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APSC 450 Notes

APEGBC
-Engineers and Geoscientist Act [RSBC
1996], c. 116.
-APEG Bylaws govern the association
-Code of Ethics governs the behaviour of
Engineers and Geoscientists
-Association is both reactive and proactive
-Sets standards of practice
-Sets investigative and disciplinary standards
-Provides guidelines for registration
-Professional Development
Federal, Provincial and Municipal Compliance
Legislation
Associations are self-governing because:
Specific skills are necessary for society
Public Trust, in the judgement of
Engineers and Geoscientists
Investigation and Discipline
Professionalism based on the Code of
Ethics
Public Trust paramount
Maintenance of Professional
Standards important to ensure Public
Trust
EIT & GIT
Graduated from an accredited University
Engineering program as outlined by
Engineers Canada and approved by the
Canadian Engineering Accredited Board and
Engineers Canada, and the Canadian Council
of Professional Geoscientists
Education
- Examinations or
- Accredited Bachelors Degree or
Equivalent
4 Years Satisfactory Experience under
Professional Supervision
- Experience, Training and
Development
Application of Theory
Practical Experience
Management of Engineering
Communication Skills
Social Implications of
Engineering
Sustainability
Sponsorship
1 year experience in a
Canadian Environment

Law & Ethics


- Seminar
- Professional Practice Examination
Good Character
Legal Systems and Legal Entities
Constitutional Law: principles of
governance, rights freedoms, Constitution
Act 1982
Common Law: judge made law, based on
precedence; includes property, criminal, tort,
contract law, equity
Statute Law: parliament and provincial
government law, can override common law
Administrative Law: government
delegated rule making to tribunals and
boards (APEGBC included)
Tort Law (Civil Wrongs)
Primary Objective: Compensation
Secondary Objective: Deterrence
Basis of Liability: Intention Strict Liability
Negligence
Intentional Torts:
Battery; harmful, offensive contact
Assault: apprehensive threat of
contact
False Imprisonment: complete
confinement
Defamation: false statement to
discredit one
Unintentional Torts:
Strict Liability: if collect something
thats potentially harmful and if thing
escape would cause damage and
mischief, then your fault
Negligence ABC Rule:
Duty of Care
Breach of that Duty of Care
Damage as a Result of the
Breach
Defence:
But for test; think causation or whether
preventive
Contract Law
Elements of a Valid Contract:

Intention to create a legal


relationship
Offer (tit for tat)
Acceptance
Consideration
Capacity
Legality
-A contract may be defined as an agreement
between two or more persons that is
enforceable at law.
-Comes into existence when the parties have
established all of the elements to make it
enforceable.
-Differs from tort law in that the parties are
free to define their own rights and duties, as
between themselves, which the law will then
enforce.
-Offer not biding until accepted; promises
not always enforceable; acceptance must be
communicated as specified and may be
through conduct; gratuitous promise
unenforceable unless binding specified
Professionals are liable both in Torts and
Contracts even if there is no written contract.
Professionals are still liable in Torts and Third
Party Liability:
Proximity
Foreseeability
Employees are exempt from liability,
however, you may be let go if your
actions breach your employment
contract.
Employment Law
Wrongful Dismissal: Is when an employer
dismisses an employee without sufficient
reasonable notice
Dismissal with Cause: Theft, Dishonesty,
Conflict of Interest, Willful Disobedience,
Insubordination, Incompetence, Absenteeism
or Lateness, Intoxication & Sexual
Harassment
Constructive Dismissal: Unilateral change to
the fundamental term of employment
contract, employee must resign and then sue
for wrongful dismissal
Employee Duties:
>General duty of good faith
>Fiduciary duties
>Duty of confidentiality

>Duties may continue after employment


Employment Standards Act:
Sets Minimum terms and conditions of
employment
Deals with: Hours of work, overtime, leaves,
vacations, statutory holidays & severance
Applies to everyone except Professional
Engineers & Union Members
Exemptions from portions of the Act are
Managers, High Technology Professionals &
Other Employees of High Technology
Companies
Labour Relations Code:
Governs the relationship between Employer
and Unions
Oversees: How to Unionize, right to
Unionize, collective bargaining, obligations,
right to strike, lockout & picket, How to
decertify
Human Rights Code:
Protects Employees against Discrimination
Protected Grounds: age/sex/sexual
orientation, race/religion, colour/ethnic
origin, marital/family status, disability,
conviction unrelated to work area
Workers Compensation Act:
Work related injuries and illness
Safety Requirements
Employee Contract:
Duties of Employees
Expectations of an employee in the
organization must be stated. Along with
designation of specific business tasks of a
role, the expectations in terms good faith,
confidentiality, and fiduciary duties must be
stated. This includes disclosure of private
business information, working in the interest
of competing organizations, and promoting
and maintaining good business performance
of the organization in everyday acts.
Detailed standard rights and conditions
Outlining the application of: the Employment
Standards Act, Labour Relations Code,
Human Rights Code and Workers
Compensation Act, to the specific
organization. These include: the wage and
hour terms, union and protest mechanisms,
discrimination rights, and safety and health
regulations, respectively.

