Chapter 1

 Client Privilege – refers to the duty of the lawyer to keep the information provided by the client
confidential.
 Contingency fee – agreement which is often appropriate in personal injury claims or product
liability case.
 Disbursement – include cost such as the court fees for filing documents, long distance
telephone charges, courier charges, fee charged by an expert for testifying or preparing a report,
and photocopying costs.
 Financial eligibility = meet eligibility guidelines based on applicant’s net income (may be
entitled to full coverage or coverage on condition payments are made to LAA)
 Fixed Fee – often used for specific tasked such as preparing a will, purchasing a house, or
incorporating a business.
 Lawyer – may receives a percentage of the amount the client collects, either through a
settlement or a court judgement. (If the client does not collect anything, then the lawyer does
not receive anything.)
 Lawyer May Bill – the client for all of the time spend on working – hourly rate.
 Legal Aid – a non profit organization, independent that provides legal aid for people with low
incomes.
 Retainer - a deposit which is put in lawyer’s trust account and applied towards your costs
 Senior Lawyer – higher hourly rate
 Service eligibility = issue or problem involves criminal, family or immigration law (e.g.: a serious
criminal charge where there is a strong likelihood of job loss or jail time and other matters such
as child support, child welfare, guardianship)
 Solicitor Client Privilege – privilege is therefore fundamental to our legal system, since without
it, access to justice would be significantly reduced.
 Sophisticated Client – understands the role of the lawyer and of the client, when to act without
a lawyers assistance, how to hire a lawyer, cost of hiring a lawyer, what can be done without a
complaint regarding a lawyer, how to access legal information and conduct preliminary legal
research (value in being able to get information but exercise caution); information leads to good
business decisions which leads to success.
 Chapter 2

(e.g. labour relations boards, workers compensation boards, etc.)

 Canon or church law – contributed law in relation to families and estates.
 CIVIL LAW - French tradition – a variation of the Napoleonic Code (derived from the Code
created by Roman Emperor Justinian) is used in Quebec. ONLY applicable in Quebec for PRIVATE
law matters. (A judge may look to an earlier decision to see if he/she will be influenced by it but
he/she does not have to decide the case before him/her in the same way)
 Civil Law Legal System - used in Quebec for private matters. this system is distinct from civil
court, civil action and civil law (terms used in the common law legal system for private law
matters)
 COMMON LAW - English tradition (travelling royal courts enforced customs and traditions of
“common” people in the “common law courts”). Judges apply common law, as well as equitable
principles in the common law legal system; equitable principles were developed in the Court of
Equity. The Court of Equity: addressed matters that could not fairly be handled by the common
law courts was not bound by precedent - therefore, had more flexibility that the common law
courts – but, the decisions appeared arbitrary created principles – known as the Law of Equity

merged with the common law courts (late 1800s - England and Canada) Use: Applicable in
Quebec for PUBLIC law matters. Used everywhere else in Canada for PUBLIC and PRIVATE law
matters. No list of rules/central code Instead, judge considers matter in conjunction with
previous decisions “stare decisis” = following precedent (provides predictability)
 Common Law Legal System - used in Quebec for public matters and used everywhere else in
Canada for private and public matters
 Court of Chancery/Equity – King delegate the responsibility to the chancellor who in turn
appointed several vice chancellors.
 Executive - Federal: Prime Minister; Cabinet Ministers; Government departments, agencies,
boards commissions and employees Provincial: Premier; Cabinet Ministers; Government
departments, agencies, boards commissions and employees
 Government made law - Statutes/Legislation -Subordinate legislation
 Judge made law or case law - Principles of common law or equity - Interpretation and
application of government made law
 Judicial - Federally and provincially appointed judges
 Judicial branch – Organization such as the RCMP, the employment insurance commission, and
the military are part of the executive branch government.
 Law – The body of rules That can be enforced by the Courts or other governmental agencies
 Law Merchant – trading between nations was performed by merchants who were members of
guilds.
 Legislative - Federal: Parliament Provincial: Legislative Assemblies (e.g. Legislative Assembly of
Alberta) Legislation (statutes) Includes such words as “Act” and “Code” as part. Sets out
restrictions- example follows Often provides authority for creation of regulations (a form of
subordinate legislation)
 Legislative branch – consists of parliament which creates legislation or stature law as do each of
the provincial legislature.
