Law for Professional Engineers: Canadian and Global Insights, Fifth Edition

by Marston, Donald L.

• ISBN13: 9781260135909
• ISBN10: 126013590X
• eBook ISBN(s): 9781260135916
• Edition: 5th
• Format: Hardcover
• Copyright: 2019-03-01
• Publisher: McGraw Hill
• More Book Details
• Purchase Benefits

Table of Contents

Preface
1 The Canadian Legal System
Historical Basis
The Theory of Precedent
The Common Law
Legislation
Federal and Provincial Powers
The Federal and Provincial Court Systems
Public and Private Law
The Law of Quebec
The Rule of Law
Basic Terminology
2 Business Organizations
Basic Forms
The Independence of the Corporate Entity
Duration of Partnerships and Corporations
Effect of Personal Guarantees
Basic Tax Considerations
Summation of Exceptions to Salomon Principle
The Engineering Corporation
The Partnership Agreement
Limiting Partnership Liability
Limited Liability Partnerships
Incorporation
Objects
“Private” and “Public” Corporations
Shareholders, Directors, and Officers
Shareholders’ Agreements
The Director’s Standard of Care
Disclosure of Conflicts
The Joint Venture
Sample Case Study
3 Global Considerations
Introduction
Business Organizations in Foreign Jurisdictions
Political Risks
Foreign Legal Systems
Licensing Requirements
Financial Risks
Contract Forms
Global Dispute Resolution
Mediation
Dispute Resolution Boards
The Project Neutral and the Expert
Statutory Adjudication
International Enforcement of Arbitration Decisions
Differences Between Common Law and Civil Law
Arbitration Clauses and Governing Law Provisions
UNCITRAL Convention on the International Sale of Goods
4 Tort Liability
Fundamental Purpose
Principles of Tort Law
The Engineer’s Standard of Care
Development of Tort Law
Strict Liability
Vicarious Liability
Concurrent Tortfeasors
Products Liability
Standard of Care and Duty to Warn
Economic Loss
Other Relevant Torts
Sample Case Studies
5 Limitation Periods
Discoverability
The Limitations Act, 2002 (Ontario)
2006 Amendments (Ontario)
Other Aspects in Ontario
Other Provinces and Territories
Sample Case Study
6 Proof
The Burden of Proof
Engineers as Expert Witnesses
7 Contracts
Assignment of Rights
Good Faith in Contracting
8 Offer and Acceptance
Irrevocable Offers
The Option Contract
Manner of Communication
Timing
Governing Law
The Battle of the Forms
Sample Case Study
9 Intent
Mutual Intent
Letters of Intent
10 Consideration
Consideration
Equitable Estoppel
Sample Case Study
11 Capacity
Minors
Mental Incompetence
Corporations
12 Legality
Contrary to Statute Law
Contrary to Common Law
Sample Case Study
13 The Statute of Frauds
Derivation of Statute
Unenforceable Contracts Not Void
Desirability of Written Form
14 Misrepresentation, Duress, and Undue Influence
Misrepresentation
Misrepresentations in Engineering Specifications
Duress
Economic Duress
Undue Influence
15 Mistake
Rectification
Unilateral Mistake
Ron Engineering’s “Contract A”
16 Tendering Issues—Contract A
Express and Implied Terms of Contract A
The Owner’s Option to Reject All Bids and Start Again
Advisability of Legal Advice When Doubts Arise
Subcontractors’ Bids—Some Illustrative Cases
Potential Liabilities for Engineers and Consultants on Tendering Matters
Bid Shopping in Stanco Projects
Sample Case Study
17 Contract Interpretation
Rule of Contra Proferentem
Parol Evidence Rule
Implied Terms
Study Questions
18 Discharge of Contracts
Performance as a Means of Discharge
Agreement to Discharge
Discharge Pursuant to Express Terms
Discharge by Frustration
Sample Case Study
19 Breach of Contract
Repudiation
Remedies
Direct and Indirect Damages
Duty to Mitigate
Penalty Clauses
Quantum Meruit
Substantial Compliance
Specific Performance and Injunction
Specific Performance
Injunction
Study Questions
20 Limiting Liability by Contract
Sample Case Study
21 The Agreement Between Client and Engineer
The Agency Relationship
The Engineer’s Remuneration
Estimated Fee
Standard-Form Engineering Agreements
Limiting Liability by Contract
Engineer’s Compliance with the Law
Planning and Zoning
22 Concurrent Liability in Tort and Contract
23 The Duty of Honesty
24 Construction Contracts
Certificates Fraudulently Prepared
Inspection Services