Termination Terms
The terms and conditions of termination
should be stated. This includes length of
notice given by the terminating party, and
the cause for termination, such as conflict of
interest, absenteeism, incompetence, theft
and wilful disobedience.
Proprietorship
The structure of the ownership and liability
within the organization should be stated;
whether the organization assumes a sole,
partnership or corporate proprietorship
model. This includes the capital division and
ownership status and options for employees
in the cases of corporate or partnership
structures, which would present shareholder
options and conditions. Also the liability of
business must be stated, in terms of who
assumes monetary and legal risks and losses
in potential scenarios. This implies business
regulations in terms of documentation,
partner succession and promotion
opportunities, trading of shares, accounting
issues, management structures, a expected
lifespan of the organization company and
what exactly the employee is signing up for
in a business context.
Intellectual Property Law
Make sure theres no prior art, novel,
original, etc
If you publicly non-confidential disclose, also
prior art
Patents:
Unique object or process; needs to be new,
inventive (not obvious), and useful;
Exclusive right to make, use, import, and
sell; Canada 20 yr protection, must be filed
within 1 yr of disclosure
Other jurisdictions filing requirement vary
First Apply Rule and must be inventor
Patent infringed if every aspect is copied
Industrial Design:
Protects outwardly, visible features of shape
or ornamentation, not the function
5 years, renewable for another 5 years
US for 14 years, no renewable
Copyright:
Original artwork/writing; protect expression,
not ideas

No need register Canada, exclusive right to


reproduce
Last for the life of the artist or writer, plus
50 years
Trademarks:
Symbol used to distinguish wares or
services
No personal names, place names, product
descriptions, or similarities with existing
trademarks
Optional registration; common law through
use
Trade Secrets:
Business or Technical information kept
secret for competitive advantage; nondisclosure, confidential
Law provides remedies only if someone
unfairly misappropriates your Trade Secret
Aboriginal Law
Aboriginal and Treaty rights are guaranteed
by the Constitution Act, 1982 and includes
the right to hunt, fish, trap & gather for food,
ceremony & social purposes.
First Nation Peoples include: First Nations,
Inuit and Mtis peoples.
Section 91(24) of the Constitution Act gives
legislative authority to the Federal
government; however Provinces and
Territories must consult, accommodate and
compensate the First Nation, Mtis or Inuit
community when taking up the land for
legitimate legislative initiatives.
Environmental Law
Bio-centric Ethics: views all life, not just
humans, as having intrinsic value; i.e. there
is a reverence for life and all individual living
creatures are important.
Eco-centric Ethics: considers ecological
communities, not individual organisms,
trying to preserve the ecological integrity of
whole regions.
Industrial Ecology: studies and tracks
chemical, physical and biological flows and
interactions within industrial systems in an
effort to promote more harmonious and
sustainable systems. Life cycle analysis is an
important tool.

Sustainable Development: considers


social, economic and environmental aspects;
development must not compromise the wellbeing of future generations.

No corporate reporting and tax filings


simpler
All profits to the owner
Partnership:

If an environmental issue arises and


requires remediation, what are the important
steps?
1.Stop all operations surrounding the
incident
2.Quickly analysis the situation
3.Report the incident to your superior
4.Call in a third party to assess the
situation
5.Use third party assessment for
reporting and when authorized
commence remediation action
Business Forms
Sole Proprietorship
Sole proprietorship is an individual carrying
on business in his/her name, or under a
business name
All individuals assets are liable for the
businesss risks.
A sole proprietor can register a business
name, which simply is trade name in
which the said individual is carrying out a
business activity.
Generally Provincial legislation requires that
the name of the business be registered, but
this act does not change the status of the
business.
Sole proprietor must obtain a Business
Licence, and if he or she hires others, they
must comply with related Labour and
Employment Standards legislation.
Sole Proprietorship Disadvantages:
Unlimited Liability
Lack of continuity in business
organization in absence of the owner
Difficulty in raising capital
Sole Proprietorship Advantages:
Set up costs are lower
Greater freedom from Regulation
Owner in direct control of decision
making

