BU 231 Final Contracts– Discharge PDF

BU 231 Final Contracts– Discharge, The Effect of Breach of Contract and Remedies for Breach Discharge of Contracts ○ Discharge by Performance Where both parties to the contract perform their obligations under the contract satisfactorily ○ Disc...

BU 231 Final Contracts– Discharge, The Effect of Breach of Contract and Remedies for Breach Discharge of Contracts ○ Discharge by Performance Where both parties to the contract perform their obligations under the contract satisfactorily ○ Discharge by Agreement Where both parties agree not to proceed with the contract Substituted agreement: The parties substitute their old agreement with a new one where the burden on one party is less Can be out-of-court settlement where one party offers to pay money in lieu of performance (accord and satisfaction) Can be novation - Terminate contract and substitute a new contract ○ Discharge by Frustration: Where the law excuses one party from performance where external causes have made performance radically different from that contemplated by the parties Requirements of Frustration: 1) Frustrating event must have been unforeseen 2) Frustrating event must be outside the control of the parties 3) Frustrating event must occur AFTER the agreement was made 4) Frustrating event must make performance impossible, purposeless, or “radically different” than what was intended Self induced frustration: Where a party willfully disables itself from performing a contract in to claim frustration (it is breach of contract) Effect of frustration: Frustration discharges the contract at the moment of the frustrating event; the loss fall where it lies If neither party has performed: Frustration is a complete discharge of both parties from all obligations (from Fibrosa) If one or both parties have partially performed: One party could receive a windfall from the completed performance of the other party Framework 1) Is the contract frustrated? ○ If contract governed by the Sale of Goods Act, and goods are destroyed, then that rule applies for finding there to be “frustration”  ○ If contract not governed by Sale of Goods Act, or products not destroyed, then the common law applies for determining whether there has been “frustration” 2) Remedy: ○ The Frustrated Contracts Act applies for allocating losses (in those provinces that have an act, such as Ontario) ○ Otherwise Fibrosa decision applies ○ Discharge by Operation of Law Bankruptcy: Contracts with creditors are discharged Limitations Act: Limitation period for suing someone, has to be within 2 years of you discovering the claim Condition vs. warranty ○ Condition: An essential term of the Contract ○ Breach of Condition: Allows the non-breaching party to opt for a discharge of the contract and sue for damages. Otherwise, they can remain “ready willing and able to perform” and force the other side to perform ○ Warranty: A non-essential term of the contract ○ Breach of Warranty: Both parties remain bound to the Contract, but the non-breaching party can sue for damages where it has incurred a loss ○ Time is of the essence clause: Any timelines under the contract are a condition; if they are breached at all, it’s considered a major breach of the contract Effect of Breach ○ Minor vs. Major Breach Minor Breach: A breach of non-essential term of Contract or of an essential term in a minor respect Major Breach: A breach of the whole Contract or of an essential term, so that the purpose of the contract is defeated Effect: Major breach may discharge the nonbreaching party from performing the contract (but not always) How does breach occur? ○ Express Repudiation: Declaration of intention by one party to not perform Options to Non-breaching party: Terminate contract and reserve the right to sue for damages Insist on performance and wait for non-performance ○ Failure to Perform/Inadequate Performance: Breaching through conduct Can only occur when performance is due; total or partial failure  ○ Rendering Performance Impossible: One party purposefully makes the contract impossible to perform (Also likely a breach of the implied duty of good faith) A.k.a Self-induced frustration that can occur before or at the time performance is due Ex. Double-booking, not getting building permits on purpose, not buying material required to complete the project, etc. Doctrine of Substantial Performance ○ Substantial performance: Performance that does not comply in some minor way with the requirements of the contract Exemption Clauses ○ A clause in a contract that exempts a party from liability for failing to perform some or all of its contractual obligations ○ Tercon Contractors (case) 3 Part Test where Exemption Clauses will not be applied to protect a breaching party from liability 1) Interpretation of Exemption Clauses: Does the clause apply to the facts? 