IV – Tendering Employment Law pg 57 Ec Dev & JV Approaches Part 2 1
Tendering Basics Nait Bus Law April 1, 2006 Chris Hylton 2
Definition of RFPContains very detailed requirementsVendors‟ response targeted to RFPAllows fairs and objective compari...
AdvantagesPotential lower costPrecise specificationsNegotiationBest solution accepted 4
DisadvantagesTakes longer to procureMust evaluate less acceptable solutionsCan involve diverse organizations ...
Writing the RFPAnalyze your needsDetermine evaluation methodProvide complete and accurate dataOrganize the RFP clearly...
Contents of RFP Info/instruction for  Timeline bidders (response  Financial framework guidelines) ...
Review/Selection ProcessDecide on review criteria in advanceDecision matrix or other toolInvolve all decision makersEx...
RFPTerminology – Informal Competitive Bidding • Request for Quote (RFQ) – Formal Competitive Sealed Bidding • I...
REQUEST for QUOTESmall ExpenditureEmergency PurchaseSole Source 10
INVITATION to BID Specific Product or Service Precise Specifications/Descriptions Lowest Price Determines Award to Resp...
REQUEST for PROPOSAL Price Not the Only Factor Multiple Possible Solutions/Approaches Solicit Offerors Input to Define ...
RFP PROCESS FLOW10 Steps to Successful RFP Process ManagementTypical ProcessAcquisition Process Flow Chart ...
SUCCESSFUL RESPONSESPre-solicitation Steps – Information Required of Offeror – Bidders List – Avoid Lists that are Too...
RFP TIMETABLE1. Develop Work Statement and RFP 2 weeks2. Send out RFP, Q&A Period 3-5 weeks3. ...
RFP ELEMENTSTerms and ConditionsWork Statement/SpecificationProposal Submission InformationOfferor Information and Rep...
EVAL/AWARD PROCESSEvaluation Committee – Scoring Methods – Two Step Procurement ProcessBest and Final Offers/Negotiati...
EXAMPLESAsset ManagementMaintenance ManagementFuel ContractWelding servicesInstruction 18
EXAMPLESCategory Subject RFP or Commodity Example Documents RFQ or ...
RFP ExamplesStatement of WorkQuestions to AskEvaluation RFI Leas ...
Statement of Work Asset Management -Acquisition  Vehicle Specification & Quotes  Factory & Stock Orders  Ship Th...
Statement of Work Fuel Management– Internal vs External Fuel Acquisition– Universal Fuel Card vs Brand ...
Statement of Work Welding Services 23
Evaluation Techniques Evaluation Criteria Point System EvaluationRating based on a 1 - 5 scale ...
Evaluation Techniques Evaluation Criteria Weighted Scale Evaluation Weighted A ...
SummaryRFP is just a starting pointCustomize to your companyTake the best from all examplesInvolve others and get feed...
Job Candidate Evaluation Evaluation Criteria Point System Evaluation CandidateRa...
Job Candidate Evaluation Evaluation Criteria Weighted Scale Evaluation Weighted ...
Performance Appraisal Evaluation Criteria Point System Evaluation ManagerRating ...
Performance Appraisal Evaluation Criteria Weighted Scale Evaluation Weighted ...
QUESTIONS
What Is Employment?Compare employee with agent and independent contractorControl test - degree of control exercised over...
What Is Employment?/2An agent enters into legal relationships with others on behalf of a principalAgent may be an employ...
Employee or Independent Contractor? Test Independent Employee ...
Employee or Independent Contractor? Test Independent Employee ...
Law of Master and ServantContract law applyStatute law - Employment Standards Act – – determining responsibilities of e...
Law of Master and ServantCommon law – – Employer must provide – • safety, defined work, clear direction, wages, ...
Termination pg 58  Reasonable notice (if no just cause) by both employer and employee  Employer is required to give re...
Termination/2 Just cause dismissal requires no notice. Dismissal without notice if – – Incompetence or failure to perf...
Termination/3 An employee discharged without adequate notice can sue for wrongful dismissal An employee can leave with...
Termination/4Constructive dismissal - employment contract may be breached when nature of job changes or working condition...
Employment Standards Code pg 60Statutes designed to protect employees by setting minimum standards for: – safety – ...
Ee Notice to EmployerLess than 3 mos – nil> 3 mos, < 2 yrs – one week> 2 yrs – two weeks 43
Employer Notice to Ee pg 61> 3 mos 1 week or pay in lieuTwo years or more 2 weeksFour years or more 4 weeksSix years o...
Question for Discussion A considerable amount of legislation in the field of employment affects the responsibilities of...
V Courts and Civil Procedure should you sue? Pg 7 cost evidence Chance of recovery Other options? ...
The Provincial Courts All Canadian provinces have a four-tier court system made up of the following: Provincial C...
Limitation periods pg 82 yrs10 yrsother 48
Who to sue? Pg 8Be carefulCorporation or individual? 49
What to sue for? Pg 9Debt or damages (breach of contract)Damages in tort actions – Special – General – punitiveOther...
Where to sue? Pg 9Provincial court, small claims do on ownFill in the blank forms$100 feeCourt of Queens Bench mostly ...
Civil Court ProcessP prepares Claim, filed, get docket noP gets blank dispute note to serve on D along with the Civil Cl...
Court Chooses pg 11Compulsory mediationPre-trial conferenceTrialIf D does not file Dispute Note, P can apply for Defa...
Court of Queens Bench Trial Processpg 11 The person commencing the law suit, the plaintiff, must file a Statement of Cla...
The Trial pg 13 The trial is the culmination of the action: Plaintiff normally has the burden of proof Plaintiff ...
Enforcement pg 1410 years to collectRegister judgment with clerk, file writ of Enforcement with clerk, File writ with PP...
Question for DiscussionConsider the phrase, “justice delayed is justice denied,” and apply it to the process of civil l...
Alternative Dispute Resolution pg 17Process for resolving disputes outside of the courtsMain methods – Negotiation – M...
Alternative Dispute Resolution/2Advantages – Parties of dispute maintain control of the solution – Disputants determine...
Alternative Dispute Resolution/3Disadvantages – Courts have more power to extract information – Fair process cannot...
