1. VII The Tort of Negligence
Privacy
Human Rights
SWOT
Review
NAIT Bus Law
April 2, 2006
Part 3
1

2. Tort Law Pg 19
A: A civil wrong (between individuals)
 When an intentional or careless act harms
another
 Injured party usually sues for monetary
compensation
B: Purpose to compensate victim
C: to determine liability
– person at fault pays
– Strict liability – did act reasonably
– Vicarious liability
2

3. Torts p 19
Because Torts is a "common law” (court
developed) area of liability, it requires
judges to interpret and apply earlier
precedents.
Torts is still very much a live subject
 For example, they have created new areas
of liability for negligent statements and
financial loss, or for car accidents when
automobile was invented
3

4. Liability for businesses p 19
Directly
Indirectly
Careful HR practices, hiring, training,
performance appraisals
See Rylands v Fletcher case p1 (case handout)
4

5. Categories of Tort pg 20
Intentional or Careless or
deliberate acts negligent acts
that cause that cause
injury or loss injury or loss
On purpose Accidental or
unintentional
5

6. Intentional Torts pg 20
Intentional conduct that causes injury
Examples
– Assault and Battery
– Trespass to Land
– False Imprisonment
– Nuisance
– Defamation
Courts may award punitive damages
6

7. Intentional Torts pg 20
 Assault and Battery
– Assault - where there is fear of
contact
– Battery - least touching in
anger
 Defenses
1. Consent (informed)
2. Self-defense (reasonable
force)
R. v McSorley (case handout)
7

8. Trespass on Land pg 21
 entering another’s land
without authority
– permission implied for business
offering public services
 Occupier owes only minimal
duty to trespasser
 Continuing trespass remedied
by injunction
8

9. False Imprisonment pg 22
 The unlawful and  Restraint may be
intentional restraint justified if the
of a person against trespassing person
his/her will has done something
 Restraint must be s/he can be arrested
total for – ie robbery
 Victim must submit
or be forced to
comply
9

10. Private Nuisance pg 22
Private nuisance interferes with
another’s use of his/her property
Interference must involve unusual
activity
10

11. Defamation pg 22
 A false statement about someone to his
detriment - must be published or broadcast
 Slander - spoken defamation
 Libel - written defamation
 Note the innuendo
11

12. Defamation/2
Defences
1. Truth (Justification)
2. Absolute Privilege
3. Qualified Privilege
4. Fair Comment
But mistake is no defence
12

13. Reference letters pg 23
13

14. Negligence pg 23
Inadvertent, careless conduct that
causes injury to another
Important area of tort liability for
professionals
14

15. Negligence A – D pg 24
Essential Elements:
A: A duty to exercise care
B: Breach of the standard of care
C: Causation – The act caused the
injury
D: Damages -Victim suffered a loss
15

16. Reasonable Person Test
Reasonable person is a prudent person
exercising care
– conduct falling between
average and perfect
– Like par in golf
16

17. Is a Duty Owed?
Reasonable Foreseeability Test
- If it would be apparent to a prudent person that
the conduct was likely to cause injury - duty is
owed.
We owe a duty to anyone we can
reasonably anticipate might be harmed by
our conduct
17

18. A - Duty of Care
 Misfeasance
– an act that causes harm to another
– court will provide remedy
 Nonfeasance
– a failure to prevent an injury
– courts reluctant to provide remedy
 If a person attempts to help there is a duty to exercise
reasonable care
 Courts reluctant to provide remedy without special
relationship
18

19. B – Breach of a Standard of Conduct
What would a reasonable person have done
in the circumstances?
Actions that fall below socially acceptable
standards create liability for damages
Risk - The greater the risk of injury the
higher the standard
Note Reasonable expert
19

20. Special situations
- Children liable for their torts
– standard is that of a reasonable child of that age
- Occupiers must take reasonable steps to
protect visitors
- Innkeepers must look after property of guest
- Note modification of duty by statute
20

21. C - Causation
There must be injury or damage
Which was a direct result of the careless
conduct
Note thin skull rule
21

22. Torts law of Negligence
Handout
22

23. Defenses to contributory neg pg 26
Contributory negligence
– plaintiff partially responsible for own loss
– This used to be a complete defence
 Negligence Act now allows court to apportion
responsibility
23

