eng 3k

  1. Describe the two conditions for copyright law
    • 1. Cannot copyright the action; the work is original and fixed
    • 2. Expression of ideas may create a copyright, but ideas cannot be copyright


  2. (Copyright law) define "original" and "fixed"
    • Original means it is the product of author's own skill, judgment, and creativity; has not been copied; demonstrates more than a trivial, mechanical level of skill and judgment.
    • Fixed mean when it is produced onto media like paper or digital (oral expression does NOT qualify for copyright)
  3. (Copyright law) how long does it last for?
    • Author's life plus 50 years
    • (except photographs, sound recordings, and films, where straight 50 year term from creation applies)
  4. How long do patent rights exist?
    Patents expire 20 years after the patent application was filed
  5. How soon after filing is a patent made public?
    Patents are made public 18 months after filing
  6. What is required for a patent? (3)
    • 1. New - first in the world (can be new improvement)
    • 2. Useful - functional and operative

    3. Inventive - show ingenuity and not be obvious to someone of average skill in the field
  7. What is novelty? (Patent) Describe the 8 part test
    • You need to prove your novelty of your patent doing a prior art search. There is an 8 part test:
    • § 8 part test
    • □ An exact prior art description
    • □ Directions which if folllowed will result in at least part of the invention
    • □ Clear and unmistakable directions
    • □ Information which is equal to that given by the subject patent
    • □ Info so a person w the problem says "that’s what I wish"
    • □ Info to a non-expert in a way that would recognize the invetion
    • □ Teach an inevitable result which can only be proved by experiences
    • Satisfy this all in a single document
  8. How do you test for non-obviousness? (Patent)
    You test that the "unimaginative skilled technician" through general knowledge and information available on the subject would not have come up with the invention without difficulty
  9. What is the Security of Information Act?
    • Secret information obtained illegally (i.e. contravention of the act) or communicated without authorization that is 
    • - used for a foreign power
    • - retained when expected to be disposed of
    • - or failed to take reasonable care of the information

    you dun fucked up boi
  10. What is the penalty for a breach in the Security of Information Act
    Penalty - 2 years to life imprisonment
  11. If you have secret clearance and need to disclose your information to the PEO, what would you do?
    Disclose it with someone who also has a secret clearance
  12. Name the 8 types of information security
    • 1. Protected - unauthorized disclosure may be bad
    • 2. Protected A - injury can occur
    • 3. Protected B - serious injury can occur
    • 4. Protected C - extremely grave injury can occur
    • 5. Classified - Unauthorized use will be bad to defence and maintenance of social blah blah blah stability of Canada
    • 6. Confidential - injury to national interest
    • 7. Secret - serious injury to national interest
    • 8. Top Secret- exceptionally grave injury
  13. What is Arms Control
    • Recognition by international community of the need to limit development of nuclear, chemical, biological weapons, by the world at large (Nuclear Test Ban Treaty, Nuclear Nonproliferation Treaty)
    • We agreed that there will be no weapons in space :(
  14. Who controls export controls (Arms Control)
    DFAIT (or Global Affairs Canada)
  15. Who controls Controlled Goods (Arms Control)
    CGP (Controlled Goods Program)
  16. Canadian Export Controls - what is it and what's on the export control list?
    Exports to certain countries and certain technologies are controlled and monitored by DFAIT

    • Export Control List:
    • 1. Dual-use
    • 2. Arms - guns, munitions
    • 3. Nuclear materials

    Organizations possessing items on the list must be registered with the CGP
  17. What does it mean to export?
    Take your country's goods to another country

    Export of technology that is required for the development, production, or use 

    Technology remains under control
  18. Contract A & B Precendences (2
    Belle River - if you realize your mistake immediately and try to pull out of your bid before tenders are opened, you are not liable for the cost of the bid (the bid was not the intended offer)

    Ron Engineering - If you realize the error after the bids are opened, you are only liable for the bid deposit, not the cost of the work to be contracted to (origin of contract A concept)
  19. Describe the Belle River legal precedence & its significance
    Belle River - if you realize your mistake immediately and try to pull out of your bid before tenders are opened, you are not liable for the cost of the bid (the bid was not the intended offer)
  20. Describe the Ron Engineering legal precedence & its significance
    Ron Engineering - If you realize the error after the bids are opened, you are only liable for the bid deposit, not the cost of the work to be contracted to (origin of contract A concept)
  21. Describe the two legal precedences for Implied Terms
    Hunter engineering vs Syncrude - tried to sell gearboxes to Syncrude but didn't fit the purpose; however, had a clear limitation of liability stating gearboxes are not guaranteed to fit the purpose. Exclusions, if worded clearly, should be upheld. Also, strict interpretation should only be questioned when there is a matter of contractual unconscionability (i.e. unequal bargaining power) but this is unlikely in business contracts

