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A Guide to Hospitality and Tourism Law in Canada 1 Definition of Tourism The United Nations World Tourism Organization (UNWTO) created a common glossary of terms for tourism. It defines tourism as follows: Tourism is a social, cultural and economic phenomenon which e...

A Guide to Hospitality and Tourism Law in Canada 1 Definition of Tourism The United Nations World Tourism Organization (UNWTO) created a common glossary of terms for tourism. It defines tourism as follows: Tourism is a social, cultural and economic phenomenon which entails the movement of people to countries or places outside their usual environment for personal or business/professional purposes. These people are called visitors (which may be either tourists or excursionists; residents or non-residents) and tourism has to do with their activities, some of which imply tourism expenditure (United Nations World Tourism Organization, 2008). Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 2 Tourism Def’n Con’t Using this definition, tourism is not just the movement of people (whether business or pleasure), but the overall total of activities, services, and involved sectors that make up the unique tourist experience. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 3 Introduction The hospitality and tourism sector includes hotels, restaurants, nightclubs, VRBO/Airbnb, casino, tourism operators, and others There are rights and obligations of customers and participants in this sector, and extensive statutory and regulatory requirements Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 4 Definition of Excursionist Excursionists on the other hand are considered same-day visitors or “day trippers” (UNWTO, 2020). Not every visitor stays overnight. Travellers may spend a few hours or less for sightseeing, visit attractions, dine at a local restaurant, then leave at the end of the day. The scope of tourism, therefore, is broad and encompasses a number of activities and sectors  A Guide to Hospitality and Tourism Law in Canada 5 Tourist Definition Building on the definition of tourism, a commonly accepted description of a tourist is “someone who travels at least 80 km from his or her home for at least 24 hours, for business or leisure or other reasons” (LinkBC, 2008, p.8).  A Guide to Hospitality and Tourism Law in Canada 6 Classes of Tourists The United Nations World Tourism Organization (1995) helps us break down this definition further by stating tourists can be: Domestic (residents of a given country travelling only within that country) Inbound (non-residents travelling in a given country) Outbound (residents of one country travelling in another country) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 7 The legislative/regulatory structure for food (which includes drinks) is a hierarchial structure in the form of an inverted triangle, resting on its apex. At the top is the Federal Legislation which include the Food and Drug Act (FDA) and the Safe Food for Canadians Act (SFCA) and the Canadian Food Inspection Agency Act (CFIAA).  A Guide to Hospitality and Tourism Law in Canada 8 FOOD: Food and Drugs Act (Fed) 4 (1) No person shall sell an article of food that (a) has in or on it any poisonous or harmful substance; (b) is unfit for human consumption; (c) consists in whole or in part of any filthy, putrid, disgusting, rotten, decomposed or diseased animal or vegetable substance; (d) is adulterated; or (e) was manufactured, prepared, preserved, packaged or stored under unsanitary conditions.  A Guide to Hospitality and Tourism Law in Canada 9 Ubiquitous Application As Federal legislation: it applies to EVERYONE; it applies from one end of very large country to the other end of our very large country; it also applies to every province and territory including the Civil Law in Quebec. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 10 Food & Drug Act (FDA) Unsanitary manufacture, etc., of food 7 No person shall manufacture, prepare, preserve, package or store for sale any food under unsanitary conditions.  A Guide to Hospitality and Tourism Law in Canada 11 Safe Food for Canadians Act (SFCA) S.C. 2012, c. 24 Importing 4 It is prohibited for a person to import a food commodity the selling of which is prohibited under section 4 of the Food and Drugs Act.  A Guide to Hospitality and Tourism Law in Canada 12 Canadian Food Inspection Agency Act (CFIAA) The Federal Government combined plant and food inspection services into a single food inspection agency to contribute to consumer protection and facilitate a more uniform and consistent approach to safety and quality standards and risk-based inspection systems. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 13 FDA v. SFCA A quick reading between these two Acts shows that FDA deals with the sale, manufacture, preparation, preservation, packaging or storage of food under unsanitary conditions. While the SFCA dealt with the importation of food falling into the umbrella of section 4 of the FDA. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 14 Learning Outcomes After reading this chapter, you will understand: What the law is. The sources of Canadian law and their relationship. The organization of Canada’s court and judicial system. How to answer a legal question. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 15 What Is Law? The body of enforceable rules governing the relationships among and between individuals, organizations, and governments Enforceability distinguishes law from moral and ethical standards Categorizations of law: public law and private law Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 16 Categorizations of the Law Public law: E.g., the Criminal Code and the Income Tax Act Private law: E.g., contracts, property ownership, damage caused between people or their property Consequences of a breach of public law is prosecution to punish the offending party; a breach of private law consequence may include action for compensation Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 17 Sources of Law Constitutional statutes: the Constitution Act, 1867 and the Constitution Act, 1982 Legislation: laws made by lawmaking bodies Common law: a system of rules based on precedent Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 18 Sources of Law (cont’d) Figure 1.1: The Relationship Between the Three Sources of Law Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 19 Sources of Law (cont’d) The Constitution Constitution Act, 1867 established the Dominion of Canada as a federation Constitution Act, 1982 transferred control of the constitution from the United Kingdom to Canada Includes the Charter of Rights and Freedoms and Rights of Aboriginal Peoples of Canada Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 20 Sources of Law (cont’d) Legislation The product of work performed by the Subordinate Legislation: Parliament of Canada and e.g., municipal by-laws the provincial/territorial legislatures See Box 1.5: decision in Ontario Adult Entertainment Bar Association v Metropolitan Toronto, 1997 Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 21 Sources of Law (cont’d) Common Law Law that is not written down as legislation Common law principles or standards must comply with the Constitution; cannot override/disagree with legislation, and can be changed or negated by Parliament or provincial legislatures within their constitutional authority Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 22 Court System and the Judiciary (cont’d) Court Structure Supreme Court – highest court; does not conduct trials Courts of Appeal – the federal court; each province/territory has one Trial Courts – system of courts in each province/territory Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 23 Court System and the Judiciary (cont’d) Figure 1.3: Outline of Canada’s Court System Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 24 Court System and the Judiciary (cont’d) The Judiciary Trial judge’s decision determines outcome of dispute A judge must: Determine facts based on evidence Apply law to facts Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 25 Sources of Law (cont’d) Common Law Law that is not written down as legislation Common law principles or standards must comply with the Constitution; cannot override/disagree with legislation, and can be changed or negated by Parliament or provincial legislatures within their constitutional authority Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 26 Court System and the Judiciary Authority is divided Superior between Courts Parliament and Inferior Courts provincial legislatures Tribunals Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 27 Court System and the Judiciary (cont’d) Court Structure Supreme Court – highest court; does not conduct trials Courts of Appeal – the federal court; each province/territory has one Trial Courts – system of courts in each province/territory Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 28 Court System and the Judiciary (cont’d) Figure 1.3: Outline of Canada’s Court System Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 29 Court System and the Judiciary (cont’d) The Judiciary Trial judge’s decision determines outcome of dispute A judge must: Determine facts based on evidence Apply law to facts Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 30 How to Answer a Legal Question What has happened? What potential legal questions or issues arise? What is the applicable legal test or standard to determine liability? Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 31 Introduction Torts Branch of private law Governs personal conduct; conduct of corporations Concerned with rights, duties, liabilities to each other rather than to state or government Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 32 What Is a Tort? Breach of legal duty that does not fall elsewhere under private law Primary function: to deter socially unacceptable personal conduct and to compensate those who have suffered loss, damage, or injury due to socially unacceptable conduct Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 33 What Is a Tort? (cont’d) New torts are introduced to stay abreast of social change. Torts are categorized or distinguished in a variety of ways. For our purposes: Intentional Negligence Nuisance Strict liability Statutory torts Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 34 Vicarious Liability Examples include: Liability of Church for wrongful behaviour of priests Liability of employers for torts committed by employees Applies even if employer had no wrongdoing and did not condone behaviour See page 28 — Bazley v Curry (A residential care facility for children that unknowingly employed a pedophile who committed assaults on children in his care) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 35 Intentional Torts Characteristic feature: offending party intended to commit the act or cause the consequences of the act Table 2.1 summarizes additional intentional torts; the more notable intentional torts are: Battery Trespass to Land Invasion of Privacy Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 36 Intentional Torts (cont’d) Battery: intentional, offensive physical contact (e.g., See Vasey v Wosks Ltd on page 30) Trespass to Land: improper interference with another person’s