 Parliamentary Supremacy – case law and statute law conflict, statutes being Parliament’s
creation)
 Private law – rules that govern our personal, social, and business relations. Contract law and
tort law. (Laws that deal with relationships between individuals. Sets rules between individuals
and settles disputes among groups of people involving personal, social and business relations.
For example: tort law is private law an individual who commits a tort (e.g. backs up and
damages a neighbor’s garage) commits a wrong against an individual. Other examples of private
law: insurance law, contract law, employment law)
 Procedural Law – how the substantive law will be enforced.
 Provincial Second Reading – Bill is debated. After approval it may go to committee of the whole
for review and amendment. (Committee of the whole must approve all bills)
 Provincial First Reading – Bill is introduced in the legislative assembly
 Provincial Third Reading – Final debate, vote held.
 Public law – includes constitutional law which determines how the country is governed and laws
that affect individuals relationships with government. Criminal law and regulations created.
(Laws that affect the public as a whole, Sets rules for relationships between individuals and
society. For example: criminal law is public law an individual who commits a crime (e.g.
someone steals a car) commits a wrong against society. Another example of public law:
constitutional law )
 Roman Civil Law – gave us our concepts of property and possession.
 Section 1 “reasonable limits” - Charter rights and freedoms are not absolute reasonable limits
can be placed on them, provided these limitations meet the test set out in section 1 courts can
uphold a law, even though it may violate a right or freedom, so as to avoid an unreasonable
result (e.g. Reference re Section 293 of the Criminal Code of Canada)
 Section 32 “government only” - restricts operation of the Charter to government and
government related activities such activities may include legislation and subordinate legislation;
actions of government employees such as the police and military; and institutions acting as an
arm of the government
 Section 33 “notwithstanding clause” - governments can pass laws that infringe on fundamental
freedoms (s. 2), legal rights (ss. 7-14) and equality rights (s. 15), “notwithstanding” the Charter
but legislation must state this and be re-examined every 5 years not often used because of
potential for backlash
 Stare Decisis – gradually a system of justice developed in which the judges were required to
follow each others decisions.
 Substantive law – not only the rights an individual has in society but also the limits on his or her
conduct.

Chapter 3

 Supreme Court of Canada - the highest court in Canada which is governed by the Supreme Court
Act
 Federal Court of Appeal - an appeal court hearing appeals from the lower federal courts (and
from federal regulatory bodies and administrative tribunals) (see Federal Courts Act)
 Federal Court - a trial court hearing disputes that fall within the federal sphere of power (e.g.
copyrights, patents, federal government lands, money or contracts, appeals from federal
regulatory bodies and administrative tribunals) (see Federal Courts Act)
 Tax Court of Canada - a trial court hearing disputes concerning federal tax matters (Tax Court of
Canada Act
 general rule - within 2 years of discovering the injury (discovery principle) or within 10 years
from the date when the claim arose (the “ultimate period rule”) whichever period expires first
 2 years of discovering - When is the injury discovered? When claimant knew or ought to have
known:- injury occurred (e.g. personal injury, property damage, economic loss); - injury the
result of the defendant’s conduct; and,- injury justifies a proceeding.
 10 years from the date when the claim arose - When did the claim arise? When a particular
conduct or act occurred, NOT when the injury or damage might have been discovered - May be
suspended if Defendant fraudulently conceals an injury from the Plaintiff

 Alberta’s court hierarchy - The Provincial Court of Alberta, the Court of Queen’s Bench
of Alberta, the Court of Appeal of Alberta and the Supreme Court of Canada  Supreme
Court of Canada - The highest ranked court in Canada’s judicial system
 Common law legal system - A legal system based on the principle of stare decisis
  private law - The law that governs the personal, social and business relationships that
individuals have with one another (hint: a category of law relevant to Canada’s legal
systems
 subordinate legislation - Legislation created by the executive, rather than the legislative, branch
of government (e.g. a regulation such as the Alberta Business Corporations Regulation)
 legislative branch - The branch of government responsible for creating statutes
 law – The body of rules that can be enforced by the courts or other government agencies (e.g.