24. Defenses/2
Voluntarily assuming the risk
– a person who volunteers to enter a situation where
the risk of injury is obvious cannot recover
damages
– But must assume the legal risk as well
 Note Crocker v Sundance case (p 2 case
handout)
24

25. Occupiers Liability pg 26, 27
Applies to owner or renter
Duty of care owed by occupier to
– Visitors
– Trespassers – adult, child
Applies to
– Conditions, sidewalks, holes, floors, stairs
– Activities, hot tubs
– Conduct of third parties
Reduce risk – waivers, signs, safe practices
25

26. Alcohol related pg 27, 28
Commercial hosts
Stewart v Pettie p 3 case handout
Employer parties
Jacobsen v Nike Canada p 4 case handout
26

27. Other business torts pg 28
Inducing breach
– Persuading person to breach contract
(inducement)
– Enticement – competitor
Fraud – Vancouver used car dealers CTV
show W5 and APA found 60% of cars offered
were odo rollbacks or wrecks welded together
Conversion – selling car don’t own
Trespass to chattels – damaging others
property
27

28. Other business torts ctd pg 29
Passing off
– Product offered in misleading way
– Mail scams
– Advertising with misleading photos
Trade slander or defamation
– Making false statements about plaintiff’s products
or services that hurt plaintiff
28

29.  Discussion – Case Study
 A 13 year-old defendant threw nitric acid at the 12
year-old plaintiff walking by his home. She suffered
severe burns to the back of her right leg and required
skin grafts. She has permanent cosmetic
disfigurements. The boy hid the nitric acid from his
parents. In an action for personal injuries, the plaintiff
sues the boy in tort and his parents in negligence
claiming they knowingly permitted their son to have a
dangerous substance.
 Issues:
 Is the boy liable for the injuries he caused?
 Is his infancy a defence?
 Are his parents liable in negligence for permitting him
to possess this substance?
29

30. Pollock et al. v. Lipkowitz et al. (1970), 17 D.L.R. (3d) 766 (Man. Q.B.)
 Decision: Bastin J. concluded the boy was liable
but his parents were not. This was not an
appropriate case to award punitive damages
 Reasons: Infancy is not a defence to a tort action.
The boy must be responsible for the injuries he
caused given that he was of normal
intelligence, knew the dangers of nitric acid and
had the antidote for nitric acid burns. It is not
relevant whether he intended to throw the acid on
the plaintiff or merely scare her since his actions
caused the injuries.
30

31. Reasons ctd
 His parents are not liable because it would not occur
to even the most conscientious parent that a child
could obtain such a dangerous substance. There is a
great deal of difference between a harmless chemical
found in a child’s chemistry set and commercial
nitric acid.
 Further, the boy concealed the nitric acid from his
parent. They were unaware of his possession of it.
As such, they were not negligent and did not
contribute to the injuries.
31

32. VIII Privacy Law pg 29, 30
Pragmatic solutions
HR Issues
Getting employee
buy-in
Lessons learned
32

33. Breach of Privacy pg 29
Privacy legislation prohibits using another
person’s name or photograph without
permission
Note application of Federal Personal
Information Protection and Electronic
Documents Act
33

34. Security and Privacy
Misuse of private information growing
concern
Care must be taken about giving personal
information over the internet
Unauthorized interception of private
communications difficult to control
Data stored on computers is vulnerable to
hackers
34

35. Employee Access
 Ees have a right of access to their own
information
 They have the ability to request correction of
errors
 Should include access process in your policy
 When an organization collects personal
information from an individual, it must give
notice of the purpose of collection and a
contact for questions
35

36. Informal Openness
Employers should allow employees to
access their own personal employee
records without needing formal request
for access under PIPA
A call to HR should permit the ee to
obtain the information they need
36

37. Purpose of Privacy Policy
 Correct a situation
 Prevent a situation
 Outline rules or regulations
 Ensure consistency within the
organization
 Demonstrate due diligence
 Support privacy complaint
resolution
 Educate
37

38. HR Policies
Don’t have any – get some
– Develop a team
– Review
– Revise
– Keep current
– Three ring binder
Integrate privacy policies into overall co
policies
38

39. How to Involve Staff
 Since staff are most affected by
policy, it is wise to involve
them
 How much should staff be
involved depends on how you
want to spent the time
 Time spent with staff in
advance is inversely
proportional to time spent
fixing things
39

