Midterm Assignment ADMS 2610 C Sebastian Bunescu #207 432 768 November 2, 2010.

Question 1
a. There are several issues to be considered in this case. First of all, the retirement policy is that of the university, which means that The Canadian Charter of Rights and Freedoms does not apply directly. The professor needs to find a law that either allows the University to have such a policy, in which case he can challenge that law through a Charter action, or find a law that forbids mandatory retirement policies, and use it to sue the University. The reason for this is that the Charter of Rights is meant to protect individual rights and freedoms from unreasonable restriction or interference by the government or persons acting on its behalf1. Since the University is not part of the government, and its retirement policy is not a law, professor Dobson should look for Human Rights laws and challenge the university on civil grounds. b. His argument would be that the mandatory retirement policy violates his right to life, liberty and security of person, as delineated in s. 7 of the Charter. By enforcing mandatory retirement, the policy takes away his right to work, which is an integral part of life, his freedom to choose how to live his life, and takes away his means for supporting himself financially. The policy also violates s. 15 of the Charter, which guarantees equal treatment before the law, without discrimination, and explicitly cites age discrimination as an offense. The university would most likely answer by citing s.1 of the Charter, and arguing that the reasonable limit in this case is that people over the age of 65 are not fit for work anymore, and try to convince the Court that such a policy is socially desirable. Question 2 a. Marsden should sue Bashetts Wrecking Co. , the company working on the premises. She had her car damaged due to the negligence of the companys employees. It is the companys fault because they did not train or warm the employee on site on how to deal with the environment around him. b. If she is successful, she will execute judgement against the company. This is permitted and reasonable because of the concept of vicarious liability, according to which, an employer is usually held liable for the torts of the employees, as long as the torts are committed during work hours. One of the reasons for this line of thinking is that employees usually do not have means to compensate for the damages they may create by doing their work. Secondly, they are not acting on behalf of their own interests, therefore they should not be responsible for their mistakes, unless they are proven to have had Mens rea. The modern concept of insurance is primarily responsible for the notion that what is essentially a social loss should be distributed amongst those more able to bear it, which in this case means that employers will be accountable for their employees actions. Question 3 The issue at stake here is whether or not Darren affects the public image of Gucci by selling his knockoffs. Even though he admits to selling imitation Guccis, it is important to know what the product is branded, because if the consumer goes home with a pair of Gucci boots, although he may be aware they are imitations, the product will still be seen worn by countless of people and Guccis image will be affected. Since it is never the case that such knockoffs will be branded imitation Guccis, since they would never sell, Gucci can sue Darren under the Trademarks Act , s.19 , which states that throughout Canada, trademark owners have exclusive rights to produce products or perform services under their

Textbook, p19.

mark. That exclusivity is what renders Darrens actions illegal, regardless of how upfront he is towards his customers about the nature of the product. Question 4 Under the law of contract, the following requirements must be met before a contract is enforceable by the courts: The intention to create a legal relationship Offer, Acceptance, Consideration, Capacity to contract, Legality. These requirements must be considered in that particular order, and each step has its minutiae. For example, an offer may lapse or be withdrawn before acceptance is made, in which case the creation of the contract is stopped. Consideration must be legal and have some value in the eyes of the law, and must move from the promisee to the promisor. Regarding Capacity to contract and legality, the contract has to have a legal purpose in order to be enforceable. Any contract that has an illegal purpose is not binding, and the parties entering into the contract can be held accountable for doing so. Another type of contract that is unenforceable is a void contract, which violates statutory law. Such contracts do not carry any criminal implications, however, they will not be enforced by the courts. Furthermore, both parties have to be of legal age of majority. Canadian law protects infants, which by Common Law is defined as people under the age of 21, by giving them a limited liability when entering into contracts, and allowing them to repudiate many contracts that deal with non-necessary, or luxury goods and services. On the same note, if a party is drunk or mentally incapacitated, the court will only hold them accountable for entering contracts for necessary goods, but protect them from the un-necessary goods purchase decisions they may have made and allow them to repudiate on the persons return to sanity or sobriety. Bankruptcy is another factor. A bankrupt person must declare their state, and if done so, can repudiate contracts over $500 for non-necessaries, as the vendor should not have entered into such an agreement knowingly. Contracts in restraint of trade are Prima facie considered void, unless it can be shown that the restraint is both reasonable and necessary and does not affect the public good. Contracts could be either formal or informal. Formal contracts must be signed, sealed and delivered before becoming operative, and thus binding. The Statute of frauds was the act that initially imposed writing for informal contracts dealing with: land, a promise by an executor or administrator to settle a claim out of his or her own personal estate, a guarantee agreement, or, in some provinces, any contract that takes longer than a year to perform. Such contracts are not enforceable if not written, however they are not void either, and any payments or deposits made can be recovered. The most prominent counter measure to the Statute was the doctrine of part performance, where an unwritten agreement concerning land could be enforced if certain criteria were met, on the basis of equity.