“ABCs”.
 Legislation - The written rules that the Parliament of Canada and the legislative assemblies of
the provinces and the territories enact (i.e. pass)
 Constitution Act, 1982 - The Canadian Charter of Rights and Freedoms forms part of this
constitutional document
 public law - The law which determines how our country is governed (i.e. constitutional law) and
the law that affects an individual’s relationship with government (e.g. criminal law) (hint: a
category of law relevant to Canada’s legal systems)
 executive branch - The branch of government responsible for administering and carrying out the
purposes of legislation, e.g. through subordinate legislation
 parliamentary supremacy - The principle which holds that the Parliament of Canada, and the
legislative assemblies of the provinces and the territories, are the primary law-making bodies in
Canada and that the statutes they create take priority over judge-made law (i.e. the common
law and the law of equity)
 . judicial branch - The branch of government responsible for interpreting and applying
legislation, subordinate legislation, the common law and the law of equity and for creating new
judgemade law
 stare decisis - A Latin phrase which means “to follow precedent”. Lower courts in common law
legal systems must follow the decisions (i.e. precedents) that higher courts have made (if in
same court hierarchy and facts similar)
 civil law legal system - A legal system based on a central code (i.e. a civil code) which contains a
list of broad principles of law that judges are required to interpret and apply to the cases that
come before them
 ultra vires - This is what a court will declare a piece of legislation to be if it goes beyond the
powers given to the government which passed it
 Constitution Act, 1867 - The division of law making powers between federal and provincial
governments can be found in this constitutional document
 notwithstanding clause - Certain rights and freedoms guaranteed under the Canadian Charter of
Rights and Freedoms may be overridden by the government through the use of this clause
 Canadian Charter of Rights and Freedoms - The document, which forms part of Canada’s
constitution, that offers protection to certain rights and freedoms as against government
intrusion or interference
 Justin Trudeau - Canada’s Prime Minister – a member of the executive branch of government
federally
 Jason Kenney - Alberta’s Premier – a member of the executive branch of government
provincially
 CanLII - A legal link where one can find access, among other things, to government made and
judge made law, both at the federal and provincial level.

Chapter 6

 SPIN selling: Methodology that lays out a basic sequence of four questions for customer
interactions: Situational questions, Problem questions, Implication questions, and Need-payoff
questions.
 Situational questions: In SPIN selling, questions designed to help the salesperson better
understand the situation the customer is currently facing.
 Problem questions: In SPIN selling, questions designed to help the customer and salesperson
identify issues, sometimes latent, that need to be addressed.
 Implication questions: In SPIN selling, questions designed to help the customer and salesperson
better understand the consequences arising from the problems uncovered in situational and
problem questioning.
 Need-payoff questions: In SPIN selling, questions designed to help the customer and
salesperson better understand the benefits available to the firm if the customer’s problem no
longer existed.
 Implied needs: Needs known to the customer but not important enough to merit action.
 Explicit needs: Needs that require immediate attention.
 Open-ended questions: Questions designed to ensure that customers respond with a great deal
of information and detail.
 Closed questions: Questions that are specific in nature and so require short and direct
responses—often just a yes or no.
 Active listening: Listening that occurs when the salesperson is fully engaged with the customer,
paying careful attention to all verbal and nonverbal cues and providing appropriate responses
 Passive listening: One-way communication in which the salesperson receives the information
without providing feedback.
 Follow-up questions: Questions asked in direct response to something the customer said.
 Summary questions: Questions designed to review and verify information previously provided
by the customer.
 Adaptors: Problem-solvers who prefer more-structured problem-solving methods and are most
comfortable when everyone is in agreement about the process and the solution.
 Innovators: Problem-solvers who are at ease with a less-structured problem-solving approach
and who tend to look beyond the status quo for solutions.
 Gaining commitment: The portion of the sales call in which the customer commits to the sale.
 Primary objective: What the salesperson most wants to accomplish in the sales call.
 Secondary objective: The objective to which the salesperson is willing to revert if agreement
cannot be reached on the primary objective.
 Buying signals: Cues sent by the customer indicating a shift in thinking from if we should do this
to how we should do this.
