid paying tax twice, so understanding the tax law or having a good accountant is useful.
E.11 Environmental Law
- International, Federal, Provincial, and Local
- Law that relates to the environment can vary from region to region. There are environmental laws at the International, Federal, Provincial and Local levels.
- Common Ideas Related to Harmful Emissions, Discharge, Prevention, Clean Up and Assessments
- Common concepts include: reducing, preventing, cleaning up, and assessing pollution, as well as communicating data to the public and laying charges for misbehavior.
- International Laws Published By CEC
- At the international level, the North American Council for Environmental Cooperation (CEC) publishes a list of the international laws. There are agreements, such as the North American Agreement On Environmental Cooperation between Canada, USA, and Mexico about conservation, protection, and enhancement of the environment in their respective countries.
- Federal: EPA, Fisheries Act, EA Act
- At the federal level, there are a number of acts. Three important ones are Environmental Protection Act, which prevents pollution. The Fisheries Act, to protect fish and habitats. Lastly, Environmental Assessment to encourage sustainable development.
- Provincial: Water, Climate Change, Waste, Air, and Pesticides
- At the provincial level, there are acts that relate to water, climate change, emissions, water pollution and solid waste to name a few.
- Local: Varies by Municipality
- Local laws vary by municipality and can include things like vehicle idling, removal of trees to ensure an adequate canopy and sewer use.
- Best Practices: Site Assessments vs. Audits
- Although not a legal requirement, site assessment, and audits play an important role in the construction and land development. Environmental Site Assessments are a detailed look at the building and property to define the list of contaminants and suggest a recommended remediation process. They are an important tool when buying or selling real estate. Environmental Audits, on the other hand, are an organizational review that looks at its properties. It is also an operation and how those may put others at risk from an environmental or health perspective.
E.12 Workers’ Compensation and Occupational Health & Safety (OHS)
- The purpose of occupation health and safety is to protect workers from unsafe conditions by requiring their employers to follow stringent safety regulations.
- Criminal Conviction for Those Responsible For Injury or Death
- In 2004, the Criminal Code was amended to give a legal responsibility to hold those responsible for directing work. If their negligence causes injury or death, they will be tried for a criminal conviction.
- Employees’ Rights: Right to Know, Refuse, or Participate
- OHS also gives rights to Employees’: the Right to know of hazards and be properly trained, the right to refuse dangerous work without penalty, and the right to participate in making the workplace safe by being on health and safety committees.
- Employers Duties
- The Employer has Duties to ensure the workplace is safe, provide protective equipment, basic requirements such as first aid and WHMIS labeling, and training workers for things that may apply to fall prevention, confined spaces and lockout tag out.
- Workers Compensation
- Workers’ Compensation is a no-fault worker’s insurance to pay employees (wages, medical and disability) while they are not working due to injury. It is paid for by employers’ who pay into a fund based on their payroll.
- Contractors and the Prime Contractor
- When there are a number of contractors on a job site, a prime contractor should be identified and responsible for all health and safety on the job site.
- Every province and territory have a ministry of labor. Inspectors are expected to visit construction sites to ensure OHS regulations are being followed. They will test equipment, review documentation, and inspect the workplace. Fines and/or imprisonment may result if OHS laws or regulations are not being followed.
E.13 Human Rights and Privacy Legislation
- Human Rights Described in Charter of Rights and Freedom
- Human Rights are described in Charter of Rights and Freedom. There are a number of clauses that cover a variety of things:
- Clause 2: Deals with the right to conscience, religion, thought, opinion, and peaceful assembly.
- Clause 3: Right to Vote for a legislative assembly.
- Clause 6: Covers your mobility to enter, remain or leave Canada.
- Clause 7: Discusses right to life, liberty, and security of the person.
- Clause 15: Equality rights under the law.
- Privacy Legislation
- Privacy Legislation, which is governed by federal law, allows individuals to access their own info upon request.
- PIPEDA stands for Personal Information Protection and Electronic Documents Act and it governs how private sector organization collects, uses and discloses personal information.It requires organizations to do a number of things. A few notable ones are:
- Collect only what is required
- Protect personal information
- There is also PIPA, which is the Personal Information Protection Act used at the provincial and territorial level to also protect personal information.
- That concludes the very long section E. I’ll look forward to seeing you again in the next section which is F. Professional Law.
Be sure to pick up a copy of the 5th edition Ethics textbook and 3rd edition Law textbook which were both used as references for the above presentation.
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