    Moorcock - this bitchass wanted to moor ship in a wharf but then the wharf drained the water which damages the ship. There was no explicit contract, but who would let someone moor their ship where it would get damages dumbass? This precedence talks about the difference between caveat emptor and implied terms: caveat emptor means buyer beware; implied terms allows you to make reasonable assumptions
  22. Describe the Moorcook legal precedence (implied terms)
    Moorcock - this bitchass wanted to moor ship in a wharf but then the wharf drained the water which damages the ship. There was no explicit contract, but who would let someone moor their ship where it would get damages dumbass? This precedence talks about the difference between caveat emptor and implied terms: caveat emptor means buyer beware; implied terms allows you to make reasonable assumptions
  23. Describe the Hunter Engineering legal precedence (Implied terms)
    Hunter engineering vs Syncrude - tried to sell gearboxes to Syncrude but didn't fit the purpose; however, had a clear limitation of liability stating gearboxes are not guaranteed to fit the purpose. Exclusions, if worded clearly, should be upheld. Also, strict interpretation should only be questioned when there is a matter of contractual unconscionability (i.e. unequal bargaining power) but this is unlikely in business contracts
  24. What is the legal test for environmental law?
    • 1. Is the use of the property natural or "appropriate"?
    • 2. Is the use dangerous? (Does it follow all the laws to be safe?) (Intentions don't matter)
    • 3. Did material escape? (In the oil refinery
    • 4. Did the escape cause damage (property or personal damage?)

    Environmental law deals with if it happened or not. If any one of these points happen, you have a case
  25. Name the two legal precedences for Environmental Law
    • Rylands v Fletcher
    • Trespass of water when building a reservoir
    • Large landowners next to each other
    • One of them had a set of tunnels and mines on their land
    • The other was building a resevoir - had the contact for it
    • Water of resevior flooded the neighbours
    • Damage to environment
    • Use of the property was not natural and ultimately wasn't appropriate because lead to floods
    • Use inherently wouldn't have been dangerous if done appropriately, but it wasn't done appropriately

     

    • Smith v. Inco
    • Does a nickel refinery's affect on property prices in the area constitute an environmental issue?
    • Houses in the town went up due to the nickel refinery
    • Sue the nickel refinery due to enviromental damage done
    • Is the nickel refinery a natural use of the land - no but it wasn't not appropriate
    • Was it dangerous? No issue, no risk
    • Did material escape? No…
    • Did it cause damage? No…
    • Environmental law isn't there to remove something that "might" happen
  26. What is common law? What do we use in Canada? What alternatives are there?
    Common law is the law system we use in Canada - the type of law based on legal parliament, legislation, and precedences 

    Other systems include: civil law (not based on opinion or cases; individual decisions do not affect the future of that law as precedent does not flow from one decision to another; decisions are advisory, not binding; judges follow the statute and not make a decision)

    Common law (two parties argue and a judge makes a decision)

    Socialist law 

    Customary law

    Religious law (e.g. Sharia law, Jewish law)

    Pluralistic (more than one)
  27. Describe the Rylands vs Fletcher precedence (Environmental Law)
    • Rylands v Fletcher
    • Trespass of water when building a reservoir
    • Large landowners next to each other
    • One of them had a set of tunnels and mines on their land
    • The other was building a resevoir - had the contact for it
    • Water of resevior flooded the neighbours
    • Damage to environment
    • Use of the property was not natural and ultimately wasn't appropriate because lead to floods
    • Use inherently wouldn't have been dangerous if done appropriately, but it wasn't done appropriately
  28. Describe the Smith vs. Inco precedence (Environmental Law)
    • Smith v. Inco
    • Does a nickel refinery's affect on property prices in the area constitute an environmental issue?
    • Houses in the town went up due to the nickel refinery
    • Sue the nickel refinery due to enviromental damage done
    • Is the nickel refinery a natural use of the land - no but it wasn't not appropriate
    • Was it dangerous? No issue, no risk
    • Did material escape? No…
    • Did it cause damage? No…
    • Environmental law isn't there to remove something that "might" happen
  29. What is the test for Contract A and B?
    • Do you have any consequences? 
    • Are you in a situation of tough luck or are you in a situation where you can get some resolution?
  30. What are the requirements for consulting engineers?
    • Must be a PEO member in good standing
    • Having at least 5 years of experience in addition to 4 year experience required for licensure 
    • Being primarily engaged in the independent practice for last two years (50% of your income or 50% of your time in consulting)
    • Must hold a C of A from PEO or be a partner of a firm holding a C of A 
    • Applicants must hold 5 references (3 from P.Eng and 2 from clients) of projects over the last 5 years
  31. How long does designation of consulting engineers last for?
    5 years, at which members must apply to PEO to be redesignated
  32. What is international mobility?
    • The Engineers Mobility Forum agreed between the Washington Accord signatories to explore mutual recognition for experienced engineers 
    • Due to equivalence of engineering academic programs, this is the benchmark for mutual recognition or exemption for licensing

