ADMS 2610 Notes.docx

29 Pages

Administrative Studies
Course Code
ADMS 2610
William Pomerantz

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Lecture 2 Introduction Fired because you were pregnant- Human Rights Act - protects us from discrimination in three venues , workplace, accommodation (landlord discriminating), and in stores Race, sex, religion, disability- Human Rights Systematic discrimination- indirect discrimination- lets say, one must be 6 feet tall to get the job Tribunal court- Human rights> very less formal Alternate dispute resolution- a type of court too expensive for most people> Three types Negotiation-   Mediation- mediator helps two parties come to a resolution . Can't force a resolution  Arbitration- resolution can be force? Called binding resolution. Whatever arbitrator says, goes- very fast and convenient than a regular court. Class action  Bunch of people have been wronged by a defendant- pool their money and become part of a class action lawsuit. Such as suing a cigarette companies or pharmaceutical  The court must certify the class action  Very effective against major defendants Chapter 7&8 CONTRACTS Contracts are promises  Main reason, take an action if a party breaches the terms of the contract Contract Checklists 1. Intention  There has to be an intention to be bound by a promise made  Two expections  Parties not at arm's length- court will not presume the intention, if the people bound by contracts are friend's or relatives  You can have a contract with your friend and family, you must go beyond making a promise. One must have the terms in writing (lets say bring in the lawyers and sign the contracts) for the court to presume there was an intention  Advertisements  If there is no legal intention, the accuser doesn't have a case  If one goes out of his way to show his intention, you can have a case  The two exceptions are cancelled if the promisee can provide evidence for the intention to be bound by the promise on promisor's behalf  The court mostly sees advertisements as mere invitations to do business rather than intention to enter into a contract  Use the term "meeting of the minds" at a specific point in the case to suggest a contract exists 2. Offer Slides  Only the people who you make the offer to, can accept the offer  An offer is not valid until the oferee becomes aware of it there offeror is not bound by it  Offer cannot be accepted before its made 3. Acceptance  If the offeror states that he wants his offer to be accepted in a certain way, it must be accepted that way  The acceptance of the offer must be communicated to the offeror in the manner communicated or implied by the offeror (only if specified by the offeror)  This rule exists because the offeror must understand that the offeree accepted the offer with intention to bind a collective agreement  When accepting an offer, changing the terms of the offer is called a counter-offer and automatically eliminates the original offer- changes the titles of the parties  Normally silence can be interpreted as acceptence of the offer However, if offeree so conduct themselves that their actions would lead a reasonable  person to believe that they had assented to terms of the offer, then the offerees may not stand by and watch the offeror perform a benefit for them if it is clear that offeror expects the payment for his services.  Unilateral Agreements- offers that require offeree to complete their half of the contract as a method of acceptance to the offer  Under these agreements, offeror cannot withdraw the offer while the offeree is in the process of accepting the offer, unless offeror has specified the withdrawal at anytime in the contract  Click wrap agreement- an internet click box of "I agree" that represents a valid acceptance of an offer  Lapses- the termination of unaccepted offers due to death or time  Counter offers cause lapse  Are oral agreements enforceable- Yes, How  On a balance of probability, if you can prove to the judge that the agreement is likely( more than 50%), you can enforce the agreement Contracts can be made by hand gestures and saying I accept Is silence considered acceptance? No. 3. Lapses When does an offer terminate  Reach time specified  Reasonable passage time  Daeath or insanity 4. Revocation (very important)  You are allowed revoke your offer before the other party accepts it  If offer revoked and you find out indirectly, you still have no right to accept the offer  If you accept the offer before you become aware that the offer is revoked, you have the right to accept  How to insure that the offer exists for the time period the offeror gave you?  Option agreement, a separate contract,. It is not a part payment for purchase or deposit, it is a separate contract. Money not returned if offer revoked. 4. Consideration  There must be a promise for a promise  Tenders  Involves the advertisement of particular goods or services of the firm to potential suppliers  Merely an invitation, not a contract  Courts are not concerned about the adequacy of the consideration because they refuse to become arbitrators of price or value received in return of the promise. Main concern is the presence of consideration Past Consideration  Consideration cannot be something received before the promise in made nor can it be something a person is already entitled to under law  Final exam!  