40. Build privacy policy from
ground up
 The worst situation is where
consultants “hit & run”
 Privacy policies should be
developed by staff and managers
who use them
 They can reflect values the
organization wants to exhibit
 Ab reasonableness test
40

41. Privacy Gap Analysis
Files
Forms
Employe
e
Practices
HR
Payroll
Gap Standardized Forms
Analysis
Awareness
Information
Requests
Employee Driven
41

42. Gap Analysis
What changes in your current
policies, procedures and practices will close
any gaps?
42

43. HR Audit Conduct an information audit:
who what, why, where and
how? Consider employee
involvement or their reps
 Stop collecting personal
data that is irrelevant or
excessive
 Ready - Ensure that workers
are aware of their individual
responsibility
 Go – implement your
information policy and
review it on a regular basis
43

44. Privacy Policy Summary
Developing policies, procedures and
practices is a practical way of minimizing
employer risk of non-compliance
Policy should reflect values and direction of
the organization
Should assist the organization, not hinder it
Lastly they are a guide for staff, not a
substitute for good privacy management
44

45. Privacy Officer
Privacy Coach
Responsible to assist
individuals with concerns or
requests regarding
Access, collection, use or
disclosure of their own
personal
information, including
personal employee
information
45

46. Employee Information
The act specifically says that organizations
may collect personal employee info without
consent if the individual is an employee of the
organization, or the info is for recruiting
purposes
Orgs may not collect personal info unless the
collection is for reasonable purposes and is
related to the employment or volunteer work
relationship
46

47. Recruiting Info Sources
 Your notes
 Other peoples notes
 Your forms
 Your written comments
 Who has access
 Your policies
 Your memos
47

48. Recruitment
Employers will be able to collect, use and
disclose certain employee information
without consent when it is reasonable to do
so.
What is reasonable?
Extension of existing Human Rights
legislation
Source OIPC
48

49. Recruitment
 At hire - opportunity to have
employee consent to use of their
info while employed and after
 If the employee is not hired, the
org must destroy the info, or
give it back to the individual,
unless that individual consents
otherwise
 If keep resume on file, say for
how long, then destroy
Source Bill 44
49

50. Definition of Employee
Includes
apprentices, volunteers, participants, stu
dents, and individuals under contract to
an organization
Your policy should include all
May wish to include your Board of
Directors as well
50

51. Employee calls in sick
 Er may ask for general
information necessary for
operation of the position
 how long the employee
is expected to be away
from the workplace and
an date of return to work
Doctor’s note
No diagnostic info pls
51

52. Reference Checks
Only an individual's name and title is
public, most other information requested
for in a reference is considered personal
Many organizations have chosen not to
provide references of any kind, even
prior to privacy legislation concerns, due
to the potential risk of litigation.
52

53.  Little risk of privacy implications with this
approach, however, it may not be in the best
interest of your organization
 The goodwill of your organization in the minds
of former employees who left on good terms may
suffer, as they may have difficulty securing
employment without a reference
 Morale – be reasonable, get consent
 Rule of thumb – state facts not opinions, don’t
day anything you wouldn’t say to their face
 Try to control ees providing references directly –
control info flow – tough to do, but worthwhile
53

54. You may wish to confirm employment
dates, titles and salaries only, with the
provision of a signed authorization by
the former employee.
May be done at time of request or
include at employee hire
Have departing employees complete a
standard Reference Authorization Form
detailing what specific information you
can release, to whom you can release it
and for what period of time.
54

55.  You receive a call from a potential employer
requesting a reference
 Prudent to request that they provide you with
authorization in writing from the former
employee via fax, unless you have an auth on
file
 Compare signatures on file
55

56. EAP
Er should not get involved in EAP
Be very careful about release of any info
EAP counsellor usually owns the info
under contract, and the employer should
not have any access, except in very
specific situations like return to work, or
danger, or managed referrals
EAP counsellor should obtain consent
from ee
56

57. “Mortgage” Letters
 Information like status (full
time or part-time), date of
hire, salary is personal
 The employee would
specify exactly what
information is to be
released and to whom
 Handle in hire letter
57

58. Duplicate Personnel Files
 Managers often keep personal notes and
information about staff in duplicate corp files
 Risky practice from more than just a privacy
perspective
 Should an ee file a complaint under Human
Rights, Employment Standards or launch a civil
suit against an employer, documents contained
in both the manager's file and the official file are
subject to subpoena and disclosure
 HR File Audit – Boy Scouts said it best “Be
Prepared”
58

