Business Law 3


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Business Law 3

  1. 1. VII The Tort of Negligence Privacy Human Rights SWOT ReviewNAIT Bus LawApril 2, 2006 Part 3 1
  2. 2. Tort Law Pg 19A: A civil wrong (between individuals) When an intentional or careless act harms another Injured party usually sues for monetary compensationB: Purpose to compensate victimC: to determine liability – person at fault pays – Strict liability – did act reasonably – Vicarious liability 2
  3. 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. 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. 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. 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. 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. 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. 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. 10. Private Nuisance pg 22 Private nuisance interferes with another’s use of his/her property Interference must involve unusual activity 10
  11. 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. 12. Defamation/2 Defences 1. Truth (Justification) 2. Absolute Privilege 3. Qualified Privilege 4. Fair Comment But mistake is no defence 12
  13. 13. Reference letters pg 23 13
  14. 14. Negligence pg 23 Inadvertent, careless conduct that causes injury to another Important area of tort liability for professionals 14
  15. 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. 16. Reasonable Person TestReasonable person is a prudent person exercising care – conduct falling between average and perfect – Like par in golf 16
  17. 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. 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. 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. 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. 21. C - CausationThere must be injury or damageWhich was a direct result of the careless conductNote thin skull rule 21
  22. 22. Torts law of NegligenceHandout 22
  23. 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. 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. 25. Occupiers Liability pg 26, 27Applies 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. 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. 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. 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. 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. 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. 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. 32. VIII Privacy Law pg 29, 30 Pragmatic solutions HR Issues Getting employee buy-in Lessons learned 32
  33. 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. 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. 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. 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. 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. 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. 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. 40. Build privacy policy fromground 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. 41. Privacy Gap Analysis FilesForms Employe e Practices HR Payroll Gap Standardized Forms Analysis Awareness Information Requests Employee Driven 41
  42. 42. Gap AnalysisWhat changes in your current policies, procedures and practices will close any gaps? 42
  43. 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. 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. 45. Privacy OfficerPrivacy CoachResponsible to assistindividuals with concerns orrequests regardingAccess, collection, use ordisclosure of their ownpersonalinformation, includingpersonal employeeinformation 45
  46. 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. 47. Recruiting Info Sources  Your notes  Other peoples notes  Your forms  Your written comments  Who has access  Your policies  Your memos 47
  48. 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. 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. 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. 51. Employee calls in sick Er may ask for generalinformation necessary foroperation of the position how long the employeeis expected to be awayfrom the workplace andan date of return to workDoctor’s noteNo diagnostic info pls 51
  52. 52. Reference ChecksOnly an individuals 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. 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. 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. 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. 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. 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. 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 managers file and the official file are subject to subpoena and disclosure HR File Audit – Boy Scouts said it best “Be Prepared” 58
  59. 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. 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. 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. 62. When can opt-out consent beused (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. 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. 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. 65. Monitoring Ees at work• Monitoring,listening, trackingEe activities iscontroversial• Ers can do it, buttell people you aredoing it or may bedoing it•Must have a reason– can’t go fishing 65
  66. 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. 67. IXCharter & Human Rights pg 44When does it applyNot to private matters 67
  68. 68. What rights are covered? Pg 45Fundamental freedomsDemocraticMobilityLegalEqualityLanguage 68
  69. 69. Charter Limitations pg 46Reasonable limitsNotwithstanding clauseKeegstra p 6 case handout 69
  70. 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. 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. 72. Process pg 48Officer will try to resolveInvestigatePanelEnforcement thru courts 72
  73. 73. Employment Practices – pg 49 73
  74. 74. Are there some questions I can’t askin the interview? 74
  75. 75. Question Can’t ask RecommendedGender, marital Plans for Availability forstatus, family marriage, family work includingstatus childcare, gender, shift work, travel marital statusLanguages Ability in Ability in languages not language required required for job for jobAge Specific age Old enough to work legally in Alberta 75
  76. 76. Question Can’t ask RecommendedName Maiden name, Previous names, reference to name only if needed origin to verify past employment / educationRace, colour, Place of birth, Legallyancestry place citizenship, racial permitted toof origin origin, next of kin work in Canada 76
  77. 77. Question Can’t ask RecommendedPhoto- For as they can In rare situationsgraphs reveal race, gender modelling, entertainmentClubs or Specific inquiries In cases where theorganiz- about memberships club or org are jobations that would indicate related race, religion….Height & Min or max height Describe jobWeight weight norms duties that require certain physical requirements 77
  78. 78. Question Can’t ask RecommendedDisability General disabilities, Offer contingent present or past health, upon satisfactory WCB history job related medicalSmoking Asthma, respiratory Working in Smoke free envSource of Anything unrelated to Job related infoincome job about prev jobsEducation Religious or racial affiliation of EducationReligious Holidays, customs Job related infobeliefs about prev jobs 78
  79. 79. BFOR pg 49Bona fide occupational requirementMeiorin Case p 8 case handout 79
  80. 80. Harassment pg 50 80
  81. 81. Duty to accommodate pg 50 81
  82. 82. AgeCant make complaints – Over age 45 for rental unit – Discounts for seniors 82
  83. 83. Vriend Charter Challenge pg 51Vriend case p 6 case handoutEnd section 83
  84. 84. S.W.O.T. Analysis (not in texts)Factors Internal Strengths Weaknessto Organization Factors External Opportunities Threats to Organization 84
  85. 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. 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. 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. 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. 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. 90. Questions on opportunities – Is there a product/service area that others have not yet covered? – Are there emerging trends that fit with your companys strengths?Questions on threats – Are your competitors becoming stronger? – Are there emerging trends that amplify one of your weaknesses? 90
  91. 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. 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. 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. 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. 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. 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. 97. Review, Reasons for JV FailureP 9 JV booklet1. 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. 98. Review Business Orgs 51, 52, 53Taxation 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. 99. Exam1. One mark for choice of ADR and 3 marks for reason, total 10 marks. P 172. One mark for element and 1 mark for description. Total 10 marks. P 313. 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, 544. One mark for each reason and one mark for each explanation. Total 10 marks. P 9. 99
  100. 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. 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 101
  102. 102. Chris Hylton would like to thank you for your attention and time!Questions?Tel 102