    Applicants must agree to be bound by the codes of professional conduct established and enforced by each economy within which they are practicing and be individually accountable for their actions
  33. What is tort of deceit?
    Misrepresentation
  34. What is the test for misrepresentation?
    −A false representation or statement made by the defendant;

    −Which was knowingly false;

    −Which was made with the intention to deceive the plaintiff;

    −And which materially induced the plaintiff to act; and

    −Which caused the plaintiff damage
  35. What is the test for legality of purpose?
    Also known as non-competition clause


    −Employer must have proprietary interest worth protecting,

    clause must be reasonable with regard to geographic restriction and duration,

    −and there must be sufficient justification to restrict competition instead of just solicitation
  36. What is the test for equitable estoppel?
    • Was there a change in contract and both parties acted as if the terms have changed?
    • Did one party rely on the actions of the other (gratuitious promise)
    • If the second party goes back to original terms?
  37. What is the test for implied terms?
  38. What is the limitations of liability test?
    Fundamental breach test which derived from the Tercon test in determining whether a limitation clause aids the case or not

    −Does the limitation apply to the breach?

    −Was the contract unconscionable?

    −Is there an overriding public interest meaning the limitation should not be accepted?
  39. What is the unilateral mistake in tendering?
    For contract A and B




    −You are responsible for your own mistakes, but

    −The tendering process is a contractual process (contract A)

    −Bidding error can result in loss of bidding deposit. If there is no bidding deposit, can result in damages up to the difference between bid and lowest non-erroneous bid

    −Person issuing RFP also has contractual obligation under contract A
  40. What are the Tercon legal precedences?
  41. What is the tort test?
    • - Duty of care owed
    • - Failure in the duty of care, in a way that was foreseeable 
    • - Some loss/injury as a result
  42. Define engineering
    • - Any application of engineering principles
    • - Public wellbeing
    • - Management of it
  43. What constitutes a profession?
    • - Self-governed
    • - defines what constitutes sufficient standard for membership
    • - defines the standards of practice and code of ethics
    • - disciplines members who do not meet these
    • - funded by members
    • often requires members to serve in a voluntary capacity
  44. What types of licenses are there?
    • Full (P.Eng)
    • Temporary (licensed in another province/territory)
    • Provisional (meets all requirements except 12 months of Canadian experience under a P.Eng)
    • Limited (Competence in a certain area)
    • Licensed Engineering Technologists
  45. What are the requirements for a license?
    • Be of good character
    • Be at least 18
    • Meet academic requirements (accredited and in Washington Accord, pass technical exams)
    • Meet work experience requirements (48 months)
    • Complete a PPE
  46. What is a C of A?
    Certificate of Authorization; need a higher standard of experience than for a P.Eng
  47. What is moonlighting and when is it acceptable?
    • Doing
    • independent practice while working for another engineering organization
    • It is okay to moonlight, but if there ends up being a conflict of interest, you must indicate it
  48. What are the limitations on advertising about engineering?
    You need fair pay for engineering work (i.e. cannot advertise "cheapest engineers")

    You must hold high regard of engineering
  49. Who can call themselves an engineer?
    Engineer, professional engineer, consulting engineer

    Whoever has the appropriate license!