Partnerships are governed by a Partnership


Act in each province, and usually require that
the partnership is registered.
It is good business for the Partners to enter
into a Partnership Agreement that sets
down the rules related to contracts, division
of profits, procedures for business decisions,
and most importantly dissolving the
partnership.
Each Partner is jointly liable for all debts
and obligations of the business.
The Partnership must obtain a Business
Licence, and if it hires others, it must
comply with related Labour and Employment
Standards legislation.
Each Partner owes each other a fiduciary
duty.
A fiduciary duty is a special trust that forbid
the partners from entering into separate
competing businesses, from taking profits
solely for personal gain, requires that they
always act in the best interest of the
partnership and to declare conflicts of
interest.
Limited Partnership:
Limited partnerships have one general
partner, and one limited partner. General
partners runs the business, and has
unlimited liability.
Limited partners are liable only for their
cash contribution to the business, and in
some provinces, the profits that they derive
for the business relative to their cash
contribution. Limited Partners cannot actively
participate in the business.
Limited Liability Partnerships:
Limited Liability Partnerships is a
partnership in which the liability of the
partners is limited only to the liability of the
particular partner.
Partnership Disadvantages:
Unlimited liability
Lack of continuity
Divided authority
Difficulty in raising capital
Difficulty in finding suitable partners

Possible development of conflict


between partners
Partnership Advantages:
Ease of formation
Relatively low start-up costs
Additional sources of investment
capital
Possible tax advantages
Limited Regulation
Broader management base

type and number of shares issued, and the


name of the corporation.
A Corporation, as a legal entity, has the
capacity to enter contracts.
A Corporations Directors, Officers or
Employees have the authority to enter into
contracts, in the name of the Corporation;
however this authority is both defined and
limited according to the Corporations ByLaws.

Corporation:

A Corporations value is based on its debt


and equity.
Debt is the Corporations obligations to pay
or render a service to someone else.
Equity is the residual value of a property or
business after deducting mortgage and
liability costs.
Debt Financing usually comes from a Bank.
Equity Investment usually comes from
Shareholders.
Equity comes through the earning of profits.

A corporation is considered to be legal


person, that is capable of carrying out
business.
It is the corporation that is responsible for
all debts and obligations of the business in
question, and this liability does not extend to
the Shareholders, Officers, Directors or
Employees.
Corporations are created pursuant to the
Canada Business Corporations Act, RSC
1985, c.C-44 and related provincial statue.
Corporation Disadvantages:
Closely Regulated
Most expensive to for organization
Charter restrictions
Extensive record keeping necessary
Possible development of conflict
between Shareholders and Executives
Corporation Advantages:
Limited liability
Specialized management
Continuous existence
Separate legal entity
Possible Tax advantage
Easier to raise capital
Corporations are owned by Shareholders, in
proportions to their shareholdings.
The Individual, Partnerships, or Corporation
can be shareholders.
Shareholders vote to elect Directors, and
authorize fundamental changes to the
corporation.
Legal documents such as the Articles of
Incorporation, Memorandum of Association,
or Letters of Patent (depending on the
jurisdiction of where the corporation is
formed) creates the corporation, defines the

A Private Corporation is a corporation in


which all of the shares are held by a small
group of shareholders
In a Private Corporation, the profit/loss of
the corporation does not have to be made
public, only the names of the Directors,
Officers, and Shareholders.
A Public Corporation is one that the shares
are publically traded, generally on the stock
exchange.
A Public Corporation operates under
stringent legislative rules that include public
access to, and the filing of accounting
records.
Corporations Directors, Officers and
Shareholders must observe specific rules
governing their actions.
This includes: Fiduciary Duty, Conflict of
Interest, and Governmental Liabilities, and
abstaining from Insider Trading
Directors and Officers owe a Fiduciary Duty
to the Corporation. The Directors and Officers
cannot operate a separate competing
business or take profits from the corporation
solely for themselves.
They must act in the best interests of the
business, be loyal to the corporation, act
honestly and in good faith, and declare all
conflicts of interest.

These obligations are absolute, and only


owed to the corporation and do not extend to
the Shareholders.
Having said this, in some Provinces, now
permit derivative actions, which are court
actions by the oppressed minority
shareholders against a corporations
Directors and Officers.
Unlawful Insider Trading occurs when
investors use or are provided with privileged,
non-public information to trade on securities
or commodities markets in contravention to
the law.
Insider Trading may include the purchase or
sale of shares prior to the disclosure of a
corporate news release, or may involve the
purchase or sale of shares on the basis of
information that may never be released to
shareholders.
This includes non-public information, or
stock tipping, about a company.
Both civil and criminal penalties are
available for insider trading and stock
tipping, and apply to anyone who
participates in the information exchange.
Dispute Resolution
Capitulation: Giving up and surrendering
Negotiation: Dialogue between two or
more people or parties, intended to reach an
understanding, resolve point of difference
Mediation
An alternate dispute mechanism whereby
the mediator acts as a facilitator assisting
the parties in coming to a mutually agreed
settlement
Informal process
Can be made mandatory by statute
Arbitration
A dispute resolution mechanism, whereby an
independent neutral third party is appointed
to hear and consider the merits of the
dispute, and who renders a final and binding
decision called an award.
Less formal than Court
Process is by agreement
Limited appeal to Court
Litigation: Taking legal court action
Administrative Tribunal

