Biz Law Final Exam PDF

Exam: 70 questions -​ 2 ½ hours -​ 50 questions will be on the new chapters -​ Watch the zoom Q & A’s Chapter 9: Property Lesson 1: Real property -​ Wider relationship than contract or tort -​ Asserting property rights is against the wo...

Exam: 70 questions -​ 2 ½ hours -​ 50 questions will be on the new chapters -​ Watch the zoom Q & A’s Chapter 9: Property Lesson 1: Real property -​ Wider relationship than contract or tort -​ Asserting property rights is against the world (contract is just between parties of the contract, tort is between victim and offender) Legal rights associated with property: Bundle of rights: set of legal rights associated with property, usually includes the right to exclude, right to possess and use, right to transfer to others and dispose of property Right to exclude -​ Exclude others from accessing or interfering -​ Ex: property rights associated with land usually include the right to exclude others from entering on the land or interfering with the owners use of the land Right to possess and use -​ While ownership and right to possess are normally held by the same person, it’s possible to have one party with ownership, and one party with the right of possession -​ Nature of a lease: contract that transfers possession of land or personal property in exchange for a fee Right to transfer/dispose -​ Rights associated with ownership usually include right to dispose or transfer property to someone else Property: is a relationship between people with respect to things -​ A claim that you have certain rights to things -​ Property and things are different -​ Ex: If i own my home I have all the rights, NOT TRUE -​ You have a lot of rights that other people dont (live, sell, park on driveway) BUT there are lots of other people who have rights to the house too -​ Ex: -​ Mortgage - I owe the bank money. Bank can repossess and sell the house if i default against my mortgage -​ City - right to prevent me from running a restaurant in my house -​ Neighbours - prevent me from letting grass grow too high -​ What can I do and what can they do? Defining a legal relationship -​ Persons status was largely determined by if they held property and to what extent 1.​ Real Property: land and buildings,mines,minerals and anything attached to them -​ Fixed and not moveable Fixtures: are goods attached to real property -​ When they are attached to real property, they become part of real property… BUT not everything! -​ Ex. if you attach shingles to roof, they become part of real property, they used to be personal property (when they were on a truck, manufactured, delivered) but once they are incorporated into building, they become part of building -​ Compared to poster that is taped onto a wall in the classroom -​ Poster is attached to real property but its not a fixture -​ 2 ways to determine if something has become part of the real property 1.​ Degree of permanence (was it intended to be permanently attached?) 2.​ How much damage would be caused by removing the thing from the real property? 2.​ Personal Property: everything that is not real property (land and what’s attached to it) -​ Either tangible (clothing, cars, boats, phone) or intangible (intellectual property: patents, trademarks, shares, contractual rights, right to receive insurance proceeds) -​ Property rights are relative and NOT absolute -​ ASK: Who has the better claim of the people fighting? Not who has the best claim -​ A finder of personal property can assert ownership rights over everyone except the true owner -​ Ex. public park, find $20, no way of finding the true owner, you pick it up and a random says they want it, but they say they have just as good as claim as you... -​ not true. I am the finder who has taken possession, the random person has no property interest. I will win in a dispute. But the true owner has a better  claim than both of us. If the true owner could prove ownership, you have to give it -​ So between you and me, I have a better claim. The fact that someone has a better claim than me is not relevant to our dispute -​ When 2 people are fighting over who has the best claim to a thing, ask who's asking? Who's having the dispute? Property law involves answering: 1.​ Who has rights to the property? 2.​ What rights do they have? Possessory Interests in Land (real property) -​ Right to possession 1.​ Fee simple -​ Latin term for ownership - “I enjoy fee simple in my house” -​ Best claim I can have to my house, but is it the best? Maybe not if my house is on land that is subject to land claim dispute with first nations, I might lose possession to my house -​ or if government wants to build a highway through my backyard and expropriate, i could lose possession to my house -​ So while i have good interest in my house, stronger than you, property rights are relative not absolute property rights 2.​ Life estate -​ Person has right to possession during their lifetime, but after they die, possession goes someone else -​ Sometimes used in estate planning, or planning for children, “these people will have possession during lifetime, after they die, it goes to someone else” -​ There’s always a REMAINDER interest as well, otherwise it's not life estate and the person has fee simple 3.​ Leasehold estate -​ Ex. renting apartment -​ You have right to temporary possession through a leasehold interest but you don’t own it, the landlord does (no fee simple) Non Possessory Interests in Land (in real property) -​ Still property interest, can be asserted against other people, but not possessory so they doesn’t confer a right to possess or occupy -​ Easements -​ Right to use  -​ Ex. union gas has easement in my backyard through which there gas pipeline is placed, can run pipeline through backyard because they have a property right, but can’t live in backyard, they don’t have a possessory interest -​ Rights of way -​ Right to use a piece of land for entering and exiting -​ Ex. shared driveway, -​ legal property description for 2 houses with shared driveways would be that the driveway only belongs to one piece of land or the other. The piece of land that the driveway doesn’t belong, enjoys right of way over the driveway -​ The piece of land without the driveway has a property right to use it for the purposes of getting too and from their backyard -​ The piece of land with the driveway has to respect the property right and allow the use of the driveway for that purpose -​ Right of way isn’t possessory, you can’t park a camper van there, but you can use the driveway for purpose of entering and exiting -​ Licenses -​ Contractual right to profit from land -​ Ex. land with lots of apple trees, you and I have a contract to harvest apples and take them away, that a license -​ You have a property right to go on land and remove things from land, non possessory right but right to profit off of land -​ Restrictive covenants -​ Like a contractual provision, but not a contractual right, it’s a property right -​ Ex. I sell my house to you and live next door, I want to make sure that you or anyone can’t build a pool, but then you sell the land to someone else. Can I enforce that obligation against the new person who bought the land for you? No because of privity of contract prohibits you from suing new owners -​ But if the covenant is restrive covenant for purposes of real property law, if it’s registered on title to the land then is a property right and will bind all future owners (you can’t build and neither can anyone else) -​ Difference, contractual only binds parties, property right binds everyone and restricts the world -​ Must be negative, cannot be positive -​ aka cannot have one that says must build pool -​ Ex: If you live in a subdivision where you can’t hand laundry out to dry or have a wind turbine,those are probably restrictive covenants registered on title -​ Land developers know that purchasers want neighbourhoods that are homogenous (nothing is unusual) so they use restrive covenant to make sure people aren’t doing unusual/unattractive things -​ Mortgages -​ Property interest, not possessory interest but can lead to possession on default  -​ Ability of creditor (such as bank) to take possession of land/building in event of default on a loan -​ Who will give you a mortgage? YOU will, bank gives you a loan to buy house, for the bank to secure repayment, you give the bank a mortgage - you give the bank the right to enforce their mortgage if you default on loan Joint Tenancy Vs Tenancy in Common Joint Tenancy (joint ownership) -​ Right of survivorship -​ If one joint tenant dies, their interest automatically transfers onto the surviving joint tenant -​ They’re always equal (50/50) -​ Typically when spouses buy a property together -​ If you’re buying business property with other people, you don’t want joint tenancy, you want tenancy in common Tenancy in Common (co-ownership) -​ No right of survivorship -​ If one tenant dies, their interest goes to their estate to be passed to their heirs/beneficiary -​ Can be unequal interests -​ 40/40/20 -​ Common for business arrangements Condominiums: combination of -​ Fee simple (apartment or unit) -​ Fee simple to apartment and parking space -​ You have exclusive possession (fee simple) to your unit -​ Co-ownership (to the common areas) -​ Shared possession with all other condo owners of common areas like the hallways, pool, stairs, gym Cooperatives -​ Communal property possession -​ People agree to form a club for purposes of maintaining and occupying a housing development -​ They share the costs of maintaining vs individually owning specific units -​ People in the development agree to share cost of maintaining it, but there’s no profit in terms of buying and selling, -​ You share in the costs, but when you leave, you don’t sell, you are just no longer part of the club -​ Cooperatives is popular because it allows for more affordable living arrangement Lesson 2: Personal Property Personal property: anything considered property but isn’t real property -​ Tangible or intangible (accounts receivable , shares, insurance proceeds) -​ Tangible personal property can get lost, doesn't happen to real property. Can’t lose a house. -​ Can’t lose intangibles, but can lose tangibles aka car, ring -​ What happens when a “thing” is lost and someone else finds it? Finders keepers Finders Keepers (tangible) -​ Person who finds personal property has a right to claim it against anyone except the true owner -​ New owner has better claim than everyone except for true owner -​ So how do you prove your true ownership? If you're unable to do so, you could lose to a finder in possession because you can't prove it (take photos, record serial numbers, etch last 3 digits of social security numbers) -​ Finders keepers rule is not absolute -​ Ex. Go over to a friend's house, find $20 in sofa, does that mean you have a good claim to it? NO -​ if you find a “thing” on private property, the property holder has a better claim than the finder -​ University is private property, but if you found $20 in the hallway then finders keepers would apply -​ So you need to separate private property into 2 types 1.