 Summary-benefit approach: Approach to gaining commitment in which the salesperson focuses
on the benefits being provided to the customer, rather than the features of the product or
service itself.
 Trial-close question : Question designed to assess whether the customer has comments or
concerns about the salesperson’s summary.
 Alternative-choice technique: Commitment-gaining technique in which the salesperson
provides two legitimate options for the customer to choose between, along with guidance about
which is more appropriate.
 Balance-sheet technique: Commitment-gaining technique in which the salesperson lists the
positives as well as the negatives associated with commitment.
 Direct-request technique: Commitment-gaining technique in which the salesperson simply asks
for the commitment.
 Success-story technique: Commitment-gaining technique in which the salesperson tells the
story of another customer who agreed to something similar and has benefited from the
decision.
 Objection: A customer concern, prior to and/or during the sales call.
 LAER model®: Model for handling customer objections, involving four steps: Listen,
Acknowledge, Explore, and Respond.
 Acknowledge technique: Technique for overcoming an objection in which the
 salesperson admits that the objection is valid.
 Boomerang technique : Technique for overcoming an objection in which the salesperson
transitions the objection from a negative to a positive by discussing how the perceived negative
should actually benefit the customer.
 Compensation technique : Technique for overcoming an objection in which the salesperson
admits the objection is valid but also discusses other benefits that offset the objection.
 Forestall technique: Technique for overcoming an objection in which the salesperson brings up
an objection he or she knows will arise, instead of waiting for the customer to do so.
 Indirect denial technique: Technique for overcoming an objection in which the salesperson
acknowledges understanding why the customer would have the concern but states that the
objection is not valid.
 Direct denial technique: Technique for overcoming an objection in which the salesperson states
that the objection is not valid.
 Postpone (coming-to-that) technique: Technique for overcoming an objection in which the
salesperson acknowledges the objection and asks if it can instead be discussed at a later point in
the sales call.
 Postpone (coming-to-that) technique: Technique for overcoming an objection in which the
salesperson acknowledges the objection and asks if it can instead be discussed at a later point in
the sales call.
 Referral (feel-felt-found) technique: Technique for overcoming an objection in which the
salesperson uses a third party (often a customer) to address and refute the objection.
 Value technique: Technique for overcoming an objection in which the salesperson transitions
the conversation away from price alone to more fully describe the value being offered through
the solution.
 Assumptive close: Manipulative closing technique in which the salesperson makes a statement
indicating an assumption that an agreement has already been reached, when this is not the
case.
 Continuous-yes close: Manipulative closing technique in which the salesperson asks a series of
questions designed to elicit a positive (yes) response, and concludes by asking for the sale in the
hope that the customer will again respond “yes.”
 Emotional close: Manipulative closing technique in which the salesperson discusses how
important the sale is for personal reasons.
 Standing-room-only close: Manipulative closing technique in which the salesperson states that
due to high demand for the product or service, it may not be available in the future.
 SOLE PROPRIETORSHIP - Individual carries on business alone, with complete control and
complete responsibility for debts, liabilities, contracts and torts of, or relating to, business
Individual may act through agents or employees (e.g. a paralegal who assists a lawyer), but
vicariously liable for their actions (insurance may offset some risk)
Personal and business assets are one in the same, which may make it challenging to raise capital
and earned profits are subject to personal income tax
Generally, fewer legislative requirements than other forms of business organization, but must
be met, where applicable (e.g. registration of business name, licensing, employment, income
tax)
 ORDINARY PARTNERSHIP - Person carries on business with one or more partners with the
intention of making a profit
Business may be carried on through services of employees or agents
A partnership is not a separate legal entity but the firm can enter into legal relationships so that
it can function as a group
Where partnerships involve trading, manufacturing, contracting or mining, there is a
requirement to file a declaration, failing which there can be negative consequences (e.g. fine)
 by agreement - recommended that parties intending to work in partnership, sign a written
partnership agreement but, a partnership agreement is not always conclusive evidence that a
 partnership exists a partnership agreement should include terms relating to such important
matters as partnership duties; work or talent contributions; time commitments etc. (see list in
text)
 by presumption or inference - for example, through evidence such as:
joint contribution of capital to establish a business;
intention to share expenses, profits or losses;
joint participation in management of business
 by law - take a look at the Alberta Partnership Act
defines “partnership”: essentially, whether persons are carrying on business in common with a
view to profit
covers 3 types: ordinary; limited; and limited liability partnerships
Includes rules, subject to terms of any partnership agreement (but any term restricting a
partner’s liability is not binding on a third party not having notice of it)
 UNLIMITED PERSONAL LIABILITY
Partners have unlimited personal liability (i.e. partners are liable for all debts incurred by the
business to the extent of their personal resources)
A partner’s liability may be joint or joint and several depending on the nature of the liability (e.g.