Negotiation – Parties discuss the problem with each other in order to find a solution – Process requires cooperation ...
Mediation – Neutral outsider helps party settle the dispute – Communication facilitated by mediator • Finds common g...
Mediation/2 – Not the process to use when there is an imbalance of power or where blame or liability for injury mus...
Arbitration – Parties agree on an independent third party to make a decision that will be binding on themselves – ...
– Decision of arbitrator is binding on the parties– Decision cannot be appealed although procedure may be reviewed by the...
Question for DiscussionConsider the advantages and disadvantages of alternative dispute resolution processes.Would a bus...
Civil law vs Criminal Law pg 18Criminal law – Protection of society – Officers of the state – Crown prosecutor ...
VI Sole Proprietorships,Corporations, Partnerships
TypesSole Proprietorship - an individual carrying on business alonePartnership - two or more people carrying on business...
Sole ProprietorshipAn individual carrying on business aloneMust comply with government regulations – avoid restrict...
Sole Proprietorship pg 52Limited capitalTaxed as individualUnlimited liability for debts – Vicarious liability ...
Partnerships pg 52Group of people carrying on business together for the purpose of making a profitRegulated by Partnersh...
Creation of PartnershipBy Inadvertence - implied from conduct – the finding of a partnership has serious financial ...
Partner as AgentPartners are each agents of each other – agency law applies to partners – contracts made by a partn...
Unlimited LiabilityPartners‟ liability is not limited to the assets of the partnership – personal assets may be used ...
Rights and ObligationsFiduciary Duty - a partner must act in best interest of other partners: – account for all profi...
Rights and Obligations/2Partnership Act governs partner relationship: – partners share profits equally – expenses a...
Rights and Obligations/3 – no right to salary or wages – major changes must have unanimous agreement – no right t...
Advantages of Sole Prop Easy to set upRequirements of unanimous consent protects minority partners ...
Disadvantages Taxes Unlimited personal liability 80
Limited PartnershipsLimited partners are liable only to the extent of their investment – must follow provisions set o...
LLP PartnershipsSeveral provinces not permit limited liability partnershipsAvailable for professionsA partner is not p...
Vicarious Liability When agent is  Where Fraud or employee, principal negligent may be vicariously mi...
Corporations
Separate Legal EntityIncorporation creates a distinct legal entity separate from the people who make it up. – Isolate...
Question for DiscussionBecause a corporation is a separate legal entity, the shareholders (and that may be a single indiv...
CapacityAll methods of incorporation now provide for corporations to have all the capacity of a natural person – Power...
External ObligationsDirectors/ManagersDuties imposed by statute – Directors may be personally liable for : • ...
Officers and Senior ExecutivesResponsible for day-to-day management – fiduciary duty – duties of care and competenc...
Advantages of Incorporation Limited Liability – unless directors/officers give personal guarantees for loans ...
Advantages/2Tax advantages may be gained through incorporationSuccession and Transferability – continues to exist aft...
Advantages/3Shareholders owe no duty to the companyShareholders elect directors who appoint managers so are removed from...
DisadvantagesMajor changes in company structure or purpose must be reflected in incorporation documentsposition of minor...
Termination of CorporationDissolution of a company can take place in a number of ways. – Winding up provisions in inc...
Trade SecretsConfidential information that creates a competitive advantage – information must be valuable to the busi...
RemediesPlaintiff must show that the disclosure of information has caused harmRemedies - injunction, damages - general a...
Implications for Tort Law Defamation On-line publication is considered broadcasting and therefore an offence can be tre...
Employer Concerns– Employer should have policies in place to monitor and restrict employee use of internet– Opportunity a...
Question for DiscussionEmployees leaving their jobs may be restricted from using the information they have gained in anot...
Ec Dev and Joint VentureStrategies forAboriginal Development NAIT Workshop April 1, 2006 100
Agenda  Some Myths  Harvard Project  What is needed for success  Success Stories  Your Questions ...
Some Myths aboutAboriginal Workers They are rural They are uneducated They are economically insignificant Numbers are...
Rural Myth ShatteredMost are within one hourof urban centre! 103
Myth: FewFirst Nationspeople areeducated 104
Myth: Aboriginal people have littlepurchasing powerTripled 91 to 96From $4.5B to $11.35 BLand claims – 25% of Canada to...
Myth:Aboriginalpopulation issmall innumbers 106
SaskatchewanPopulation Pyramid, 1996 (%) 65 +55-64 ...
Growth of Saskatchewan AboriginalPopulation (1995 - 2045) The Aboriginal Saskatchewan Aboriginal Population Po...
Saskatchewan Population 1995 to 2045 Percentage of Aboriginal and Non-A...
Age Distribution of Sask Pop Age Distributions in 2003  The older end of the ...
The Challenge  Aboriginal working age population of 600,000  unemployment...
Harvard Project Founded by Professors Stephen Cornell and Joseph P Kalt at Harvard University in 1987 Through research ...
Researched Success StoriesWhite Mountain Apache (east central region of Arizona)Operates 9 tribally owned enterprises inc...
Success StoriesMississippi Choctaw (East Central Mississippi) 2nd largest employer in the US employing 100% tribal m...
THE DEVELOPMENT GAMBLEThe odds are not promisingThe required effort istremendousThe results are at best,uncertainAnd look ...
Obstacles Lack of financial or human capital Lack of natural resources or lack of sufficient control over them Lack of...
Obstacles Communiy savings rates are low Entrepreneurial skills scarce management techniques wont work in communities...
Obstacles unworkable and/or externally imposed systems of government politicians & bureaucrats are inept or corrupt Fa...
Obstacles The long-term effects of racism have undermined self-confidence Alcoholism and other social problems are des...
What do you need for success? The first is political control  The power to make decisions about your own future The seco...
For success also need HRJob descriptionsOrg chartCorporate strategyCompensation planTraining ...
Development Choices  collective Enterprise or JV  Private Enterprise with Member Ownership  Private Enterprise with o...
DEVELOPMENT ACTIVITY These projects range from chopstick factories to casinos, hazardous waste facilities to resort hotels...
Ec Dev ExampleCommunity Goal PerformanceObjective is to: ...
Training is Key Trades – Carpenters – Electricians – Iron Workers – Millwrights – Plumbers / Pipe...
