Bus 393 final dont use

Control test

Degree of

Control exercised over

an employee is greater

than over an

independent contractor

4 aspects of control

1) employers power of selection of employee

2) whether employer paid wages

3) employers right to control method of doing work

4) employers right to dismiss worker

Four-Fold Test (entrepreneur test)

1) control test

2) Ownership of tools

3) does individual have chance of profit?

4) who bears risk of loss?

Organization test

is the person an essential part of

employer's organization? eg. Photocopy machine

repairman vs. secretary at the law firm

obligations of employer

pay, safe workplace, physical safety, harassment free

Obligations of employee

competent, honest, punctual, act in employers best interest

fiduciary

person that must legally and ethically put another party's best interests ahead of their own. Financial advisor

2 obligations of fiduciary

i) to refrain from taking advantage of maturing business opportunities for which the employer has been negotiating

ii) to refrain from soliciting former customers or clients for a

reasonable period of time after the termination of employment.

termination of enmployment

with no just cause, reasonable notice of termination is required. Employer is required to give

reasonable notice or pay in lieu of notice. can be terminated for any reason unless it violates human rights

what do courts consider in setting reasonable notice

length of service, type of job, age, qualifications, bad faith conduct

wrongful dismissal

An employee dismissal that does not comply with the law or does not comply with a written or implied contractual arrangement. CaN SUE

can employee leave without notice? why?

Yes,

when required to work in dangerous conditions or

when work involves immoral or illegal

activities

Just cause dismissal

requires no notice.

Summary Dismissal

fired on spot: theft, assault, gross negligence

performance related dismissal

tardiness, quality of work,

Constructive Dismissal

When the employer makes unilateral changes in the employment contract that are unacceptable to the employee, even though the employee has not been formally terminated. mistreats employee making conditions untolerable. eg pay cuts, hour cuts, demotions

compensatrion for constructive dismissal

based on reasonable notice, lost benefits and pension

rights

Employment Standards Act

A government act that sets out the minimum standards employers and employees must follow in the workforce; Wages, Hours of

work, overtime, and rest periods,

Vacation

and holiday

entitlements

Maternity

and

parental

leave

Termination

pay

Does ESA apply to all positions?

NO, CPA, Lawyers, dentist, doctor, chiropractor. Excluded because they are governed by separate, specialized professional bodies, possess high levels of autonomy and specialized training, or operate under unique industry conditions that require flexible hours rather than standard hourly rules

What is contract

agreement between 2 or more parties to do or refrain from doing something in exchange for value. written or verbal.

Breach of contract

failure by a party to live up to the bargain

What are the terms of contract?

who, what, when, where and how

What are essentials of enforceable contract?

at least 2 parties, agreement terms must be certain, must be lawful, intention of legal relations, promisee must buy the promisor's promise by giving consideration, parties must have capacity.

what is a requisite formality?

official rule, procedure, or step that must be completed to make an action, document, or legal process valid. Examples include signing a contract in writing, having witnesses present for a will

contracual obligation vs tortious obligation

contracts are voluntarily undertaken while tort obligations are imposed by law. contracts owe duty to specific party while torts are a duty to everyone. contract is strict liability while tort is fault.

damages awarded to tort vs contract breach

for contracts, damages awarded to put claimant in position if contract had been performed. for torts, award damages to put him in position if tort had not happened.

Unilateral Contract

one sided promise, action of other party indicates acceptance. eg lost pet reward ad

Bilateral contract

2 promises, acceptance must be communicated, offeror cannot revoke after accepted, clear when offer accepted.

6 essential elements of agreement

1. firm offer (not "i am thinking of offering")

2. offeror must COMMUNICATE offer

3. offeree must accept, reject, counter, or ask for more info

4. if accepted, offeree must communicate acceptance

5. Agreement formed when offeror recieves acceptance

6. offer + acceptance = agreement

Offer vs Invitation to Treat

Invitation to treat: invitation for people to create an offer. eg real estate for sale sign

•Why does it make business sense to treat such advertisements as invitations to treat?

store displays smtg, customer makes offer, store can decide to reject or accept the offer. example grainger & son v gough

Carlill Vs Carbolic Smoke Ball Co (1893)

unilateral reward ad: if you purchase and use, and still get sick we give 100, with 1000 deposited in bank ready.

acceptance of contract

unconditional agreement to all terms of offer. if agreeing to offer subject to solicitor's approval, you have not accepted offer fully yet

counter offer

Any response to an offer (other than outright rejection) which presents alternative terms for a contract. request for info does not affect the offer. hyde v wrench

rules to communicate acceptance

communication fo acceptance can be personally or through an authorized agent. if unauthorized agent it will not result in binding contract

if method of communication prescribed by offeror isnt matched the contract, it may not be sufficient acceptance

if contract between 2 people on phone is made but line goes dead, is there still contract?

no, acceptance only occurs when heard by offeror

Post Box Rule

the rule that an acceptance is effective when posted when that method of response is appropriate

7 ways offer can come to end

acceptance, rejection, counter, lapse of time, where no time period mentioned, failure of a condition subject (subject to inspection), death of offeror

revocation of offer

must be done before acceptance is completed

Is the offeror bound by his promise to leave the offer open for a specific period?

only if consideration paid to offeror to keep offer open

postal revocation

•Postal revocation takes effect when receipt by the offeree and not when mailed. dickinson vs dodds

Consideration

something of value exchanged for something else of value

Gratuitous Promise

promise made without legal consideration

2 exceptions to gratuitous promise

1) promisee relies upon promise to his detriment. (uncle says he pay for trip when u bought tickets then he cans it)