2) Unconscionable Clauses: Terms agreed to between parties of unequal bargaining power that gave an unfair advantage to a powerful party over the weaker party 3) Public Policy/Public Interest: Court can still refuse to enforce it if the injured party can “point to some paramount consideration of public policy sufficient to override the public interest in freedom of contract” Remedies ○ Damages: Monetary award to compensate an injured party for the loss caused by the other party’s breach of contract Purpose: Place the injured party in the position they would’ve been had the contract been performed Concept of Mitigation: Action by an aggrieved party to reduce the extent of its loss caused by the breach of the other party Main Measurement of damages: Expectation damages: Expected profits under the contract at the time of contract formation ○ Opportunity cost: Lost your chance of making a similar contract with a different promisor, so should be entitled to profits  Consequential loss: Other reasonably foreseeable damages that flow from the breach General damages: Damages that are not quantifiable Causation: Damages must be causally connected to the breach of contract Special circumstances: Breaching party may not be held liable for additional damages arising from special circumstances, where the breaching party was not made aware of them Other Measurements of Damages Reliance Damage: Damages for wasted effort Liquidated damages: An amount agreed to be paid in damages by a party to a contract if it should commit a breach Nominal damages: Where loss sustained is negligible Problems in measuring damages Hard to estimate damages for: Mental anguish, wrongful dismissal, lost enjoyment ○ Equitable Remedies: Courts of Equity: Court orders other than money settlements Where damages are not sufficient Can order a party to perform the Contract (Specific Performance) Injunctions: A court order restraining a party from acting in a particular manner Need for a negative covenant in the K Injunctions are rare in employment Contracts ○ Quantum Meruit: The amount a person merits to be paid for goods or services provided to the person requesting them (not as important) ○ Cost of Performance vs. Economic Loss Enforcing a Judgment ○ What is a judgment: A court order requiring one party to pay to the other damages, or perform as per an equitable remedy ○ Steps to take to enforce a judgment Judgment must be registered with the court Writ must be filed with Sheriff’s office Execution order must be made to the Sheriff ○ Execution / Garnishment / Examination Garnishment order (bank account/wages/AR) Execution on a judgment Writ of execution - Right to take someone’s property and sell it Filed with Sheriff’s office, payments made to Sheriff and Sheriff distributes to execution creditors  Notice of the judgment can be placed on various credit bureau to affect the credit rating/notifies others of outstanding debt Examinations in Aid of Execution - Allowed annually Agency & Franchising Creating an Agency Relationship ○ Two contracts Principal and Agent: Agency Contract Principal and Third-Party: Contract for goods/services etc. ○ Agency Agreement: The K between principal and agent whereby the agent undertakes to act on behalf of the principal Apparent / Ostensible Authority ○ Authority that is not real, but acquired from a past manner of transacting business or from trade custom ○ Test: Should the 3rd party have been aware of the agent’s lack of authority or at least been suspicious? Or is it reasonable to assume from the type of business that the agent is engaged in, that the agent had the authority in question ○ Ratification: Process of confirming the terms of the contract Where an agent exceeds his/her authority, and principle of apparent authority does not apply, then principal may still ratify the contract Duties of Agent to Principal ○ Duty to comply with the agency agreement ○ Duty of Care At minimum: Reasonable care, diligence and skill in transacting business on behalf of the principal Standard of care will depend on agent’s own knowledge and skill; as well as the nature of the task ○ Duty of Good Faith (Fiduciary relationship) Agent must put principal’s interests ahead of his/her own Agent cannot make secret profits on any transaction made for the principal Agent has duty to disclose any and all relevant information ○ Acting for two principals: Must obtain consent of both principals if there is a potential conflict/breach of duty ○ Acting as a contracting party: Must disclose to principal and obtain approval prior to the transaction  Duties of Principal to Agent ○ Duty to pay (Remuneration): Obligation to pay