​ Private property that is publicly accessible (University hallways, classes) 2.​ private property not publicly accessible (my house) Bailment: temporary transfer of possession of personal property from one person to another - NOT transfer of ownership (often happens with tangible things) -​ When one person (bailee) has possession of goods that belong to another person (bailor) -​ Ex: rental of a vehicle -​ If something bad happens to the goods, who is responsible? -​ Law says that bailee (person in possession) owes a duty of care to the bailor -​ Standard/Duty of care is a reasonable standard of care (similar to negligence) -​ Bailee must act reasonably in the circumstances The standard of care will depend on: -​ Value and nature of goods (fragile goods, if bailee is an expert at storing valuable goods) -​ If the goods are valuable, standard of care for bailee should be higher -​ If the bailee is instructed with specific caring instructions by the bailor, higher standard of care -​ If bailee specializes in certain type of bailment (storing valuable goods), higher standard of care -​ Ex: potential buyer test drives a car, because there’s not compensation, it's a gratuitous bailment and you must show greater care -​ Who the bailment benefits  -​ If bailment is gratuitous and benefits the bailor, standard of care is low -​ If bailment is gratuitous and benefits the bailee, standard is high -​ Terms of contract -​ Contract is central - could raise or lower the standard of care owed by bailee -​ any formal contract between parties and any limitation clauses in the contract -​ Ex: if you ship goods by Fedex then you’re agreeing that fedex’s liability is limited to $100 if you’re goods are lost, damaged, or stolen, even if it’s Fedex’s negligence -​ It’s function is to signal which party should buy insurance for the goods - onus is on bailor to purchase insurance because items being stored are more than $100 Specialized bailments impacted by statute -​ Certain bailments could be subject to special regulations that set out the standard of care Transportation -​ A bailee who receives property and transports it for the owner is called a carrier -​ Carriers are ready to transport property for any owner as long as they are able and paid for the service -​ They are held to a high standard of care -​ If property is lost/damaged then they are liable -​ Owners don’t need to prove fault (too difficult to know what happened) -​ As a result of heavy responsibility based on legislation and common law, carriers normally include provisions in their standard form agreement with customers that their liability will be limited Storage -​ Responsibility of warehouser (person storing property) is to treat it as how they would deal with their own property -​ Imposes standard of reasonableness, responsibility for all foreseeable risks -​ Because standard and potential losses are high, warehousers limit their liability to customers in their agreement -​ Remedies: bailee gets lien over property until owner pais storage fees, if payment isn’t coming, warehouser has rights to sell the property Repairs -​ When an owner of property takes it to a repair shop, main purpose is to repair the property -​ From a business perspective, it makes sense to agree on a parice -​ If you don’t, then repairer’s compensation will be a reasonable amount for the service property -​ Repairer can’t charge more than reasonable, and owner can’t pay nothing Loding -​ Someone who offers lodging to the public is an innkeeper -​ Innkeepers responsibility for guests property is similar to normal carriers  -​ Important distinction of carriers vs innkeepers -​ Carriers have total control of the property when it is delivered for shipment, guests share control over their property through their occupation of rooms -​ In some provinces, innkeepers can permit by legislation their liability to a specific amount unless the loss of peropeerty is due to a negligent or deliberate act Lesson 3: Intellectual Property -​ Most recent form of property recognized by law (real property law dates back to the 12th century Intellectual Property protects creations of the mind.. But not ideas -​ Protects the application and expression of ideas, but not the ideas themselves -​ Ex: -​ Recipes and formulas for products -​ Manufacturing processes -​ Marketing plans -​ All IP registration rights in Canada are federal (patent act, copyright act, trademark act, sect 91) → federal rights, federally registered trademarks are rights across canada but not outside Canada Trademarks: words, logos, designs, or symbols that distinguish goods or services -​ Ex. rbc, lulu, apple, target, western, tims -​ Colour cannot be trademarked, but it can be part of a trademark -​ Sound can be trademarked -​ Smells and odours haven’t been registered as trademarks -​ Trademarks only exist in connection with specific goods/services, do not exist in abstract -​ Each exist in connection with a different good/service -​ Ex. there’s western mustangs, ford mustang, mustang drive in theatre, those are all valid trademarks because they each exist in connection with different goods/services. -​ No confusion between ford and drive in mustang – so they can coexist -​ Difference between US vs Can  -​ USA has famous trademarks, ones that are so famous and well known that any use of them is infringing, -​ Ex. you can’t use Nike swoosh to sell real estate. Nike doesn’t sell real estate so there would be no confusion but it’s considered infringement in the US because it’s so well known that it’s considered to be offside, any unauthorized use is infringing -​ In Canada this concept has been rejected -​ Mattel and Barbie dolls and a restaurant named Barbie’s in Montreal. Barbie wanted trademark in connection to their trademark, but Mattel opposed it on the basis that the Barbie doll is so famous that any use would be infringing. SCC held that the test is whether there’s a reasonable likelihood of confusion, and there was not. Reasonable people wouldn’t confuse barbie dolls with the restaurant in montreal, so they could coexist -​ they’d confuse Barbie dolls with restaurant Trade names: name under which a sole proprietorship, partnership, or corporation does business -​ Ex: Apple, company name “Apple Inc” → same as trademark Requirements for registration -​ To register a trademark you need 1.​ Title - applicants can only register trademarks they own a.​ Comes from use of trademark, filing an application, making it known to canada 2.​ Distinctiveness - must distinguish the goods and services in association with which it is used 3.​ Registrability a.​ To be registrable the trademark must not be i.​ Primarily the name of an individual who is living or has died in the past 30 years ii.​ Descriptive of the character or quality or their place of origin “ontario wines - for wines from ontario” iii.​ Deceptively misdescriptive of the character or quality or their place of origin “all silk - cotton blouse” iv.​ The name in any language in connection with which it is used “avion - airplanes” v.​ Confusing with regard to another registered trademark (Mego for plastic building blocks) vi.​ An official or prohibited mark 2 kinds of protection afforded to trademarks: -​ Registered or unregistered - both receive protection under common law and Trademarks Act -​ Unregistered trademarks arises automatically from use “™”→ exists when a business adopts and uses it -​ If I start selling Phil's Pizza Pies in London, then I have an unregistered trademark in that reference, if you start selling Phil's Pizza pies in London, I can ask you to stop because I was using it first. I have a right to that trademark. -​ Registered trademarks are more effective because they provide  -​ Rights across Canada -​ Unregistered is limited geographically, I can prevent you from using Phil’s Pizza Pies in London, I can’t prevent you from using it in Toronto or elsewhere -​ But if I registered the trademark, can prevent everywhere in canada -​ Registered trademarks are protected against a challenge based on first/prior use after 5 years -​ Ex. if i register a trademark today, I am still vulnerable to a challenge from someone who said they used it first, they have better rights -​ But after 5 years from the date of registration, they can’t challenge me anymore, even if they were using it before me, I will still prevail -​ 10 years of protection -​ Renewable so they can exist indefinitely -​ Trademarks are protected in Canada, if you want US protection, need US registered trademark Trademark Infringement is either: -​ Passing off and trademark dilution are both torts 1.​ Passing off - essentially misrepresentation -​ Representing goods and services as something they are not -​ Ex: Knockoff (copy) -​ Action in tort law for misrepresentation causing damages -​ Test is whether there’s a reasonable likelihood of confusion 2.​ Trademark dilution -​ Attempt to de value a mark -​ Using a trademark in a non confusing manner that tarnishes it’s value or diminishes its reputation -​ Ex. examples are unlawful… lol -​ Ex. lose the “McGut” not actionable, but idea of using mcdonalds logo in non competitive way, not trying to sell burgers using logos, but using it in a disparaging way? -​ Can you use competitors' logo advertising?  -​ Yes, wendy’s uses mcdonalds logo in an ad → but as long as you are emphasizing their differences -​ Ex: using their logo to say you are nothing like them -​ Wendy’s said we never use frozen stuff… emphasizing differences, if you were saying our burgers are the same quality, but cheaper - that’s trademark infringement. You’re using their logo to sell your hamburgers, not focusing on differences, you’re communicating a similarity -​ Remedies for trademark infringement -​ Damages (also remedy for all type of intellectual property infringements)*** -​ Injunctions - order by court for someone not to do something -​ Most valuable remedy in most trademark infringement -​ We want the other party to stop the offensive activity -​ Accounting of Profits -​ Specific to intellectual property -​ Disgorgement: order of court to turn over they money they made by using someone else’s trademark -​ Ex. decided to not do business in Nova Scotia, you produce a knockoff and make 100k in profit. -​ What are my damages? no damages -​ i wasn't going to do business there anyways so i wasn’t going to make money, but wasn't going to anyways → I’ll ask the court to tell you to transfer money to me. Not fair that you get to keep profits from your unlawful behaviour -​ Another remedy: Delivering Up -​ Deliver up all of the offending merchandise, make sure knockoffs are off the market, so can’t tarnish my brand image by your low quality goods. Copyright: protects others from unauthorized copying of original literary (books, translations), artistic work (paintings, drawings), musical (any combination of melody and harmony) and dramatic works (choreo, plays, films, videos) Registration process: -​ Similar to trademarks, arise automatically -​ Optional registration -​ If you satisfy the criteria for a copyright, then you have a copyright -​ Doesn’t need to have the ©, or name, but it’s still copyrighted because it meets the criteria Criteria for protection: 1.​ Original (someone must exercise skill and judgement) 2.​ Fixed to a medium (has to stored somewhere, written somewhere, saved, written, sculpted, painted) 3.​ Connected to Canada  -​ Need some connection to claim Canadian copyright protection -​ International copyright protection treaty (very successful international treaty) -​ Each Country has agreed to reciprocally reinforce copyright from other countries -​ Last for life of the author + 70 years -​ Author vs Owner (corporation is the owner sometimes, if you’re employed by a corporation and write something during the course of your employment, the corporation owns the copyright but you are the author) → life is the author, your life plus 70 years -​ Copyrights can be registered as well, but has very few benefits, so usually not registered -​ Is property, so they can be sold, gifted, licensed**** -​ law isn’t protecting the idea, but expression of the idea (Not idea for the book, the book itself is protected) -​ Ex. performance: dvd of live orchestra, can you make 50 copies of the dvd and distribute it? Beethoven has been dead for more than 70 years, It’s in the public domain because he’s dead, you can do whatever you want with the music, but the performance itself is still protected to copyright, because it’s original, stored, and connected to canada -​ Dealing with recorded performances there’s two potential copyrights, the composition and the performance itself Moral Rights: Rights of the author or artist to be associated with the work and not to have the work disparaged or humiliated. CANNOT be transferred. -​ Ex: Eaton centre sculpture of geese -​ CF mall purchased geese art, and decorated them with red ribbons and bows, author was horrified and said you cannot do it, this is serious art and you’ve disparaged me and my art -​ Eaton said we bought it were the owner, and we’ll do whatever we want -​ Author sued, and the court held that although the Eaton centre purchased copyright from the artist, there were these moral rights that the artist had that Eaton didn’t purchase, these moral rights, belong ONLY to author and artist, those rights cannot be transferred! 1.​ Right to attribution (author has right to be associated with the work) 2.​ Right to integrity (right not to have your work disparaged) (no humiliation) a.​ Object to dealings if they hurt your reputation -​ What Eaton centre should’ve done: get author to waive moral rights (agree that they won’t assert the rights against us) when buying copyright 3.​ Association (author has right to object to the work being used in association with a product, service, cause, or institution)  -​ Ex. monkey took photos of herself on the photographer's camera , Wiki media posted the image on their gallery of public domain images, Photographer claimed it was his. Traditionally the owner of camera and film is the owner of photograph, but no decision was made on whether the photographer owned the photo Exemptions/defences under Copyright Act Fair Dealing - defence to copyright infringement - allows you to do something against copyright as long as you fit within a specific number of categories - you can use copyright material in specific situations -​ Exception to copyright protection: -​ Criteria: -​ Review (you can use short snippets of movies, books for the purpose of reviewing/critiquing) -​ Criticism -​ News reporting (can’t take a photograph of a painting and share it, but if the painting was stolen, I can report it as news and put a photo in the news story) -​ Private study (make a copy for private use) -​ Parody or satire (Saturday Night Live uses parts of movies or songs for parodies, not a serious attempt at copying - for humour) -​ For ALL of these, you must operate fairly, not in a way intended to cause harm or unreasonable (ex. Can’t post the entire 2 hour movie and rate it and call it a “review”, you have to attribute authorship-can’t claim that it’s yours and not describe whos it is Patents: statutory right that provides protection for inventions invention -​ Not the idea for the invention, but the invention itself and application of the idea -​ Idea is the general concept or thought, invention is the realized application of the idea (specific details) -​ Provide exclusive rights to practice an invention -​ To practice is to make, use or sell -​ Want to encourage people to be innovative and creative -​ By giving them exclusivity on those things they invent for limited period of time, they contribute invention to body of public knowledge, and in exchange, get 20 years of exclusivity -​ Sometimes say useful life is 17 years because it normally takes 3 years to obtain -​ Protection will be retroactive from when the date that the application is filed -​ Patent pending: applied for patent protection but haven’t gotten it yet -​ Warns others that they could be liable for damages once the patent is granted -​ Can’t put patent pending if you haven’t applied for patent -​ Patents are national - can only exist in the country that it was made and granted -​ Owner of a canadian patent can’t stop the use or sale of the invention in the United states unless they also have a US patent -​ Patents are property → Can be leased, sold, licensed, sold as collateral -​ Protect the invention not the idea for the invention, unlike copyright when an employee writes something original during the course of employment, that work is owned by their employer. With patents, it’s the opposite. When someone invents someone (even in the course of employment), they are the owner. Unless they are employed specifically for the purpose of inventing that thing. -​ Important to have agreements with employees that transfer or assign inventions to the employer, otherwise it might not be under the employers ownership -​ Doesn’t arise automatically!! - you have to fill out an application with the Canadian Intellectual Property office -​ First to file system -​ Needs to be -​ New -​ Bit misleading, requirement is a a disclosure requirement, invention cannot have been disclosed to public for more than one year in advance of application being filed -​ Most common attack on patent, attack on the basis that criteria was not satisfied because invention was disclosed more than a year of its application being filed -​ Ex. inventors present a paper at a conference, publish their invention, or disclose it. The one year clock starts ticking and if the patent application hasn’t been filed for one year of the disclosure… invention is no longer new and not patent -​ Ex. you can invent it and keep it a secret for 10 years, then apply for patent. But if you publish a paper, and then patent it 2 years later, you can’t -​ Useful -​ It has to solve a practical problem and work (serve a useful purpose) -​ Ex: perpetual motion machine lacks usefulness -​ Not Obvious -​ There has to be an inventive step -​ You can’t make something with a different material and patent it, can’t be a cup for holding milk , or roof to keep you out rain -​ Type of inventions that can be patented are products (machines, equipment), compositions (drug, pharmaceuticals), processes (assembly lines), improvements (on any of these) -​ Not entirely clear if a method of business can be patented, in US it can be, in Canada, not clear -​ Amazon’s one click ordering system was approved for patent -​ To apply for patent, must provide full discretion of patent, and claims of exclusivity -​ You must provide a set of drawings for invention, but also required to claim how invention will be used exclusively (for specific purpose) -​ Protect inventions, inventions must be useful  -​ Ex. bike patent, use/claim is for human power transportation, that would prevent someone else from making a similar device for human transportation. But does not prevent someone else making a decorative pin/broach in the same shape. That is not something that is claimed in the patent! Exclusions: exceptions to what can be patented: -​ Things that receive exclusive protection under other areas of law -​ Ex: computer programs are already protected under copyright law -​ Things that ond’ meet the definition of a patent -​ Scientific principles are discoveries and inventions -​ Things that for policy reasons aren’t patentable -​ Ex: methods of medical or surgical treatments aren’t patentable -​ Inventions are -​ Products -​ Ex. machines, equipment -​ Compositions -​ Drugs, pharmaceuticals -​ Process -​ Assembly line -​ Improvements on any of these -​ Can a method of business be patented ? canada not clear, US yes it can -​ Ex. amazon one click ordering system in canada Remedies for Patent Infringement: (same as trademark) -​ Damages -​ Injunctions -​ Accounting of profits -​ Delivering up offending merchandise -​ Patent work is very specialized and expensive, impossible to do patent protection on your own, patent lawyers are super expensive Example of property law controversy: -​ BRACAnalysis → revolutionary test for 2 genetic markers for 2 types of breast cancer -​ ex. Angelina jolie - doubt vasectomy but no breast cancer (tested positive and family history) -​ If a woman has one of the 2 genes, very high probability of developing breast cancer -​ If a women has one of the genes and family history, guaranteed cancer -​ Very expensive -​ It’s good but there are better tests with fewer false negatives, some state health agencies used competitive tests that are better and cheaper, myriad sued for patent infringement, claimed the invention and said they were infringing their intellectual property -​ state health said your argument is “women must die so your shareholders get more money”  -​ Myriad said yes, without us and our shareholders, there would be no test to copy -​ Couldn’t have competitors without myriad, you have to protect our inventions otherwise there would be no other inventions, if you use capitalist model for research and development, you need to be able to make a business case for inventions → one of the reason why aids was left untreated in africa for so long- no sufficient business case to make aids drugs to sell to Africans cuz they don’t have enough money, no case on how they were going to get a return on their investment so pharmaceutical companies didn’t engage in that research and development -​ Conclusion: Naturally occurring genes cannot be patented but artificially created genes could be. So in that case, Myriad can’t be patened because it protects naturally occurring genes, but by the time it got to SCC the patent expired. Industrial Designs: protect visual appearance of a product -​ Ex. shape, configuration, pattern or any combination of these applied to a finished product but not features by function (toys, vehicles, furniture) -​ Protect against manufacture, sale, rent or importation of an infringing product Requirements: -​ Original and novel -​ Originality standard is lower than inventiveness standard in patents -​ Has to be substantially different from prior art, more than just a simple variation -​ Ex. shape and colours for drill gun -​ Overlap between Industrial design & trademark → both not functional (separates them from patents which are functional) -​ Ex. shape of coke bottle, protected both as industrial design and trademark -​ Industrial design is capped at 10 years, if you want more try to protect as trademark (must satisfy criteria) Registration: -​ NOT AUTOMATIC: Must be registered for protection -​ Must be registered within 1 year of initial use -​ Registration lasts for 10 years - renewable -​ You’re not required to mark it but will enhance your rights in an infridngement case -​ If it’s marketed, court can award monetary damages, if not marked, court is limited to awarding an injunction -​ (D) next to name of design owner -​ Are customer lists, technology, confidential information intellectual property? → controversial -​ not protected as property, but protected as contracts sometimes? -​ Courts usually protect against unlawful use: theft / or breach of legal obligation -​ Ex. idea for movie, tell jan, but want to make sure jan can’t disclose to others or use it, how can i protect my idea?  -​ can't copyright bc that doesn’t apply to ideas, so would get jan to sign a non disclosure/ confidentiality agreement, where you agree that you won’t disclose or use the information i’m providing you -​ If you disclose and breach the agreement, can I sue the other person? No, privity of contract -​ Property rights can be asserted against the world unlike contractual which can only be asserted to parties of the contract. So confidential information/trade secrets aren’t protected in the same way as property, and only through contracts, they don’t count as intellectual property Arguments for information freedom -​ Non exclusive use argument -​ Value of information argument -​ Needs of society argument -​ Maximum benefit argument -​ Counter morality argument -​ Counter economic argument -​ Counter incentive argument Proprietary software: Apple -​ Software owned by a company/indv and is only available under a license that restricts how the software will be used -​ Your phone can do exactly what Steve Jobs wants it to do - no more no loess -​ We have no control -​ Can’t customize it -​ owned by a single entity and limits access to its source code -​ Windows, apple Open source software: -​ freely available for anyone to view, modify, and distribute -​ Owner has obligation to publish stuff that's invented - can’t claim ownership -​ You will never try to own it -​ Not claim intellectual property protection - free to be used and share among ordinary people -​ NASA -​ Android, firefox Aaron Swartz -​ Web programmer -​ 13 years old, RSS syndication standard (orange box with white marks -​ 14 years old, developed creative commons copyleft © is other way around - must remain in public domain (make people agree to license that they will never assert property rights to it - can’t charge for it, claim ownership, make changes and claim ownership for the changes) -​ Most used open source content system their is -​ Founded Infogami - merged with Redditt -​ Threatened to prison and millions of dollars in fines -​ Became influential while waiting for charges - stopping STOPA (online piracy act) -​ Fight for internet freedom - never tried to make money, just make the world a better place -​ Committed suicide at 26 years old Chapter 10: Employment Law -​ Most difficult for businesses, people have emotions and do stuff -​ Best indicator for business success -​ Not just contractual, people need jobs, necessity → imbalance of power → voluntary consensus Employment Law 1.​ Employment relationship 2.​ Termination of employment 3.​ Other employment laws 4.​ Collective bargaining *doing the right thing, treating employees fairly with dignity and respect, and honouring legal obligations, can provide real benefits for employees. For a couple reasons, less likely to get in legal disputes, and employers can be more successful in business if they cultivate a workforce of proud employees with a sharing of values across the organization -​ Historically employment law comes from a time with a 2 class system -​ Rich and poor - land owning people and people who worked for them Lesson 1: The Employment Relationship Every employment relationship is a contractual relationship  -​ Whether the contract is in writing or not! -​ Fundamental principles of contract law is freedom of contract -​ Freedom of contract: you can structure legal arrangements however you like as long as you voluntarily agree to the terms, then the law will enforce it -​ That’s why historically contracts were so unfair between employer employee relationship yet the courts still enforced them -​ When employees went to the courts to complain about unsafe, dangerous working conditions, or discrimination/harassment. The courts would ask if you voluntarily agreed to the terms of employment, and then would conclude that they don’t get involved if the terms are fair, only if the contract was voluntarily entered into. Which it was, so it’s enforceable -​ Now we have laws that protect employees and social safety nets (worker compensation, OHIP) -​ How did we get to where we are now? 3 significant times that changed labour laws: 1.​ Development of a middle class after WW1 a.​ Ordinary people had disposable income b.​ People used to have to spend everything, couldn’t help others because they couldn't’ even help themselves c.​ With mass production and industrialization, working class had more income than they needed d.​ They collectively helped their neighbours who were less fortunate 2.​ Involvement of women in politics a.​ When women got involved, they fought protecting vulnerable people (children and workers) b.​ Lots of legislation to protect workers now, health and safety, human rights, employment standards, pay equity law, social security net 3.​ Introduction of labour unions and trade unions a.​ Started off by threatening viability of businesses by speaking on behalf of a union with a unified voice b.​ Unions would go to employers and threaten to shut down production unless you agree to various terms (better wages, safe working conditions, compensation) Legally, we’ve taken contractual relationships and modified it by both legislation and case law -​ Still have contract and freedom of contract, it’s just been modified by legislation and case law -​ Employment contract isn't treated the same as other contracts (linked to notions of human dignity, human rights, and public policy) -​ So courts have taken a different approach to employment contracts Distinguish between EMPLOYMENT and INDEPENDENT CONTRACT (do we have an employee?) -​ Doing work for money doesn’t mean there's an employment relationship -​ Law clerk vs plumber, both do work in exchange for money but plumber is independent contractor, not employee Employment relationship: contractual relationship where an employer provides money in exchange for works Independent contractor: person in a working relationship that doesn’t meet the criteria of employment Dependent contractor: person who is an independent contractor but has a relationship of economic dependency with the employer as a result of working exclusive or almost exclusively for the employer for a long period Why do we need to know if there’s an employment relationship? (don’t need to do any of this with an independent contractor) 1.​ Vicarious liability a.​ Employers are vicariously liable b.​ If there’s no employment relationship, you’re not vicariously liable 2.​ Employee legislation a.​ If we have an employment contract, we need to comply with employment laws (health and safety, employee standards act) 3.