Contract Law 101: be careful when accepting job!

Whether or not you realize it, you regularly enter into contracts with other people or companies. In fact, you probably do it several times a day.

And, despite how often you do it, you need to be very careful about entering into contracts. I say that because…well…very few people are careful.

The purpose of this week’s column is to explain the basics (i.e. the nuts and bolts) of contract law.

Admittedly, it isn’t a sexy or exciting topic. But, it’s an important one and everyone should know this stuff.

To start, contracts are formed and agreed to more often than you might know…

For instance, you enter into a contract when you agree to purchase a house, when you agree to sell your vehicle, and when you agree to take on a job or offer someone else a job. And, believe it or not, you enter into a contract when you buy milk at a supermarket or when you buy fuel at a gas station.

Believe it or not, there is a lot of (very intricate) law that surrounds these very routine events.

So, what is a contract? How is a contract actually formed? Well, it is impossible in this column to describe all the ‘ins and outs’ of contract law, but here are the basic components of a contract:

  1. An offer: This refers to a person’s willingness to enter into contract (ex. to offer some goods or services).
  2. Acceptance: This refers to a person accepting the offer described above (i.e. for some goods or services).
  3. Consideration: This refers to the concept that the people involved in a contract must exchange something of value between each other. Here’s an example: if you sell a television to someone, the money that you receive is referred to as ‘consideration’. If there is no ‘consideration’, then there is no contract. For instance, let’s assume that you agree to gift/donate $5,000.00 to a local university (with nothing being given to you in exchange for that money). If you decide later to withhold that money, then the university would have a hard time suing you to get that money.
  4. Intention to be bound: In order to form a contract, each person must actually intend to be bound by a contract. Sounds weird, right? But, as you can imagine, not every agreement that you make with someone will attract ‘legal consequences’. To illustrate, if two strangers agree to exchange services, then there is probably an ‘intention to be bound’ by a contract. But, if you tell your mother that you will give her $100.00 if she bakes you a cake, there was probably no intention to be bound (and your mother will have a hard time collecting that $100.00 from you in court).
  5. Certainty of terms: The terms of the contract must be certain. In a lot of contracts, this requires certainty of the ‘3Ps’: parties, property, and price. To illustrate, if a real estate contract does not sufficiently describe the price of the property, then the contract might be not be enforceable. For example, if the real estate contract does not account for how or when the money will be paid, which can affect the interest calculation, then there might not be an enforceable contract.

Here’s my advice: next time you enter into a contract, make sure that you treat it seriously and confirm all the terms that are important to you.

So, when accepting a job, make sure that you ‘nail down’ the terms of the contract: What’s your pay rate? How much vacation time do you get? What sorts of benefits are included?

And, when selling your car, ensure that you ‘nail down’ what is included in the purchase price: Are you selling the winter tires? Are you throwing in full tank of gas? Are you selling the upgraded audio system in the car, too? Are you fixing the broken windshield?

Remember that when people don’t confirm important terms of a contract, they often end up in court. And, you don’t want to go to court, do you?

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on June 11, 2013: Be careful when accepting job.

Risks of posting comments on internet

The Internet has given everyone a voice – whether on Facebook, in a chat room, or in a forum. This is not always a good thing…

There are a few types of online posters.

Some posters try to make intelligent comments and conversation. Others post online for therapy, telling the world their every thought (with little filter). Others are more interested in ‘stirring the pot’, simply trying to irritate and annoy other people by posting inflammatory, threatening, and off-topic comments. These people are referred to as ‘trolls’. Most trolls are harmless (and are likely children).

Whatever your intentions when posting online, it is important to know that the worst thing that can happen to you is not a ‘slap on the wrist’ from the forum or website moderator/administrator. That couldn’t be further from the truth. Believe it or not, there can be legal consequences.

To start, there can be criminal consequences when posting comments online.

If you have viewed a thread or visited a chat room, you have probably seen posters act completely ridiculous with each other, even threatening each other. I have seen comments like, “You better hope that we never meet in person because you will be very sorry”. This type of comment could lead to a criminal charge. For more information, you can review section 264 (criminal harassment) and section 264.1 (uttering threats) of the Criminal Code.

While criminal penalties can be bad, civil (i.e. financial) penalties can be even worse. Depending on the amount of money that you could be forced to pay, you could be wishing that you had been taken to criminal court…

A common lawsuit made against Internet posters is for defamation of character. A few weeks ago, I wrote about defamation: Sued for spreading rumours? For easy reference, a defamation lawsuit follows when a person makes a communication (written or spoken) about another person/organization that hurts the reputation of that person/organization.

And for your information, just because a poster is anonymous in his/her postings does not mean that he/she is immune from liability. People’s real names can and will be located from their ISP (internet service provider). Hiding your name is ineffective.

