Business Law 3

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VII The Tort of NegligencePrivacy

Human RightsSWOTReview

Part 3

NAIT Bus Law

April 2, 2006

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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

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Torts p 19Because 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

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Liability for businesses p 19DirectlyIndirectlyCareful HR practices, hiring, training,

performance appraisalsSee Rylands v Fletcher case p1 (case handout)

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Categories of Tort pg 20

Intentional or deliberate acts that cause injury or loss

On purpose

Careless or negligent acts that cause injury or loss

Accidental or unintentional

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Intentional Torts pg 20Intentional conduct that causes injuryExamples

– Assault and Battery– Trespass to Land– False Imprisonment– Nuisance– Defamation

Courts may award punitive damages

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Intentional Torts pg 20

Assault and Battery– Assault - where there is fear of

contact– Battery - least touching in

angerDefenses

1. Consent (informed)2. Self-defense (reasonable

force)R. v McSorley (case handout)

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Trespass on Land pg 21

entering another’s land without authority– permission implied for business

offering public servicesOccupier owes only minimal

duty to trespasserContinuing trespass remedied

by injunction

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False Imprisonment pg 22

The unlawful and intentional restraint of a person against his/her will

Restraint must be total

Victim must submit or be forced to comply

Restraint may be justified if the trespassing person has done something s/he can be arrested for – ie robbery

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Private Nuisance pg 22

Private nuisance interferes with another’s use of his/her property

Interference must involve unusual activity

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Defamation pg 22

A false statement about someone to his detriment - must be published or broadcast

Slander - spoken defamationLibel - written defamationNote the innuendo

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Defamation/2

Defences 1. Truth (Justification)2. Absolute Privilege3. Qualified Privilege 4. Fair Comment

But mistake is no defence

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Reference letters pg 23

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Negligence pg 23

Inadvertent, careless conduct that causes injury to another

Important area of tort liability for professionals

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Negligence A – D pg 24

Essential Elements:A: A duty to exercise careB: Breach of the standard of careC: Causation – The act caused the

injuryD: Damages -Victim suffered a loss

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Reasonable Person Test

Reasonable person is a prudent person exercising care– conduct falling between

average and perfect– Like par in golf

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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

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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

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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

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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

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C - Causation

There must be injury or damage Which was a direct result of the careless

conductNote thin skull rule

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Torts law of NegligenceHandout

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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

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Defenses/2Voluntarily 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)

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Occupiers Liability pg 26, 27Applies to owner or renterDuty 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

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Alcohol related pg 27, 28Commercial hostsStewart v Pettie p 3 case handout

Employer partiesJacobsen v Nike Canada p 4 case handout

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Other business torts pg 28Inducing breach

– Persuading person to breach contract (inducement)

– Enticement – competitorFraud – 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 ownTrespass to chattels – damaging others

property

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Other business torts ctd pg 29Passing 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

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Discussion – Case StudyA 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?

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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.

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Reasons ctdHis 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.

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VIII Privacy Law pg 29, 30

Pragmatic solutionsHR IssuesGetting employee

buy-inLessons learned

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Breach of Privacy pg 29Privacy legislation prohibits using another

person’s name or photograph without permission

Note application of Federal Personal Information Protection and Electronic Documents Act

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Security and PrivacyMisuse of private information growing

concernCare must be taken about giving personal

information over the internetUnauthorized interception of private

communications difficult to controlData stored on computers is vulnerable to

hackers

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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 policyWhen an organization collects personal

information from an individual, it must give notice of the purpose of collection and a contact for questions

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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

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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

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HR PoliciesDon’t have any – get some

– Develop a team– Review– Revise– Keep current– Three ring binder

Integrate privacy policies into overall co policies

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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

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Build privacy policy from ground 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

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Privacy Gap Analysis

HR

Forms

Files

Gap Analysis

Standardized Forms

Awareness

Information Requests

Employee Driven

Employee

Practices

Payroll

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Gap AnalysisWhat changes in your current policies,

procedures and practices will close any gaps?