The Engineer’s Advice to the Contractor
Contract Administration
Drawings and Specifications
The Tendering Process
Types and Forms of Construction Contracts
Project Management
Prime Contract and Subcontracts
Delay and Interference Claims
Compliance with Notice Provisions
Departures from Traditional Contracting Approaches
Similarities Between Canadian and American Construction Industries
Study Questions
25 Risks in Construction
Project Structuring
Contract Forms
Contractual Allocation of Risk
Project Financing Risk
Risk of Concealed or Unknown Conditions
Risk of Delays
The Risk of Changes in Governing Regulations
Construction Safety Risks
Dispute Resolution Risks
Risk of Proceeding with Changes Without Final Agreement on Price and Time Adjustments
Risk Summary
Security for Risks
The Risk of Unenforceability of Clauses Limiting Liability
Risks Relating to Limitation Periods
Alliancing Agreement
26 Bonds and International Performance Guarantees
Bid Bond
Performance Bond
Labour and Material-Payment Bond
Letters of Credit
International Performance Guarantees
27 Subsurface Issues
Contractor Responsible for Quantity Estimates
Damage to Other Existing Facilities
Duty to Disclose Correct Information
Methods Dictated by Contract Documents
28 Arbitration and ADR
Appointment of Arbitrator
Arbitration Statutes
New Approaches to Respond to Dispute Resolution Difficulties on Construction Projects
Partnering on Infrastructure and Construction Projects
Dispute Resolution Boards and Project Neutrals
Mediation
29 ADR on International Projects
Recognition of the Problem
The Consultant’s Conflict
Some Examples—Dispute Resolution Boards on Canadian and International Projects
1. The Northumberland Strait Crossing Project
2. The Boston Central Artery Tunnel Project
3. Highway Projects, New Brunswick, Canada
Conclusion
30 Lien Legislation
Differences in Provincial Lien Acts
Ontario’s Transition Provisions
Persons Entitled to Lien Rights
Rights Against Owner Where No Contract Exists
Effect of Lien
The Ontario Construction Act
The Trust Fund
Engineers’ Rights to Lien Claims
Lien Statutes
31 The Competition Act
Conspiracy
Bid-Rigging
Trade Associations
Abuse of Dominance
Misleading Advertising
32 Regulatory Aspects and Ethics
Purpose of Legislation
Definition of Professional Engineering
Professional Engineer’s Seal
Partnerships and Corporations
Disciplinary Hearings
Penalties
Certificates of Authorization
Overlapping in the Scope of Engineering and Architectural Practices
Background to Changes in Ontario Legislation
Litigation versus Disciplinary Matters
The Code of Ethics
33 Intellectual Property
Patents of Invention
Definition
What May Be Patented
Term of Patent
Assignment and Licensing of Patent Rights
Infringement of Patents
Assignment of Patent Right by Employee Engineer
Trademarks
Definition
Licensing
Duration of Registration
Infringement
Passing Off
Amendments to the Trade-marks Act
Copyright
Definition
Term of Copyright
Registration of Copyright
Ownership of Copyright
Moral Rights
Engineering Plans
Industrial Designs
Definition
Term
Assignment
Employees
Registration
Trade Secrets
34 The Law of Quebec
Introduction
The Civil Code of Quebec
Contractual and Extracontractual Liability
Interpretation of Contracts
Limitation of Liability
Force Majeure
Disclosure of Trade Secrets
Solidarity
Remedy for Non-Performance
Assessment of Damages
Penal Clauses
Manufacturer’s Liability
The Contract of Enterprise or for Services
Presumption of Liability
Legal Hypothecs
Conclusions
35 Laws Relating to Employment
Federal Laws
Canada Pension Plan
Employment Insurance (Formerly Unemployment Insurance)
Employment Equity
Provincial Laws
Provincial Statutes—Ontario
The Employment Standards Act, 2000
The Workplace Safety and Insurance Act, 1997
The Health Insurance Act
The Smoke-Free Ontario Act, 2017
The Human Rights Code
Accessibility Legislation
The Occupational Health and Safety Act
The Ontario Labour Relations Act
A Commentary and Sample Case Studies for Engineering Law Courses and Examination Programs
Commentary
Additional Sample Case Studies
Sample Tort Cases
Sample Contract Law Cases
Table of Abbreviations to Case and Statute Citation
Table of Cases
Index