To illustrate that posters should be careful, consider the following case: Uppal v Diler, [2012] O. J. No. 2713. In this case, the Ontario Superior Court of Justice (Small Claims Court) awarded $22,000 for a plaintiff dentist against the dentist’s former patient. The former patient had sent defamatory emails, uploaded postings on YouTube, and made statements on the website for the Association of Dentists (about the dentist). The Court held that the former patient was deliberately campaigning to harass the dentist and smear his reputation. Interestingly, the Court said that it would have awarded $45,000.00, but the dentist did not seek this amount in his claim.

Also, for your information, websites hosting threads/forums need to be careful, too, in ensuring that defamatory comments are not posted on their websites. If defamatory comments are present on a website (about a company or a person), that website may receive demand letters (from that company or person), requesting that the defamatory comments be removed. It may wise to conform to such letters; while unpopular, it may be financially-wise.

Outside of civil and criminal consequences, your postings can haunt you in other ways (so be careful).

For instance, there are numerous examples of people being fired for posting about their employer. Remember Mark Jen? He was fired from Google after 11 days for posting on his blog about Google, which included comparing Google to his former employer, Microsoft.

Also consider that in personal injury cases, it is not uncommon for ICBC to rely on photos that motor vehicle crash victims post on Facebook. These photographs, of course, show the victim smiling, which ICBC argues is indicative that the victim is not ‘that hurt’ (because people who have soft-tissue injuries never smile, right?). As silly as it may seem to rely on Facebook photos, it happens.

The Quebec Superior Court said it best in Laforest c. Collins, 2012 QCCS 3078:

“The Web has become the most powerful and frequently used medium of communication on earth. It permits wars to be halted quickly, criminals to be quickly captured. Teaching has no limit. Communication can be personal as well as impersonal. The Web can make anyone a celebrity in a few minutes. It can tarnish or destroy a reputation with one click.”

Finally, outside of the legal consequences, Internet posters should be respectful in their posts. It’s like going to a party: just because there isn’t a law that says you should be respectful and considerate, it doesn’t mean that you shouldn’t be.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on November 27, 2012: Risks of posting comments on internet.

You’re fired!

Imagine this: You get your first job working at a fast food restaurant. Your manager, Phil, is 21-years-old. You and Phil don’t get along, mostly because you think that Phil is a jerk. After a few uncomfortable weeks of your personalities conflicting, Phil terminates you. You say, “You can’t fire me!” In response, Phil says, “Oh, yes I can!” Whether or not Phil knows it, he is exactly right.

Nearly everyone has a job at some point in his/her life. With that said, very few people are aware of an employer’s right to fire their employee. This week’s column is a brief introduction to the employer’s right to fire their employee (in a typical, non-unionized work environment).

Put very simply, an employer is free to fire an employee, provided there is just cause (I.e. employee misconduct), reasonable notice, or payment in lieu of that reasonable notice. If an employer does not have just cause or if there is insufficient notice/payment in lieu, the employee may have a claim for ‘wrongful dismissal’.

One of the leading cases on this matter is Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 from the Ontario Supreme Court.

So, what is just cause? Put simply, just cause is employee misconduct. Typical examples of just cause can include disobedience, incompetence, bad off-duty conduct, and sometimes even illness/injury.

You may be asking yourself, “Can an employer really fire an employee for being sick or injured?” Well, an employer couldn’t fire an employee (and claim just cause) simply because that employee has a cold. But, imagine a situation in which an employee is hired for a summer manual labour/landscaping position and then, two weeks later, that employee is off work from a broken bone, preventing that employee from working for several months. Obviously, it is reasonable for that employer to terminate that employee (and hire someone new).

What if the employee just made a minor mistake? Is that enough to fire them (and claim just cause)? Well, the answer is: maybe, but probably not. Dismissal can result from just cause, but there are qualifications. For instance, the punishment should be proportionate to the misconduct. So, minor error will not generally warrant dismissal. The length of the employee’s service, the employee’s track record, and the employee’s explanation of the misconduct are also relevant and impact whether or not the employee will be terminated.

So, what is reasonable notice? It is the period of time that employees are entitled to receive before they have to leave their employment (without just cause and after being given notice of dismissal). Sometimes, instead of working that time period, employees could be paid in lieu of that notice. For instance, an employee could be paid their wages for two weeks rather than actually having to stay in the workplace for those two weeks.

How much reasonable notice/payment in lieu of notice is an employee entitled to? Well, there are a couple methods. Most people are familiar with the formula based on length of service, as indicated in section 63 of the Employment Standards Act. To illustrate, the Act states that an employee is generally entitled to one week’s wages after three consecutive months of service. Another way to determine the amount of notice/payment in lieu is to refer to judge-made law (common law), in which several factors, including the age, length of service, economic circumstances, and education of the employee, are considered.

In conclusion, employment law is complicated. Also, don’t get fired.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on March 6, 2012: You’re fired.