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HR Audit

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

Conduct an information audit: who what, why,

where and how? Consider employee involvement or

their reps

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Privacy Policy SummaryDeveloping 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 itLastly they are a guide for staff, not a

substitute for good privacy management

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Privacy Officer

Privacy Coach

Responsible to assist individuals with concerns or requests regarding

Access, collection, use or disclosure of their own personal information, including personal employee information

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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

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Recruiting Info Sources

Your notesOther peoples notesYour formsYour written commentsWho has accessYour policiesYour memos

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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

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RecruitmentAt 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

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Definition of Employee

Includes apprentices, volunteers, participants, students, and individuals under contract to an organization

Your policy should include allMay wish to include your Board of

Directors as well

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Employee calls in sick Er may ask for general information necessary for operation of the position

how long the employee is expected to be away from the workplace and an date of return to work

Doctor’s note No diagnostic info pls

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Reference Checks Only an individual's 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.

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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 consentRule of thumb – state facts not opinions, don’t

day anything you wouldn’t say to their faceTry to control ees providing references directly –

control info flow – tough to do, but worthwhile

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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.

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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

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EAP

Er should not get involved in EAPBe very careful about release of any infoEAP 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

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“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

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Duplicate Personnel FilesManagers often keep personal notes and

information about staff in duplicate corp filesRisky practice from more than just a privacy

perspectiveShould an ee file a complaint under Human

Rights, Employment Standards or launch a civil suit against an employer, documents contained in both the manager's file and the official file are subject to subpoena and disclosure

HR File Audit – Boy Scouts said it best “Be Prepared”

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Access to ee info

Differing departments need different information about an employee

Not all need to see everythingSegregating certain types of employee

information as separate files or within the file with different access protocols would help

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BenefitsHow does your carrier

measure up?You are responsibleWhat about employee

medical claim information?Pensions, RSP’s, who has

access to information

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BenefitsCensus data for quotes

– No need to name names in lists of eesMedical 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

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When can opt-out consent be used (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

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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

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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

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Monitoring Ees at work• Monitoring, listening, tracking Ee activities is controversial

• Ers can do it, but tell people you are doing it or may be doing it

• Must have a reason – can’t go fishing

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Privacy ReviewPut someone in chargeUnderstand the requirementsReview how you handle personal informationTest to see if you are compliantDevelop privacy policies and practicesDevelop access and complaints processesReview and revise formsReview and revise contracts with third partiesTrain staff

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IX Charter & Human Rights pg 44When does it applyNot to private matters

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What rights are covered? Pg 45Fundamental freedomsDemocraticMobilityLegalEqualityLanguage

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Charter Limitations pg 46Reasonable limitsNotwithstanding clauseKeegstra p 6 case handout

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Courts role pg 46, 47Judges can rule other laws invalid if they

violate the Charter Section 5224(1) Askimov case24(2) evidence obtained in violation of

Charter

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Ab Human Rights pg 47Must fall in protected area and grounds

Who to complain to?Ab Human Rights & Citizenship CommissionWithin 12 mos

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Process pg 48Officer will try to resolveInvestigatePanelEnforcement thru courts

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Employment Practices – pg 49

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Are there some questions I can’t ask in the interview?

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Question Can’t ask Recommended

Gender, marital status, family status

Plans for marriage, family childcare, gender, marital status

Availability for work including shift work, travel

Languages Ability in languages not required for job

Ability in language required for job

Age Specific age Old enough to work legally in Alberta

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Question Can’t ask Recommended

Name Maiden name, reference to name origin

Previous names, only if needed to verify past employment / education

Race, colour, ancestry place of origin

Place of birth, citizenship, racial origin, next of kin

Legally permitted to work in Canada

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Question Can’t ask Recommended

Photo-graphs

For as they can reveal race, gender

In rare situations modelling, entertainment

Clubs or organiz- ations

Specific inquiries about memberships that would indicate race, religion….