You do have the legal right to return the product if you don't agree with the terms on the contract after you open the product and read the contract for the first time  Quantum Meruit  When two parties exchange services without negotiating a price, the law states that person who renders the services, deserves the fair value of the services he provided to the other party  If you don't agree on a price, can the plumber still bill you?, YES, even if there is no agreement, you have pay what's fair  Debtor Creditor relationship  If the creditor agrees to recieve CASE  Case 7- 134 ch7  Any counter offer ends the first offer  Inquiry- percy asks if it can be sold for less  Doesn't end the offer  Mode of acceptance  If its fax, percy doesn't get the cottage  If its by letter, percy gets the cottage  Case 5-148 Ch8 5. Capacity  One must have the capacity (understand what contract would bind them to) to enter into a legal contract  Must be 18 or older to enforce a contract  Minor may not be able to get out of the contract if it is a necessity  Contracts signed by drunk or insane individuals are not enforceable  Getting an expert's opinion about one's capacity to understand the contract is viable when there is uncertainty  Repudiation- repudiate the contract if the a minor turns 18 Can corporations enter into the contract just like an ordinary individual- Yes, the regular corporations can Labour unions can enter into collective agreements- Yes Bankrupt people?  Bank people cannot enter into contracts if the bankruptcy is declared Legality Under Statue Law  Unlicensed trades or professionals are not eligible to sue their customers if the customers decides not to reward the party, even if the customer was satisfied with the job Public Policy  It is a criminal offense to charge over 60% interest Competition Act  Restrictive covenant Chapter 10 Formal Contract:  Very uncommon contracts Statute of Frauds  States that not all oral contracts are enforceable in court Types of Cotracts covered by Statute of Frauds  Executive/Administrator  Admin- there is no will and you have been appointed to be the executive  Executive- there is a will  Guarantees  Guarantee has to be in writing  There must be a guarantor- guarantor can be anybody  Assumed Liability  If you assume some's tort liability, one must be in writing for you to be obligated to pay for the liability  Land Contracts (Most important)]  Anything to do with interest on land, has to be writing (buying or selling land)  Part Performance Parol Evidence Rule (very importnat)  Whatever is in the contract is enforceable; the guarantees and promises made that are not in contract are not enforceable in contract  Exceptions to the rule  Condition precedent  Contracts that don't go through unless a certain event occurs  Doctrine of Implied Term  If the terms are fair to the judge, even if they are not included in the contract, the judge can choose to imply those terms in the contract  Collateral Agreement Chapter 11 Grounds for impeachment  Mistake  Misrepresentation (important)  If you can prove that the sales person misrepresented to you, and the misrepresentation was the only reason you signed the contract; you can get out of the contract  Innocent Misrepresentation  e.g honest mistake, but material- induced you to sign the contract  Must act on immediately towards getting out of the contract, if you are a victim of misrepresentation  Has to be material  Fact  False  Breached standard of care  Negligent Misrepresentation  Failure to represent everything in a proper manner, maybe laziness  Has to be material  Fact  False  Breached standard of care  Fradulent Misrepresenation  The party lies in the contract  Misrepresenation by Non-Disclosure  In a partnership or insurance situation, you have to tell the truth to force the company to be liable  Undue Influence  Rebuttable presumption if special relationship exists  Duress  Signing a contact beacuse you are being threatened (doesn't have to be physical damage) Case Ch3-p 210 Pick the type of misrepresenation- half silence Connect the facts of case with the misrepresentation Figure out the remedy Chapter 13 Nature and Extent of Performance Tender  Performing all your duties in the contract External Events  Condition subsequent  On a particular event, the contract comes to an end  Force Majeure  If a particular event happens, the contract is over- they are expressed in your contract, not unforeseen  Implied terms  Frustration (important)  Unforeseen events occur that were not expected at the beginning and made the contract impossible to complete e.g. cancellation of a concert due to fire  Self-induced frustration  Creating events to force the law of frustration How long do we have to sue someone before we lose the right? 