    If they use the word incorrectly, they will experience enforcement
  50. What is the difference between discipline and enforcement?
    Enforcement - ensures engineering tasks are not being performed by non-engineers - for non members  

    Discipline - ensues licensed engineers perform tasks to acceptable standards
  51. What are the 9 outcomes of a disciplinary process?
    • 1. Revoking practitioner's license or certificate of authorization
    • 2. Suspending practitioner's license C of A
    • 3. Limiting the practitioner's professional work
    • 4. Imposing terms and conditions of the practitioner for continues practice
    • 5. Requiring the practitioner to demonstrate engineering knowledge through technical examination
    • 6. Administering a reprimand to the practitioner
    • 7. Imposing a fine on the practitioner (maximum $5000)
    • 8. Findings be published
    • 9. Any other actions as specified in the Professional Engineers Act
  52. What is the disciplinary process?
    • 1. Investigation and Evidence Gathering
    • a. Complainant fills out a form and provides evidence of the fact
    • b. The form will be provided to the practitioner, written response
    • c. PEO staff member identify and obtain any other relevant evidence
    • d. PEO staff members interview the practitioner
    • e. PEO writes a complainant summary
    • 2. Formal Consideration by the Complaints Committee
    • a. No case to answer or disciplinary hearing
    • b. Can take 2-3 months to a year to complete
    • c. Stages 1 and 2 are kept confidential by PEO staff and members of the complaints committee
    • 3. Discipline Hearing
    • a. A formal hearing is held before a panel of the discipline committee
    • i. Comprises volunteer PEO license holders and members of PEO's council
    • ii. Complaints and discipline committee share no members in common
    • b. Complainant may be required to testify
    • Can be public knowledge
  53. What is the duty to report?
    • - If there is belief that there is danger to the public welfare, it is your duty to report
    • - You must:
    • ○ Address issue internally
    • ○ If not resolved, contact PEO
    • Do NOT go to public
  54. What is the newspaper test?
    If something you did was published in a newspaper and other people saw it, would you feel good about it?
  55. What types of engineering review are there?
    • - Types of formal review
    • ○ Regulatory - is it compliant to laws, statutes, and regulations
    • ○ Practice review - reviewing the company/organization to ensure they are following industry practice; if the engineers are doing it
    • Technical review - evaluation of design
  56. What is engineering review?
    • To review things engineers did. Distinguished based on
    • - reason for review
    • - subject matter reviewed
    • - how the party intends to use the reviewer's report
    • - procedures to be followed
    • - responsibilities of the authoring and reviewing engineers
  57. What is the use of seal?
    • - Seal directly indicates responsibility but you are still liable for errors on work you performed but did not seal
    • ○ May face higher penalties
    • Pronvincial seal
    • - Required on all final specifications, plans, reports, or documents that fall under professional engineering
    • - Can require multiple seals
    • - Sealed documents cannot be modified, retransmitted for purposes beyond the original review scope etc. without due review
    • If you need to modify a document, you do not need to go back to the original engineer
    • Cannot seal an advertisement
  58. What are the expectations and requirements around volunteering?
    A profession requires members to volunteer
  59. What do you do in a conflict of interest?
    • - A conflict of interest is not just an actual conflict; it can also be the perception of conflict of interest
    • - Different types of conflict: the appearance or actuality of being paid twice for work, opinions being inspired by pay
  60. How do you know if something is a gift or a bribe?
    • - Gifts vs. bribes
    • Is is a bribe?
    • ○ Is it offered openly?
    • ○ Is it equitable and fair?
    • ○ What are the benefits and costs and to whom?
    • ○ Is the purpose defensible?
    • How much will it influence your decision?
  61. Name some committees in the PEO
    • Board committees
    • Including executive committee,
    • Legislation committee,
    • OSPE-PEO joint relations committee

    • Other committees regulated in Professional Engineers Act:
    • Academic requirements committee
    • Experience requirements committee
    • Discipline committee
    • Registration committee
    • Complaints committee
    • Fees mediation committee
  62. What is the Tort Law Test?
  63. Describe the legal precedences for Tort Law
  64. What is the Donoghue vs. Stevenson precedent?
    • Ginger beer
    • No contractual relationship is required
  65. What is the Hedley Byrne precedent?
    Disclaimers are important!
  66. What is the Wolverine Tube vs Noranda and Arthur Little precedent?
    • Noranda had Arthur Little had an environmental survey
    • Survey didnt do a good job
    • But there was a disclaimer saying that the report is only Noranda

    Noranda sold jt to Wolverine and Wolverine grred

    Reinforce the ability of a disclaimer to avoid duty of care
  67. What is the Canama Contracting vs. Huffman precedent?
    Engineering advice can be relied upon unless covered by a disclaimer

