Partnership

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					              Tort of Nuisance
Private Nuisance
    – Occupant has a right to enjoy his or her land and/or
      buildings free from unreasonable interference from fumes,
      noise, pollution, etc. caused by neighbours.
    – Private nuisance is the unreasonable interference with the
      occupant’s use and enjoyment of land and/or buildings
    – Standard shifts depending on the type of area
    – Apply for an injunction to stop the nuisance
           Damages as well
   City Bylaws and Provincial Statutes may regulate
    the conduct
            Intentional Torts
   Assault
   Battery
   Defences to Assault and Battery
    – Consent
    – Self Defence – Must use reasonable force
          Defence of another person
          Defence of property
   False imprisonment
   Malicious Prosecution
            Intentional Torts

   Defamation
    – Untrue statements that damage someone’s
      reputation
          Not a defence to believe it was true
    – Libel – written
          Very easy to do on the Internet or with email
    – Slander – spoken
    – Repeating what someone else wrote or said can
      be defamation
          Linking to it on your web-site can be defamation
       Remedies for Torts

   General Damages
   Special Damages
   Punitive Damages
   Injunction
      Professional Liability

   Professional owes a duty to their client
    – 1. Contractual
    – 2. Fiduciary
    – 3. Negligence
   1. Contractual Duty
    – Contract will be assumed to state the
      services will be performed with proper
      care unless it states otherwise
      Professional Liability

   2. Fiduciary Duty
    – Duty imposed on a person who stands in a
      relationship of trust to another person
    – Must do what is in client’s best interest
          Avoid conflicts of interest
    – Breach of Fiduciary Duty
          Client must have been vulnerable
          Professional exercised discretion in an attempt to
           benefit someone other than the client.
      Professional Liability

   3. Duty under Negligence
    – Must establish three requirements of
      negligence
       Is a duty of care owed?
       Was the standard of care breached?
       Did the breach cause the injuries?

    – Professionals automatically owe a duty of
      care to a client
    Professional Negligence
   Standard of Care
    – Reasonable professional doing the same work
          Standard at the time the work was done
          Can be several different acceptable methods
          No allowance for experience
             – But there are higher standards for specialists
               within a profession
          Conforming to industry standards is usually
           sufficient, but not always.
    Professional Negligence

   Did the Breach Cause the Damages
    – Did the client rely and act upon the
      advice of the professional
    – Professional does not guarantee that
      advice is correct or that there will be no
      losses
          Must prove that “but for” the reliance on the
           advice the loss would not have happened
       Role of Professional
          Organizations
   Set and enforce a Code of Conduct
   Discipline
    – Reprimands, fines, suspensions, supervision,
      ejection
          Plus the cost of the investigation \ hearing
          Usually published to other members of the profession
    – Can be reviewed by the Court of Queen’s Bench
          Often procedural errors made
   Professional can face criminal charges or be
    sued as well
           Business Forms
   Three Basic Forms for a Business
    1. Sole Proprietorship
    2. Partnership
    3. Corporation

     Several other less common forms like
      cooperatives, crown corporations, joint
      ventures, etc.
           Sole Proprietorship
    Requirements
    1. One person solely responsible for profits,
       losses , assets and liabilities
           Can have employees
    2. A business must exist
           Any type of active money making venture
            –   Even if isolated event or unrelated to your regular
                income.
    3. Business must have a reasonable hope of
       making a profit
           Income is taxed as personal income
            –   losses can reduce other income
       Sole Proprietorship
   No formalities to start but many legal
    obligations once started.
    – Example: Register business name,
      business license, operating permits,
      registration with CRA (GST, Payroll)
   Personal liability for all business debts
    and torts
    – Creditors can enforce debts against
      owner’s personal assets and income
             Partnership
   Requirements
    1. Two or more people
    2. Active business
    3. Profit motive
   Calculate income at partnership level
    – Partners taxed personally on their share
      of profit or loss
     Creating a Partnership

   No formalities to legally start a partnership
    – Still must comply with licenses, registration, etc
   A partnership automatically creates a
    contract amongst the partners
    – Does not have to be written
    – Should have a written partnership agreement
    Partnership Agreement

   Suggested terms to be put in writing
    – Contribution of each partner
    – Participation of each partner
    – How profits and losses are shared
    – Dispute resolution mechanism
    – Rules for leaving and joining
    – Anything important to at least one
      partner
      Liability of a Partner
        in a Partnership
   Partnership not legally separate from
    partners
   All partners have joint and several
    liability for all partnership debts and
    torts
    – Each partner is personally liable for 100%
      of all debts and judgments
 Joint & Several Liability
         Example
Partner A      Partner B         Partner C



              Partnership



            Partnership Assets
             Value $100,000
 Joint & Several Liability
         Example
Partner A      Partner B         Partner C

                                              Client
                                             $500,000
              Partnership



            Partnership Assets
 Joint & Several Liability
         Example
Partner A      Partner B         Partner C



              Partnership



            Partnership Assets
                                         Disappears with
                                         the $500K
 Joint & Several Liability
         Example
Partner A      Partner B         $400,000 from
                                 Personal Assets of
                                 either A or B or both


                                  Client

                                 $100,000 from
            Partnership Assets   Partnership Assets
    Partnership Agreement

   Cannot limit liability to non-partners
    – Can state who is liable amongst the
      partners, but each partner is still 100%
      jointly and severally liable to non-partners
    Duties to Your Partners

   Cannot take secret benefits
   Cannot compete
   All partners entitled to complete
    information
   Can vary any duties if the partnership
    agreement states so
    – Very common to do so
          Limit information, allow competition
             Limited Liability
               Partnerships
   LLP
   Only professions regulated by a Statute
    allowed to form LLP’s
    – Example: Chartered Accountants
   Must Register with Provincial Gov’t
   Removes Joint and Several Liability
    – Only liable for partnership assets for partnership
      torts and contracts and then personally for own
      torts
          scope of “own torts” may be wider than “innocent”
           partners would want.
              LLP Liability

Partner A      Partner B
                                 $500,000 stolen
                                 $400,000 Unpaid
              Partnership
                                     Client


            Partnership Assets
                $100,000

				
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posted:10/8/2012
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