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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 [email protected]
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Chris Hylton would like to thank you for your attention and time!
Questions?
