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ch 6 + 7 + 8 + 10.docx

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Ryerson University
Law and Business
LAW 534
Gil Lan

Chapter 6 Recall: • Safety Klein (criminal + regulatory) o Not held criminally liable b/c worker wasn’t high enough to be a directing mind o Even under bill c45 it would not be likely to be found liable b/c he is not a senior officer b/c he didn’t manage an important aspect of business • Glenshiel  actus reus • Edmonton  Control + ownership o Although (despite) city was owner it was ultimately not liable b/c it did not have sufficient control, b/c it gave it to the tenant, thus they were found potentially liable o Arguably in a lease there is always residual control in a lease (author debate) – you can go in and check things after the fact Directing mind as shield: due diligence  beyond mere policy - Beyond mere policy – you need to go beyond policy - STEPS TO TAKE: o 14 factors from chapter 5, concise : policy, train, monitor, improvise, and continue to monitor (address it) o Pg 6-10 – go beyond Dilemma? Confliction / confusion - Although reporting and internal monitoring is cornerstone of due diligence program, paradoxically those very internal management reports could be used as non-compliance in the future records used against you - Comply and do all that monitor and have those records used in the future used against you - HOW TO FIX? o Create culture of compliance o Use value-neutral language (truthful but no legal inclusions) o Beverly liquor (B.C.) case 6-12 – 16 year old liquor inspector and bought beer, cashier was manager making her an officer, and she was considered a directing mind and thus held the store regulatory liable and license was suspended  Should show due diligence program not actus reus of directing mind test. Charges should be dismissed b/c they had appropriate due diligence program in place as seen by their training etc. Illegal but not criminal: - Prof Glasbook - regulatory law is not viewed as serious as criminal law 2 reasons: 1) not taken as seriously b/c there is no jail time 2)regulatory is more malleable versus criminal - SUV case as example – always tipping over, example of malleability Impact of lobbying Regulatory pyramid First line of defence for society is safety regulations CHAPTER 7 Business Theory a) Deployment of matrix analysis b) 4 step analysis a. 7-6 – risk management technique is map and mirror the mind of the court i. (Probability * consequence) b. 7-7 probability of non-compliance (10 factors) i. What is probability any of these happen? Take factors, assign a % to them, and then total them up ii. 7-8 , it is 530 out of 1000, underlining premise: fact that they are weighted equally c. Due to Ego bias, people underestimate even when having a number  people overestimate their ability, thus underestimate the ability of others i. British Petrolium 7-9 , workplace accident, 780 injuries, aftermath followed recommendation, panel noted they used safety performance measures, BP hindered performance risk. Even though other people in other industries used these methods, courts rejected it ii. 7-10, 2 fold response, Devils Advocate (skeptic) would say: think of risk management + probability of risk management is commonplace for many organizations. iii. 7-12, calculating aspect of harm, precautionary principle – human health and safety at risk. iv. 7-14, “reputational harm” – publicly traded company  can swing fast the perception of your good . Probability analysis + consequences 1. Civil damages – fines / penalties Self-audit – monitor yourself (perceived areas of risk) – documents could be used against you - Ask lawyer for advice and he sends you email that says you are breaking the law - 7-20.2 – it is only seen as advice, cannot bury incriminating documents by sending them to your lawyer 7.20.3 – Thornton Case – 7.
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