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LAW & LEGAL ISSUES

28 March 2013

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Legal SystemsIntellectual Property

Occupational Health & SafetyResponsibility or Liability

Law & Legal Systems

Laws are established by a competent authority to regulate what is forbidden, required, or acceptable.

Laws are subdivided into Public Law – governs relations of state or between

state and individuals. Example: constitutional law, administrative law, criminal law.

Private Law – governs relations between individuals. Example: contract law, commercial law.

Legal divisions

International Law

Constitutional Law

Administrative Law

Professional Code

Criminal Law

Property Law

Law & Commerce

Intellectual Property

Liability

Law & Society

Health & Safety

Public

Law

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Legal Systems

Legal System: The existing system for interpreting and

enforcing laws A set of institutions that enforce laws

Different legal systems Civil Law English Common Law Mixed Religious Law Customary law

Legal Systems in the World

English Common Law

Civil Law

Mixed Law

Islamic Law

Comparing Legal Systems

Laws are written into systematic collections (codes).

Laws are created by legislatures

Decisions based on laws

Precedence has no value.

Laws are based on codes and earlier cases.

Laws are created by legislatures & judges

Decisions are based on laws and precedence

Statutes are interpreted based on precedence.

Civil Law System English Common Law

Quebec’s Legal System

Quebec has a mixed legal system

Criminal matters are decided by English Common Law

Property and civil matters are based on the Quebec Civil Code

Civil Code of Quebec Fundamental law in the Province on disputes between

private people and on property.

The Civil Code comprises a body of rules which, in all matters within the letter, spirit or object of its provisions, lays down the “law of the land”, expressly or by implication.

Governs relationship between people and property Sales, Contracts, Family

Derived from French Civil Law, Legislation is the primary source of law, Court system is not dependent on precedent


Common types of Intellectual Property

Copyrights

Trademarks

Patents

Industrial Design rights

Integrated Circuit Topographies

Canadian Intellectual Property Office

Canadian Intellectual Property Office (CIPO) associated with Industry Canada, is responsible for the administration and processing of the greater part of intellectual property in Canada.

www.cipo.ic.gc.ca

Governed by Federal Statutes Canada Patent Act, Canadian Copyright Law,

Trademark Act, Industrial Design Act, Integrated Circuit Topography Act.

http://www.cipo.ic.gc.ca/

Patents Patent is a government grant that gives

inventors exclusive rights to their inventions.

In Canada the inventors have rights for 20 years from date of filing.

Criteria for patent Invention must be new Be useful (functional and operative) Show inventive ingenuity not obvious to someone

with skills. Invention can be product, chemical

composition, process Cannot be principle, theorem, idea, computer

program.

Copyright

Copyright is the exclusive right to allow someone to copy a creative work

Copyright applies to artistic, literary, musical works, computer programs, and sound recordings (CD, tapes).

Not copyright: Facts, themes, ideas, most titles, names, catch-phrases and other short-word combinations.

Copyright is owned by creator, employer or one who commissions it.

Duration of copyright in Canada exists for the life of the creator plus 50 years following death.

Trademarks

A trade-mark is a word, symbol or design, or a combination of these, used to distinguish the goods or services of one organization from those of others.

3 kinds of trademarks Ordinary marks are words and/or symbols that

distinguish the goods or services of a specific firm. (eg. Dell)

Certification marks identify goods or services that meet a standard set by a governing organization. (eg. Energy Star)

Distinguishing guise identifies the shaping of wares or their containers, or a mode of wrapping or packaging wares. (iPad)

Industrial Designs

An industrial design is the visual features of shape, configuration, pattern or ornament (or any combination of these) applied to a finished article.

It may be, for example, the shape of a table or the ornamentation on the handle of a spoon.

What cannot be protected the functional features of an article; a principle of construction, or how an article is built; the materials used in the construction of an article; colour per se; or ideas.

Protection is for a period of ten years

Integrated Circuit Topographies (ICT)

An ICT refers to the three-dimensional configuration of the electronic circuits used in microchips and semiconductor chips.

