- Distinguish among an employee, an independent contractor and an agent.
According to (Mattei & Haskel, 2015) an employee is an individual whose obligations or job description are determined by an employer and is paid for the job done. Employee are represented by law under common law or a special statute under particular cases as stated by Newsom, Turk, and Kruckeberg (2012). In an employee-employer relationship, all contractual liabilities fall on the employer who is set under particular regulations to the best working conditions to their employers in order to attain the best results. In any case, these regulations have not been met for instance safe working conditions employers is then given the chance to sue their employer this being a case that highlights the close nature of both parties.
On the other hand, according to Ashcroft and Ashcroft (2011), an independent contractor is an individual who is in business in a different role other than offering services to another entity but more based on personal gain. Newsom, Turk, and Kruckeberg (2012), states that the nature of an independent contractors have adopted several identities for instance, consultants; freelancers; self-employed; business owners or entrepreneurs. Ashcroft and Ashcroft (2011), state that an independent contractor usually provide their services under their own direction and control this includes how and when the job will be done without an external supervisor.
Mann and Roberts (2012), state that an agent is an individual or entity that can serve both as an employee as well as independent contractor. The premise presented by Mattei and Haskel (2015) states that an agent is at liberty to act on behalf of a representative with autonomy; however, towards a shared goal that is expected by the person are people represented.
- What factors will a court take into consideration when determining compensation in a wrongful dismissal action
Smith and Baker (2015), states that in many employer-employee relationships the employer is allowed to lay off the employee without just cause; however, this is only considered legal provided the employee was awarded reasonable notice or compensation for contract termination. Incase these two factors have not been provided then the employee is liable to sue the employer for wrongful termination. According to Gladstone (2000), though this is a well-known factor there are several issues that have to be considered by the court before settling for a legal process against wrongful termination such as:
- Unionized Employees.
The courts have to consider if the employee operated in a unionized workplace in which case the employee can only file a grievance case to the union who are well placed to ask for re-employment. The court however provides extra existence when an employee is unfairly represented by the union by accepting any input from the provincial or federal labor relations board.
- Contract terms.
Gladstone (2000), states that the terms of a contract are significant determinant in determining if an employee can present a wrongful termination law suit. In case an employee had a contractual agreement with the employer where terms of payment as well as amount of notice is implied then they are not entitled to any compensation other than what was formerly agreed on. On the other hand, the courts have the jurisdiction to check on the terms in order to make sure they are standard as stipulated by the Employment Standards Act. Interpreting a written contract is complicated and highly technical and it is up to the courts to determine what terms allow or disallow a wrongful termination suit.
- Just Cause
Employees dismissed for a ‘just cause’ may not be allowed by the court to any compensation after dismissal. Other than accrued salary as well as vacation payments owing to the date of dismissal no other payment is allowed by the court considering that such instances are considered serious offences. Just cause may include theft, misappropriation with intent to have personal gain, conflict of interest, as well as sexual harassment. According to Smith and Baker (2015) for a considerable amount of time it has been difficult in Canada to prove just cause since employers who improperly clam just cause for any dismissal are required to pay higher damage charges for making “bad faith” assertions.
- Distinguish between an agent’s actual, implied, and apparent authority.
In reference to the law of agency an agent is granted authority by the principle in tree significant forms as explained below:
- Actual Authority
According to Mann and Roberts (2012), this form of authority represents the specific powers awarded by the principle to the agent and can be distinguished in two forms.
- Expressed Authority- this is the authority granted to an agent by the principle in written or orally and is considered contractual in nature as it shows clear limits the reduces the autonomy of an agent.
- Implied Authority- Baron (2003), states that this may also be known as ‘usual authority and is more implied and not contractual but expected giving the agent more autonomy to work in order to meet the goals of the principle.
It should be noted that due to its contractual nature any termination of Authority is awarded with notice as well as compensation in case the two parties are parting ways.
- Apparent Authority
Also known as ‘Ostensible’ authority as stated by Mann and Roberts (2012), and is experienced when the principle actions could be taken as a third party leaving the agent to act on his or her behalf min transactions without expressed or implied authority. This is usually seen when the agent is a professional acting in their specific area of profession and would perform better without the influence of the principle.
Sometimes called “Ostensible” Authority. Exists where a principal’s actions could result in a third.
The difference between these authorities show the characteristics of an agent as both an employee and an independent contractor. The autonomy provided in an apparent authority status is more than that provided by an actual authority sate.