In cases where the club or org are job related

Height & Weight

Min or max height weight norms

Describe job duties that require certain physical requirements

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Question Can’t ask RecommendedDisability General disabilities,

present or past health, WCB history

Offer contingent upon satisfactory job related medical

Smoking Asthma, respiratory Working in Smoke free env

Source of income

Anything unrelated to job

Job related info about prev jobs

Education Religious or racial affiliation of Education

Religious beliefs

Holidays, customs Job related info about prev jobs

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BFOR pg 49Bona fide occupational requirementMeiorin Case p 8 case handout

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Harassment pg 50

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Duty to accommodate pg 50

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AgeCant make complaints

– Over age 45 for rental unit– Discounts for seniors

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Vriend Charter Challenge pg 51Vriend case p 6 case handout

End section

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S.W.O.T. Analysis (not in texts)

Strengths

Opportunities

Weakness

Threats

Factors Internal to Organization

Factors External to Organization

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SWOT: DescriptionA 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

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Simple Rules for SWOT AnalysisBe realistic about the strengths and weaknesses

of your organization or groupDistinguish between where your organization is

today, and where it could be in the futureBe specific: Avoid gray areasAlways analyze in relation to your core missionKeep your SWOT short and simpleAvoid complexity and over analysis

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StrengthsConsider from both the view of the org as

well as customers, competitors and community members

Be realisticOne’s strength is another’s weaknessQuestions:

– What is org’s advantages over others?– What does the org do well?– What makes you stand out from your

competitors?

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WeaknessesConsider from internal and external

viewpointBe truthful so that weaknesses may be

overcome as quickly as possibleOne’s strength is another’s weaknessQuestions.

– What is done poorly?– What can be improved?– What should be avoided?

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Opportunities and ThreatsPrimarily external in natureRepresent characteristics of:

– the research environment– growth in potential markets– changes in the competitive, economic,

political/legal, technological, or socio-cultural environments

A threat to some is an opportunity to another

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Questions on opportunities– Is there a product/service area that others have

not yet covered?– Are there emerging trends that fit with your

company's strengths?Questions on threats

– Are your competitors becoming stronger?– Are there emerging trends that amplify one of

your weaknesses?

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For a company a strength could be:marketing expertiselocation of your businessinnovative productImageYour quality of serviceYour reputationany other aspect that adds value to your

product or service

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For a company a weakness could be:lack of marketing expertiseundifferentiated products and service (i.e.

in relation to your competitors)location of your businessdamaged reputation

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For a company an opportunity could be:a developing market such as the Internet. mergers, joint ventures or strategic

alliancesa new marketa market vacated by an ineffective

competitorany external factor that may create

demand or the possibility for increased profitability

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For a company a threat could be:a new competitor in your marketprice wars with competitorsa competitor that has a new, innovative

product or servicecompetitors have superior access to

channels of distribution

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Expanding Your SWOT AnalysisDelve deeper into the details Include more detailed competitor

informationTake a closer look at the business

environment.Expand the reach of a SWOT analysis

through surveys.Customer surveys

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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.

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Review, Reasons for JV Failure P 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

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Review Business Orgs 51, 52, 53TaxationSole prop – not taxed on communityPartnership – sameCorp – 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

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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, 54

4. One mark for each reason and one mark for each explanation. Total 10 marks. P 9.

Our offer to you

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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!

CG Hylton - Services

HR Consulting Job DescriptionsSalary GridsWellness at WorkStaff MoraleTraining and Workshops

Benefits, Pensions, EAPStrategic PlanningDrug and Alcohol

programsDept re-orgsLeadership

compensation

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Tel 403 264 5288chris@hylton.ca

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Chris Hylton would like to thank you for your attention and time!

Questions?

Tel 264-5288chris@hylton.ca