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5.7.79 Unit Farm Concrete Products Ltd. v. Eckerlea Acres Ltd. et. al.; Canama Contracting Ltd. vs. Huffman et. al.

Location: Ontario

Court:

Year: 1983

Importance: an engineer can be liable for advice given without a fee

Details:

•A contractor was hired to construct a barn over a manure pit.

•In the past the contractor had used advice given by an engineer working for the government to assist farmers with plans.

•The contractor discussed the plans for the barn on the phone, and dropped the set on the engineers desk. The two did not meet, but he superficially reviewed the set and wrote a note “Good set of plans. I like the detail. Wish I could spend that amount of time on each project. Keep up the good work.” The engineer and the contractor never met to review the plans for the barn.

•The contractor assumed that the plans were adequate and built the barn.

•As a result of design deficiencies the manure pit walls failed.

•The court rules against the engineer (and Crown) noting that “good plans” was an implied approval and that the plans had been properly reviewed. There was also recognition that the contractor had been asking for advice.

•An appeal court then found liability 75% for the engineer and 25% for the contractor.

5.7.80 Viscount Machine and Tool Ltd. v. Clarke

Location: Ontario

Court:

Year: 1981

Importance: example of a limitation from the date of discovery

Details:

•A negligent land survey was done, but not discovered until a few years later.

•The judge allowed the limitation period to be from the date the damage was discovered.

5.7.81 Willard’s Chocolates Ltd. v. Bardsley

Location: ? Court: Year: ?

Importance: an employee may use an employers time and equipment to create an invention, but the employee owns the patent unless stated otherwise in the contract

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Details:

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5.7.82 GLOSSARY

actus reas - proof that a criminal defendant did all the things leading to a crime. appellant - a party that is appealing a criminal or civil decision in a lower court. caveat emptor - buyer beware.

consideration - something of value which must be given by the offerer to make a contract valid. creatures of statute - created by a statute (e.g. PEO act) and able to exercise powers defined in

statute.

creditor - is owed money by a debtor. cross-examination - examining the other parties witness. debtor - owes money to a creditor.

defendant - in criminal court, the defendant has been accused of a criminal act. In civil cases the defendant has been accused of wrong doing causing “injury”.

examination in chief - examining your own client.

expert evidence - a witness cannot give an opinion but an expert witness can.

Force Majeure - a force that interrupts the normal conduct of business, and as a result is a cause for delay, such as floods, wars, etc. There are typically clauses in contracts to cover these cases.

general damages - pain and suffering from the result of negligence.

guarantee - A promise of performance if all other avenues fail. For example if an insurance firm guarantees bill payment by a company, and the company fails to pay, the company must be pursued before the insurance company.

indemnity - A promise of performance. Consider the example of the insurance firm (see guarantee) that indemnified the debts of a company. If the company fails to pay their debts, the insurance firm can be approached without pursuing the company first.

leading questions - these questions are allowed during cross-examination only. litigation - a civil lawsuit.

mens reas - a guilty mind.

non est factum - it is not his deed. This is a plea whereby a defendant either alleges that he did not execute the deed in question, or that he was laboring under a mistake as to its nature, when he executed the same.

onus of proof - in criminal court the prosecution is obliged to show through a balance of probabilities that the weight of evidence is against the defendant.

options contract - keeps a contract open for extension.

plaintiff - those that have made charges or brought a lawsuit. In the criminal courts this is often the crown, in the civil courts this is the injured party.

privity of contract - the legal relationship between two or more parties in a contract. propriety of contract - this describes the legal relationship between parties in a contract. resipsa loquitur - self evident.

respondent - a party that is arguing that a decision of a lower court be upheld. They oppose and appeal.

special damages - lost income, special care, equipment and other loses resulting from negligence. stare decisis - a binding decision.

statute - these over-rule all levels of common law in all courts. ultra-vires -

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victim impact statements - these statements about the personal effects of crime can have an impact on the sentencing of a criminal.