as per K or as per reasonable fees of industry Often paid on a commission basis - When the agent has brought the prospective client who is “ready, willing and able” to close the deal ○ Duty to comply (Expenses): Implied term that principal will cover the reasonable expenses of the agent when acting in his/her real authority No obligation to pay for unauthorized acts unless ratified Rights and Liabilities of Principal and Agent to Third Parties ○ When is Principal only liable? Agent? Both? Principle alone is liable when: Agent is acting with real or apparent authority Agent must make clear to 3rd party that s/he is acting for a principal - even its an undisclosed principal Where principal alone is liable, payment or delivery must be made to the 3rd party and not the agent - if agent absconds with money/goods, principal remains liable to 3rd party Agent alone is liable: Where agent represents him/herself to be the principal Under these circumstances the principal has no rights or liabilities under the K Either the Principal or the Agent is Liable: Where the agent didn’t disclose status as an agent - Third party can sue either the agent or principal but not both If agent is sued successfully by 3rd party then principal has no liability If existence of principal becomes apparent during court proceedings, 3rd party can have action discontinued against the agent and brought against principal instead ○ Undisclosed Principal Right to enforce the contract against 3rd party where S/he can show that the K was made with his authority Exception: The undisclosed principal cannot enforce a K that is essentially personal in nature Third party cannot hold undisclosed principal liable in a situation where the agent acted without real authority ○ Liability for Torts – Joint/Several  Principal is jointly and severally liable for torts committed by agent within real or apparent authority (misrepresentation) Breach of Warranty of Authority ○ Warranty of authority: Where a person purports to act as agent represents that she has authority to contract on behalf of a principal ○ Purpose: Put parties back in the position the would have been had the misrepresentation not occurred Terminating Agency Relationship ○ End of K / Completion of Performance / Notice / Death / Bankrupt / Impossibility Franchise Law ○ Franchisor/Franchisee Franchisor: Grants license to Franchisee Franchisee: Pays for the license, but operates the business independently ○ Arthur Wishart Act – Disclosure / Fair Dealing / Right to Associate Arthur Wishart Act - Governs franchise agreements/relationships Right to Disclosure: Franchisor must provide franchisee Fair Dealing: Duty of good faith Right to Associate: Right to join an association of other franchisees (like union) Employment Law Employee vs. Independent Contractor Employment vs. Independent Contractor - Degree of supervision & control over - Ownership of tools worker - Duration of the K - Duration of the K - Nature of the K - Nature of the K - Intention of the time of K formation - Intention of the time of K formation - Method of payment - Method of payment - Exclusivity - Benefits - Risk in profit/loss - Integration in the workplace - Use of time & delivery of result Torts of Employer: ○ Vicarious Liability: Employer jointly liable for actions of employee ○ Negligent Hiring: Claim by customer/employee for negligently hiring someone else (ex. Sexual harasser) ○ Wrongful Referral: Negligently referring someone to a professional who is not qualified  Employee Duties ○ Duty to obey (insubordination) ○ Duty to exercise skill and care ○ Duty of good faith and fidelity (while employed) Employer’s Duty - Duty to pay Termination of Employee ○ Notice / Lieu / For Cause By way of notice Statutory and common law notice periods based on position and length of employment (must be reasonable) Can provide payment in lieu of notice (Notice = Time = $$) ○ (Rate of pay + Benefits) x Notice = $$$ ○ Factors for Determining a Reasonable Notice Period Trade practice , duration of employment, intention at time of K formation, frequency of pay, level of position ○ When/how can you dismiss for cause? Dismissal for cause: Dismissal without notice or further obligation by the employer when the employee’s conduct amounts to a breach of the contract Misconduct: Crimes/Bad behaviour/Breaching policies Insubordination: Willfully disobeying a reasonable and lawful request from your superiors Incompetence: Express: Resume or application or interview, where you say you possess certain skills Implied: Applying for a job that requires certain skills when you don’t have them Doctrine of Condonation (similar to estoppel): Condoning incompetence makes claim for dismissal for incompetence difficult How can you dismiss: 