2 Years Operation of Law Mergers  When turning an informal contract to a formal, the informal contract merges (disappears) Statutory Limitations  Maximum time allowed for you to sue someone Discharge by Agreement Waiver  An agreement between both parties to waive the contract . Grotius promise Novation Chapter 14 The effect of Breach Substantial Performance  Pay for the benefits you recieve and only the benefits recieve the party finishes most of the work but not all of it Condition  Something essential is breached Warranty  Something is breached State in the contract that a certain condition is essential ( the reason you are accepting the offer) to differentiate between condition or warranty to protect yourself Fundamental Breach If there is a fundamental breach, the exemption clauses are non existant, the terms on the contract don't matter Damages  One must reasonably mitigate (prove) his damages to receive reward  You can only sue for damages that were generally foreseeable at the time you entered the contract  Punitive Damanges- damages to Lecture 5 TORT LAW Unintentional Tort  Not breaking the law on purpose, but being reckless or going beyond the standards approved in a society  Employer is responsible for employee's act- Vicarious Liability  Strict Liability (important) p283  You have dangerous or unusual substances on your property that escape and damage your surroundings  Under these situations, you will be responsible. Even, if it were unintentional  Negligence: Hurdles to Overcome  Only look at the behaviour of the defendants  Duty of care  Was it reasonable foreseeable that the defendants act could have injured plaintiff  Standard of Care  Did the defendant breach the standard of care  What is reasonably appropriate  Causation  Did the defendant cause the injury to the plaintiff  Prove that the plaintiff was the cause  Remoteness of Damages  Were your particular (not all) injuries reasonably foreseeable among everyone else`s injuries  Thin skull theory, take our victims as they are, except for the psychological cases  Defences  Plaintiff`s own carelessness- contributory negligence  Voluntary assumption of risk-knowing the risks of the situation and still taking action  Act of God  Sign a waiver  Releases-release for a certain amount of money  Statute of limitations- must sue within 2 years  Damages  How much money it would take to get you back to your original state  Special damages  General damages  Punitive damages  Special aspects of Negligence Product liability for manufacturers for defective products or inadequate warnings   Occupier`s liability  Nuisance  Interfere with the person`s enjoyment of their property such as noise complaints Intentional Torte Can be civil or criminal False imprisonment Defamation  Slander (false statements that significantly injure one's private or business reputation  There has to a third party involved to prove  Defences  True  Absolute privilege  Qualified privilege - false statement with no malicious intent, being said as opinion of public interests Intentional Interference  Trespass to land  Conversion or Trespass to Goods  Slander of Goods- bad word of mouth regarding products for competitive reasons  Slander of Title-  Conspiracies in Restraint of Trade Chapter 6 Who is owed a Duty (important) Professional can be liable for phantom clients, people they don't even work for Negligent Misrepresentation  Test  Whether the harm was foreseeable  Was there was a relationship between the parties of sufficient proximity8n nh nhjn jn jn  Terms of public policty it would be just and reasonable to impose the duty on the party making the statement Sole Proprietorship and Partnerships  One person business  There is no separation between you and you business  If someone sues the business, the owner of the business is the one getting sued  You have to register the name of the business  If you dont, will be fined  Can't sue anyone or defend yourself if the name is not registered Partnership  Two or more people carrying on a business with a view to profit  Synergy- combine your expertise  Higher to capital invested in business to begin with  Still need to license the business  Don't have to register your name in the partnership, so you could be in a partnership without even realizing it  Taxed only one time just like a sole proprietorship  What factors suggest the existence of a partnership  If you're sharing the profit  If you're all contributing capital to the business  If everyone has a say in the business  Sometimes nonpartners are categorized by actualy partners as partners and nonpartners are stuck being the partner if they dont negate it  Factors that dont suggest  If you own property together  Sharing gross fees as opposed to profit  Contract for remuneration e.g bonus, salary based on commission  Debtor or creditor relationship  Nature of Partnership  Cannot replace a partner without the consent of the other, must be mutual trust  Share property  If you are in a partnership you are subject to Partnership Act  Legislation governs all the partnership law  Co-ownership  Can sell or manage property without the permission of the partner  Co-owners can own any type of property  LIABILITY OF PARTNERSHIP  Every partner is an agent of the firm and can bind the firm into contracts  Better to sue all the partners instead  Joint and several liability all partners jointly owe the money, and if one partner can't pay