ICT protection will give you exclusive rights over the copying of the topography and the commercialization of circuits that contain the topography.

Registration grants you exclusive rights for 10 years on your original circuit design.

Occupational Health & Safety

Occupational Health & Safety (OHS)

In Canada, jurisdiction to ensure OHS is shared between federal, provincial and territories.

In general, authority on OHS issues rests with provinces for 90% of Canadian workers.

Canadian Centre for Occupational Health & Safety advances safe and healthy workplaces in Canada.

Occupational Health & Safety

Supervisor’s Responsibilities to ensure that workers

use prescribed protective equipment devices

to advise workers of potential and actual hazards

to take every reasonable precaution in the circumstance for the protection of workers

Employee’s Responsibilities

· to work in compliance with OH&S acts and regulations

· to use personal protective equipment and clothing as directed

· to report hazards and dangers

· to work in a manner as required by the employer and use the prescribed safety equipment

Employee’s Rights

To refuse to do unsafe work To participate in the workplace health

and safety activities through Joint Health and Safety Committee (JHSC) or as a worker health and safety representative

To be informed about actual and potential dangers

Due Diligence

Due Diligence is a legal term that suggests that all reasonable precautions, under the particular circumstances, were taken.

"Due diligence" is important as a legal defense for a person charged under occupational health and safety legislation

If charged, a defendant may be found not guilty if he or she can prove that due diligence was exercised

Due Diligence 14-point Checklist (Adapted from the CCOHS web page)

1. Do you know and understand your safety and health responsibilities?

2. Do you have definite procedures in place to identify and control hazards?

3. Have you integrated safety into all aspects of your work?

4. Do you set objectives for safety and health just as you do for quality, production and sales?

5. Have you committed appropriate resources to safety and health?

6. Have you explained safety and health responsibilities to all employees and made sure that they understand it?

7. Have employees been trained to work safely and use proper protective equipment?

8. Is there a hazard reporting procedure in place that encourages employees to report all unsafe conditions and unsafe practices to their supervisors?

9. Are managers, supervisors, and workers held accountable for safety and health just as they are held accountable for quality?

10. Is safety a factor when acquiring new equipment or changing process?

11. Do you keep records of your program activities and improvements?

12. Do you keep records of the training each employee has received?

13. Do your records show that you take disciplinary action when an employee violates safety procedures?

14. Do you review your OSH program at least once a year and make improvement as needed?Will not be in the quiz/exam

Act Respecting Occupational Health & Safety (Quebec)

Introduced in 1979. Regulations to deal with

"ordinary" workplaces as well as construction sites, mines and quarries, foundries, shipyards etc.

special topics such as working with explosives, concrete pumps and distribution masts, ice cutting, forestry operations, work in the vicinity of power lines, concrete formwork etc.

Rights to Workers Right to refuse work Right to participate in Health & Safety committees

Employer’s Burden: Responsibilities to safeguard the health & safety of workers.

Prevention Programmes in various industries according to risk To eliminate at the source, risks to the health, safety &

wellbeing of workers

Moral ResponsibilityResponsibility in the WorkplaceLegal Responsibility or Liability

Responsibility

Responsibility – responding or answering for an action performed. Accounting for individuals actions

Burden of Responsibility

Click icon to add picture

Moral Responsibility

Fixing moral responsibility requires Verify agency of the action – who did the

action Degree of wilful intent – circumstances are

important

Basis for Responsibility Roles help in grounding responsibilities Roles create expectations Individuals are held responsible when they do

not meet role expectations

Roles & Responsibilities

Responsibility in the Workplace

Responsibility to Employers

Responsibility to the Profession

Responsibility to the Public

Liability or Legal Responsibility Liability is responsibility that is backed

by the power of the law.

Liability is contractual or extracontractual in its origin. Extra-contractual – responsibility that is

owed by tort damages Contractual – responsibility that is owed

within the bounds of an explicit contract.