property Invasion of Privacy: intentional and without lawful justification; highly offensive and caused distress, humiliation, or anguish (e.g., see Jones v Tsige on page 32) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 37 Intentional Torts (cont’d) Defences to Intentional Torts Partial defence: provocation Complete defence: consent, legal authority, self- defence, necessity Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 38 Negligence A careless act; intent of the action is not relevant Founded on common law To prove negligence, claimant must prove: Duty of care Breach of reasonable standard of care Causation See Donoghue v Stevenson on pages 33–34 (The “snail in the bottle” case) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 39 Negligence (cont’d) Defences to Negligence Contributory negligence Voluntary assumption of risk May be satisfied by the signing of a waiver Remoteness Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 40 Nuisance Ranges from physical damage to offensive odour or noise Relevant factors include: Time, intensity, duration of offending activity Nature of the neighbourhood Motivation Resulting physical damage Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 41 Strict Liability Torts and the Rule in Rylands v Fletcher If a party neither intended the wrongful act nor was found negligent, they can be found liable of strict liability. Most notable: possession or responsibility for dangerous animals or substances (see Box. 2.1) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 42 Occupiers’ Statutory Duty of Care The statutory duty of care imposed on broad definitions of “occupiers” of “premises” Exceptions, restrictions, and limitations include: Negligence on the part of an independent contractor Trespassers, or those on the premises intending to commit a criminal act Participants in recreational activities on a premises with no entry fee When no intent or recklessness by the occupier in creation of danger or causation of harm Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 43 Remedies An award of damages attempts to return the affected party to the position they were in prior Categories of damages: Special damages General damages Aggravated and punitive damages Injunction Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 44 Introduction A contract is a branch of private law Reciprocal rights and duties voluntarily agreed to by the parties to the contract; not imposed by law Great range of contractual relationships: Simple or complex, verbal or written, standard form or negotiated, immediate or long-term Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 45 What Is a Contract? Reciprocal arrangement where each party does, or promises to do, something for the other A contract must include certain elements: Mutual intention Agreement through offer and acceptance Consideration Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 46 What Is a Contract? (cont’d) Figure 3.1: The Necessary Elements for Formation of a Contract Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 47 Barriers to Contracting Certain circumstances in which there cannot be a contract include incapacity, absence of writing, mistake, protection of weaker parties, illegality Incapacity (e.g., age-of-majority legislation) Absence of writing (described in provincial legislation) Mistake (e.g., contract with a tour operator for a cruise on a ship that neither party knew recently sunk) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 48 Barriers to Contracting (cont’d) Certain circumstances where there cannot be a contract (cont’d): Protection of weaker parties (duress, undue influence, unconscionable transaction) E.g., See Harry v Kreutziger on page 52 (The purchase of a fishing boat [and salmon licence attached to the boat] as an unfair bargain) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 49 Enforceable Promises Without Consideration Promise Under Seal (a mark placed on the contract confirming parties are bound) Promissory Estoppel requirements: 1. A promise has been made by the promisor; 2. The promisee relies on the promise such that it would be unfair if it were retracted; 3. There is no evidence of “inequitable” (wrongful) behaviour by the promisee to extract the promise; and 4. The promise was made within an existing legal relationship between the parties. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 50 Enforceable Promises without Consideration (cont’d) Figure 3.2: Alternative Bases for an Enforceable Promise Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 51 Representations and Contract Terms Figure 3.3: The Legal Effect of Pre-contractual Statements Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 52 Representations and Contract Terms (cont’d) Box 3.4—Queen v Cognos Inc Queen sued a company, Cognos Inc, for the tort of negligent misrepresentation after accepting a position based on facts given to him by the interviewer that changed significantly after he was hired Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 53 Representations and Contract Terms (cont’d) Contract Terms include: Express terms (e.g., “The Purchaser shall pay the vendor the sum of $1,000, forthwith, after receipt of the goods from the Vendor”) Implied terms Standard form agreements Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 54 Breach of Contract and Remedies A breach of contract occurs when a party to the contract does not perform as promised This does not mean that the other party is relieved from its obligations Remedies for breach of contract may be broadly categorized as money or performance Copyright © 2021 Emond Montgomery Publications. All rights reserved.