Support Occupations – Clerical – Catering – Labourer – Security – Maintenance – MarketingRequire u...
5 Year Plan2005 2006-8 2009-10 New phases or c...
Ec Dev SuccessPiikani First Nation – Wind Turbine Project “WeatherDancer 1”Alexis First Nation – Construction CoTou...
Success # 1:Piikani (Peigan) NationWind Turbine Project“Weather Dancer 1”Piikani Initial Vision: Construct a100MW wind far...
First AttemptFirst Step: Environmental assessment as well as approach local utilities to invest in the project A total ...
Second Attempt In 1995, the Piikani Nation was encouraged to make a second attempt to successfully attain the Initial V...
Choosing the site Local site-specific wind data was needed in order to choose optimum site Several anemometers were ins...
Finding a Partner At the time, 50% of the development costs of renewable energy was tax deductible Piikani entered into...
Joint Venture Partnership Piikani FN administered an opinion survey to over 280 nation members to gain support of projec...
Technology & Project Costs A 900 kW MICON wind turbine from Denmark was selected The wind turbine tower stands 72 meter...
Success Ribbon Cutting Ceremony October 2002 Piikani Nation to construct future wind farm with 3 additional turbines P...
Weather Dancer 1 Chief Strikes With a Gun & William Big Bull 137
Success #2 The Alexis First Nation # 133 is located on the shores of Lac Ste. Anne, in Alberta. The Band has other reserve...
139
Alexis Band ProfileThere are approximately 1400 Alexis Band Members, of which 800 members reside on reserve # 133. There ...
Nakoda Construction CoOil field construction business in operation for 2 years. The business is run like a temp agency wi...
Mission Statement NCL was established to initiate the participation of the Nation within the Construction industry. Our ...
Day RatesForeman (with 4x4 & cell) $500Supervisor On Site $40 / hourLabour $35 / hourEnvironment Impact Liaison (with 4x4 ...
NakodaCo does not discriminate so will certainly hire outside the bandLast year they made around $1.5 M and recently rec...
145
Success #3Aboriginal TourismModel for developmentEra of eco tourism has arrivedEuropeans are hungry for Ab experienceA...
PiikaniPiikani KainaiwKainaiw aa 147
Rebirth of theResidential School 148
Deeper Meaning We were continually guided by the vision of one of our elders, Mary Paul, who said in „94 “it was within th...
St Eugene MissionNear CranbrookChief Sophie PierrePartnership between a Delta Hotel, and the Ktunaxa Nation who had th...
Transformed to Hotel & Conf Centre 151
Delta Hotels built and operated a separate 125-room hotel, casino and conference centre opened in May 2002Went Bankrupt ...
Tsuu T’ina Tourism Efforts  In Kelowna FN‟s have a 18 hole Stan Leonard designed course with adjoining condos  In th...
Other Tsuu T’ina Efforts  Ordinance (Explosives) Removal  Ordinance (Explosives) Removal creates 80 jobs – April to...
Tsuu T’ina Efforts  Golf course employs 10 FT and 20 PT FNs  Created careers for several FNs 3 of whom are now certif...
Tsuu T’ina EffortsPlanned casino and hotel Will create 500 jobs initially Many more in the future ...
Summary Harvard Project – Development is a huge gamble – Countless Obstacles Key Ingredients – Vision – Politica...
Information Sources http://www.ksg.harvard.edu/hpaied/pubs/p ub_120.htm Professors Stephen Cornell and Joseph P. Kalt ...
Our offer to youPlease call if you have any HR, or workplace issue that you are overwhelmed withWe can help youWe also ...
CG Hylton - Services HR Consulting  Benefits, Pensions, Job Descriptions EAP Salary Grid...
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Business Law 2

Published on: Mar 3, 2016
Published in: Education      Business      Technology      
Source: www.slideshare.net


Transcripts - Business Law 2

  • 1. IV – Tendering Employment Law pg 57 Ec Dev & JV Approaches Part 2 1
  • 2. Tendering Basics Nait Bus Law April 1, 2006 Chris Hylton 2
  • 3. Definition of RFPContains very detailed requirementsVendors‟ response targeted to RFPAllows fairs and objective comparisonForms basis for contract 3
  • 4. AdvantagesPotential lower costPrecise specificationsNegotiationBest solution accepted 4
  • 5. DisadvantagesTakes longer to procureMust evaluate less acceptable solutionsCan involve diverse organizations 5
  • 6. Writing the RFPAnalyze your needsDetermine evaluation methodProvide complete and accurate dataOrganize the RFP clearlyCommunicateAutomate 6
  • 7. Contents of RFP Info/instruction for  Timeline bidders (response  Financial framework guidelines)  Clauses to protect Background yourself Functional  Documentation requirements requirements Testing parameters 7
  • 8. Review/Selection ProcessDecide on review criteria in advanceDecision matrix or other toolInvolve all decision makersExpect delays 8
  • 9. RFPTerminology – Informal Competitive Bidding • Request for Quote (RFQ) – Formal Competitive Sealed Bidding • Invitation to Bid (ITB) – Competitive Sealed Proposal • Request for Proposal (RFP) 9
  • 10. REQUEST for QUOTESmall ExpenditureEmergency PurchaseSole Source 10
  • 11. INVITATION to BID Specific Product or Service Precise Specifications/Descriptions Lowest Price Determines Award to Responsive and Responsible Bidder Negotiations Not Allowed 11
  • 12. REQUEST for PROPOSAL Price Not the Only Factor Multiple Possible Solutions/Approaches Solicit Offerors Input to Define Problem and Solution Evaluation Team Best and Final Offer (BAFO) Final Negotiations Best Value 12
  • 13. RFP PROCESS FLOW10 Steps to Successful RFP Process ManagementTypical ProcessAcquisition Process Flow Chart 13
  • 14. SUCCESSFUL RESPONSESPre-solicitation Steps – Information Required of Offeror – Bidders List – Avoid Lists that are Too Narrow or Too Broad 14
  • 15. RFP TIMETABLE1. Develop Work Statement and RFP 2 weeks2. Send out RFP, Q&A Period 3-5 weeks3. Review/Evaluate Proposals, Negotiate & Finalize Decision 2-4 weeks4. Administrative Board Approval 4 weeks5. Finalize Contract 2-4 weeks Total 13-18 weeks 15
  • 16. RFP ELEMENTSTerms and ConditionsWork Statement/SpecificationProposal Submission InformationOfferor Information and Representations 16
  • 17. EVAL/AWARD PROCESSEvaluation Committee – Scoring Methods – Two Step Procurement ProcessBest and Final Offers/NegotiationsAward 17
  • 18. EXAMPLESAsset ManagementMaintenance ManagementFuel ContractWelding servicesInstruction 18
  • 19. EXAMPLESCategory Subject RFP or Commodity Example Documents RFQ or Service RFP Commodity Vehicle Specifications Vehicle Acquisition (250 pages examples) RFQ Commodity Truck SpecAsset RFP Commodity Patrol Vehicle SpecsManagement RFQ Commodity Refuse Tractor Spec Vehicle RFP Service Auction Services Remarketing Vehicle Leasing RFP Service Vehicle Lease Services 19
