AFM231 Study Guide - Final Guide: Subrogation, Fiduciary, Specific Performance

193 views18 pages
Published on 17 Apr 2013
School
University of Waterloo
Department
Accounting & Financial Management
Course
AFM231
Professor
Other Torts (Chapter 12, Lec 12)
Occupier‟s Liability:
Occupier owes people on the property a duty of care, law is the same as negligence for everyone
but trespassers
Occupier Someone who has some degree of control over land or buildings on that land
(eg. Someone conducting business on the property, owner, tenant, or temporary service
provider)
Contractual entrant Someone who has contracted and paid for the right to enter the premise
(eg. People at an exhibit)
Invitee Someone whose presence is of benefit to the occupier (eg. Customer, delivery, or
service personnel)
Licensee Someone permitted to enter for their own benefit (eg. Guests at a party)
Trespasser Eg. Burglar. Must act with “at least the duty of acting with common humanity”
*Duty of care higher for children. If you know kids break onto your property (eg. A factory
where they can get hurt) must put up a fence.
Nuisance
Intentional or unintentional actions on one neighbour‟s land that causes harm on another‟s land.
Must be significant and unreasonable, not temporary, and if it is not for the public good
- Eg. I burn old things, the fumes go onto your property and cause you harm
- Eg. Construction NOT NUISANCE (since it is temporary)
- Eg. View or light blocked by a building NOT NUISANCE
Bylaws usually regulate nuisance, so legislation plays an important role in striking a balance
Trespass
Entering a property without permission, or entering with permission but not leaving when asked,
or leave an object on the property without permission
- Injunction most common solution in most cases
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Business-Customer Torts
False imprisonment through physically restraining someone or making them stay through
psychological means (making them think they are restrained)
Shop owners don‟t have the right to detain people unless they have physical proof of theft or
fraud or other offence
Right to liberty and reputation > Right to property
Assault and Battery
Assault The threat of imminent physical harm by disturbing someone‟s sense of security
Battery Actual physical contact or violation of that bodily security
Eg. Security guard apprehending a suspected shoplifter or to kick someone out
The contact need not cause actual harm, but it must be harmful or offensive
- Most common remedy is damages
Passing Off (Important)
When one person represents their goods or services as being those of another
Get a “free ride” on someone else‟s business‟ reputation
- Eg. Coca cola brings out a new lemonade to compete with a long-standing lemonade
company
o Long-standing coca cola company gave Coca Cola an injunction since Coca
Cola‟s product is so similar in packaging which may confuse consumers
o This saves Coca Cola on advertising costs since consumers will buy by mistake
o Must prove goodwill (ability to attract buyers through the look of the product or
its name), misrepresentation, and potential or actual damages suffered
- Company will also seek an injunction forbidding continuing production/selling
Interference with Contractual Relations
Eg. An employee for a company has a 3 year contract, and I try and persuade the employee to
break the contract and work for me instead
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Defamation
Saying a false statement to more than one person of fact or opinion in public that harms
another’s reputation
If the defendant can prove the statement is true, then he has a complete defence
- Defamation is the tort, but charge is under libel or slander
- Slander Oral defamation
- Libel Written defamation
Eg. Mead vs. Ross case (page 186) Ross advertised a product to be superior to all competitors
and claimed specific benefits from the product. Although Mead‟s product was not specifically
mentioned in the advertisements, it was implied that Ross‟ product is better than Mead‟s. If
Mead can prove that Ross‟ product isn‟t as it was advertised to be, it would be defamation.
Insurance (Chapter 28, Lecture 13)
It is almost always possible to get insurance
Transfers risk to the insurance company
- Sometimes it is not worth having insurance (eg. Risk is too low)
Insurance industry regulated by federal government
Policy (insurance policy) is the name of the contract
The Loss The event that is being insured or covered (eg. Fire, life, negligence)
Deductible The amount of the loss the insured pays that is not covered by insurance
Premium What you pay for the policy
Insurance contracts are known as contracts of utmost good faith
- The insured has a duty to disclose all information relevant to the risk (ongoing duty),
otherwise the insurance company can choose not to honor the policy
o Eg. ABC is asked to disclose “Have you ever experienced a fire”, and only
discloses the event that happened in 2002 even though fire also happened in 2001
The insurance company can also deny a claim that is irrelevant to fires (eg.
A vandalism claim)
o Eg. If I decide to leave a building vacant in the near future, I must update insurer
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Document Summary

Occupier owes people on the property a duty of care, law is the same as negligence for everyone but trespassers. Occupier someone who has some degree of control over land or buildings on that land (eg. someone conducting business on the property, owner, tenant, or temporary service provider) Contractual entrant someone who has contracted and paid for the right to enter the premise (eg. people at an exhibit) Invitee someone whose presence is of benefit to the occupier (eg. customer, delivery, or service personnel) Licensee someone permitted to enter for their own benefit (eg. guests at a party) Must act with at least the duty of acting with common humanity . If you know kids break onto your property (eg. a factory where they can get hurt) must put up a fence. Intentional or unintentional actions on one neighbour s land that causes harm on another s land.

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