each partner is liable jointly for firm debts and obligations; liability is joint and several for torts
as well as misuse of money or property in the custody of the firm)
A retiring partner remains liable for any wrongs committed or liability incurred during the
partnership period and thereafter, unless the third party is given notice that the retiring party
has left the firm Reducing Risk 10.5
 LIABILITY IN CONTRACT - every partner is the agent of the other partners and binds the partners
in contract involving normal partnership business (shoe store partnership example in text)even
if partner’s authority is limited and partner exceeds it, the contract is binding if the third party is
unaware of the limitation and the contract is related to the partnership business
see provisions of the Partnership Act (partner an agent)
 LIABILITY IN TORT - all partners are vicariously liable for the torts of their partners related to the
partnership business (firewood and fraud examples in text)
all partners are vicariously liable for torts committed by any employees in the course of their
employment see provisions of the Partnership Act (liability of firm for wrongs; liability for
wrongs, joint and several)
 END OF PARTNERSHIP Provisions in the Partnership Act address dissolution, subject to terms of
any partnership agreement
Under the Partnership Act, a partnership can be dissolved by expiration of notice; death;
bankruptcy or assignment of partner’s property in trust for creditors; illegality of partnership; or,
by the Court Dissolution provisions in partnership agreement should:
anticipate what can happen in different circumstances (consider Ellerforth Investments Limited
v. Typhon Group Limited) allow dissolution where partners are corporations and the nature of
one of the corporations changes (e.g. where it is taken over by another corporation and there is
a change of control)
 LIMITED PARTNERSHIPS - The Partnership Act allows for the creation of limited partnerships
Allows a limited partner to contribute cash and other property (but not services) to a
 partnership but avoid the unlimited liability associated with being a general partner (unless the
limited partner loses that status)
Limited partner essentially an investor and liability limited to amount invested
Requires filing of Certificate Reducing Risk 10.7
 LIMITED LIABILITY PARTNERSHIPS The Partnership Act allows for the creation of limited liability
partnerships Only certain partnerships may apply to be registered as an Alberta LLP (e.g.
lawyers, accountants, physicians etc.) Profession or discipline must be regulated by legislation,
which specifically authorizes carrying on business as an LLP Details regarding periodic reports
and periodic fees are set out in the Regulations
 A promoter participates in initial set up of corporation or assists the corporation in making an
public share offering and owes a fiduciary duty to the corporation, whether or not an officer
 Provincial securities statutes control the sale of shares to the public
 A securities commission prevents fraud and encourages free and efficient market in corporate
shares and other securities through disclosure (e.g. through prospectus)
 Trespass to Person: Assault and Battery
Intentional physical interference with another (intended conduct/act, not necessarily the harm)
Motive or good will of the person interfering is not relevant
Purpose of tort is to recognize right of each person to control his/her body and who touches it
Damages are awarded when this right is violated and action exists even where person suffers no
injury
  Assault Fear or anticipation of unwanted physical contact, through conduct such as words,
actions, gestures including threats online (e.g. words: threatening to hit; actions: faking a punch;
gestures: pointing a gun e.g. finger gun controversy – Minister Ed Fast)
How to determine if an assault has taken place?
Was the victim fearful or anticipating unwanted physical contact or harm? and
Would a reasonable person have felt fearful or anticipated unwanted physical contact or harm?