  • 20. RFP ExamplesStatement of WorkQuestions to AskEvaluation RFI Leas Sale e Repai RFP Fuel r Asset RFQ IT 20
  • 21. Statement of Work Asset Management -Acquisition  Vehicle Specification & Quotes  Factory & Stock Orders  Ship Through & Pool Orders  Special Order Bids 21
  • 22. Statement of Work Fuel Management– Internal vs External Fuel Acquisition– Universal Fuel Card vs Brand Card– Multi Purpose Card– Tax Exempt– Type of Fuels– Exception Parameters– Expense Approval Parameters– Expense Management– Fuel Cost Savings Management– New & Replacement Card Administration 22
  • 23. Statement of Work Welding Services 23
  • 24. Evaluation Techniques Evaluation Criteria Point System EvaluationRating based on a 1 - 5 scale A Company B CompanyTechnical Expertise 4 3Price 4 4Financial Status 4 3Service Locations 2 5Management Skills 3 3Quality Control Programs 3 3 20 21 24
  • 25. Evaluation Techniques Evaluation Criteria Weighted Scale Evaluation Weighted A B Multiplier Company CompanyTechnical Expertise 0.25 1.00 0.75Price 0.25 1.00 1.00Financial Status 0.15 0.60 0.45Service Locations 0.10 0.20 0.50Management Skills 0.10 0.30 0.30Quality Control Programs 0.15 0.45 0.45 1.00 3.55 3.45 25
  • 26. SummaryRFP is just a starting pointCustomize to your companyTake the best from all examplesInvolve others and get feedbackEvaluate for Best ValueManage suppliers & solutionsContract management critical 26
  • 27. Job Candidate Evaluation Evaluation Criteria Point System Evaluation CandidateRating based on a 1 - 5 scale A BTechnical Expertise 4 3Salary Req’d 4 4Education 4 3Experience 2 5Management Skills 3 3Language/Culture 3 3 20 21 27
  • 28. Job Candidate Evaluation Evaluation Criteria Weighted Scale Evaluation Weighted Multiplier A BTechnical Expertise 0.25 1.00 0.75Salary Req’d 0.25 1.00 1.00Education 0.15 0.60 0.45Experience 0.10 0.20 0.50Management Skills 0.10 0.30 0.30Language/Culture 0.15 0.45 0.45 1.00 3.55 3.45 28
  • 29. Performance Appraisal Evaluation Criteria Point System Evaluation ManagerRating based on a 1 - 5 scale A BCustomer Service 4 3Meeting Deadlines 4 4# New Customers 4 3Training 2 5Profit / Obtaining Funding 3 3Language/Culture 3 3 20 21 29
  • 30. Performance Appraisal Evaluation Criteria Weighted Scale Evaluation Weighted Multiplier A BCustomer Service 0.25 1.00 0.75Meeting Deadlines 0.25 1.00 1.00# New Customers 0.15 0.60 0.45Training 0.10 0.20 0.50Profit / Obtaining Funding 0.10 0.30 0.30Language/Culture 0.15 0.45 0.45 1.00 3.55 3.45 30
  • 31. QUESTIONS
  • 32. What Is Employment?Compare employee with agent and independent contractorControl test - degree of control exercised over an employee is greater than over an independent contractorOrganization test - is person an essential part of employer‟s organization? 32
  • 33. What Is Employment?/2An agent enters into legal relationships with others on behalf of a principalAgent may be an employee or an independent contractorLiability will be determined by nature of the relationship. 33
  • 34. Employee or Independent Contractor? Test Independent Employee Contractor Does employer control hours, work Control No Yes etc ? Does employer supervise the work? Control No Yes Desired outcome – the “end” or the Control The “end” The “means”? result “means” Is there freedom to work for other Control Yes Probably employers of clients? not Accepts liabilities (risk) for the Control Yes No task? 34
  • 35. Employee or Independent Contractor? Test Independent Employee ContractorProfit or salary? Control Profit SalaryOwns equipment? Control Yes NoAuthority to hire staff? Control Yes Only if delegatedIs position essential to the Organization No, except Yesorganization? for duration of project 35
  • 36. Law of Master and ServantContract law applyStatute law - Employment Standards Act – – determining responsibilities of employers to employeesCommon law 36
  • 37. Law of Master and ServantCommon law – – Employer must provide – • safety, defined work, clear direction, wages, reasonable termination notice • Vicariously liable for employee torts/performance – Employee must have • skills claimed, reasonable competence, punctual, honest, good faith, confidentiality, non competition, notice of leaving etc. 37
  • 38. Termination pg 58  Reasonable notice (if no just cause) by both employer and employee  Employer is required to give reasonable notice or pay (severance) in lieu of notice – may dismiss for any reason unless it violates human rights legislation  Reasonable notice standard set by – – Employment Standards Act, – The employment contract, – Common law (similar precedent cases), or – Collective agreement 38
  • 39. Termination/2 Just cause dismissal requires no notice. Dismissal without notice if – – Incompetence or failure to perform (document, warnings, don‟t approve behaviour) – Misconduct – dishonesty, disrespect, conflict of interest, sexual harassment etc – Not – personality conflict 39
  • 40. Termination/3 An employee discharged without adequate notice can sue for wrongful dismissal An employee can leave without notice when required to work in dangerous conditions or when work involves immoral or illegal activities 40
  • 41. Termination/4Constructive dismissal - employment contract may be breached when nature of job changes or working conditions become intolerable.Compensation based on reasonable notice, lost benefits and pension rights – Employee must mitigate losses 41
  • 42. Employment Standards Code pg 60Statutes designed to protect employees by setting minimum standards for: – safety – Wages, hours of work, overtime, – child labour – Termination – Penalties – Just cause 42
  • 43. Ee Notice to EmployerLess than 3 mos – nil> 3 mos, < 2 yrs – one week> 2 yrs – two weeks 43
  • 44. Employer Notice to Ee pg 61> 3 mos 1 week or pay in lieuTwo years or more 2 weeksFour years or more 4 weeksSix years or more 5 weeksEight years or more 6 weeksTen years or more 8 weeksMore like 3 weeks / yr is common in courts 44
  • 45. Question for Discussion A considerable amount of legislation in the field of employment affects the responsibilities of the parties. Is this legislative intervention detrimental to our economic system? Is there any other justification for such interference? 45
  • 46. V Courts and Civil Procedure should you sue? Pg 7 cost evidence Chance of recovery Other options? 46