59. Access to ee info
Differing departments need different
information about an employee
Not all need to see everything
Segregating certain types of employee
information as separate files or within
the file with different access protocols
would help
59

60. Benefits
 How does your carrier
measure up?
 You are responsible
 What about employee
medical claim information?
 Pensions, RSP’s, who has
access to information
60

61. Benefits
Census data for quotes
– No need to name names in lists of ees
Medical info
– Try and have carrier deal direct with ees
– Make experience info generic – no need to name
names
– ie. LTD claim, position title, medical
condition, mo benefit amt, start and expected end
date
61

62. When can opt-out consent be
used (aka negative option)
 Notify the employee of the
purpose for which the
information is being
collected, used and disclosed
 Allow the ee a reasonable
period of time to decline or
object to the proposed
collection, use or disclosure
62

63. Home Address
 Home address is personal
information
 Disclosure to third parties, must
be authorized by the employee in
writing
 If your org has vendor
arrangements, the best approach
would be to have ees give
consent at hire
63

64. Ees are responsible too
No ee should disclose personal info on
staff, or use for their own personal purposes
Organization should have clear rules for itself
and its ees
Education is key
64

65. Monitoring Ees at work
• Monitoring,
listening, tracking
Ee activities is
controversial
• Ers can do it, but
tell people you are
doing it or may be
doing it
•Must have a reason
– can’t go fishing 65

66. Privacy Review
 Put someone in charge
 Understand the requirements
 Review how you handle personal information
 Test to see if you are compliant
 Develop privacy policies and practices
 Develop access and complaints processes
 Review and revise forms
 Review and revise contracts with third parties
 Train staff
66

67. IX
Charter & Human Rights pg 44
When does it apply
Not to private matters
67

68. What rights are covered? Pg 45
Fundamental freedoms
Democratic
Mobility
Legal
Equality
Language
68

69. Charter Limitations pg 46
Reasonable limits
Notwithstanding clause
Keegstra p 6 case handout
69

70. Courts role pg 46, 47
Judges can rule other laws invalid if they
violate the Charter Section 52
24(1) Askimov case
24(2) evidence obtained in violation of
Charter
70

71. Ab Human Rights pg 47
Must fall in protected area and grounds
Who to complain to?
Ab Human Rights & Citizenship Commission
Within 12 mos
71

72. Process pg 48
Officer will try to resolve
Investigate
Panel
Enforcement thru courts
72

73. Employment Practices – pg 49
73

74. Are there some questions I can’t ask
in the interview?
74

75. Question Can’t ask Recommended
Gender, marital Plans for Availability for
status, family marriage, family work including
status childcare, gender, shift work, travel
marital status
Languages Ability in Ability in
languages not language required
required for job for job
Age Specific age Old enough to
work legally in
Alberta
75

76. Question Can’t ask Recommended
Name Maiden name, Previous names,
reference to name only if needed
origin to verify past
employment /
education
Race, colour, Place of birth, Legally
ancestry place citizenship, racial permitted to
of origin origin, next of kin work in Canada
76

77. Question Can’t ask Recommended
Photo- For as they can In rare situations
graphs reveal race, gender modelling,
entertainment
Clubs or Specific inquiries In cases where the
organiz- about memberships club or org are job
ations that would indicate related
race, religion….
Height & Min or max height Describe job
Weight weight norms duties that require
certain physical
requirements
77

78. Question Can’t ask Recommended
Disability General disabilities, Offer contingent
present or past health, upon satisfactory
WCB history job related
medical
Smoking Asthma, respiratory Working in Smoke
free env
Source of Anything unrelated to Job related info
income job about prev jobs
Education Religious or racial
affiliation of Education
Religious Holidays, customs Job related info
beliefs about prev jobs
78

79. BFOR pg 49
Bona fide occupational requirement
Meiorin Case p 8 case handout
79

80. Harassment pg 50
80

81. Duty to accommodate pg 50
81

82. Age
Cant make complaints
– Over age 45 for rental unit
– Discounts for seniors
82

83. Vriend Charter Challenge pg 51
Vriend case p 6 case handout
End section
83

84. S.W.O.T. Analysis (not in texts)
Factors Internal
Strengths Weakness
to Organization
Factors External Opportunities Threats
to Organization
84

