Response to Questions
Employees are those people who may be given a job either on a part time or full time basis under an employment contract that can either be written or oral. When talking of an independent contractor, it could refer to professionals such as doctors, engineers and various other professionals who may be carrying out individual businesses through which they offer direct service to the public. For an agent, these are people that may be authorized to act on behalf of other businesses. Their contracts are normally in written form. For instance, a company may be making sales through someone in a different country who will then serve in this position as an agent. However, independent contractors and employees can act as agents for the companies they may be working for.
Sometimes, there might be wrongful dismissal of an employee and upon this the court will have to consider the length that the employee has been serving that company, the job the person was handling, the age of the employee and his or her qualifications. Following the human rights legislation the employer might be required to pay the employee some funds, they might even require the employer to reinstate the employee. In case the employee was insured earlier, he might compel the insurer to pay him or her some money due to a job loss. The employer may also be required to give out pension to the employer especially when reinstating the employee is not an option to be considered.
`An agent’s actual authority refers to where limits of operation are set out by the agency agreement. This could either be express or implied. For implied authority, it’s under actual authority, however, for this it’s conveyed by actions of the principal. Thirdly we have the apparent authority; under this the principal will be bound by the gent’s acts in case he or she acts in such a way as to make a third party believe he or she has authority.It is regardless of whether the agent has actual authority or not. Still under the same, the third party might be lured into believing the agent has authority, in case this happens then he or she cannot claim the agent had no authority. These differences are very important to the agent as they will enable him to act within the contract so that he or she cannot be sued for breaching the contract. These distinctions will also enable the agent not to go against the specified instructions and also not to delegate duties unless required to do so.
Corporations are legal entities established through legislation. They are normally headed by directors who are elected by shareholders. They are required to be very careful and exercise care, diligence and skills in their duties. They have a fiduciary duty to the corporation. A fiduciary duty is a legal duty that requires one to act in a way that takes care of another part’s interests. The individuals owed this duty will then be referred to as principals. Considering duties imposed by statute, the director may be personally liable for unpaid wages, breach of employment standards of the company, unpaid taxes, damage of working environment and also causing the employee to commit crimes. Others owing similar duties include officers and senior executives. These too are responsible in ensuring care and competence, responsible for the day to day activities, some statutorily imposed duties comparable to those imposed on the directors and also the fiduciary duty.
Shareholders enjoy protection against various actions. We have the protection against derivative action, oppression action, dissent and appraisal remedy and unanimous shareholder agreement. Derivative protection is aimed at protecting a right or claim of which the association has failed to do. Oppression action is where the shareholders feel they are undergoing a discrimination by the company or their interests are being treated unfairly by the organization.
The dissent and appraisal remedy refers to protection against some major actions taken by the corporation. It’s aimed at allowing fair determination of prices of shares of the shareholders. Lastly is the unanimous shareholder agreement protection; this offers protection to a shareholder in case one is against a unanimous decision made by the other shareholders.
Restrictive covenant refers to a commitment for one not to work in a certain industry in a set area for a set period. They are normally created to impose restrictions that are normally restricted to an area. The area must be very reasonable otherwise illegal and void for public policy reasons. Subsequent land owners are normally bound by this covenant though under certain circumstances. For example, a restrictive covenant to have one house may require it be enforced by all the subsequent land owners for their benefit.
Tenancy in common refers to where two or more people share an undivided interest in the property with each owning a designated portion of the title. For the joint tenancy, two or more people own the entire property. Tenancy in common allows transfer of assets as per instructions of each of the owners’ wills. For the joint tenancy in case one of the members, it offers a provision for transfer of property to the surviving members. A joint is always entitled to sever a joint tenancy. To change from one tenancy to another, on is required to obtain a copy of the tenancy deed and identify all the current legal owners. Then he or she completes a blank tenancy entirety deed and includes the names of each tenant and the grantor. Then an attorney is hired to review the tenancy by entirety deed that will ensure the information is accurate. The completed tenancy is then signed; the individual owners are retained since it was just a change. The new deed is now registered in the local register of deeds office. It’s important to establish the difference between the two types as it enables one identify the advantages accrued and also to make the right decision. Example for the joint tenancy is important for survivorship since it allows property transfer to the survivors. The interest of the property thus cannot be disposed of either under will or intestacy. For the common tenancy, the tenants are able to dispose of their share of property alongside the terms of their will.
Employers may get involved in the misuse of computer facilities while in the work place. It may include; mischief regarding computer data, interception of private messages, visiting unauthorized sites, using company computers or personal business, accessing drives that access has been denied, making unauthorized copies of company data or even deleting company data and many other violations such as deliberate propagation of viruses of potential harm to the company data. The employers should set up password protection for sensitive company data which should be frequently changed. Installation of hardware or software firewall that protects the computers connected through the network. Antivirus programs should be installed to protect the data against viruses.
The Sale of Goods Act applies to all situations where goods are purchased and then sold but not to transfer of real property. It codifies case law and complements normal rules of contract law. It’s intended to fill the gaps in terms of a contract and also stipulates the terms of the contract. The Sale of Goods Act only applies to the tangible goods and excludes services. Services may, however, be included when it involves the installation of goods. For the act to substantiate transfer of goods must be done it the transaction involves securing a loan, and then it’s not applicable. This act is only applicable where there is a money transaction thus barter trade is left out. When sales have been done, it is important that it be done in written form. To determine which terms are conditions and which are warranties, courts and statues are given this responsibility. In the case of breach of warranty, the victim is not released from obligations under the contract but maybe entitled to damages. Terms that are conditions always are essential to the main contract; breach of contract may offer the right to the involved party to turn down the contract. For the warrant terms, breach of contract gives the right to party to claim damage only.