  • 47. The Provincial Courts All Canadian provinces have a four-tier court system made up of the following: Provincial Court Court of Queens Bench Court of Appeal of Ab The Supreme Court of Canada, considered to be the highest court in each province. 47
  • 48. Limitation periods pg 82 yrs10 yrsother 48
  • 49. Who to sue? Pg 8Be carefulCorporation or individual? 49
  • 50. What to sue for? Pg 9Debt or damages (breach of contract)Damages in tort actions – Special – General – punitiveOther remedies – Accounting – Injunction – Specific performance 50
  • 51. Where to sue? Pg 9Provincial court, small claims do on ownFill in the blank forms$100 feeCourt of Queens Bench mostly need a lawyer, although it is possible to do it yourself 51
  • 52. Civil Court ProcessP prepares Claim, filed, get docket noP gets blank dispute note to serve on D along with the Civil ClaimP, or someone hired serves D. P files affidavit of service with CourtWait 20 daysIf D files Dispute Note, court may choose 52
  • 53. Court Chooses pg 11Compulsory mediationPre-trial conferenceTrialIf D does not file Dispute Note, P can apply for Default Judgement 53
  • 54. Court of Queens Bench Trial Processpg 11 The person commencing the law suit, the plaintiff, must file a Statement of Claim and serve it on the defendant; The defendant must file a defence to the claim; Documentary disclosure; The parties attend Discovery, pg 12 Often a pretrial is held; and The matter is set down for trial. 54
  • 55. The Trial pg 13 The trial is the culmination of the action: Plaintiff normally has the burden of proof Plaintiff calls witnesses to give evidence, defendant can cross-examine Defendant may call witnesses, and plaintiff can cross-examine Judge determines if evidence is admissible Counsel present arguments Judge (or jury) give decision 55
  • 56. Enforcement pg 1410 years to collectRegister judgment with clerk, file writ of Enforcement with clerk, File writ with PPSR, (personal property register)Examination in aid of EnforcementFile writ with land titlesGarnishment of wagesSeizure of property 56
  • 57. Question for DiscussionConsider the phrase, “justice delayed is justice denied,” and apply it to the process of civil litigation in Canada. – Complex procedure of court adjudication – Expense and delay because of an overburdened court systemDo the process and the system serve or defeat the ends of justice? 57
  • 58. Alternative Dispute Resolution pg 17Process for resolving disputes outside of the courtsMain methods – Negotiation – Mediation – Arbitration 58
  • 59. Alternative Dispute Resolution/2Advantages – Parties of dispute maintain control of the solution – Disputants determine and schedule resolution processes – Minimal costs associated with process – Matters remain private – Preserves good will 59
  • 60. Alternative Dispute Resolution/3Disadvantages – Courts have more power to extract information – Fair process cannot be ensured – Decisions do not follow precedent – Agreements may not be enforceable – No public record of dispute or decision 60
  • 61. Negotiation – Parties discuss the problem with each other in order to find a solution – Process requires cooperation and compromise • Good communication skills – May be conducted through representatives – Process may enhance relationship – Agreement may not be legally binding 61
  • 62. Mediation – Neutral outsider helps party settle the dispute – Communication facilitated by mediator • Finds common ground • Encourages concessions – Mediator does not make decision – Mediation sometimes required before court will hear case – Court may affirm mediated resolution 62
  • 63. Mediation/2 – Not the process to use when there is an imbalance of power or where blame or liability for injury must be determined – Parties must be willing to disclose information – Can result in costs and still not resolve matter 63
  • 64. Arbitration – Parties agree on an independent third party to make a decision that will be binding on themselves – Often required in contract – Arbitrators are specialists in the matter under dispute – Procedure must be fair – A decision will be made 64
  • 65. – Decision of arbitrator is binding on the parties– Decision cannot be appealed although procedure may be reviewed by the courts– Process is private, faster, less costly than litigation, but more formal and more adversarial than mediation 65
  • 66. Question for DiscussionConsider the advantages and disadvantages of alternative dispute resolution processes.Would a business person benefit from using such a process in a dispute over the delayed delivery of material required in the manufacturing process? 66
  • 67. Civil law vs Criminal Law pg 18Criminal law – Protection of society – Officers of the state – Crown prosecutor – Jail finesCivil law – Deals with disputes between parties – Compensate wronged partyBurden of proof 67
  • 68. VI Sole Proprietorships,Corporations, Partnerships
  • 69. TypesSole Proprietorship - an individual carrying on business alonePartnership - two or more people carrying on business together for the purpose of making a profitCorporation – an incorporated company that is a legal entity separate from the people who make it up. 69
  • 70. Sole ProprietorshipAn individual carrying on business aloneMust comply with government regulations – avoid restricted/illegal activities – meet zoning bylaws – comply with workers compensation, employment insurance and income tax regulations Easy to start up, simple, keep all profits 70
  • 71. Sole Proprietorship pg 52Limited capitalTaxed as individualUnlimited liability for debts – Vicarious liability for torts of employees 71
  • 72. Partnerships pg 52Group of people carrying on business together for the purpose of making a profitRegulated by Partnership Act common to common law provinces. – Sets out circumstances that do not create a partnership such as • owning property in common • sharing gross returns from business activity 72
  • 73. Creation of PartnershipBy Inadvertence - implied from conduct – the finding of a partnership has serious financial liability implications for partnersBy Agreement - primarily a contractual relationship - oral or written – must contain all the elements of a contract Do not need to register 73
  • 74. Partner as AgentPartners are each agents of each other – agency law applies to partners – contracts made by a partner are binding on all the partnersVicarious liability - all partners are liable for the tortious conduct of a partner or an employee 74
  • 75. Unlimited LiabilityPartners‟ liability is not limited to the assets of the partnership – personal assets may be used to satisfy claims against partnership – third party can collect from any partnerRegistration - failure to register where required may increase liability 75