Trial Court: Small Claims under $25,000 and


Superior Court over $25,000
Court of Appeal
Supreme Court of Canada
Federal Courts:
Federal Court
Federal Court of Appeal
Supreme Court of Canada
Ethics
Ethics is concerned with
right and wrong behaviour
how to organize social institutions in a way
that respects people, animals and other
valuable things
Ethics deals with moral choices made by
people in dealing with other people, related
to right and wrong, good and evil, justice,
rights and obligations.
Four Practical Philosophical Theories:
Aristotle: Actions are right if they support
good character traits (Virtues). Adopt golden
mean between extremes.
Locke: Each person has Rights which need
to be respected.
Kant: Every person must discharge Duties
or universal obligations and rules of conduct.
For example, it is a duty to be good and to be
honest.
Mill: Utilitarianism, governed by the
maximum benefit for the greatest number of
people. In particular, maximize happiness
(sort of cost-benefit analysis.)
Conflict of Interest:
Personal benefit: The person or family
members could benefit financially or
personally.
Moonlighting: Working simultaneously for
other employer/ cause, interferes with
primary employment.
Sharing confidential information with
competitors or a 3rd party.
Misusing employers property or
services for personal activities or causes.
Arranging future employment which
competes with current employer.
Accepting secret commissions or gifts.
Doing something to improve your
reputation, with no value, or a negative
value, to your employer or society.

Doing something to support other


organization, e.g. a religious/political
organization, to which you adhere.
Categories of Conflict of Interest:
Actual: You currently have a conflict.
Apparent: You may be perceived to be in
conflict by others, even if, in your opinion,
you are not.
Potential: If some things (which are quite
possible or even probable and may be
beyond your control) happen, you would be
in conflict.
If you see a Conflict coming:
Try to avoid it. Disclose to all concerned.
Recuse/excuse yourself.

Key facts from Rick Van Lee case


-van Lee, 63, was accused by employers,
Asia Pacific Resources International Limited
(APRIL), for illegal copying of sensitive
company information.
According to Inkiri-wang, van Lee's lawyer:
- van Lee and wife had car confiscated and
were placed under house arrest for 6 weeks,
guarded by APRIL's private security staff in
the company's residential compound.
Detained because he didn't want to sign a
new contract, prefer to take a job with a
competitor

Whistle blowing:
The matter in question must be important.
Failure to act could result in harm to people
and/or environment.
The whistleblower must have clear firsthand knowledge of the infraction(s) (not
hearsay), as well as relevant expertise.
All other actions within the power of the
employee should be exhausted before
blowing the whistle.
All normal avenues of communication
should be pursued before seeking help
outside the organization.
Internal: Employee goes over the head of
the immediate supervisor, e.g. to the
company CEO or Board of Directors.
External: Employee reports the perceived
wrong-doing to a newspaper, a well-known
expert in the field, or a law-enforcement
body.

-van Lee was transferred into the custody of


Indonesian authorities and charged based on
an Indonesian criminal law that prohibits
stealing or altering electronic documents
belonging to others.

Whistle-blowing - employee fights what


he/she perceives as an unsafe, harmful,
unethical or illegal situation by informing
management or someone outside the
organization (e.g. government agency,
newspaper). The action is usually taken
reluctantly and with as little publicity as
possible in an effort to right wrongs and
improve the organization. The whistle-blower
is fulfilling his/her duty to safeguard the
public, and exercising the right to disclose
wrongdoing.
Whistle-blower may be fired (wrongful
dismissal in B.C.), punished, or life in the
company made miserable.

APRIL denies preventing the couple from


leaving the compound or meeting with his
lawyers. van Lee collaborated illegally with a
competitor; found evidence of several
months' worth of collaboration with a direct
competitor. Discovery triggered an internal
company investigation, which led APRIL to
involve the police.

- Lack of evidence; police never performed


digital forensics on van Lee's computer, and
evidence contained on van Lee's laptop and
external storage devices may not have been
handled properly by investigators. Evidence
should be confiscated from the person that
owns it, not from company
-improper court conduct; judges act as if
they are public prosecutors, took part in
questioning witnesses directly

Van Lee suffered a minor stroke and lost 45


lbs while in custody. If convicted, up to 8 yrs
in Indonesian prison.

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