- Set out the nature of the duties owed by a director of a corporation.
According to the American Bar Association (2008), director duties are a series of statutory; equitable as well as common law responsibilities that are directly carried out by the board of directors of corporations in order to make sure the company achieves its goals. These duties are the pillars of corporate law including those regulating corporate governance and are analogous to the expectations of the trustee of beneficiaries as well as agents representing a variety of principles. In Canada the nature of the of the director’s duties are surrounded by controversies derived from the Supreme Court judgment of the BCE Inc. v. 1976 Debenture holder case (Farrow, 2014). The first issue discussed is the ‘tripartite fiduciary duty’ that is composed of three issues namely:
- An overreaching duty to the corporation. These are obligations that fall in line with the long-term as well as short-term goals which as stated by American Bar Association (2008).
- A duty to uphold as well as protect shareholders interest from any harm. According to American Bar Association. (2007) shareholder’s duties are different from the corporation’s obligations. For example, corporation constantly requires the directors to aid in sustainability which would suggest retaining profits; however, this goes against the shareholders need for higher dividend. The directors are therefore being left with the duty to offer a balance of the two factors
- A duty to exercise their powers to aid shareholders attain their short-term goals. Shareholders duties vary from time to time for instance an increase in share price which increases their wealth is an example, this being mentioned directors are placed to meet such requirements.
It should be noted that due to the changes in corporate behavior observed in the 21st century it is in the corporation’s best interest for a director to develop new roles as well as regulations that influence good corporate citizenship.
- Distinguish among a derivative action, dissent and oppression.
According to Macmillan, (2003), a directive action is highlighted from the process where a shareholder sues the corporation’s directors due to a case where he or she feels misrepresented unfairly placing his or her needs at risk. For any such suit to be taken by a court the shareholder must provide proof of a wrong doing as well as a complaint to the directors who in turn never gave clear direction on the matter. On the other hand, dissent is referred to the lack of agreement between the board of a corporation’s actions to provide a solution for a prevailing problem. Dissent unlike derivative action occurs after the board has received as well as acted on a shareholders complain. An oppression on the other hand is a personal remedy of the process of the court action towards a shareholder’s complaint. The process of presenting a claim to the court against the board’s action is time consuming and this places the interest of the shareholder at imminent risk, consequently to remedy this the court allows the shareholder to place his or her shares on sale temporarily to the period the issue is settled through the right legal channels. This helps the shareholders to avoid any liabilities that they view are imminent.
- What is meant by a restrictive covenant? Under what circumstances will such a covenant be binding on subsequent landowners? How does this relate to a building scheme?
Restrictive covenant is an agreement that is enforceable by a court in reference to the terms stipulated to a settlement made in either a lease or purchase of property. According to Lagesse and Norrbom (2006), the owners of a property under such terms are not awarded with restricted autonomy and the sale only happens when the buyer agrees to the terms of the seller. According to Francis (2005), the law punishes the infringement of such agreements with hefty fines, as they are considered deliberate. In regards to real estate restrictive covenants are commonly utilized and run with the land this consequently suggesting that despite the change of ownership in multiple cases all future actions have to be in line with the agreement. Lagesse and Norrbom (2006), states that whenever the property is sold the new owners should be given a duration to acclimatize with the restrictive covenant. On the other hand, due to some changes in the geography of the land offered there are flexibilities that allow changes in building schemes.
- Contrast a tenancy in common with a joint tenancy, and indicate how one can be changed to another. Why is the distinction important?
According to Massey, (2010), a common tenancy is derived when a property is jointly owned yet none of the parties involved claims specific rights to the property. This would consequently suggest that the common tenants share equal rights to the property and incase one perishes the nest of kin in the agreement inherits the share once owned by the departed owner. On the other hand, joint tenancy each individual has a particular share in a property and incase one party dies the other partner in the agreement remains as the beneficiary. The distinction of the two affects the terms of the agreement and it is significant in forming a business venture as it involves the sustainability of the property.
- List the concerns for employers arising from computer misuse by employees in the workplace. What steps can employers take to minimize the risk of vicarious liability?