  • 76. Rights and ObligationsFiduciary Duty - a partner must act in best interest of other partners: – account for all profits – not use partnership property for personal benefit – cannot compete with partnership – disclose all information and not use it for personal gain 76
  • 77. Rights and Obligations/2Partnership Act governs partner relationship: – partners share profits equally – expenses are reimbursed by partnership – all partners have right to participate in management 77
  • 78. Rights and Obligations/3 – no right to salary or wages – major changes must have unanimous agreement – no right to assign their partnership status without consent of all partners – can be modified by contract 78
  • 79. Advantages of Sole Prop Easy to set upRequirements of unanimous consent protects minority partners Easy to dissolve 79
  • 80. Disadvantages Taxes Unlimited personal liability 80
  • 81. Limited PartnershipsLimited partners are liable only to the extent of their investment – must follow provisions set out in the Act – to avoid risk of being considered a general partner • should register as limited partner • refrain from participating in decision-making 81
  • 82. LLP PartnershipsSeveral provinces not permit limited liability partnershipsAvailable for professionsA partner is not personally liable for conduct of other employees or partnersMust be registered and include LLP in name 82
  • 83. Vicarious Liability When agent is  Where Fraud or employee, principal negligent may be vicariously misstatement is liable for agent‟s involved, principal tortious conduct may be liable even where the agent is not an employee 83
  • 84. Corporations
  • 85. Separate Legal EntityIncorporation creates a distinct legal entity separate from the people who make it up. – Isolates shareholders from business activity – limits liability of shareholders and directors – provides flexibility for investors to buy and sell shares – courts may “lift corporate veil” to get at managers who commit crimes or avoid regulations 85
  • 86. Question for DiscussionBecause a corporation is a separate legal entity, the shareholders (and that may be a single individual) are protected from liability to the creditors and may in fact be secured creditors as well.Is it reasonable to give them priority over other creditors if it is their actions that have caused the company to go into debt? 86
  • 87. CapacityAll methods of incorporation now provide for corporations to have all the capacity of a natural person – Power to contract may be limited in certain situations specified in the legislation 87
  • 88. External ObligationsDirectors/ManagersDuties imposed by statute – Directors may be personally liable for : • unpaid wages • breaches of company employment standards • unpaid taxes • damage to the environment 88
  • 89. Officers and Senior ExecutivesResponsible for day-to-day management – fiduciary duty – duties of care and competence – Statutorily imposed duties similar to those of directors – Sarbanes Oxley US 89
  • 90. Advantages of Incorporation Limited Liability – unless directors/officers give personal guarantees for loans – or courts “lift corporate veil” and hold principals liable for company‟s obligations – shareholders protected from claims against the corporation 90
  • 91. Advantages/2Tax advantages may be gained through incorporationSuccession and Transferability – continues to exist after death of a shareholder – shares can be transferred at will 91
  • 92. Advantages/3Shareholders owe no duty to the companyShareholders elect directors who appoint managers so are removed from day-to- day operation of company 92
  • 93. DisadvantagesMajor changes in company structure or purpose must be reflected in incorporation documentsposition of minority shareholder is weakSomewhat more expensive way to operate a business 93
  • 94. Termination of CorporationDissolution of a company can take place in a number of ways. – Winding up provisions in incorporation documents – voluntarily by the directors – involuntarily by a creditor – failure to file annual report 94
  • 95. Trade SecretsConfidential information that creates a competitive advantage – information must be valuable to the business – not commonly known or readily available – disclosure may be prohibited by contract in a restrictive covenant – non-disclosure agreement protects employer 95
  • 96. RemediesPlaintiff must show that the disclosure of information has caused harmRemedies - injunction, damages - general and punitive, accounting – contract may provide remedies for breach – claims in tort - trade slander, invasion of privacy – Criminal Code - theft, fraud, mischief 96
  • 97. Implications for Tort Law Defamation On-line publication is considered broadcasting and therefore an offence can be treated as libel No intervention to exert controls on what is published on email or in a chat room Identification of perpetrator Determining the appropriate jurisdiction in which to sue Obligations of Internet Service Providers 97
  • 98. Employer Concerns– Employer should have policies in place to monitor and restrict employee use of internet– Opportunity and means for employees to interfere with company data– Employer may be vicariously liable for defamation by employee 98
  • 99. Question for DiscussionEmployees leaving their jobs may be restricted from using the information they have gained in another job, restricting their chances of new employment.What social and public policy issues are associated with these kinds of employment restrictions? 99
  • 100. Ec Dev and Joint VentureStrategies forAboriginal Development NAIT Workshop April 1, 2006 100
  • 101. Agenda  Some Myths  Harvard Project  What is needed for success  Success Stories  Your Questions 101
  • 102. Some Myths aboutAboriginal Workers They are rural They are uneducated They are economically insignificant Numbers are small They are unwilling to work 102
  • 103. Rural Myth ShatteredMost are within one hourof urban centre! 103
  • 104. Myth: FewFirst Nationspeople areeducated 104
  • 105. Myth: Aboriginal people have littlepurchasing powerTripled 91 to 96From $4.5B to $11.35 BLand claims – 25% of Canada total area 105
  • 106. Myth:Aboriginalpopulation issmall innumbers 106
  • 107. SaskatchewanPopulation Pyramid, 1996 (%) 65 +55-64 Non-Aboriginal45-5435-4425-3420-2415-19 Aboriginal10-14 5-9 0-4 -10.0 -8.0 -6.0 -4.0 -2.0 0.0 2.0 4.0 6.0 8.0 10.0 Source: W Weir U Sask 107