 Battery - Intentional and unwanted physical contact
A battery almost invariably involves an assaul
 Consent - A person who consents (expressly or implicitly) to conduct that would otherwise
constitute an assault or battery will not succeed in his/her claim
Consent must be informed (i.e. person must know what he/she is consenting to)
The conduct must not exceed the consent (i.e. go beyond the consent given)
 Self-defence - A person sued for assault and battery may be able to raise self defence as a
defence to the claim if that person used reasonable force to defend him/herself from the other
person (what is reasonable depends on skill and experience of the person being attacked)
 Trespass to Chattels, Conversion and Detinue - Deliberate interference with plaintiff's personal
property or possessions without plaintiff's consent and without lawful right
 Trespass to chattels = physical interference with plaintiff’s goods
 Conversion = intentionally appropriating plaintiff’s goods for their own purposes (e.g. theft,
destruction, disposal)
 Detinue = wrongfully retaining goods
 Trespass to Land - Deliberate interference with plaintiff’s land without plaintiff’s consent and
without lawful right
 Who may have lawful right? people acting in an official capacity (e.g. postal worker, meter
readers, municipal inspectors, police)
Action exists even if no injury or damage results
 False Imprisonment - A person’s liberty to go where he/she pleases MUST be TOTALLY
restrained, e.g.:
by being put in a cell
by being arrested
by submitting to another person’s authority or threats
The restraint is unlawful (i.e. person doing restraining has NO lawful authority to do so)
Examples: Chopra v. Eaton (T.) (Co.)
 Malicious Prosecution - Charges or proceedings initiated by defendant
Proceedings terminated in favour of plaintiff
Defendant has no reasonable or probable cause
Defendant primarily motivated by malice
 Private Nuisance - Committed when:
an individual or business uses property in an unusual or unreasonable way;
use causes unreasonable interference (usually ongoing and continuous) with a neighbour’suse
and enjoyment of his/her property;
consequences must be reasonably foreseeable (i.e. a reasonable person would have anticipated
the risk)
Examples: offending noise or odours---- golf balls from a driving range landing in carley’s
backyard
 Defamation - Seeks to protect a person’s reputation (e.g. individual (not deceased) or
corporation)
In Alberta, includes libel (written form) and slander (spoken form)
 Injurious falsehood, trade slander, product defamation - Seeks to protect an interest in a
person’s property, products or business (plaintiff must prove a false statement is made, with
malice, about the plaintiff’s property or business and the plaintiff suffers pecuniary loss)
a false statement (Plaintiff needs to show the statement was made but not that it was false-this
is assumed)
that is published (communicated to a third party – one other person aside from the Plaintiff is
enough) and
which is detrimental to one's reputation.
 Truth (justification) – A complete defense
 Absolute Privilege - statements made in forums where complete openness is necessary (as in a
courtroom, or in Parliament...)
 Qualified Privilege - statements made out of a sense of duty
statements made to others who have a right to know
if without malice or knowledge of falsehood
e.g. a manager reporting to a superior about a worker’s performance
 Fair Comment - comments made regarding art (e.g. movies, plays, books, etc.) or public figures
that are:
a matter of opinion;
drawn from true facts before the public; and,
 made without malice or unjust motive
e.g. a food critic who writes a negative review of a restaurant
 Public Interest Responsible Journalism - may be available to publishers of material of public
interest in any medium (not just journalists)
may be used where the:
publication is on a matter of public interest (i.e. some segment of the public must have a
genuine stake in knowing about the matter published); and
publication was responsible (i.e. publisher diligent in trying to verify the allegation(s), having
regard to a number of criteria (e.g. the status and reliability of the source))
 Inducing breach of contract - The defendant knows about a contract between the plaintiff and
another party; The defendant deliberately induces the other party to breach the contract; The
plaintiff suffers damages as a result
 Unlawful interference with economic relations - The defendant engages in unlawful conduct
which is intended to, and in fact causes, harm to the plaintiff (Polar Ice Express Inc.; Sagaz)
 Intimidation - The defendant uses a threat of violence or some other illegal activity to force a
party to do something harmful
 Deceit (fraudulent misrepresentation) - The defendant makes statements knowing them to be
false or without belief in their truth; or recklessly, not caring whether they were true or not
 Conspiracy - The defendants act together and use unlawful means to injure the plaintiff’s
business interests
 Passing off - The plaintiff’s goods, services or business enjoy a reputation worth protecting. The
defendant misrepresents its goods, services or business as being those of the plaintiff. The
public was misled in fact or would likely be misled
 Misuse of confidential information or breach of confidentiality - The plaintiff gives the
defendant information of a confidential nature (e.g. trade secrets, customer lists, future plans)
which is to be kept confidential but instead misuses it
 THE TORT OF NEGLIGENCE Essentially, negligence is unintentional conduct which causes injury
or damage to others
Four key ingredients must be established or the case will fail:
A duty of care exists
Breach of that duty (Breach of the "Standard of Care")
Causation
Damages
 A duty of care is owed to anyone we can reasonably anticipate might be harmed by our
conduct.