85. SWOT: Description
A SWOT analysis generates
information that is helpful in matching
an organization’s goals, programs, and
capacities to the environment in which
it operates
It is an instrument within strategic
planning
When combined with dialogue it is a
participatory process
85

86. Simple Rules for SWOT Analysis
 Be realistic about the strengths and weaknesses
of your organization or group
 Distinguish between where your organization is
today, and where it could be in the future
 Be specific: Avoid gray areas
 Always analyze in relation to your core mission
 Keep your SWOT short and simple
 Avoid complexity and over analysis
86

87. Strengths
Consider from both the view of the org as
well as customers, competitors and
community members
Be realistic
One’s strength is another’s weakness
Questions:
– What is org’s advantages over others?
– What does the org do well?
– What makes you stand out from your
competitors?
87

88. Weaknesses
Consider from internal and external
viewpoint
Be truthful so that weaknesses may be
overcome as quickly as possible
One’s strength is another’s weakness
Questions.
– What is done poorly?
– What can be improved?
– What should be avoided?
88

89. Opportunities and Threats
 Primarily external in nature
 Represent characteristics of:
– the research environment
– growth in potential markets
– changes in the
competitive, economic, political/legal, technolo
gical, or socio-cultural environments
 A threat to some is an opportunity to another
89

90. Questions on opportunities
– Is there a product/service area that others have
not yet covered?
– Are there emerging trends that fit with your
company's strengths?
Questions on threats
– Are your competitors becoming stronger?
– Are there emerging trends that amplify one of
your weaknesses?
90

91. For a company a strength could be:
marketing expertise
location of your business
innovative product
Image
Your quality of service
Your reputation
any other aspect that adds value to your
product or service
91

92. For a company a weakness could be:
lack of marketing expertise
undifferentiated products and service (i.e.
in relation to your competitors)
location of your business
damaged reputation
92

93. For a company an opportunity could be:
a developing market such as the Internet.
mergers, joint ventures or strategic
alliances
a new market
a market vacated by an ineffective
competitor
any external factor that may create demand
or the possibility for increased profitability
93

94. For a company a threat could be:
a new competitor in your market
price wars with competitors
a competitor that has a new, innovative
product or service
competitors have superior access to
channels of distribution
94

95. Expanding Your SWOT Analysis
Delve deeper into the details
Include more detailed competitor
information
Take a closer look at the business
environment.
Expand the reach of a SWOT analysis
through surveys.
Customer surveys
95

96. Word of Caution:
– SWOT analysis can be very subjective.
– Do not rely on it too much.
– Two people rarely come-up with the same
final version of SWOT.
96

97. Review, Reasons for JV Failure
P 9 JV booklet
1. Cultural differences
– Cross cultural training
– History of working together
– Successes early on
 Poor or unclear leadership
– good communications
– clear decision making roles
– clear governance and accountability strategies
 Poor integration process
– Capital contribution (money at risk)
– Clear dispute resolution process
97

98. Review Business Orgs 51, 52, 53
Taxation
 Sole prop – not taxed on community
 Partnership – same
 Corp – separate entity, therefore taxed unless owned
by band then treated as a municipality. Ees working
for Corp on community are not taxed if Treaty
 Name registration
– Protects names from other use
– Provides credibility and business number
– Avoids conflict where another business is operating under
same name
98

99. Exam
1. One mark for choice of ADR and 3 marks for
reason, total 10 marks. P 17
2. One mark for element and 1 mark for
description. Total 10 marks. P 31
3. A, B, C One mark for structure and one mark
for explanation/ description. One mark for
choice and one mark for each reason. Total
10 marks p 52, 53, 54
4. One mark for each reason and one mark for
each explanation. Total 10 marks. P 9.
99

100. Our offer to you
Please call if you have any HR, or workplace
issue that you are overwhelmed with
We can help you
We also are pleased to do Free Workshops for
your organization (some limits apply) Let us
know what your needs are and we will make it
happen!
100

101. CG Hylton - Services
 HR Consulting  Benefits, Pensions,
 Job Descriptions EAP
 Salary Grids  Strategic Planning
 Wellness at Work  Drug and Alcohol
programs
 Staff Morale
 Dept re-orgs
 Training and
Workshops  Leadership
compensation
Tel 403 264 5288
chris@hylton.ca
101

102. Chris Hylton would like to
thank you for your attention
and time!
Questions?
Tel 264-5288
chris@hylton.ca
102