2) Contract made under a seal

termination of an offer can occur by

revocation, lapse of offer, rejection, counteroffer, death of offeror or offeror become insane

mistake

when mistake goes to root of contract and destroys consensus, contract is void. bad bargain doesnt count selling car worth 50k for 20k can be unilateral or mutual mistake

Mutual or Shared Mistake

both parties make same mistake

Rectification of mistake

mistake of nature that can be corrected by the court. eg price missing a zero

Unjust Enrichment

one benefiting unfairly at another's expense. court will remedy the mistake. taking out 5k from bank when i had 500

Resonable person test

Courts look at what a hypothetical, well-informed neutral bystander would think the words and actions mean. if courts cannot choose between the 2 positions the contract will be void

unilateral mistake

one sided mistake. general rule that there is no recourse. If i buy monitor thinking its 240hz but its 144hz. if one party is mislead, contract can be rescinded.

Mistake as to identity - unilateral

court will allow rescission if one party is mistaken as to identity of the other party. 2 realtors same name

2 elements of mistake to identity

a) must show identifiable 3rd party u intended to contract with

b) mistake must be as to identity not attributes

Mistake as to attributes - unilateral

mistaken qualifications or credibility of someone. Hire realtor that sells only condos to sell your house.

Non Est Factum

"it is not my act"—grounds

for a court to declare a contract void

because a party is unaware of the nature of

the contract. if careless and doesn't read, contract not void

2 factors non est factum

Signer of the agreement was not careless

radical difference between document and what signer thought they signing

Rules of Interpretation

When a contract contains ambiguous or unclear terms, court will determine what reasonable person would understand. if words are not ambigous, court will read literally. court may determine how terms are used in industry standard

Parol Evidence Rule

Oral evidence cannot be used to contradict or add to the terms of a written contract

Collateral contract

one party enters into the main contract on the basis of a promise (secondary contract) made by the other party

Does silence constitute misrepresentation?

No, Silence will not be actionable as a

misrepresentation in the normal

course

3 requirements for misrepresentation

must be an allegation of a fact, incorrect or untrue, and victimm must be induced into contract

inocent misrepresentation

false statement made honestly, and person believes it to be true. Makes the contract VOIDABLE not VOID, meaning victim can choose to continue or void contract

can victim of innocent misrepresentation rescind contract after affirmation?

No

Can innocent misrepresentation be rescinded if parties cannot be returned to original positions?

No. Eg. selling house 5k sqft when it 4.5k. you tear it town then cannot return to original position so damages are payed.

can it be rescinded if another is negatively affected?

NO. eg

Fraudulent Misrepresentation

party intentionally misrepresents a fact that induces or leads another to enter into a contract. victim can rescind contract, void contract, and sue for damages

Negligent Misrepresentation

carelessly makes a representation while having no reasonable basis to believe it to be

true. defendant made a false factual representation. damages may be available

duress

compulsion by threat to make someone sign contract. renders contract voidable

Physical Duress

use of force, false imprisonment or

compelling someone to act contrary to her wishes or interests.

Duress of Goods

someone will not release goods in order to persuade other party to sign document

Economic Duress

Consists of threats to a person's business or income that cause him or her to enter a contract without real consent

Undue Influence

one person taking advantage of a position

of power over another person and it

prevents free bargaining to occur

between the parties. contract voidable

Presumed Undue Influence

Where there is a relationship of trust and confidence with the party against whom the undue influence is alleged

Unconscionable Transaction

Unequal bargaining positions where one party took advantage of another and the consideration in the contract was grossly unfair.

3 things for unconscionable transaction

unequal bargaining position

one party dominated other

grossly unfair conisderation

Privity of Contract

The relationship that exists between the promisor and the promisee of a contract. no 3rd parties involved.

4 exceptions to privity

1) under a contract, a 3rd party benefits

2) Novation - replacing a party with another

3) contractual rights run with land - homeowner with tenants sells to new owner, cant kick them. out

4) contract is agreed through with agents

ways a contract can be ended or discharged

performance

agreement between parties

breach

frustration

performance

both parties complete their obligations, contract discharged

conditions in contracts

essential term to a contract - house

Warranties in Contracts

non-essential or subsidiary term - fridge in house

Substantial Performance

Occurs when one party fulfills enough of its contract obligations to warrant payment. damages will cover the difference in performance vs requirement. eg shipping 99 soccer balls instead of 100. exception: some contracts require exact performance

tender of performance

offer to perform

if one party tenders performance and the other does not accept, what happens?

other party breaches contract and tendering party can sue

Breach of Contract

Failure to fulfill contractual obligations.

2 ways breach can occur

1) improper or incomplete performance

2) refusal to perform (repudiation)

Express Repudiation

one of the contracting parties advises the other that it does not intend to perform as promised when it is due (same day)

Anticipatory Repudiation

repudiation made in advance of the time for performance of the contract obligations

discharge by agreement

people can end a contract by mutual agreement

Waiver

same thing as discharge by agreement

bilateral discharge

agreement by both sides to terminate the contract or to disregard a term of the contract

Unilateral Discharge

One party releases the other from obligations.

Conditions Precedent

an event that must or must not occur before performance is due

Conditions Subsequent

The party has a duty to perform until a future event occurs that discharges the party

Frustration of Contract

Contract becomes impossible to perform due to unforeseen events.

Rescission - remedy

the cancellation of a contractual obligation

Rectification - remedy

alter the terms of a written agreement where a mistake has been made

Liquidated Damages Clause - remedy

term in contract that reasonably estimates damages that may occur if contract is breached

Damages - remedy

monetary compensation for injured party