​ Income tax deduction a.​ When you get paid, you get net because employers have to deduct (CPP, Income tax) and remit them to the government b.​ If you don’t have an employee, you don’t have to do the deductions How do we make the distinction? -​ Courts will look at all available evidence to try to determine employment relationship or not -​ no single factor that determines the relationship, but there's a few that are more important than others -​ Biggest distinction between independent and dependent contractor is whether the person who has been engaged to perform the services is performing them as a pearson in business on his own account 1.​ Control Test - first and most important a.​ Who controls the work that is done? Who decides when the work is done? Where it will be done?, how will it be done?? b.​ If the person that controls the work is the person for whom the work is being done, then employment relationship. if the person who controls the work that is done is the person doing the work, more likely to be independent contractor 2.​ Organization Test a.​ How important and critical is this person to this organization, the more important/critical to the organization, the more likely employee b.​ The more peripheral (less connected to organization), more likely to be contractor 3.​ All other available factors a.​ Does the person doing the work have a risk of loss? b.​ Are they using their own their own tools? - using their own usually means independent contractor  c.​ Is there a written agreement stating they are employee or not? (written agreement doesn't make the distinction!! Written agreement is only one of the factors, and it’s not an important one) Ex. clerk -​ i control the work: determin where it’s done, clients, what they do, how its done etc, -​ According to control, my law clerk is an employee -​ Law clerk is an integral part of organization (has a desk, business card) employee -​ Other factors: clerk eats lunch, doesn’t own tools, resources (paper) are provided by me, also have employment agreement stating employee -​ All the factors point towards an employment relationship Ex: Plumber -​ Plumber controls work, decides hours, who to work for, what kind of work, how she’s going to fix a sink -​ Control suggests that plumber isn’t an employee, shes an independent contractor -​ Plumber isn’t part of organization at all, doesn’t wear my uniform, has her business name, doesn’t get paid salary -​ Plumber isn’t at all integral to organization -​ Plumber owns her own tools, replaces them herself, has a risk of loss (if she spends more on ads then she loses money) If we do have an employee, Obligations of employers - employees have certain statutoriy rights and benefits -​ Pay salary or wage -​ Honour employment contract (paid holidays, overtime, employee is entitled to reasonable notice on termination) -​ Provide safe working conditions -​ Follow employment laws Obligations of employee -​ Work competently -​ Be on time -​ Be loyal -​ fiduciary duty (maybe) -​ Sometimes employees are fiduciaries - If agent, officer, director, then maybe -​ If they are an hourly employee or assembly line worker or custodian or music teacher, then they don’t owe a fiduciary duty to their employer REMEMBER: this is contract law. It’s contract law modified by legislation and case law. Fundamental principles of contract law apply Risks in hiring -​ Vicarious liability (employer is respomsible for the misconduct of an employee) -​ Hiring process  -​ Employees would normally 1.​ Develop job descriptions 2.​ Advertise the positions 3.​ Have candidates complete an application or submit a resume 4.​ Short list candidates 5.​ Check backgrounds or references 6.​ Interview selected applicants Human rights requirements -​ Human rights legislation provides equal access to employment opportunities for all -​ Prohibits discrimination -​ Human rights commission is an administrative body that oversees the implementation and enforcement of the human rights commission Prohibited grounds of discrimination Discrimination: act of treating someone differently on the basis of a prohibited ground Adverse effects of discrimination: discrimination that occurs as a result of a rule that appears neutral but has discriminatory effects -​ Ex: requiring people to work on saturday (might not intentionally discriminate those who’s religion doesn’t allow them to work on saturday) Systemic discrimination: discrimination that results from the combined effects of many rules, practices and policies -​ Ex: if a workforce is overwhelmingly dominated by male workers Defences to discrimination -​ Certain situations allow you to discriminate on a prohbited grounds -​ Affirmative action or equity plans and group insurance and pension plans Bona fide occupational requirement: defence for discrimination when it is done in good faith and for a legitimate business reason -​ Ex: requiring people to have a valid driver's license discriminates against people with physical disabilities, but a drivers license is a BFOR for truck drivers -​ The Meiorin test is a 3 step test to determine if a discriminatory standard qualified as BFOR 1.​ Duty to accommodate  a.​ Accommodate special needs of those who are negatively affected by a requirement up to the point of undue hardship b.​ Undue hardship doesn’t require employers to show that its impossible to accommodate the employee, they just have to modify working conditions in a fundamental way that would completely alter the essence of the employment contract Employment equity Employment equity legislation: laws designed to improve the status of certain designated groups -​ Requires employers to take positive steps to make the workplace more equitable Formation of the employment contract -​ Negotiations leading to an offer of employment involve a lot of information being exchanged Employemtn contract Fixed - ordefinite term contract: contract is for a specific period of time Indefinite term contract: no fixed period -​ Entitled to reasonable notice in the event of termination without cause Express terms: terms agreed upon by the parties -​ Benefit packages, job descriptions, company rules, policies Implied terms: not specifically agreed upon by the parties but what the courts believe the parties would have agreed to, if they had negotiated the point -​ Common in exmployment -​ Ex: if parties don’t specify the duration, it is implied that the contract is indefinite so the contract doesn’t come to an end unless one of the parties gives notice of termination -​ This term leads to another implied term that the notice of termination must be reasonable Lesson 2: Termination of Employment Termination of employment can be with or without cause. -​ When terminated with cause, an employee is not entitled to any notice of termination or severance pay -​ Employee can be fired on the spot immediately -​ Similar to a breach of contract by employee that is sufficiently serious that the employer can treat the employment contract as over Just cause: employee conduct that amounts to a fundamental breach of the employment contract “Cause” can be based on -​ Serious misconduct -​ Dishonesty -​ Insubordination  -​ Chronic absenteeism -​ Sexual harassment -​ Conflict of interest -​ Breach of fiduciary duty -​ Criminal behavior -​ “Cause” → behaviour/misconduct of the employee must rise to a degree that it: -​ Violates an essential condition of the employment contract -​ Breaches the trust or faith that is inherent in the working relationship -​ Is fundamentally inconsistent with the employee’s obligations to the employer -​ Don’t always need cause, or sufficiently serious, → reason for termination cannot be arbitrary or discrimination → has to be for business reasons, ex. Not getting along, just not performing as well as you hoped. Ex. can you fire an employee because they've been late 20 times, and you did progressive discipline (file showing that you started with the least severe punishment and worked towards termination with cause), then maybe sufficient, if no file, then maybe no cause -​ Need progressive discipline, need writing and records, can’t go 0 to 100 Termination of employment without cause must be in good faith -​ Reason can’t be arbitrary or discriminatory, has to be for business reasons Creates 2 sets of obligations on the employer: -​ Must comply with ESA (employment standards act)- provide required notice, severance -​ Must provide “reasonable” notice (under common law) -​ Both obligations coexist, can overlap, not additive , common law notice almost always longer than ESA -​ If there's a written employment contract that sets out reasonable timeframe for notice, then thats whats used as long as it’s within ESA requirements, if not, then reasonable notice must be given under common law ESA notice (without cause): 1 week of notice per year of employment, to a maximum of 8 weeks -​ Ex. if employee has worked for 2 years = entitled to 2 weeks notice, 12 years = 8 weeks -​ Notice can be notice of termination or payment or notice plus pay -​ For ex. If employee has worked 12 years, they’re entitled to 8 weeks notice. They could either be given a notice “in 8 weeks your employment will end” or they could be given a cheque representing 8 weeks pay and they leave immediately or combination “in 4 weeks your employment will end, at which time you will receive a cheque representing 4 weeks pay” -​ Can be lump sum , notice of termination or combination of both -​ ESA severance: when do you need to provide severance? -​ If annual payroll (total for all employees) is greater or equal to 2.5 million and if employee has been employed for at least 5 years.  -​ If both conditions are met, then employees are entitled to 1 week of severance pay per year of employment, max 26 -​ Ex. 12 years of employment is fired without cause cause = entitle to 8 weeks of notice under ESA and 12 weeks of severance if the employer has a payroll of 2.5 million or more -​ Severance can only be a lump sum payment on termination, not spread out over time -​ If employer doesn’t comply, then employee can go to ministry of labour requiring employer to pay “Reasonable” notice is based on: -​ Age - older employees are entitled to more notice cuz its harder for them to find jobs -​ Seniority - high status employees are entitled to more notice -​ Skills, training, education -​ Ability to find alternative employment -​ Notice of termination is intended to give employees a reasonable opportunity to find alternative employment. More difficult it is for them to find a job, more reasonable notice they are entitled to Courts have consistently held that it is an implied term under every employment contract, that reasonable notice of termination will be given. if notice is written in contract = expressed term and follow if notice isn't written = implied term that it will be reasonable -​ Disability? May be allowed by contract law, but there’s a duty to accommodate under human rights legislation, and discrimination on basis of disability can result in human rights complaint and reinstatement Wrongful Dismissal -​ Failure to provide reasonable notice (usually this) -​ Termination on bad faith -​ Discrimination What does the employee get if they sue for wrongful dismissal? -​ bardel damages, employee is awarded damages equal to the notice of termination they should've received and didn’t -​ Because this is breach of contract, employee has to mitigate damages -​ They must continue looking for work, keep records of employment search, go to interviews Ex: employee given 8 weeks, maximum ESA, but if they were employed for 18 years, we would normally think reasonable notice is approx. 2-4 weeks per year of employment = so the employee is probably entitled to a years worth of notice -​ If court agrees that employee should’ve been given 52 weeks of notice but were only given 8 -​ The employees bardel damages are 44 weeks (52-8) (amount of reasonable notice they should've gotten - what they actually got)  -​ Honda vs keys, Mr keys was diagnosed with chronic fatigue syndrome, went to tell Honda that he can’t work because of this. Honda said i don’t believe you, and forced him to see their doctor. If he didn’t, it would be treated as if Mr. Keys resigned and weren’t going to give notice, severance, pension, etc. At trial, Mr keys was awarded 15 months of pay in lieu of notice and punitive $500,000 in punitive damages because the employer acted in bad faith and caused emotional distress -​ SCC upheld 15 months of bardel but overruled punitive damages, said employer didn’t act in bad faith and intend to caused harm -​ Ended Wallace damages - Wallace was terminated from employment and was humiliated by employer, trial court extended amount of reasonable notice because of the humiliation. -​ If you terminate an employee in a humiliating way, you could be liable for wallace damages -​ In Keys vs. Honda SCC ended these - can’t award Wallace. Any damages for mental suffering has to be provable in a stand alone claim. Wallace isn’t good law and can’t be followed. You can't increase the amount of notice due to the manner that the employee was let go. -​ Damages must be based on the losses employees actually suffer and not randomly extending the notice period Constructive Dismissal: when the employer breaks the employment contract by fundamentally changes nature of the job without the employees consent causing them to resign -​ Opposite of termination of cause, it’s a breach of a condition by the employer so employee is entitled to treat the contract as ended -​ When employer wants to let someone go but not pay all the associated costs, so they make it so unpleasant for them so they resign -​ It’s Wrongful dismissal, damages that employees are entitled to will be the same as if they were fired without cause (reasonable notice). Employee must resign for there to be constructive dismissal Wrongful dismissal damages -​ Courts will calculate damages by determining the number of months notice the employee is entitled to and multiplying by the salary and benefits they were entitled to for each month How do employers navigate this landscape? -​ They have to provide minimum under ESA (Statutory law) -​ How much they want to provide in terms of reasonable notice, it can be difficult to estimate -​ Often use estimate of 2-4 weeks per year of employment for reasonable notice, but it could be less or more -​ Implied term of contract, not entirely clear -​ If an employee already has a new job on monday, there’s no reasonable notice needed, vs an old person with very specific skills who would struggle finding a new job. Reasonable notice would be much longer -​ Employer has to figure out how much reasonable notice they have to provide, to not overpay but also not get sued for wrongful dismissal -​ There’s non monetary costs to employment -​ Value of knowing the process is done, and you won’t get sued -​ Value of sending a message to other employees - telling them to sharpen skills but also that they’ll be treated with respect and fairly Lesson 3: Other Employment Laws Employment Standards Act (minimum standards that can’t be waived) -​ Minimum wage -​ Hours of work, overtime, break -​ Vacation (2 weeks a year minimum, you can agree that they’re entitled to more but not less) -​ Pregnancy and paternal leaves -​ Equal pay for equal work -​ termination, layoffs, severance -​ Layoffs - Covid, employees got laid off. Employers discovered that they weren’t entitled to do that unless they had a written employment contract where layoffs were permitted. The Ontario government amended the ESA to permit layoffs as a result of covid, but that doesn’t change common law. People still have a potential  claim for wrongful dismissal, if they didn’t have an employment contract that said they could be laid off and they were told not to come, that is wrongful dismissal. -​ Most cases didn’t get litigated because people decided that they were better off going back to a job then suing their employers -​ Layoffs aren’t permitted unless its set out in a written employment contract Ex. can employers conduct drug/alc testing of their employees -​ we want safe and efficient workplace, but employees deserve reasonable privacy -​ Law: mandatory drug testing generally illegal, testing for impairment is legal though -​ You can’t randomly test people, but if they show signs of impairment you can -​ Some occupations its permissible to conduct random drug tests, rare - usually jobs involving extreme public safety -​ Drug users can be dismissed after they have been offered treatment and refused it, or refused to cooperate once they go to treatment, or if they can’t perform job due to drug dependency -​ Human rights tribunals see drug and alcohol dependency as a disability, so there’s a duty to accommodate on the part of the employer. You don't have to have people impaired on the job but you have to offer treatment and try to accommodate people who might have drug and alcohol dependency issues Human Rights Legislation -​ Prohibits discrimination on a number of listed grounds -​ Requires accommodation for disability -​ Prohibits sexual harassment -​ May result in fines, reinstatement -​ Applies to mainly 3 spheres of activity: Employment, government services, and accommodation → all absolute necessities (need a job, gov services, and a place to live) -​ Although Human rights legislation can be harmful in other areas, its particularly harmful in these 3 areas -​ Human rights legislation has a huge impact on employment relationship -​ In Ontario, comes in the form of ontario human rights code. Federally regulated employer - canadian human rights code -​ Codes are quasi criminal, not criminal law (thats federal jurisdiction), but like criminal -​ can be fined, or jail time, or orders of reinstatement for wrongful termination Other Employment Legislation -​ Health and safety -​ Occupational health and safety act of ontario -​ Workplace hazardous materials (WHMIS) -​ Employers must take steps to ensure safe workplace -​ Pay equity -​ Employers receive equal pay equal value -​ Employment Insurance -​ Workers Compensation - unpaid wages when employer goes background -​ BIA, WEPA, etc  -​ Bankruptcy and insolvency act for when employer is bankrupt -​ Wage earners protection act - employees get some of what they’re owe if employer is bankrupt Lesson 4: Collective Bargaining -​ Unions played a large role in changing the labour legal landscape -​ 100 years ago, workplaces were very dangerous -​ Employees had 0 rights, employers did whatever they wanted, no social safety net (if someone loses their job, dies on the job, their family most likley will go without food) -​ Protected by law in ontario -​ Individually, employees have no bargaining power but if all employees speak collectively, they have much greater bargaining power -​ Union bargaining on behalf of many employees has much more bargaining power than a single individual negotiating with an employer -​ Unions and Collective bargaining is protected by law in ontario -​ Federal labour legislation → canada labour code -​ provincial labour legislation→ labour relations act of ontario -​ Provide fo boards and tribunals instead of courts -​ Disputes in collective bargaining process are resolved through binding arbitration Collective bargaining concepts: 1.​ Organization and Certification -​ 3 ways union can be certified as the bargaining agent for employees (1)​ If more than 50% of employees have joined the union, (ex. Sign membership cards) → union is then certified as the bargaining agent for ALL employees, not just those who joined (2)​ If there's a vote and more than 50% OF VOTES CAST are in favour for union (still applies to people that didn’t vote) (3)​ If the employer engages in illegal practices, threatening discipline for being in a union, or threatening to close, or other activities that are prohibited, then the union is automatically certified as a bargaining agent without a vote -​ Once a union is certified, they have the right to negotiate for the employees. employees lose the right to individually negotiate, union acts as AGENT for all employees. Legal agency relationship (employees are the principal) -​ Unions have broad rights to campaign Employers cannot prohibit employees from participating in union activities 2.