 Was it reasonably foreseeable that the defendant’s conduct could injure the plaintiff (i.e. was
the danger to the plaintiff reasonably foreseeable?)
 Policy reasons might lead the court not to impose a duty of care even if the reasonable
foreseeability test is met 
 reasonable person.
 People have a duty to act in a careful way so as not to cause harm to others. Courts are:
willing to grant a victim relief when misfeasance (i.e. wrongful conduct by a person) is
established; but,
 reluctant to grant a victim relief where there is simply nonfeasance (i.e. a failure to act by a
person) unless a particular relationship exists obligating the defendant to act.
 breached is a person does not act as a reasonable person should. 
Reasonable does not meet average or perfect. What is reasonable depends on the
circumstances and factors such as:
defendant is minor (standard for child is that of a child of the same age – age NOT relevant to
standard of adult)
defendant's expertise (e.g. if a professional, then standard based on reasonable professional in
the field –standard NOT lowered for a novice); 
risk involved to others; 
 financial cost.
 The injury must be the direct result of the Defendant's carelessness. There must be causation.
Would the injury have occurred but for the Defendant's acts? If no, then the Defendant caused
it. 
If there are multiple causes for a Plaintiff's injury, the courts will consider if the Defendant's acts 
materially contributed to the injury. 
 Remoteness - The type of injury suffered (NOT its extent or seriousness) must be reasonable
foreseeable. 
Was the type of injury too remote to have been foreseen? If yes, causation will NOT be found. 
 Plaintiff’s friend ordered and paid for a bottle of ginger beer for the Plaintiff at a café
 Plaintiff:
given bottle, drank half of it and then discovered a decomposing snail in it
became violently ill
could not sue café for breach of contract or negligence – why?
sued the manufacturer who produced the product for negligence
 Contributory Negligence
In Alberta, if a plaintiff fails to take reasonable care and thereby contributes to his/her loss or
injury, the court is directed to apportion blame and liability by legislation: Contributory
Negligence Act
Example: If Plaintiff is found 10% contributorily negligent, and is awarded a $80,000 judgment at
a trial, the Plaintiff would get 90% of the total judgment (i.e. $72,000
 Voluntary Assumption of Risk
Volenti non fit injuria: the law does not aid one who participates voluntarily
If the plaintiff assumed the risk, the defendant is not liable
Risk is two-fold: physical and legal
physical risk: the risk of injury
legal risk: not being able to sue for injury
 premises” is not exhaustively defined
includes land and buildings (although land and buildings not specifically listed in section 1)
e.g. residence (home, apartment, condominium); shopping centre; grocery store; offices;
schools, recreational facilities
includes specified things which may be erected on land (e.g. scaffolding) and other specified
things (e.g. railway locomotives, railway cars and ships)
 excludes certain specified things (e.g. aircraft, motor vehicles or other vehicles or vessels other
than railway locomotives, railway cars and ships)
 occupier” means a person:
in physical possession of the premises, or
who has responsibility for, and control over
the condition of the premises
the activities conducted on those premises
the persons allowed to enter those premises
note: occupier may not necessarily be the owner (e.g. could be the tenant)
there can be more than one occupier of a premises (e.g. could be landlord and tenant)
 visitor” essentially means a person on or at a premises
lawfully or with permission
 Section 5 Sets out duty of care of an occupier to a visitor which is known as the common duty of
care: Must take reasonable care in the circumstances to ensure visitors are reasonably safe in
using the premises for purposes for which visitor is permitted to be there
 Section 6 – Common duty of care applies to:
Condition of premises
Activities on premises
Conduct of third parties on the premises
 Section 3 Duty is owed by employer to employee with respect to workplace conditions (either
by statute or common law) BUT duty not set out in this legislation
Occupiers’ Liability Act DOES NOT apply to or affect employer’s liability in respect of employer’s
duties to employees (other legislation is applicable, such as the Workers’ Compensation Act or
the Occupational Health and Safety Act)
 Section 7 – An occupier is NOT under an obligation to discharge the common duty of care to a
visitor in respect of risks willingly accepted by the visitor Note: visitor must accept the physical
and legal risk
 Section 8 Duty of care can be extended, restricted, modified or excluded by way of express
agreement or express notice If the duty of care is restricted, modified or excluded, then
reasonable steps must be taken to bring limits to the attention of the visitor!