the liability, other partners will be jointly liable for his share  All of your personal assets can be stake  Your partner's mistakes could make you go bankrupt  Partners are laible for their partner's or employees' torts  Partners are not to be held liable for any subsequent debts after their retirement, if they notify all the partners personally and Ontario Gazette  Example  Yes  Yes  Yes  No, if the partner has notified all the partners  Registration and Agreement  Partners Do No Get Salaries  Profit share  How to exit the partnership  Cheque signing- all partners must sign the cheque  Shotgun Clause  All partners share everything equally  Majority of partners must not expel a partner, must terminate the partnership, unless in the agreement  Cant bring new partners without the consent of all partners Obligation to account for profits if engage in competing business unless consent   Profit earned by performing services in the same business but without notifying the partners must also be shared with the partners unless the services were performed under some other business  Example  No, there is not agreement on the profit sharing. Thus, under the PA, partners must share the profits equally  2.  Any profits earned using the partnership assets must be shared with other partners  Termination of Partnership  All it takes is for one partner to exit the partnership  Once terminated, everyone has to be paid of out  If partner dies  If one of the partners goes bankrupt  If partnership is used for unlawful acts  Court can terminate the partnership, if a partner wishes so  If one partner doesn't have to money to pay for any partnership deficiencies, they are eliminated based on the initial investment ratio other partners  Types of partnerships  General Partnership (what was talked about throughout most of the lecture  Limited Partnerships  Governed by the Limited Partnership Act  Unlike general, has to be formally formed  There can be multiple general or limited partners  General partners are still vulnerable to unlimited partnerships  Silent Partners are limited partners, will only lose their initial investment and not their personal assets  If limited partners start engaging in operating activies of the partnership, they will be converted into general partners  Clients can inquire about the names and investment of limited partners  Limited partners cannot withdraw their capital contribution in partnership,  Limited Liability Partnership  Big difference between LLP and LP  Must be set up formally by registering at the company's branch  Lawyers and accountants can't incorporate to protect themselves from being negligent  Protects innocent partners from the negligence of negligent partners  If a worker makes a mistake, only the partner supervising the worker will be liable  Case SARAH AND JANE  Informal parnership  Under the act, must share the winnings equally  Both partners made decision TAREQ AND MARCUS If yuo're getting a salary, then you're not a partner Marcus didn't contribute an capital CORPORATION  You can have a provincial or federal corporation  Difference is the license to operate a business in a single province or other parts of canada  A separate legal entity  Officers  Deal with the day to day operations of the company  Control  Shareholders dont control the corp  Shareholders cannot bind the corporation  Transfer of Interest  Shares can be transferrable especially in public corporations  Term of Operation of the Business  Has a perpetual existance and go beyond the existances (death) of shareholders  Special ACT  Created by the government for a special purpose  They have limitations for what they can and can't do, unlike normal corporation  When they surpass the limitations, its our obligation to understand their limitations  General Act  Doctrine of Constructive Notice  Dont have to look into the limitations of the corporation  Purposes  It is very difficult for small businesses to have limited warranty because they're mostly required to give personal guarantees for borrowing money or getting land  Share Holder Agreements  SH and Corporation  What happens if certain shareholders get on the board, shareholders are limited into what they can or can't do  Share  Giving more control to shareholders  Dont have to pay back the investment of the SH Common Shares have voting rights while Preferred shares have priority over dividends and  their investment upon liquidation  Debenture  Bonds will usually be secured against the assets of the company  Floating charge will hover the assets of the company (allows you deal utilize your assets untill the bond is defaulted)  Good, you don't lose control. Bad, You must give something as collateral that you may lose if you default on the loan  Duties and Responsibilities of Directors  Owner is separate from management, no control over the operations  Must have at least one director  Directors are accountable to the corporation, not the shareholders, their fiduciary duty  Because sometimes shareholders can act in their own interest and not of the corporation  Directors can be sued  Standard of care  Directors may Not (important)  Cannot be selfmotivated towards obtaining