    If you have a special skill, you will be seen as someone being reliant on your special skill
  68. What is the Winnipeg Condos vs. Bird Construction precedent?
    • Condo broke
    • Overrule caveat emptor due to health and safety
  69. What is the Vargo vs. Canmore precedent?
    The fault does not have to be causing and substantial damage yet for there to be a duty of care
  70. What are the five things required for a contract?
    • 1. Offer and acceptance
    • 2. Mutual intent
    • 3. Capacity
    • 4. Consideration
    • 5. Legality of purpose
  71. What are the six ways to leave a contract?
    • ○ Breach of contract
    • ○ One side fails to meet the terms of the contract (but does not state as such)
    • ○ Agreement to discharge (+)
    • ○ Both parties agree to cancel or terminate
    • ○ Performance (+)
    • ○ Completed their obligations
    • ○ Repudiation
    • ○ one side states that they are no longer able to fulfill it
    • § May owe damages
    • ○ Frustration
    • § you can't finish the contract because of nobody's fault (impossible to fulfill)
    • ○ Express discharge terms (+)
    • § If terms allow for a quick discharge in case of e.g. bankruptcy
  72. What is a fundamental breach?
    • ○ A breach of nature as to go to the very root of the contract
    • ○ If you have an exemption clause, it does not provide you protection unless cour says otherwise
  73. Name the legal precedences for non-competition case studies
    • 1. Elsley vs. Collins
    • Collins lost 50% of his customers ro Elsley because Elsley knew about his customers. A non-solicitation clause was not enough.
    • Collins contract said that yiu cannot work anywhere in Niagara Falls after termination. Geographical and time period was reasonabke. Collins won.

    A non competition clause is helpful

    • 2. Dentist bois (Lyons vs. Multari)
    • A non competition clause cannot be upheld if a non solicitation clause is enough

    You cannot put a limit on the dentist practice - there is no contested advanatage
  74. Describe Elsley v Collins
    Non competirion clause Niagara
  75. Describe Lyons v Multari
    Dentist bois
  76. Describe the misrepresentation precedence
    Derry vs Peak

    Derry wanted to replaced the hirse with the steam powered tram

    The intention to deceive was not there
  77. What is the Derry vs Peak precedence
    Misrepresentation

    The intention to deceive is not there
  78. What are the fundamental breach precedences?
    • 1. Plastacine
    • 2. Photo production and securior
    • 3. Tercon
  79. What types of damages are there?
    • 1. Consequential damages - loss of future earnings
    • 2. Direct damages
    • 3. Punitive damages - for punishing and set an example; more than to rectify damage
    • 4. Aggravated damages - for aggravated stuff, damages are higher
    • 5. General damages - non-monetary losses, hard to quantify
    • 6. Nominal damages - token damages to protect a law
  80. What is the goal of damages in Tort Law and in Contract Law?
    In tort law damages are to give back the state as if the incident didnt occur

    In contract law damages are to put you in the original state when the contract was completed
  81. What is a trademark?
    A word, symbol, design that distinguishes a good or service in the market place
  82. How long until you need to renew registration?
    It is national and 15 years
  83. How do you file a trade mark?
    Find a trademark agent who will search for similar marjs

    They are published under Trademarks Journal
  84. How can you commercialize your IP for moneys
    • License/royalties
    • Assignment/sale
    • Equity/start up company
    • Contract/consulting work
    • Trade secrets
  85. Misrepresentation to the innocent
    Innocent (party who was deceived) must allow the contract to come to an end
  86. Misrepresentation to the fradulent
    The party who was deceived can rescind the contract and claim for damages
  87. Damages in misrepresentation?
    Negligence and deceit differ wrt remoteness of damages. In deceit, the defendent is liable for all losses flowing directly from the tort, whether they were foreseeable or not
  88. What is remoteness
    A set of rules in both tort and contract which limits the amount of compensatory damages for a wrong
  89. What are compensatory damages (actual damages)
    In misrepresentation

    Damages awarded for actual loss to place the plaintiff in a position they would have been had they not suffer the wrong complained of. "Make the injured party whole again"

    In breach of contract, the court may order the breaching party to compensate the non-breaching party for losses resulting from the breach. A defendent is liable to a plaintiff for all natural and direct consequences of the defendants wrongful act
Author
Oddishii
ID
344192
Card Set
eng 3k
Description
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Updated