Example of an express agreement: signed waiver
 Section 9 – Warnings DO NOT automatically keep an occupier safe from liability
- A warning, without more, is not enough unless in all the circumstances, the warning enables
the visitor to be reasonably safe
For example, what if a grocery store posts a sign at an entrance which simply advises customers
to be careful??
 Section 15(1) If occupier does not discharge common duty of care and visitor suffers damage
partly as a result of the visitor’s own fault, the Contributory Negligence Act applies (also applies
in the case of an adult or child trespasser)
Thus, the Court is directed to apportion fault if appropriate in the circumstances
 Section 12 - Just a minimal duty owed to adult trespassers and duty varies depending on
whether the adult is a criminal or non-criminal trespasser
 Section 13 – When an occupier knows or has reason to know that a child trespasser is on the
occupier’s premises, and that the condition of, or activities on, the premises create a danger of
 death or serious bodily harm to that child, the occupier owes a duty to that child to see that
“the child will be reasonably safe from that danger”
 Expert = a person who holds him/herself out to have specialized knowledge or skill
 Professionals usually experts who belong to professional organizations and practice in a specific
area or service
advise others and reliance is placed on that advice
e.g. lawyers, accountants, bankers, contractors, engineers, architects…
 Contractual Duty
It is an implied term of the contract that the professional will provide the services with due care
If the professional provides substandard services, he/she is in breach of this implied term of the
contract
Only parties to the contract can sue for breach
Note that the professional’s liability may be limited if the contract contains express exemption
clauses or disclaimers
 Duty of Care (Tort Law)
Duty of Care: The professional has a duty to use reasonable care to avoid causing damage to the
client and possibly third parties who may be affected by the advice or service provided
Standard of Care:
The standard required is that of a reasonable professional/practitioner (remember that
inexperience does not lower the standard)
The common practice in the profession may fall below the required standard of care (common
practice did not save chartered accountants from liability in the Kripps v. Touche Ross case and
Small Business Perspective: review)
 Negligent Misrepresentation (Misstatement): essentially, a careless statement that causes
another harm
 Fraudulent Misrepresentation: essentially, an intentionally false statement that causes another
harm
 A = A duty of care Professional owes duty of care to client and to a third party who he
expects/knows will rely on a statement within his skill/expertise
 B = Breach of the duty of care/standard of care Professional makes an untrue, inaccurate or
misleading statement which falls below standard of reasonable professional
 Causation Client or third party relies on statement to his/her detriment and reliance was
reasonable in the circumstances
 D = Damages - Client or third party suffers damages (e.g. economic/financial loss)
 Fiduciary Duty
When a person places trust in a professional, the professional has a fiduciary duty to act in the
client’s best interests
Essentially, a fiduciary duty requires loyalty and good faith
Requires the professional, among other things, to:
keep client’s information confidential;
avoid any situation where his/her self-interest conflicts with his/her duty
 Duty to Adhere to Professional Conduct
"Professionals", such as doctors, lawyers and accountants must adhere to the Code of Conduct
of their respective governing bodies
 Failure to comply with these rules can result in disciplinary hearings and potential loss of the
right to practice that profession
A professional should refer to the rules often to keep them in the forefront of their mind and to
keep current
Examples of professionals (other than those above), facing disciplinary proceedings are on next
slide
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