1) Provide warnings to employee 2) Provide adequate training and assistance 3) Document activities of both employer and employee Wrongful Dismissal ○ Constructive Dismissal  When an employer makes a unilateral and fundamental change to a term or condition of an employment contract without providing reasonable notice of that change to the employee → repudiation of contract Doesn’t necessarily mean your fired ○ Mitigation Contract law requirement to act reasonable to reduce losses Must try to obtain reasonably comparable employment Court will reduce damages award if there is a failure to mitigate ○ Punitive damages / mental anguish Mental anguish Recognition over time that while employment contracts are economic in nature, there is decidedly a human element as well Problems of trying to assess intangibles such as “pain and suffering” and “humiliation Punitive damages can be paid if the firing was: sufficiently “harsh, vindictive, reprehensible, and malicious” ○ Reinstatement: Equitable remedy, not generally allowed unless provided for by statute Employee Welfare ○ Requires federal jurisdiction employers to engage in proactive employment practices to increase the representation Secured Transactions Bailment: Possession of personal property without a transfer of ownership ○ Duty of Care: The receiving party agrees to return the property at a later time ○ Contract/No Contract Does not require a contract - Essential elements are delivery of possession without the intention to transfer title and with the intention that the property must be returned to the bailor What is a secured transaction ○ Definition: Generally a loan (or credit) whereby the lender acquires a “security” interest in collateral owned by the borrower and is entitled to foreclose on or repossess the collateral in the event of the borrower’s default ○ Personal Property vs. Real Property Anything that isn’t “real property” (home, land) Rights of a Secured Creditor  ○ General creditor: Creditor with no security interest ○ Judgment Creditor: Can obtain execution order to seize property ○ Secured creditor: Does not need a judgment to realise on its security Creating a Security Interest ○ Created by agreement between the parties Various Types of Security Contracts ○ Conditional Sales Contract Similar to a lease: Debtor in possession of the good, but ownership remains with the creditor Creditor has right to repossess the goods upon default Creditor has right to sue for balance outstanding after resale of goods ○ Chattel Mortgage: A mortgage of personal property Arises in two ways: Mortgagor purchases property and vendor “takes back” a mortgage Mortgagor already owns property and gives mortgagee a mortgage against it to secure a debt After acquired property: (i.e. property that is not in existence at the time the mortgage is created) Often used in inventory in a business (always changing) Does not transfer title to specific goods to the creditor, allowing purchasers to obtain good title in ordinary course of business Creditor holds a suspended priority over other creditors ○ Floating Charges: A form of mortgage on all of the assets of a corporation other than those already specifically charged Something that isn’t easily definable and changes constantly PPSA ○ Creation / Attachment / Perfection Covers the creation and registration of everything listed above + leases, consignments intended as security and other less common forms of security Steps 1) Creation of security interest: Agreement between the parties 2) Attachment of a security interest: The moment in time when a debtor’s property becomes subject to a security interest  3) Perfection of the security interest: The moment in time when a creditor’s security interest becomes protected ○ 2 Ways to perfect 1) Where the secured party takes possession of the assets (e.g. bailment, pledge) 2) Once registration under the PPSA is complete Priority/Competing Interests ○ Time of Perfection: First to register/perfect gains priority ○ Effects on third-parties There is a separation of possession and ownership, which may mislead third-party and subsequent purchasers Effect of registration: A properly registered security interest can give priority against innocent third-parties, since they have now been deemed to have notice of the charge Business Organizations Sole Proprietorship: Unincorporated business owned by a single individual ○ Business Names Act: Can register a business name if it’s not the actual name of the owner Partnership ○ How is it created (3 requirements) / Terminated Partnership is automatically created if: two or more people are carrying on a 1) business 2) in common 3) with a view of profit Termination of partnership: Can be agreed to in a partnership agreement