profit at the corporation's expense  Unless the directors can fully disclose their actions  If the directors have special knowledge about the company that outsider's dont, they cannot. Is considered illegal under Ontario's securities Act, imprisonment period is 5 years  Directors are personally liable for certain acts  Inside Directors (full time with the company) such as CEO, COO  Outside Directors Accountants and Lawyers  Board of Directors cannot direct more than one company if those companies are competitors and there is a conflict of interest  Corporations can be charged criminally for the acts of their employees  Due Diligence  Will not work if the corporation doesn't pay taxes  If you are on the board, you must do everything in your power the comply with the law2610 EMPLOYEMNT LAW Progressive Discipline: Probation is a great way for employer to get rid of employees with constant transgressions When you're terminated for just cause, the employee is not entitled to get anything Reasonable Notices (damages): entitled to for being fired before the maturity of the contract Under Common Law- you can get reasonable notice or Severance Reasonable Notice- you work for a specific time and then leave Severance Pay- leave the company immediately with the salary for a specific period of time without working for that period Wrongful Dismissal  Without reasonable notice  Without just cause  Employment contract does not hvae to be in writing  The main advantage for independant contractors is write-offs (no taxes if they can justify that purchase is a business expense)   HUMAN RIGHTS LEGISLATION  For employment law  Can't discriminate against the employee  You have the duty to accomadate the bus driver, if he goes blind. Maybe by finding him a new job if it is an undue hardship e.g turban need not removed an office job (accomadation required) or turban need to be to removed for a construction worker due to safety purposes ( accommodation not required)  Sexual harassment   Case including HAROLD  Was it just cause AGENCY  Why should an agent always sign contracts using the prinicipal's name per the agent's name?  To protect himself from lawsuits caused by the principal's obligations  A minor can hire an agent to act on his behalf, however the contract is voidable by the minor  An agent can bind the prinicipal into a contract if it is within the scope of the agent's authority  Since the contract is between the third party and the principal, the Capacity of the agent is not significant (cannot be insane though)  Agency by Agreement  Can be formed by a written or oral agreement  Rules of regular contractual relationship apply  Written is preferred so that the terms of relationships are set out in the beginning  Under agency law, the prinicpal is required to pay the agent a fixed fee or a reasonable fee for the services rendered  Principal must indemnify the agent for an expenses incurred for carrything the agreement  NOW AGENT DUTIES  Agent must obey all lawful instructions of the principal and keep all the information given to him confidential  Must keep in constant contact with the principal and inform any important developments or information communicated to him by the third party  If asked to perform certain tasks, agent must maintain the required standards to perform the task  Will be liable to the principal if the agent doesn't meet the standards when performing his tasks  Agent may delegate their duties to a subagent only with the permission of the prinicpal  Obliged to always place principal's interest above his own  When engaging in an activity on behalf of the employer, must act only in the best interest of the employers  If the agent obtains any rewards from the third party without notifying the principal, the agent will not be entitled to his commission from the principal  Agency by Conduct or Estoppel  Actions which convey impression that one is an agent for another or has conferred authority to act on one’s behalf  If an entity permits the agency by conduct, he cannot deny any contracts entered into by the agent  The authority of the agent in the implied agency is apparent and not real  Binding effect of the agent's actions are real if the principal led the third party to believe that the agent has the authority  Apparent Authority  Principal must inform the third party about the termination of the agent or else they will be liable for the contracted entered into by the agent  Agency by Operation of Law  Agency that may arise in case of emergency where it is impossible to communicate to obtain the authority of the principal for certain actions  Can bind the principal into a contract only if it were impossible to communicate with the principal  There must be a pre existing relationship between the two  Ratification  When a principal wishes to take advantage of contract negotiated by their agent when their agent did not have the authority to negotiate  If done properly, has the effect of binding the principal in contract with the third party "as of the date it was negotiated  Usually applies to corporations because they have a particular time in which they into existance  Subject matter of the contract is something