The University of Western Ontario

ES 4498G
Engineering Ethics,
Sustainable Development and
the Law
March 1, 2010

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Last Class
Introduction to the Canadian legal system
Business organization
Tort law

Principles
Development and precedents
Products liability
Other torts

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Todays Class
Tort law

Limitation periods
Burden of proof
The engineer as expert witness
Writing law exams
Tort law case studies

Contract law
Basic elements
Unenforceable contracts

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Tort Law
Definition of tort
A private or civil wrong or injury other than breach of
contract for which a court of law will afford a remedy in the
form of an action for damages (William Prosser)

Fundamental purpose of tort law is to compensate

victims of torts, not to punish negligent wrongdoers.
Basis for tort liability:
a)The defendant owed the plaintiff a duty of care,
b)The defendant breached that duty by his or her conduct, and
c)The defendants conduct caused the injury to the plaintiff

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Limitation Periods

Actions for tort and breach of contract must be

commenced within a prescribed period of time after
the time the cause of action arose
Purpose is to balance rights of plaintiff and
defendant:

Certainty rationale potential defendants should be secure

in knowing they will not be sued after a period of time
Evidence rationale claims should not be brought based
on stale evidence
Diligence rationale plaintiffs should be encouraged to
bring claims in a timely fashion
Fairness to plaintiff requires that they should not be
statute-barred from bringing a claim before they are aware
of its existence

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Development of Limitation Periods

Tort actions

Contract actions

Based on common law, six years after cause of

action arose
Basic 6 years
Under seal 20 years
Modified limitations typically specified in contract

Professional Engineers Act

12 months after service performed

Above has been superseded by Ontario Limitations Act 2002 and

2006 revisions

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Discoverability

Question becomes: when does limitation period begin?, i.e.

when does the cause of action arise?
1976

Sparham Souter (English Court of Appeals)

Cause of action accrues when the damage caused by the negligent act is
suffered by the plaintiff and that cannot be before that damage is first
detected, or could by the exercise of reasonable skill or diligence have
been detected

1981

1982

Robert Simpson (after appeal), Viscount Machine confirmed Sparham

Souter in Ontario.
English House of Lords overruled Sparham Souter in Pirelli

1984

Supreme Court of Canada decides not to follow Pirelli, but to

confirm the application of Sparham Souter in Canada

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Ontario Limitations Act, 2002

Effective January 1, 2004

Basic two-year limitation period

Runs from the date the claim is discovered

Applicable to tort or contract claims and replaces 12-month
period specified in Professional Engineers Act
A claim is discovered on the day when the plaintiff first
knew or reasonably should have known:

(i) that the injury, loss or damage occurred;

(ii) that the injury, loss or damage was caused by or
contributed to by an act or omission;
(iii) that the act or omission was that of the person against
whom the claim is made; and
(iv) that, having regard to the nature of the injury, loss or
damage, a proceeding would be an appropriate means to
seek to remedy it.

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Ontario Limitations Act, 2002

Ultimate fifteen-year limitation period

Runs from the date that the act or omission on which the
claim is based took place.
Therefore, even claims that may not have been discovered
(and still not barred under the basic two-year limitation
period) may still be barred by this ultimate limitation period

No Contracting Out

Unlike former limitation periods, the Act states that the new
limitation periods apply despite any agreement to vary or
exclude them.
Even if parties to a contract agree to exclude or change the
limitation periods that will apply between them, the Act's
limitation period will take precedence.