but the default rules under the Statute are: Termination by Notice or Expiry Termination by death or insolvency Dissolution by law: Mentally incompetent, permanently incapable, guilty of conduct that can negatively affect business, breaches agreement or just and equitable ○ Legal Nature No independent existence and merely represents the collective rights and duties of all the partners (no separate legal entity) ○ Liability – Contracts / Torts Contractual liabilities of partners: Every partner is jointly liable for the obligations of the partnership (based on principles of agency and privity of contract)  Tort liability/Breach of trust: The firm is liable for “any wrongful act or omission of any partner acting in the ordinary course of the business of the firm.” Therefore, the firm, including all the partners are jointly liable for injuries or damages caused by a partner doing the firm’s business ○ Implied Terms of Partnership Agreement A. Partnership property: Act provides that all property and rights and interests in property originally brought into the partnership stock or acquired…are called partnership property and must be held and applied by the partner’s exclusively for the purpose of the partnership B. Financial arrangements: Equally shared profits and losses C. Conduct of the Business: Take part of management, majority decision D. Membership: Can only introduce a new partner with consent of all existing partners ○ Fiduciary Duties: Cannot be altered by partnership agreement A. Information: Partners must render true accounts and full information of all things affecting the partnership B. Secret benefits: Every partner must account to the firm for any benefit derived by him/her without the consent of the other partners from any transaction concerning the partnerships C. Duty not to compete: Must account for any breach ○ General Partnership / LP / LLP General partnership: A business arrangement by which two or more individuals agree to share responsibilities, assets, profits, and financial and legal liabilities of a jointly-owned business Limited partnership General Partner: Unlimited personal liability Limited Partners: Liability limited to amount invested ○ Limited partners cannot take part in the active management of the partnership Limited liability partnership: Same as general partnerships except partners are not liable for the negligence of other partners Joint Ventures: Agreement between two or more parties to collaborate on the management of a specific project, to share the work and share the profits Income Trusts: Transfer of income-producing assets from an operating company to a trust Corporation: A separate legal entity formed by the act of incorporating accordance to a prescribed legal procedure ○ Unique Attributes  Limited liability of shareholders Transfer of Ownership (can sell shares, but often limited) Separation of management and control No duty of good faith to shareholders Continuity Taxation ○ Private vs. Public Private Companies: Corporations with a restricted number of shareholders prohibited from issuing their shares to the general public Public Corporation: A corporation that issues its securities to the public; also referred to as an issuing corporation or reporting issuer ○ Corporate Capital (Equity vs. Debt) Equity vs. Debt: Corporations raise money by issuing shares (equity) or borrowing money (debt) ○ Share Transfer Restrictions Under the Securities Act, the articles of incorporation or the share certificate must limit the ability to transfer your shares without prior approval of the Board Corporate Governance Directors/Officers/Shareholders/ Stakeholders ○ Officers - Run the business of the corporation ○ Director term / role / duties Directors - Supervise the officers Accountable to shareholders because they are voted in by them Act conveys general powers and specific powers: ○ Power to issue shares ○ Power to declare dividends ○ Power to adopt by-laws ○ Power to call meetings of the shareholders Director can sit for 3 years before the need to be re-elected, but can be removed earlier by Special Meeting of SH Duties of Directors/Officers: 1) Every director and officer of a corporation in exercising his powers and discharging his duties shall: ○ a) Act honestly and in good faith with a view to the best interests of the corporation (fiduciary duty to the corporation)  ○ b) Exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances ( If directors/officers fall below the standard, they are liable in negligence) 2) Every director and officer of a corporation shall comply with this Act, the regulations, articles, by-laws and any unanimous shareholder agreement Duties of Care and Skill: Cannot be negligent – standard of the ordinary person Can rely