The bulk sales act is aimed at restricting the sale of a business’ assets without the approval of the creditor. It prevents the sale of all business property with the creditors unpaid. With this Act responsibility is placed upon the purchaser who has to ensure, the creditors are paid before making any purchases. It in return protects the creditors since in case its realized that the creditors have not been paid then it will be unlikely for a purchase to be made. The creditors do enjoy a privilege such that in case of payment is not made then; they can apply to the court to compel the purchaser to make the payments.
Chapter 10, Case 2, p 342: Evans v Teamsters Local Union No 31
Yes. Setting aside the award for 22 months’ pay for wrongful dismissal is indeed fair to the employee.
A court should consider numerous factors when deciding whether an employee should return to work for an employer who dismissed him. Of great importance in this case is that the union had given Evans a reasonable notice of 24 months, having promised to offer him employment for 12 months, followed by a 12 month’s salary. It is worth noting that even after dismissal; Evans still continued to get paid for four months. Length of service is a factor to be considered. Evans had worked for the union for 23 years that are quite a reasonable time. The trial judge should not have deemed it as wrongful dismissal since the notice was adequate and compensation quite generous. If anything, with his experience, two years was enough time for Evans to look for a job elsewhere. Under constructive dismissal, the Supreme Court must have ruled in favor of the union since the union had played its part of compensating Evans following the notice and given him benefits of a full year’s pay. Hence, Evans had to mitigate the losses incurred. In conclusion, in business law, if a relief is sought for termination under legislation, Evans should not push for a wrongful dismissal case. So it is totally fair or Evans to return to work for his employer as the notice stipulated.
The basis of any complaint A&M Holdings might have lies on the fact that, under fiduciary duty, the agent has a duty of full disclosure to the principal and acts in utmost good faith. An agent should also not take a personal opportunity that comes to them through the agency, and if there is, the agent should disclose to the principal any personal benefit and can only retain it with permission. Forbes had not disclosed the secret deal between her and Halbauer and in so doing; she had breached a fiduciary duty she had towards her principal. It is also not indicated anywhere that Forbes was acting for the principal and the buyer at the same time, with full disclosure and consent from the two parties.
Forbes and Ocean City Realty Ltd might raise a counter argument based on the fact that, under Apparent Authority, A&M Holdings, being the principal is bound by the agent’s acts. This is because they had already entered an arrangement where Forbes was to be their agent in selling the house. The principal is bound by her acts regardless of whether there is actual authority or not. By the mere fact that Halbauer relied on the principal’s representation in settling the deal, A&M Holdings cannot claim that the agent had no authority.
The likely outcome of this case might be a legal action taken by Forbes and Ocean City Realty Ltd against the A&M Holdings because they are the party on the losing end here.
In such a case, if A&M Holdings’ complaint is found to be genuine, the appropriate remedy would be a fine imposed on Forbes for breach of fiduciary duty and a little compensation as to her as well as stipulated by the law under Principal’s duties-honor terms of the contract and pay a reasonable amount for services. All this, however, depends on the agreement or contract signed between Forbes and A&M Holdings.
Chapter 12, Case 5, p 420: Salesco Limited v Lee Paige
The derivative actions should succeed. C and Z ought to put up leverage since they own part of Salesco.
The actions of P and M were oppressive, and they unfairly disregarded the interests of C, Z, Salesco, and Spray-Pak. It is for this reason that C and Z should take the derivative actions. P and M breached fiduciary duties by misrepresenting Spray-Pak. They have a duty to work for Spray-Pak’s best interest.
Chapter 15, Case 1, p 535: Resch v Canadian Tire Corporation
This act applies to all instances where goods are bought and sold. The Sale of Goods Act should apply in this scenario since a bicycle is a tangible good.
Under the Act, the defendants are obliged to sell goods that; are usable, free of liens, match description, are of merchantable quality, that match the sample provided and be free of hidden defects. All these obligations were breached as per the bicycle that Mr. Resch bought for his stepson. As a remedy for the buyer, the Resch’s family is eligible to sue for damages since the defective bicycle caused injury.
In defense, Mills Roy Enterprise may argue that they are not responsible for any damages since it is the manufacturer’s fault. There was a title transfer from the manufacturer to the dealership and Mills Roy Enterprise had an obligation to sell goods that match the sample and are free of hidden defects.
The case likely outcome is that the defendants will compensate the plaintiff for any damages caused and in that case, settle the medical bill. They are also obliged to provide a defect free and durable bicycle to the family.
There would be no difference to my answer if I knew that the stepson paid some funds towards the purchase of the bike. In my opinion, money changed hands, and since the commodity in question was defective, the seller ought to cater for the damages inflicted on the consumer.
Chapter 16, Case 4, p 568: Bank of Montreal v Canada (Attorney General)
According to the law, the Canada Customs is a super priority and hence it will take priority over the Bank’s secured claim.
The lenders should look into how stable their debtors are and their ability to pay back the borrowed amount failure to which such incidences will take place. Thorough screening of a debtor’s account records is very vital. It will point out the trend of a debtor in business and as a lender, you will fully understand the risks involved in lending your money to a certain debtor.
This will make availability of credit scarce especially to small businesses since their profitable operation throughout is determined by many factors that affect businesses. Creditors will fear lending credit to the small businesses and hence the small businesses might collapse.