Question 5 Although this is an all-sales-final purchase, the fact that the coffee maker cannot perform the very thing it was sold to do, is considered a fundamental breach of contract. It cannot perform a fundamental term of the contract, and the courts would not allow the store to hide behind the all sales final clause to avoid liability. Question 6 First of all, Randy violated the Statute of Frauds requiring written contracts concerning the sale of land. However according to the doctrine of part performance, a. Randy building a cabin on the land he had verbally agreed to buy is something he had not otherwise done on any other land, unless it was under his ownership. b. The building of the cabin required Randys financial and human resources, and to enforce the statute would perpetrate a fraud and a hardship against Randy. c. The nature of the agreement between Randy and Bob clearly relates to an interest in land. d. The agreement is valid and enforceable apart from the requirement of writing, and Randys companion would be able to provide the verbal evidence required to establish the existence of this agreement. Bob would not be able to build a defence around the doctrine of part performance. All conditions are met for Randy to be considered the rightful owner of the land. Question 7 First of all, Peter should prove the fact that he never entered into a contract with neither ABC advertising Co., nor Waterski Summer Camps Inc. . This should not be hard, since their negotiations never came close to an agreement. Peters argument should focus on the fact that since he uses that photograph for his own promotional activities, it has become his trademark. By using a strikingly similar live drawing stylisation, ABC Advertising Co. implicitly associates Waterski Summer Camps with Peter, and helps them benefit from the image that he created of himself with his own advertisement resources. This is because people now associate that picture of Peter with professional waterskiing, and consumers will respond to an advertisement using a similar picture thinking the Summer Camp itself is associated with producing high performance athletes. Peter should therefore be entitled to financial remuneration from Waterski Summer camps, since they are benefiting from the image he had already created for himself using that photograph. This would not be the case if any other, non-commercialized photograph of himself would be used that is part of the public domain. Secondly, Peter needs to protect himself from possible lawsuits of fraudulent misrepresentation that Waterski Summer Camps Inc. may be liable for in the future. Since an explicit contract has not been drafted outlining a clear relationship of advertisement between Peter and Waterski Summer Camps, if the Summer Camp gets sued by their customers for fraudulent misrepresentation of their relationship with Peter, and at the same time Peter is aware of their using his image to market their services, he could be sued for vicarious liability. On the other hand, if there was an explicit agreement between them, then he would be covered, and it would be up to Waterski Summer Camps to inform its customers that they are only using his image for advertising purposes only. Question 8 Holt would claim that this is a case of fraudulent misrepresentation. However, while it certainly a case of misrepresentation, its fraudulence or innocence has to be determined in court. Holt based her buying decision on her question of whether the book was on display at the public library. MacPherson, knowing that he sent both of his books to the public library and both were on display, answered affirmatively to

Holts question. This factual statement is material to this contract as it deals with the identity of the subject matter. The failure of MacPherson to specify that he had two books on display and to make sure Holt is referring to the right one has to be decided upon as being either fraudulent or innocent. First of all, he does make it clear that the book is not in top shape. However, these words are open to interpretation. Does not in top shape mean that it is not in excellent shape, but still rather good? In that case one might believe that the misrepresentation was intentional, therefore fraudulent, and that belief would be supported by MacPhersons unwillingness to undo the transaction. However, this line of argument would be challenged by the order of conversation between Holt and MacPherson. When Holt asked whether MacPherson had a copy of Canterbury Tales, and MacPherson answered affirmatively but admitted that it was not in top shape, MacPherson had already created in his mind the image of the book he wanted to sell. For him, there was no ambiguity, for he only had one book for sale, the one in poor condition. Therefore, when Holt asked him whether the book was on display at the library, Holt answered without considering the Holt might have seen both of them and was referring to the better quality one. In this case, the court would have to use the imaginary reasonable person to determine if MacPherson should have foreseen Holts problem and asked him which book he is referring to. If the court rules that a reasonable person should have foreseen this ambiguity, then it will be ruled that this is a case of misrepresentation by non-disclosure, where partial disclosure of the facts has the effect of rendering the part disclosed as false2. If a reasonable person would not be expected to foresee this ambiguity, then it will be ruled as a case of innocent misrepresentation. Another ambiguity in this case is the real value of the book. Should it appear unusual to MacPherson that Holt would offer for his bad condition book a value more appropriate for his book in excellent condition (if that is the case)? This would be tough to decide in court, since they are dealing with rare books, the values of which are very subjective. Regardless of the type of misrepresentation this case would be ruled to be, the outcome would still be a rescission. Holt would get her money back, and the book would be returned to MacPherson. However, MacPherson might be held liable for the tort of deceit, and suffer punitive damages. In my opinion, it would be hard to prove that MacPherson actively deceived Holt into buying the old book. It would be far easier to prove that the reasonable person is in fact capable of overlooking the ambiguity in question in this case, than it is to prove that it should have been able to realize it. I conclude that the outcome of this case would be a verdict of innocent misrepresentation, followed by a rescission.

Textbook, p.206, Misrepresentation by Non-Disclosure.