on information provided to them as long as they are not wilfully blind If a director acquiesces in situations of misconduct or negligence, then s/he can be held PERSONALLY liable If a director votes for a decision that is financially detrimental to the corp. & the corp. becomes insolvent, then s/he can be held PERSONALLY liable – for employees unpaid wages If taxes are not paid – directors can be held PERSONALLY liable – for HST, and employee deductions Defences: Due diligence, Business Judgment Rule Directors/ Officers Fiduciary Duties Must place corp. ahead of own interests Must avoid conflicts of interest Must declare a conflict of interest and cannot vote on the matter Cannot intercept a corporate opportunity May not carry on business in competition with the corp. ○ Shareholders - Owners of the corporation ○ Stakeholders - Other interested parties (e.g. employees, creditors, community) Shareholder Rights ○ Ordinary vs. Special resolutions Ordinary resolution: Need 50 + 1 votes to amend (majority vote) Approval of any amendments made by the directors to the bylaws Election of the auditor Election or removal of directors Special resolutions: Need ⅔ of votes to amend Approval of alterations to articles of incorporation Approval of certain other fundamental changes, such as amalgamations or sale of substantially all of the assets of the corporation ○ ROI  Right to receive any dividend declared Right to receive remaining property on dissolution Right to information ○ Who issues shares / how? Power lies with the board ; You can only issue new shares for the purpose of raising capital ○ Protection of Minority Shareholders (maybe add more) Appraisal remedy: Where a price cannot be decided, then the court will set a price Winding Up (shut it down): Dissolution for liquidation of a corporation Oppression Remedy (most common): Statutory procedure allowing individual shareholders to seek a personal remedy if they have been unfairly treated To justify the remedy, plaintiff must show that the action complained of: ○ a) Has been oppressive or unfairly prejudicial ○ b) Unfairly disregards the interest of the complainant Derivative Action: Proceedings brought by one or more shareholders in the name of the corporation in respect of a wrong done to the corporation SH must make application to court to obtain leave to bring the action and show: ○ a) The directors are unwilling to bring the action ○ b) That he is acting in good faith ○ c) It appears to be in the interest of the corporation or the shareholders that the action be brought ○ Shareholder Agreements: An agreement between two or more shareholders that is distinct from the corporation’s charter and by-laws Possible terms: Right to employment, right to participate in management of business, right to a fair price for a share of interest External Responsibilities of a Corporation Protecting Stakeholders: ○ Creditors – Maintenance Test If the directors declare a dividend that would make it insolvent, meaning that it can’t pay its creditors, then they would become personally liable for all the debt owed to those creditors ○ Investors – Securities Act Two broad goals: Prevent and punish frauds  Require full disclosure of financial information to prospective buyers of shares and bonds ○ Environment – Environmental Protection Act – liability of directors Presumption of negligence that can be refuted Criminal Liability ○ Corporate Identity Doctrine The Directing Mind: The person with ultimate decision making authority with respect to the issue; their mind is the corporations mind For corporations that can’t meet the mens rea requirement ○ Sentencing Principles To try and protect the public and rehabilitate the wrongdoer so that they can re-enter society as a productive member Deter from recommitting/people in general from committing the crime IP, Privacy, and International Law Intellectual Property: Intangible property that is the product of mental activity ○ Copyright: Collection of distinct rights under the Copyright Act, including: The right to produce or reproduce the work, or a substantial part of it The right to perform or deliver the work in public The right to publish an unpublished work Infringement: Occurs when someone uses the work of the copyright holder without their consent Defences ○ Fair dealing: Use for research, private study, education, parody or satire, criticism and review, or for news reporting ○ Copying works for private use ○ Generating own content for non-commercial purposes Remedies for infringement: ○ Damages for profit or income lost by the owner ○ Accounting for profits made (if any) ○ Injunction to restrain further infringement ○ Trademarks: A feature used to distinguish a brand Protecting trademarks Statute that