  • 108. Growth of Saskatchewan AboriginalPopulation (1995 - 2045) The Aboriginal Saskatchewan Aboriginal Population Population in Growth Saskatchewan is Aboriginal projected to increase 500 over the next fifty years 400 Population (ooos) from 135,000 1995 to 300 434,000 people in 2045 200 100 0 1995 2015 2045 Year Source: W Weir U Sask 108
  • 109. Saskatchewan Population 1995 to 2045 Percentage of Aboriginal and Non-AboriginalBy the year 2045, People in Saskatchewan Aboriginal People will make up approximately 100% ONE THIRD (32.5%) of Percent of Population 80% Non- Saskatchewans 86.7 Aboriginal 60% 80.0 Aboriginal population compared to 67.5 approximately one tenth 40% (13.3%) in 1995 20% 32.5 13.3 20.0 0% 1995 2015 2045 Year Source: W Weir U Sask 109
  • 110. Age Distribution of Sask Pop Age Distributions in 2003  The older end of the “baby20,000 boom” generation is Canada already contemplating18,000 equivalent retirement. (The average16,000 age of retirement in Canada is now 60 years.)14,000  The “echo” in is relatively12,000 large compared with10,000 Canada as a whole because of the Aboriginal 8,000 Echo population. Boom 6,000  There is Saskatchewan‟s competitive advantage - 4,000 Bust the presence of a large 2,000 potential labour force - to mitigate the effects of a 0 0 4 8 12 16 20 24 28 32 36 40 44 48 52 56 60 64 68 72 76 80 shortage caused by retiring Source: Labour Market Trends Report www.sasked.gov.sk.ca boomers. 110
  • 111. The Challenge  Aboriginal working age population of 600,000  unemployment rate of 70%  Huge opportunities to create jobs to solve this problem 111
  • 112. Harvard Project Founded by Professors Stephen Cornell and Joseph P Kalt at Harvard University in 1987 Through research and service, the goal is to understand and foster the conditions which will sustain social & economic development in Ab communities Research shows Ab communities with autonomy and control have far greater success of the resources they want to develop to obtain self-government. 112
  • 113. Researched Success StoriesWhite Mountain Apache (east central region of Arizona)Operates 9 tribally owned enterprises including a ski resort with 9M/yr in revenuesSawmill with 95% Apache employeesOfficial unemployment rate is 11% vs national rate of 45% 113
  • 114. Success StoriesMississippi Choctaw (East Central Mississippi) 2nd largest employer in the US employing 100% tribal members and creating jobs for thousands of non-native workers Plastics/electronics manufacturing, automobile assembly, American Greeting Cards, construction and golf resort, casino & other projects generate 12K jobs & 170M in annual wages As a result of economic ventures, the tribe now invests in cultural heritage such as language See Video, for copy contact Choctaw, or Hylton 114
  • 115. THE DEVELOPMENT GAMBLEThe odds are not promisingThe required effort istremendousThe results are at best,uncertainAnd look at all the obstaclesFNs communitiesface….. 115
  • 116. Obstacles Lack of financial or human capital Lack of natural resources or lack of sufficient control over them Lack of capable governing institutions Non-Indian outsiders control or confound tribal decision-making Aboriginal culture gets in the way 116
  • 117. Obstacles Communiy savings rates are low Entrepreneurial skills scarce management techniques wont work in communities cannot persuade investors to locate on reserves because of intense competition from outside communities Federal and provincial policies are counterproductive and/or discriminatory 117
  • 118. Obstacles unworkable and/or externally imposed systems of government politicians & bureaucrats are inept or corrupt Factionalism destroys stability in nations decisions The instability or lack of governance & political institutions keeps outsiders from investing 118
  • 119. Obstacles The long-term effects of racism have undermined self-confidence Alcoholism and other social problems are destroying human capital Reserves are disadvantaged by their distance from markets and the high costs of transportation Any other obstacles you can think of? 119
  • 120. What do you need for success? The first is political control  The power to make decisions about your own future The second is institutions  Effectively exercise control The third factor is a good ec dev strategy  Choose policies and specific development projects to pursue 120
  • 121. For success also need HRJob descriptionsOrg chartCorporate strategyCompensation planTraining 121
  • 122. Development Choices  collective Enterprise or JV  Private Enterprise with Member Ownership  Private Enterprise with outside Control  Any other choices? 122
  • 123. DEVELOPMENT ACTIVITY These projects range from chopstick factories to casinos, hazardous waste facilities to resort hotels to golf courses … 123
  • 124. Ec Dev ExampleCommunity Goal PerformanceObjective is to: Last year we met our objectives in the following increaseemployment ways:  increase in # of members working, as a % of increase # of businesses available workforce access new investment  4 new businesses sustain existing jobs where appropriate  supported 8 local businesses to get access to new support young people to develop business skills investment  increase in jobs in forestry sector  youth skills training program launchedEmployment Rate Analysis # members available to work has increased: People 50 employed as a  growth of community population 40 percentage of  social assistance recipients have upgraded 30 available their skills and are now looking for work workforce 20 increased from 10 31% in 1996 to A major barrier is accessing capital investment 40% in 1999. to expand existing businesses, and to create 0 1996 1997 1998 1999 new ones. 124
  • 125. Training is Key Trades – Carpenters – Electricians – Iron Workers – Millwrights – Plumbers / Pipefitters – Heavy Duty Mechanics Require 4 – 6 years of training and on the job experience 125
  • 126. Support Occupations – Clerical – Catering – Labourer – Security – Maintenance – MarketingRequire up to 2 years of training andon the job work experience 126
  • 127. 5 Year Plan2005 2006-8 2009-10 New phases or current project or commence new project Expand or reorient project - New strategy Commence project Implementation Financing Period of seeking Project or business plan including partners, Stakeholders & co-sponsors. human resource training and strategy Foster assets and expertise to exploit good development idea Period of learning, understanding and Support of community assessing internal and external Political control strengths 127