​ Bargaining (based on agency) -​ Once a union is certified as a bargaining agent for employees, they have exclusive authority to bargain on behalf of employees -​ Employer and Union must bargain in good faith (make substantive effort to negotiate the agreement) -​ If the negotiations aren’t successful, either side can have a mediator  -​ Mediators are usually required before workers go on strike or employers lockout (prevent workers from accessing the workplace -​ If mediation doesn’t work, legislators might impose a contract (rare) -​ Usually parties continue to negotiate (maybe go on strike or lock out) until they arrive at a mutually agreeable Collective bargaining agreement. -​ Collective Bargaining Agreement (CBAssed) -​ Term off at least 1 year -​ Become binding when both sides approve agreement -​ Prohibit strikes on part of (employee), and lockout (employer) during the term of the CBA -​ Retroactive till date of expiry of the most recent CBA -​ Must provide that Grievances are settled by binding arbitration -​ Will always set out terms of relationship, (conditions of work, rates of pay, vacation, termination, etc. ) it becomes the employment contract between employer and employees -​ Labour disruptions and dispute -​ CBA buys labour peace → if you do it, it's a wildcat strikes, can go to jail for organizing -​ Strikes can only used as part of negotiation and bargaining process, some public service workers have limited rights to strike -​ The labour dispute in the form of a strike is the most potent weapon that the union has, vice versa employer can lock out employees “unless you agree to these terms, we aren’t letting you work” -​ Unions must be democratically run, and represent all workers equally -​ Employers have to respect unions because they are protected by the law -​ Employers usually don’t’ complain about unions, there's some benefits (predictability, consistency), -​ Clients who don’t have unions are scared of employees unionizing - but if you don’t want to be unionized, treat employees well Summary: -​ Professionals owe a range of duties to clients - they’re governed by contract and tort law -​ They have to deliver services as contracted for and in accordance with the requisite professional expertise -​ If they are negligent in perfmong responsiblits, they can be repsomsible for damages -​ Also, they have a fidicuair relationship with their clients Chapter 11: Sale of Goods and Consumer Protection -​ Commercial law - commerce -​ Before, risk was all on buyer, then they are reluctant to participate , commerce is halted -​ Sale of goods → promotes commerce and economy → protects buyers and levels playing field → contract relationship → government intervention to protect economy -​ Promote and balance commerce by protecting participants → consumer protection law -​ Competition law → federal, prevent anti competitive manner of companies, Lesson 1: Sale of Goods -​ Foundation of commerce is sale of goods -​ Vital to economy -​ Law of the sale of goods is interested in the rights of buyers and sellers, those are the parties involved of a sale of goods transaction -​ Statute that governs the sale of goods in Ontario → Sale of goods act -​ Broad range of application → can be chocolate bar and multi million dollar airplane -​ EVERY province has a Sale of Goods act -​ Why has the sale of goods act not changed compared to other areas of law? -​ Political priorities and legislative agendas -​ Voters aren’t interested in reforming in the Sale of Goods Act, it isn’t a priority for politicians -​ Consumer protection is important to voters, so politicians make it a legislative priority History -​ Under original common law, sales transactions favored sellors → law was known as caveat emptor (buyer beware - all risk was on buyer, they have no remedies if product was deficient) -​ To make it more fair, common law created rules to protect buyers -​ Done by courts implying terms into sale of good contracts -​ Sale of Goods act works in addition to underlying sales contract, adds to it, doesn’t replace it -​ Provides specific rules governing relationship between buyer and seller -​ Applies to every contract for the sale of goods -​ We need to know what goods mean and when we have a sale Goods: tangible personal property → not services, intangible, real property, gifts, leases, or license, intellectual property b -​ Hard to distinguish between sale of goods and provision of services -​ Case GM Whitespot mr Gee got food, and it made him very ill, sued the restaurant for breach of implied terms of the sale of goods act → but question for court was: is serving a restaurant meal a sale of goods or provision of services? → court held that contract was for the sale of goods, other services were provided, but primary purpose of the transaction was to provide him with a meal -​ Case Boric and hooper → boric wanted to buy a painting from an artist with specific style (solid horizontal stripe with a plain background)→ Boric had a specific colour in mind, and size, commissioned them to paint the picture for her, he did it but it later started to crack and peel and yellow → she sued Hooper for breach of contract, breach of implied conditons → question: was this contract primarily for the sale of goods or primarily for supply of services? → court said this contract was primarily for provision of services. Yes, goods were provided (canvas, paint), but primary purpose was for the artist's skill and expertise  -​ If she bought a painting from a gallery, that’s contract for sale of goods -​ Btu she commissioned the artist for the specific painting, so that was contract for services and Sale of Goods Act didn’t apply -​ Only applies to SALE OF GOODS (not gifts, leases, licenses), property must be transferred and must be paid for (money must change hands)…. Pretty archaic - if you go to a car dealership and buy a car, sale of goods act protects you, but if you lease a car, sale of goods act doesn’t apply - because it’s not a sale -​ Allows buyers and sellers to modify or exclude implied terms and conditions of sale of goods act, but not in consumer transactions -​ We have to differentiate if we have a business or consumer transaction → if it’s consumer transaction, Act applies for sure → if it’s business transaction, then Act applies unless the parties agree to modify or exclude it -​ When do we have a consumer transaction? -​ Test: Does the buyer intend to use the good primarily for consumer purposes (household, domestic, personal) or business purposes -​ Doesn’t matter what kind of good → test is what the goods will be used for -​ Ex. Buying a coffee machine for my house is a consumer transaction, because I'm using it for household, domestic, or personal purposes. But if i go to the same store and buy the same coffee maker for the office cafeteria, that’s a business transaction and the Act applies but we are free to modify or exclude it if we choose -​ Ex: major grocery chain orders inventory vs consumer purchasing product. You can exclude the application of the act in first ex because its not a consumer transaction. You can’t exclude Sale of Goods act in consumer transaction. What does the Sale of Goods Act do? -​ Implies terms into sales contracts (conditions and warranties) -​ Implied terms are terms that will be interpreted as part of the contract because the court implies it -​ why would the court imply? - because the sales of goods act says so, some implied terms in the Act are implied conditions others are implied warranties -​ Conditions are fundamental, essential to contract → breach of a condition gives innocent party right to terminate contract (return the goods if they have been delivered and return of purchase price if paid) -​ Implied conditions of every contract: -​ Seller has right to sell (seller doesn’t have to be owner of goods - amazon doesn’t own the goods they sell, they arrange the sale and have the right to sell) - vs. if goods are stolen this condition would be breached -​ Goods must match description (picture must match description and good) -​ Goods must match sample (if you see on display, good must match)  -​ Merchantable quality (can’t have defects, no dent in tv) (dent on back doesn't breach suitable for intended purposes but breaches merchantable quality, dent on front does bc you cant watch tv) → can have overlap -​ Reasonably suitable for intended purpose -​ Tricky because goods are used for many purposes -​ The goods should be reasonably fit for their intended purpose where the buyer, expressly or implied makes it known what the intended purpose of the good will be, in a way that shows hes relying on the skill and judgement of the seller (doesnt have to be for the goods ordinary purpose) -​ You go to a surfboard store, idk anything about it i just want once, salesperson gives you one that they said was good, but it sinks. and they said it's a really good one → breach, you were using the good for it’s ordinary intended purpose, it must be suitable for that purpose, not suitable for floating and surfing) VS (surfboard store, tell them u want surfboard but don’t tell them you don’t intend to use for surfing, you just want it as furniture, you buy it but its a bad furniture →is there a breach of condition? No. you’re not using the board for it’s intended purpose and you don’t make it known VS (you tell them you want for furniture, and they give u one that they say will work, but it doesn't, is a breach, yes! Although you din’t use good for ordinary purpose, you told seller and they made a recommendation (they didn’t have to - could’ve said they don’t know about using board for table), they recommended the product and took on risk -​ Breach of warranty is minor term, only gives innocent party right to damages, not to terminate the contract -​ Implied warranties (can’t terminate contract but can sue for damages): -​ Free from encumbrances and liens -​ The goods must not be subject to undisclosed claims by third parties, such as debts, security interests, or liens. -​ For ex: if a lender has a claim over the goods that was not disclosed at the time of sale, this warranty is breached. -​ Delivery of goods will be made within a reasonable time -​ Paid for in a reasonable time (only implied term that operates to benefit the seller!) -​ Other implied warranties benefit buyers - Sale of Goods Act provide additional protection for buyer -​ SGA Helps determine when title passes from seller to buyer not to termination -​ Important because: Risk follows title -​ Whoever has title to the goods, bears risk of loss (theft, damage, destruction)  -​ Risk of loss will transfer from seller to buyer when ownership of the goods passes from seller to buyer -​ You want to know when you have title so you can take care of the goods -​ Intention of the parties will govern → if you can determine when the parties intended the title to pass to buyer -​ If you can’t determine, then SGA provides rules to determine when title passes to buyer -​ Intention is super important → when the parties intend for property and the goods to pass to the buyer, is when it will pass → if you can’t determine you go to the rules under SGA -​ Provides remedies in the event of breaches 1.