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2006 Amendments

Contracting Out

Parties to business agreements are now entitled

to agree upon different limitation periods
Can extend or shorten basic 2-yr period, can
shorten or extend ultimate 15-yr period
Obviously, where no contract exists (i.e. tort
cases), limitation periods cannot be changed

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Burden of Proof

Civil proceedings (tort or contract):

Criminal proceedings

balance of probabilities
More probable than not
beyond a reasonable doubt
reasonable person (judge or jury) would not
have a doubt

E.g. O.J. Simpson

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The Engineer as Expert Witness

Engineering is practiced in an increasingly

litigious environment
Engineers have special knowledge which
is often relied upon in court proceedings
Legal and ethical implications potentially
serious PEO developed Guideline to
inform engineers about their obligations,
conduct and potential consequences.
www.peo.on.ca/publications/Guidelines/PEng.AsAnExpertWitness.pdf

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The Engineer as Expert Witness

Types of Appearances:

Examination for Discovery

Interrogatory
Courts of Law
Public Tribunals
Judicial Enquiries
Royal Commissions
Coroners Inquests
Arbitrations
Professional Disciplinary Hearings
Appeal Hearings
Amicus Curiae

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The Engineer as Expert Witness

Accepting an Assignment

Ethical Considerations
Competence
Conflict of Interest
Conditions
Restrictions
Confidentiality
Agreement and Fees

Conducting Investigations and Field Work

Degree of Thoroughness
Data to be Obtained
Documentation
Access

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The Engineer as Expert Witness

Defining the Problem

Testing
Analysis
Formulating Conclusions
Preservation of Evidence
Reports
Giving of Evidence

Preparation for the Appearance

Dress and Behaviour
What to Expect in the Courtroom
Procedures and Rules

Conduct Under Examination

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Writing Law Exams

Professional Practice Exam (PPE)
Part A Professional Practice and Ethics
Part B Engineering Law and Professional
Liability

Final exam in this class

Learn fundamental legal principles and
apply them to factual situations

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Writing Law Exams

1) The Facts

Read carefully, but do not restate

Diagram to illustrate relationships may be helpful
Do not assume additional facts not given in the question

2) Give Reasons

Communicate your understanding of relevant legal principles

State relevant principles first
Discuss approach court would take
Apply principles to facts identified in 1) and come to a
reasonable conclusion
Possibility for more than one correct answer

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Writing Law Exams

3) Format

Length and format is up to you

Point form usually acceptable
Effective communication is key

4) References

Not absolutely necessary, but a good added embellishment if

possible
Some key cases may be useful to know and apply where
applicable

5) Focus on Chapters 1, 2, 4-24, 28, 30, 32, 33, 36

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Example
Steve Moore Todd Bertuzzi case

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Example
Steve Moore Todd Bertuzzi case

Tort requirements
Vicarious liability
Limitation period
Monetary damages
Location
What do you think the likely outcome will be?

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Example Tort Case Study

Case 1 Pg. 65 of Marston Text (4th Ed.)
Manufacturing company retained architect to design a
new plant
Architect retained structural engineer
Structural engineer designed steel frame structure
After plant opened, cracks developed and floor had to
be replaced
Consultant hired to redesign floor found serious
deficiencies in original design
What potential liabilities in tort law arise?

Example answer provided

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Contract Law
An important branch of law for engineers
Contracts are agreements that specify the rights and
obligations promised by each contracting party
The courts will enforce the provisions of a valid
contract and may void an invalid contract, but will not
act to impose more favourable terms
Contracts do not prevent bad business deals trust
and risk management are important
Contractual benefits (rights) are assignable

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Five Essential Elements

For a binding and enforceable contract:
1. Offer made and accepted
2. Mutual intent to enter into the contract
3. Consideration
4. Capacity to contract
5. Lawful purpose

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1. Offer and Acceptance

An offer is a promise made by the offeror to the offeree
Offer need not be in writing
Preferable for enforcement reasons

Withdrawal
Offer may be withdrawn by offeror before being accepted by
offeree, unless irrevocable.
Offer will lapse if not accepted after a reasonable length of
time

Acceptance
Must be clearly communicated
An acceptance which includes variations in the terms
constitutes a counteroffer and does not form a contract

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1. Offer and Acceptance

Irrevocable offers

Stated time limit during which offer cannot be

revoked
Common in construction tendering, etc.