the principal is capable of  Ratification must be within a reasonble time of the contract  If benefits accepted under the contract then the principal has ratified  Ratified if the principal performs the promises made on his behalf  Silence would not constitute acceptance  If agent has exceeded his authority in negotiating a contract, refusal to promptly repudiate the contract by principal means acceptance  Third Parties and the Agency relatonship  Disclosed Agency  Agent must always indicate that he is only acting as an agent and must identify the principal  This is done by signing on principal's name and adding yours  Protects the agent from any liabilities  No rights or claims to the contract, getting any claims would repudiate the relationship between the agent and principal  Principal has the option to not reveal his identiy when signing the contract  In this case, agent may enter his own name (not revealing he/she is acting as an agent)  Or sign unnamed principal  Undisclosed Agency  Agent fails to disclose they are acting as an agent  If agent in the negotiations holds himself out as a principal, signing as principal, then agreement from the third party's point of view is of direct contractual relationships  Agent will be personally liable for the performance of the contract  Agent can also enforce the contract against the third party  Fictitious Agency  Agent contracts on behalf of a non-existant principal  If discovered by third party, may sue the agent for breach of warranty of authority  READ MORE  Undisclosed Principal  Where the agent informs the third party that he is an agent for the principal before signing the contract  If the third party agrees, the agent is not liable for any damages  If the principal decides to come forward, the third party may hold the principal or the agent liable  If principal gives her identity after the contract, he would replace the position of the agent (who was the principal before) and accept the relationship between the third party and the agent  Liabiltiy of Principal and Agent Tort  Principal may be held liable for tort committed by agent if committed in ordinary course of carrying out agency agreement o Often based on fraudulent misrepresentation If the third party enters into a contract based on fraud, then both agent and the principal will  be liable  If tort committed outside the course of business, only the agent is liable unless the principal chooses to accepts the contract or the benefits  If the agent makes an inncent mistake in the contract, the third may repudiate the contract base on innocent misrepresentations  If third party can prove that principal was aware of the agent's false statement and allowed him to proceed, principal will be liable for fraud  Termination  READ  Exclusive listing ....research  Duties of Agent to Prinicipal  Owe a fiduciary duty to prinicipal and are not allowed to profit  Cannot act as agent to both parties due to conflict of interest  You can never hide anything from the prinicipal  Keep information confidental  Keep in constant contact  Inform principal of any important information  Breach of fiduciary duty eliminates the entitlement of commission  Agents are expected to meet their standard of care  Can't act for both sides without express consent of both  Real estate don't get any money if they don't make the sale  Principal has to pay agent's reasonable expenses  Agents can insist on getting their fee if agent and principal didn't agree on a commission fee  Agency Relationships  By express Agreement  Before the relationship initiates, the priniciapl breifly explains the duties of the agents and rights  Agency by conduct/estoppel (very Important)  Express authority- agent follows his instructions  Apparent authority  Agent is gone beyond their authority  It was reasonable for the third party to assume that the agent had the authority for his actions  Principal would be bound by the contract even if it the agent went beyond his authority  Principal must inform the third party about the termination of the agent or else they will be liable for the contracted entered into by the agent  Agency of necessity  Occurs when impossible to obtain authority from principal  Ratification of contracts by Principal  Has to be something that prinicipal was capable of doing  Third Parties and Agency  If an agent sign a contract for a fictitious principal, the agent would be liable for the contract  Principal is laible for the lies of agents when entering into a contract Case  Jones and brown were the agents of Amin  Breached their fiduciary duty by forming a corporation and bidding for the company and acting against their agents best interest  Breach of fiduciary duty would eliminate the commission fees for them, so they would have to return Case By not disclosing to Johnson that he was selling him his own stock, he breached the fiduciary duty Johnson could assume that Birkette knew that his stock would drop and thats why to protect himself, he transferred his stocks to his principal CONSUMER PROTECTION ACT Foods and Drugs Act  Primarily controls harmful products that could injure the co
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