prohibits: ○ Making false/misleading statements tending to discredit the business, wares or services of a competitor ○ Directing public attention to one’s wares, services or business in such a way as to cause or be likely to cause  confusion with those wares, services or businesses of another business ○ Passing off other wares or services as and for those ordered or requested ○ Making an description that is false in a material respect and likely to mislead the public as to the character, quality, geographic origin or mode of production ○ Patents: Needs to be an actual invention that’s publicly disclosed Patentable inventions: Must be an “invention” that is - Novelty (must be new) Inventiveness (level of ingenuity) Utility (must be useful) Enforcing patent rights: Plaintiff: Sue party for patent infringement, burden to prove infringement Defendant: Defend on invalidity and/or non-infringement. For invalidity, common arguments include: ○ Anticipation, obliviousness, inutility ○ Insufficiency: The document of the patent isn’t sufficient enough to follow so it’s invalid ○ Non-patentable subject matter Remedies: Injunction, damages ○ Trade Secrets Not “IP” but it has commercial value Tort: Breach of confidence 1) Confidential information is communicated to someone in confidence 2) The information is subsequently misused by the person to whom is was communicated International Law ○ Trying to figure out which jurisdiction has the most close and real connection to the dispute: ○ Van Breda Test (Jurisdiction): Courts will take jurisdiction over a matter if any one of these is met: 1) Traditional factors: Defendant’s presence in the jurisdiction or consent to submit to the court’s jurisdiction 2) There is a “Real and substantial connection” to the jurisdiction: Presumptive connecting factors: The defendant is domiciled or resident in the province  The defendant carries on business in the province The tort was committed in the province A contract connected with the dispute was made in the province 3) Forum non Conveniens: Even if the court has jurisdiction over the matter, it can decline to exercise its jurisdiction if another jurisdiction would be clearly more convenient or appropriate Factors: Service of documents, availability of witness, enforcement of judgment, avoidance of multiplicity of actions, standing, applicable law ○ Incoterms: Regulates transfer of risk from importers and exporters across borders ○ Financing risk: Use of letters of credit to minimize risk in international trade Privacy / Anti-SPAM ○ How can you collect / store / use private information? Federal public sector: Governs collection, use and disclosure of private information, such as educational, financial, medical, criminal, employment or personal opinion information Purpose of collection must relate to operation of program/activity of institution, should be obtained directly from individual Provincial public sector: Have similar legislation governing provincial and/or municipal public sectors Healthcare records: Governs collected, use and disclosure of the highly sensitive “personal health information” by healthcare custodians Personal information Protection and Electronic Documents Act (PIPEDA): Federal legislation controlling collection, use and disclosure of personal information during a commercial activity Liability for privacy issues Tort Liability: ○ Intrusion Upon Seclusion (Jones v. Tsige): One who intentionally [or recklessly] intrudes, physically or otherwise, upon the seclusion of another or his [or her] private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person ○ Public disclosure of embarrassing private facts (Doe 464533 v N.D.): One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of the other’s privacy, if the matter publicized or the act of the publication (a) would be highly  offensive to a reasonable person, and (b) is not of legitimate concern to the public. ○ Negligence: PIPEDA imposes a duty on all businesses to protect personal information. Criminal Liability: Willful interception of private communications ○ When can you send an advertising email under CASL? Need express or implied consent to send “spam” Implied consent: Will usually be due to an “existing business relationship”, which includes: 1. The purchase or lease of a product, good or service within the two-year period immediately before the day on which the message is sent 2. Acceptance of a business, investment or gaming opportunity within the time frame of (1) 3. Bartering of anything mentioned in (1) 4. Written contract entered between the parties that is currently in existence or expired during the time period in (1) 5. Inquiry or application within six-month period immediately before the day on which the message is sent