Option contract

Another method of keeping offers open

Something of value (nominal payment) given in
exchange for right to accept offer at any time
Common in mining industry, property
development

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1. Offer and Acceptance

Timing

Governing law

Means of communication can be specified in contract and affects

timing issues
Mail acceptance effected when posted
Other acceptance effected when actually received by offeror
Revocation only effective when offeree actually receives notice of
revocation can create complications
Example
Law of location where offer is accepted applies
Better to specify clearly in contract

Terms and conditions

An acceptance that does not accept the terms and conditions

set out in the offer is actually a counter-offer
Important to not overlook fine print

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2. Intent

Both parties must mutually intend to enter

into the contract under the specific terms
Important to communicate effectively
Letters of intent

Express interest in proceeding

Agreements to agree
Not enforceable contracts
Consult a lawyer to ensure letter of intent is not
in fact a contract

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3. Consideration

The cause, motive, price or impelling influence that

induces a contracting party to enter into a contract
Something of value that is exchanged by contracting
parties (money, promises that represent value)
Adequacy not important
In place of consideration, a contract may be made
under seal (e.g. tendering)

Note: this seal is different from the Engineers seal

Without consideration or seal, an offer is a gratuitous

promise and not enforceable

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3. Consideration
Equitable Estoppel
Even though no legal requirement to fulfill gratuitous
promises, there is a moral obligation
In cases where a gratuitous promise is relied upon
and subsequently revoked to the detriment of the
party that relied upon it, there may be equitable
reasons for the court to enforce the gratuitous
promise
Depends strongly on the facts of the particular case
Example

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4. Capacity
All parties must have the necessary legal capacity to
contract
Minors

Contract enforceable by minor but unenforceable by other party

(unless necessary)
Contract can be ratified by minor upon reaching age of majority

Drunks and Lunatics

Unenforceable provided sober party is aware of the insobriety

or lunacy and the incapacitated party repudiates the contract
within a reasonable period of time

Corporations

Must be within powers of contracting corporation to carry out

obligations use caution

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5. Legality
Contract is unenforceable if the purpose is
unlawful
Contrary to statute law

Unlicensed practice
Bankruptcy Act
Workers Compensation Act
Competition Act

Contrary to common law

Non-competition agreements
Example

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Statute of Frauds
In general, contracts need not be in writing to be enforceable
(although advisable)
Statute of Frauds (provincial) stipulates that certain types of
contracts must be in writing to be enforceable
Sale of land
Agreements that are not to be performed within a year
E.g. some construction contracts
Guarantees of indebtedness
Indemnification need not be in writing (but probably a good idea)

Although a contract may be unenforceable under the Statute of

Frauds, it will not be treated as void (e.g. cannot retain deposit
cheque for verbal sale of land agreement)
Obviously, written is preferred

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Unenforceable Contracts

In addition to Statute of Frauds, there are

other situations that may result in
unenforceable contracts

Misrepresentation
Duress
Undue influence
Mistake

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Misrepresentation
A false statement or assertion of fact
Innocent misrepresentation
A false statement made by a party unaware that the
statement is false
Remedied by rescission of the contract
Deceived party must repudiate the contract within a
reasonable period of time and may claim damages for
costs associated with entering into the contract

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Misrepresentation
Fraudulent misrepresentation
A false statement made knowingly or without
belief in its truth or recklessly, careless whether it
be true or false
Deceived party is entitled to rescind the contract
and to claim compensation for reasonable costs.
They can also sue for damages for deceit
May also be liable in tort

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Duress and Undue Influence

Duress
Intimidation used to induce a party to enter into a
contract
Threatened or actual violence or imprisonment
Economic duress possible
Results in contract being voidable

Undue Influence
Similar to duress, but less drastic
One party has an unfair dominance over the other
Rare in business, often involves related parties

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Next Class
Topics
More Contract Law

Readings
Marston, Chapters 15 22, 30, Appendix