The primary purpose of using computers in a workplace is to increase productivity; however, this has not been the case in several cases where employers have been found to use these tools for other purposes (Fafinski, S. (2013). Social media accessibility in particular has been highlighted as the first issue regarding computer missuses. Below are issues that employers need to be conserved about with the misuse of computers
- Poor resource use- time as resource is ill appropriated as most of it is used for personal needs and not work reducing productivity,
- Sexual harassment- due to its extensive media employers need to be on high alert on issues that may be gender specific this including pornography
- Bullying or lack of respect for co-workers as well as management- due to the increase in diversity some workers may use computers to pass prejudice and hate speech against their co-workers as well as employers.
- Corporate espionage- the use of computer has made it easy for workers to aid hackers get hold of sensitive information
- The Sale of Goods Act
In reference to the Sale of Goods Act implied terms are parts of a contract that represent conditions as well as warranties weather written or not. According to Bogert and Fink (1930), it is important to know the difference between the two as the breach of a warranty is a minor issue as the breach of conditions suggests that the victim party can terminate a contract. Under the act product, description is referred to as a conditional issue and any change in description in either size, number or quality may terminate a contract. However, damage of commodities with correct specifications would suggest a warranty and a replacement of the damaged goods is required which is a shorter and minor processes.
- How does the Bulk Sales Act protect creditors when a business is selling all, or almost all, of its assets?
The bulk sales act is a legislative piece found in Ontario that aids in the protection of creditors from a bulk sale by their debtors in a short term (Manitoba, 1989). The law states that when a business is set to sell all its assets this including commodities acquired through credit then the sale can be barred to the point where the creditor is offered with a ‘solid’ payment package through a sworn affidavit. This would consequently suggest that the creditor in no case would face any liability through the actions of the debtor reducing cases of unwanted losses.
Case and Discussion Questions
Chapter 10, Case 2, p 342: Evans v Teamsters Local Union No. 31
Case Background: The case of Evans v Teamsters Local Union evolves from a wrongful dismissal instance. After 23 years of reputable service to Teamsters Local Union, Evans was dismissed off his duties by the union. Evans provided a resignation notice of twenty-four months: 12 months dedicated to employment followed by another 12 months of salary payment. After four months of salary payment, Teamsters Local Union called Evans to resume to work but he declined. It was upon the refusal that the company dismissed their employee Evans. For injustice observed, Evans sued the company for wrongful dismissal charges basing arguments on the notice presented earlier. On the company’s defense, it pointed out their notice that requested Evans to resume work after the 24 months of resignation. According to Pothier (2011) the Trial Court judged the ruling by siding with the employee leading to a compensation for the occurred damages during the dismissal period. Thereafter, the company made an appeal to the Trial Court regarding the compensations to be issued. This lead to a contrary judgement from the judges at the Appeal Court who ruled in favor of the company.
Case Authenticity and Justification: The case is justified by looking at if there are any possible damages that are caused to the employee by the wrongful dismissal. If there are, then, what are the consideration factors that the court should base its judgement on?
Discussion: From a common point of view, dismissals without pre-notices are wrongful actions. Therefore, Evans’ dismissal was wrongful and the Appeal Court’s ruling was unfair. Although, since he was to resume his duties as much as the salary and other working conditions remain constant was a thoughtful decision. In addition, clarity on the wrongful dismissal from the hearing of both the plaintiff and the claimant elaborate that: an employee intending to resign from his/her duties must do so in writing as well as employers who want to relieve workers off their duties.
Chapter 11, Case 2, p 384: Ocean City Realty V A & M Holdings
Case Background: Ocean City Real Estate representative Ms. Forbes made an undisclosed purchase deal with Mr. Holm who was interested buying a commercial building that was situated within Victoria Area. According to Mattei and Haskel (2015), despite the transaction expectation of Ms. Forbes in her personification as an agent for Ocean City, the purchaser entailed an A & M Holding plan that was to reduce the total payment price and thereon the remaining amount was to be remitted to Ms. Forbes on behalf of Ocean City which amounted to $46,000. However, Ms. Forbes did not receive any commission as per the agency laws and fees, she did not involve Ocean City Real Estate in the completed transaction. Upon Court hearing, Ms. Forbes obscured major information based on the transaction for the two involved parties to analyze. Since ocean City was not involved in the agreement of purchase Ms. Forbes could not be paid compensation.
Case Authenticity and Justification: What are the complaint raised by Ocean City or A & M Holdings when Ms. Forbes secret deal was disclosed? Is Ms. Forbes claim for commission justifiable by the agency laws and fees?