​ Repudiation (if there’s a breach of condition) -​ They can terminate contract, if they haven’t paid , they don’t have to pay, have to return the goods if they received it - if they’ve paid, they can get money back 2.​ Damages (if there’s a breach of warranty) -​ Innocent party can always treat a breach of condition as a breach of warranty if they want, they can choose to accept and use goods and pay for them, and then sue for damages. They can do that even if breach of condition. -​ In some cases, if they use the goods and can’t restore it to original condition, they will be forced to only sue for damages Lesson 2: Consumer Protection -​ In ontario, the Act is called Consumer Protection Act -​ Every province has one, small differences, but largely the same approach -​ It modifies freedom to contract, allows people design contracts how they choose, but puts some limitations to protect consumer -​ there’s debate to whether consumers deserve more protection than others -​ Definition of consumer transaction: If purpose is domestic, household, or personal, then it’s a consumer transaction. Consumer gets benefit of all the protection in the act -​ If the purpose is for business, it isn’t a consumer transaction and the Consumer Protection act doesn't apply -​ Protects interests of consumers -​ Consumers are weaker, more vulnerable, less less legal advice, less informed about law than businesses, also if you want consumers to be enthusiastic participants in the commercial marketplace, we have to protect them to encourage them to participate (if they keep getting scammed then they won’t participate and negative effect on trade and commerce) -​ Counter argument 1: some consumers don’t need protection but we provide it to all of them  -​ If I buy a coffee machine from canadian tire i'm a consumer and get all protections from CPA and SGA -​ But a young business owner with no experience and business knowledge buy the same coffee maker for their business, they don’t get any protections even if they need it a lot more than I do -​ Counter argument 2: Increases transaction costs, every time you add another requirement to business transactions, you make the transactions more expensive and make Ontario businesses less competitive compared to foreign competitors (who don’t have restrictions) -​ Counter argument 3: condescending for government to deem that i need protection, I don’t want government tweaking contracts that I enter into Government tries to balance the degree of consumer protection without having too negative of an impact on trade and commerce. So what does the Consumer Protection Act do? -​ Allows consumer to sue in contract (regardless of privity) instead of tort -​ If you buy a car from a dealership, you can sue manufacturer in contract law, not just negligence -​ Instead of proving negligence in a tort law case, you can prove that the protect didn’t uphold to what it was supposed to and sue the manufacturer -​ Allows consumer to ignore rule of privity (even though they aren’t a party to the contract, they can sue) -​ Makes SGA mandatory → cannot be excluded if consumer -​ CPA makes SGA mandatory for consumer contracts -​ SGA doesn’t differentiate between consumer and businesses -​ It only says that parties are free to modify/exclude provisions of the act -​ The CPA says that if it’s a consumer transaction, then SGA can’t be modified or excluded -​ Applies to services (not just goods) → CASE: boric and hooper, distinguish contract for goods and services -​ If you’re a consumer, there’s an implied term in every contract that services will be rendered in reasonable manner (you have same type of protection when you’re procuring services - just like goods) -​ Duty to warn of product hazards -​ Prohibit false/misleading claims -​ Because ads are not an offer, it an invitation to treat → if misleading claims aren’t made in the offer, it’s not a breach of contract if it’s not true -​ statute says that’s an unfair business practice Controlled Business Practices that are regulated by CPA -​ Direct (door to door) sales -​ Provinces differ -​ Some need licenses and registration, ontario has none - -​ But there’s a 10 day cooling off period for goods sold door to door that allows customers time to reconsider their purchase decision  -​ Timeshares -​ Fitness clubs -​ Used cars -​ Multi-level marketing -​ Debt collection There's a chapter on each of these types of business in the CPA “Controlled” - May require certain education, registration, certification, performance bond -​ Why are these businesses singled out? because these are topics that politicians get a lot of complaints about, so they provide minimum requirements in the Act. People call politicians and say they got ripped off and that there should be a law. Food and labelling law -​ Ensure that labels disclose important information, claims made aren’t false and misleading -​ Ex. when you go and buy 1% milk bc 2% too high, skim is gross. But how is that measured? 1% of what? milk fat is measured by volume (how mcuh room in the container it takes up), all other foods are measured by weight. Why is it measured by volume? bc it is dense, so it makes the numbers lower, so very misleading because they’re measuring it differently from any other food. Reason is because Dairy lobby is politically power, they have convinced federal gov that they should be able to label their food in a false and misleading way because if not, they would sell much less -​ Ex. Real fruit gummies w. Trans fats, fake bogus health claims Lesson 3: Competition Law -​ Competition Act is Federal legislation unlike SGA and CPA -​ Primary goal: reduce behaviour that is anti-competitive -​ Bc more competition is better for consumer and economy so we prohibit anti competitive behaviour 1.​ Restricts mergers and acquisitions -​ That would lead to less competition -​ Under competition act, mergers of all sizes and sectors are subject to review to determine if they will result in a substantial lessening of competition -​ For ex: In US: Sirius Satellite Radio and XM Satellite Radio merged into the same company, unlikely that Canada’s Competition Tribunal would allow that merger to take place because there are only 2 satellite radio providers in the country so merging would greatly reduce competition -​ High threshold, over 100million dollars for size of transaction involved (really big companies) 2.​ Prohibits anti competitive practices -​ Conspiracy, bid rigging (illegal) and price fixing (illegal)(quasi criminal, criminal fines and jail), -​ Some practices are reviewable, some are illegal -​ Illegal: bid rigging, price fixing (you can’t do them under again condition, quasi criminal - consequences can be criminal  -​ Reviewable: abuse of dominant position, discrimination and predatory prices -​ Not automatically illegal, only illegal if they have the effect of unduly lessening competition -​ You can do them if they don’t lessen competition -​ Ex: Predatory prices - selling stuff for less than your cost (cost you 10 bucks, you sell for 8) -​ If you do that, it’s reviewable, tribunal will look at why, if you’re doing it to put a competitor out of business that’s anti competitive and illegal. But if you’re liquidating last years inventory to make more shelf space, that’s not illegal 3.​ Prohibits false/misleading claims or advertising -​ Same thing that consumer protection act prohibits, but that only benefits consumers -​ Competition act applies more broadly -​ any false/misleading claims made in business context, will be prohibited under competition act -​ Consumer Protection Act DOESN’T ALLOW for civil claims -​ Under Consumer protection act, you have rights between buyers and sellers, your complains are submitted to the ministry -​ But under competition act you can sue a company for doing something that’s anti competitive, even if it doesn't affect me Anticompetitive practices: -​ Price fixing -​ Conspiring with competitors to fix prices charged for goods/services -​ Bid rigging -​ Tender process (organization invites bids from suppliers, the suppliers work together to cheat the the system and collude to decide who will win the bid (usually higher price) to benefit themselves) -​ Abuse of dominant position -​ Dominant company or group of companies engaging in anti competitive behaviour that lessens competition -​ Ex: buying up products to prevent erosion of price levels, requiring suppliers to sell to certain customers, selling products below acquisition cost to eliminate competitors -​ Predatory pricing -​ Setting prices lower than cost -​ Refusal to supply, tied selling -​ Refusal to supply: seller refuses to supply product if they sell competing product -​ Ex. you sell iphone, i won’t give you samsung (refusal to supply) -​ Tied selling: seller only sells to supplier if they buy other less desirable goods too -​ Ex. if you sell s10 then also cases and chargers (Tied selling) -​ Fake “sale” prices -​ Advertise for ex. 50% off , unless you can demonstrate that the regular price is doubled what you’re selling  -​ Rules on how much time you should've sold at other prices etc. (1)​ Substantial volume of product has been sold at that regular price (2)​ Product has been offered for sale in good faith at that regular price -​ Competition act restricts Contests and prizes (Roll up the rim, Monopoly) -​ Contests are governed by competition act -​ You might see “no purcha