Liability in Quebec – in the Civil Code

Civil Liability – Responsibility to pay for damages or harms caused

Compensation is given if three things are established An act of omission A consequence A cause-effect relation between act and

consequence

History of Liability - in Common Law

Buyers bore all liability of products bought. Caveat Emptor – “buyers beware” You buy products at your own risk

With increasing complexity of products, sellers bear liability for products Caveat Vendidor – “Let the seller beware” Sellers are penalized for negligent designs

Strict Liability Liability is assigned in the public interest even in

the absence of negligence on the part of the manufacturer

Responsibility on engineers to consider effect on likely uses and users of products.

Legal Provisions of Liability in Quebec

Extra-contractual Liability

Contractual Liability Ownership Liability Manufacturer’s

Liability Definition of a safety

defect Superior Force Victim’s knowledge

Intentional Fault Limitation of Notices Damages due Contract of

Enterprise Absence of

subordination Special provisions

respecting works Workmanship

FACULTY OF ENGINEERING AND COMPUTER SCIENCE

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Extracontractual liability

1457. Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another. Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature. He is also liable, in certain cases, to reparation for injury caused to another by the act or fault of another person or by the act of things in his custody.


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Contractual liability

1458. Every person has a duty to honour his contractual undertakings. Where he fails in this duty, he is liable for any bodily, moral or material injury he causes to the other contracting party and is liable to reparation for the injury; neither he nor the other party may in such a case avoid the rules governing contractual liability by opting for rules that would be more favourable to them.


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Ownership liability

1467. The owner of an immovable, without prejudice to his liability as custodian, is liable to reparation for injury caused by its ruin, even partial, where this has resulted from lack of repair or from a defect of construction.


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Manufacturer's liability

1468. The manufacturer of a movable property is liable to reparation for injury caused to a third person by reason of a safety defect in the thing, even if it is incorporated with or placed in an immovable for the service or operation of the immovable.

The same rule applies to a person who distributes the thing under his name or as his own and to any supplier of the thing, whether a wholesaler or a retailer and whether or not he imported the thing.


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Definition of the safety defect 1469. A thing has a safety defect where,

having regard to all the circumstances, it does not afford the safety which a person is normally entitled to expect, particularly by reason of a defect in the design or manufacture of the thing, poor preservation or presentation of the thing, or the lack of sufficient indications as to the risks and dangers it involves or as to safety precautions.


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Superior force

1470. A person may free himself from his liability for injury caused to another by proving that the injury results from superior force, unless he has undertaken to make reparation for it. A superior force is an unforeseeable and irresistible event, including external causes with the same characteristics.


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Victim's knowledge; unknown defect 1473. The manufacturer, distributor or supplier of a

movable property is not liable to reparation for injury caused by a safety defect in the property if he proves that the victim knew or could have known of the defect, or could have foreseen the injury. Nor is he liable to reparation if he proves that, according to the state of knowledge at the time that he manufactured, distributed or supplied the property, the existence of the defect could not have been known, and that he was not neglectful of his duty to provide information when he became aware of the defect.


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Intentional or gross fault

1474. A person may not exclude or limit his liability for material injury caused to another through an intentional or gross fault; a gross fault is a fault which shows gross recklessness, gross carelessness or gross negligence. He may not in any way exclude or limit his liability for bodily or moral injury caused to another.


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Limitation of notices

1475. A notice, whether posted or not, stipulating the exclusion or limitation of the obligation to make reparation for injury resulting from the nonperformance of a contractual obligation has effect, in respect of the creditor, only if the party who invokes the notice proves that the other party was aware of its existence at the time the contract was formed.


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1476. A person may not by way of a notice exclude or limit his obligation to make reparation in respect of third persons; such a notice may, however, constitute a warning of a danger.


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1477. The assumption of risk by the victim, although it may be considered imprudent having regard to the circumstances, does not entail renunciation of his remedy against the person who caused the injury.


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Damages due

1611. The damages due to the creditor compensate for the amount of the loss he has sustained and the profit of which he has been deprived. Future injury which is certain and able to be assessed is taken into account in awarding damages.


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Contractual liability

1613. In contractual matters, the debtor is liable only for damages that were foreseen or foreseeable at the time the obligation was contracted, where the failure to perform the obligation does not proceed from intentional or gross fault on his part; even then, the damages include only what is an immediate and direct consequence of the nonperformance.