Discussion: Had Ms. Forbes had acted in an appropriate manner by being a rent commission agent for Ocean City Real Estate, then there was a possibility that she could receive commission from the transaction between Mr. Holm and A & M Holdings. Also, as it is required for all agents to disclose all the material facts involving a property transaction, this supports the validity of Ms. Forbes not getting commission since she concealed all information.
Chapter 12, Case 5, p 420: Salesco Ltd v Lee Paige
Case Background: Salesco Limited and Spray-Pak were two groups that run business together and had a joint share. Capobianco acted on behalf of Salesco against Paige who was the director without any signatory material. As Paige used Spray-Pak’s account in his personal use, the company experienced a financial hardship. Capobianco was therefore fired though without just reasons. He demanded for injunction for damages when Morra and Paige intended to dispose Salesco Limited aimed at preventing depletion of Spray-Pak assets (Posner, 2013). According to Posner (2013), the final judgement points out clearly that 60% of the total joint shares was entitled to Salesco and 40% to Spray-Pak which was owned by Morra and Paige who had misappropriated the funds.
Case Authenticity and Justification: Does the case disregard Capobianco, Spray-Pak and Salesco’s interests in the court ruling? How are the actions of Morra and Paige prove to be unlawfully prejudicial or oppressive?
Discussion: The duties of Morra and Paige to both Spray-Pak and Salesco can be claimed to be of both loyalty and fiduciary. Nonetheless, Paige’s actions of using the company’s account for his own personal use break the partnership’s fiduciary duties. It is observed that Capobianco received a wrongful dismissal. Also, as Capobianco was a shareholder in the joint share, his advice to presentation of the financial case to CIBC regarding Spray-Pak sell-out by Paige and Morra was inappropriate as it impacts his profits.
Chapter 15, Case 1, p 536: Resch v Canadian Tire Corporation
Case Background: Mr. Resch and his family sued Procycle Group Inc., the manufacturer of the bicycle that caused an accident to Mr. Resch stepson who was bought the bicycle along with Mills-Roy Enterprise Ltd who were the dealership. The accident was said to have resulted from the faulty bicycle fork (Jacobs, 2012). The ruling of this case was based on the Sale of Goods Act that states that, any stipulated vendor or manufacturer’s responsibility is chargeable when the buyer is injured. Justice Nancy Spies from the Superior Court ruled that the boy did not qualify to receive any compensation on facts that, Mr. Resch’s stepson was not the original purchaser of the bicycle. Also, Jacobs, (2012) claims that the judge pointed out the factor of no man’s land besides the Sales of Goods Act. In addition, the aspect of possible negligence from the buyer while using the bicycle as there was no agreed factual material that portrayed the intended use of the bicycle.
Case Authenticity and Justification: Should the stepson be paid compensation for damages caused during the accident? Despite Mr. Resch’s stepson being a stepson, if he contributed some funds to purchasing the bicycle does it make any change on the ruling of the case?
Discussion: Despite the plaintiff’s accusation that the stepson being the co-buyer after the bicycle’s final ownership, him being an underage in fact makes the case to only undergo a ruling based on the tort of negligence. Also, the application of the Sales of Goods Act is not justifiable since the stepson was 15 years’ old which is not the age provided by the law definition of a potential buyer. Besides, the aspect of the stepson’s contribution of purchase funds cannot be clarified as Mr. Resch’s credit card was used.
Chapter 16, Case 4, p 568: Bank of Montreal v Canada (Attorney General)
Case Background: Vita Pharm was a pledge from a safeguarded creditor, Bank of Montreal (BOM). Vita Pharm was pronounced bankrupt after BOM applied for an insolvency order. The case is majorly based on credit card issuers who were sued by their consumers as transactional charges in their accounts were observed to have been levied (Daly, 2012). The Attorney General was appointed by the customers and clients since he worked in different states. However, the bank asserted that their actions were based on the fact that they were intermediaries and had no part on the transaction charges as faultily claimed to them. Nonetheless, the Consumer Protection Act protected the banks from any misconduct while managing their customers.
Case Authenticity and Justification: Are the claims of the banks justifiable by the Privacy Act? If no, then the clients are entitled to a compensation. Also, should the court clarify the punitive measures that banks should consider in their banking dealings towards their prospective clients.
Discussion: The obligation that the banks should compensate the clients the extra charges earlier charged was considerable having based in mind the violation of the Privacy Act by the banks through not disclosing the charges during the issuance of the credit cards. The judge pointed out that, banks owe their clients and explanation for all the charges that are levied in all their transactions.
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