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Contract of enterprise or for services (CCQ, Book Five, Chapter VIII)

2098. A contract of enterprise or for services is a contract by which a person, the contractor or the provider of services, as the case may be, undertakes to carry out physical or intellectual work for another person, the client or to provide a service, for a price which the client binds himself to pay.


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Absence of subordination

2099. The contractor or the provider of services is free to choose the means of performing the contract and no relationship of subordination exists between the contractor or the provider of services and the client in respect of such performance.


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2100. The contractor and the provider of services are bound to act in the best interests of their client, with prudence and diligence. Depending on the nature of the work to be carried out or the service to be provided, they are also bound to act in accordance with usual practice and the rules of art, and, where applicable, to ensure that the work done or service provided is in conformity with the contract. Where they are bound to produce results, they may not be relieved from liability except by proving superior force.


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2102. Before the contract is entered into, the contractor or the provider of services is bound to provide the client, as far as circumstances permit, with any useful information concerning the nature of the task which he undertakes to perform and the property and time required for that task.


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2104. Where the property is provided by the client, the contractor or the provider of services is bound to use it with care and to account for its use; where the property is evidently unfit for its intended use or where it has an apparent or latent defect of which the contractor or the provider of services should be aware, he is bound to inform the client immediately, failing which he is liable for any injury which may result from the use of the property.


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Special provisions respecting works

2118. Unless they can be relieved from liability, the contractor, the architect and the engineer who, as the case may be, directed or supervised the work, and the subcontractor with respect to work performed by him, are solidarily liable for the loss of the work occurring within five years after the work was completed, whether the loss results from faulty design, construction or production of the work, or the unfavourable nature of the ground.


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2119. The architect or the engineer may be relieved from liability only by proving that the defects in the work or in the part of it completed do not result from any erroneous or faulty expert opinion or plan he may have submitted or from any failure to direct or supervise the work.


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(s. 2119, cont'd)

The contractor may be relieved from liability only by proving that the defects result from an erroneous or faulty expert opinion or plan of the architect or engineer selected by the client. The subcontractor may be relieved from liability only by proving that the defects result from decisions made by the contractor or from the expert opinions or plans furnished by the architect or engineer.


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(s. 2119, cont'd)

They may, in addition, be relieved from liability by proving that the defects result from decisions imposed by the client in selecting the land or materials, or the subcontractors, experts, or construction methods.


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Workmanship

2120. The contractor, the architect and the engineer, in respect of work they directed or supervised, and, where applicable, the subcontractor, in respect of work he performed, are jointly liable to warrant the work for one year against poor workmanship existing at the time of acceptance or discovered within one year after acceptance.


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2121. An architect or an engineer who does not direct or supervise work is liable only for the loss occasioned by a defect or error in the plans or in the expert opinions furnished by him.

Liability Insurance

Liability Insurance

It is purchased to address business liability risks that are not covered by their commercial general liability insurance “Errors and omissions” insurance “Malpractice” insurance

A professional liability insurance policy pays other parties for damages for which the policy holder is legally liable to pay as a result of negligent acts, errors or omissions in the performance of his professional service.

Reasons for Insurance

Professional liability insurance should be purchased for one or more of the following reasons : To protect the firm, its associates and

employees from serious financial disruption;

To provide the clients with financial security for the professional services;

To have a "damage control" team and legal support available should a problem arise.

Professional liability insurance in Quebec

The Professional Code requires every order to determine the categories of its members that should secure liability insurance coverage

The Order accordingly adopted a regulation requiring professional liability insurance for the members of the OIQ

1. Every member of the OIQ shall join the group plan insurance contract for professional liability entered into by the Order.

2. The group plan contract entered into by the Order shall contain some minimum requirements

ONLINE EVALUATIONS

Please evaluate the Course & the Instructor

online ASAP

It is important!!

lecture9_10

Documents

criminal law

administrative law

constitutional law

contract law

commercial law

law legal issues

french civil law

canadian copyright law