  • 128. Ec Dev SuccessPiikani First Nation – Wind Turbine Project “WeatherDancer 1”Alexis First Nation – Construction CoTourism Venture – Tsuu T‟ina 128
  • 129. Success # 1:Piikani (Peigan) NationWind Turbine Project“Weather Dancer 1”Piikani Initial Vision: Construct a100MW wind farm to harness power ofthe wind to generate green electricityIn 1980, the Piikani FN wasapproached by Shinook Projects Inc. todevelop a 9.9 MW wind power project inpartnership 129
  • 130. First AttemptFirst Step: Environmental assessment as well as approach local utilities to invest in the project A total of five (5) different Business cases were developed, to justify the economics of the project and secure joint venture partners 130
  • 131. Second Attempt In 1995, the Piikani Nation was encouraged to make a second attempt to successfully attain the Initial Vision Entailed seeking partners, searching for the best approach and developing a network of contacts in the fields of renewable energy/wind generation Discussions with Advanced Thermo Dynamics (affiliated with Batchewana FN, Ontario) who marketed Nordex turbines & NEG MICON a Danish Turbine Manufacturer 131
  • 132. Choosing the site Local site-specific wind data was needed in order to choose optimum site Several anemometers were installed on reserve to collect data on wind speeds at various locations First site chosen was located on land designated to an individual band member, as a result, a second site was located on community owned land 132
  • 133. Finding a Partner At the time, 50% of the development costs of renewable energy was tax deductible Piikani entered into a Joint Venture Partnership with EPCOR who was able to capitalize on tax incentives Piikani FN provided the land and the location, EPCOR provided the financial assistance Piikani FN formed the Piikani Utilities Corp. in order to move ahead with projects and joint venture partners 133
  • 134. Joint Venture Partnership Piikani FN administered an opinion survey to over 280 nation members to gain support of project prior to initializing plans with ongoing public consultation Partnership had to ensure employment opportunities with Piikani FN, 10 FN members employed during construction phase of project Partnership also included training of 2 FN members who were trained in Denmark on the turbine, maintenance and development of future sites 134
  • 135. Technology & Project Costs A 900 kW MICON wind turbine from Denmark was selected The wind turbine tower stands 72 meters high with installation area of 24 sq meters 20 yr contract with EPCOR who is to purchase 80% of power produced Remaining 20% is to be sold to the regional power pool at market prices 135
  • 136. Success Ribbon Cutting Ceremony October 2002 Piikani Nation to construct future wind farm with 3 additional turbines Piikani Utilities Corp to buy back the transmission line which will improve the asset base and allow the Corporation to charge a distribution tariff Also looking at selling a portion of the electricity directly to homes in the community 136
  • 137. Weather Dancer 1 Chief Strikes With a Gun & William Big Bull 137
  • 138. Success #2 The Alexis First Nation # 133 is located on the shores of Lac Ste. Anne, in Alberta. The Band has other reserve lands in Whitecourt, Cardinal River near Jasper National Park, and Elk River Crossing in the foothills of Jasper 138
  • 139. 139
  • 140. Alexis Band ProfileThere are approximately 1400 Alexis Band Members, of which 800 members reside on reserve # 133. There are 600 members residing off reserve to pursue higher education or employmentThere is a high youth population between the ages of 16 to 30, which comprises about 45% of their population 140
  • 141. Nakoda Construction CoOil field construction business in operation for 2 years. The business is run like a temp agency with 5 or 6 permanent employees and approximately 30 to 40 temporary finding work in the oil field for bands membersThe employee base is predominantly from Tsuu T’ina or Alexis Nakota Sioux Nation 141
  • 142. Mission Statement NCL was established to initiate the participation of the Nation within the Construction industry. Our company is mandated to pursue the principle of self-reliance by promoting the core values of our peoples and Nation. We believe that partnerships are integral to accomplishing our goal of building a profitable company, and pursue when feasible partnerships that benefit all parties involved. Returning customers is our ultimate goal. 142
  • 143. Day RatesForeman (with 4x4 & cell) $500Supervisor On Site $40 / hourLabour $35 / hourEnvironment Impact Liaison (with 4x4 pick up / cell)$300Professional Fees $1,000Meals, Incidentals, Travel $150Subsistence $125 143
  • 144. NakodaCo does not discriminate so will certainly hire outside the bandLast year they made around $1.5 M and recently received a grant for equipment from INACwww.alexisnakotasioux.com 144
  • 145. 145
  • 146. Success #3Aboriginal TourismModel for developmentEra of eco tourism has arrivedEuropeans are hungry for Ab experienceAbs usually have good supply of beautiful lands, traditions to shareEnvironmentally friendlySpiritual issues? 146
  • 147. PiikaniPiikani KainaiwKainaiw aa 147
  • 148. Rebirth of theResidential School 148
  • 149. Deeper Meaning We were continually guided by the vision of one of our elders, Mary Paul, who said in „94 “it was within the St. Eugene Mission that the culture of the Kootenay Indian was taken away, and it should be within that building that its returned” 149
  • 150. St Eugene MissionNear CranbrookChief Sophie PierrePartnership between a Delta Hotel, and the Ktunaxa Nation who had the location, valued heritage landmark, history and cultural features 150
  • 151. Transformed to Hotel & Conf Centre 151
  • 152. Delta Hotels built and operated a separate 125-room hotel, casino and conference centre opened in May 2002Went Bankrupt in 2004Resurrected in 2005 152
  • 153. Tsuu T’ina Tourism Efforts  In Kelowna FN‟s have a 18 hole Stan Leonard designed course with adjoining condos  In the early 70s Chief and Council from Tsuu T‟ina visited Kelowna and learned how FNs have used golf courses for ec dev 153
  • 154. Other Tsuu T’ina Efforts  Ordinance (Explosives) Removal  Ordinance (Explosives) Removal creates 80 jobs – April to Oct.  Nation has 6 members trained at the highest level of bomb removal  Sent to Kosovo for mine removal 154
  • 155. Tsuu T’ina Efforts  Golf course employs 10 FT and 20 PT FNs  Created careers for several FNs 3 of whom are now certified greens keepers 2 are now Pros 155
  • 156. Tsuu T’ina EffortsPlanned casino and hotel Will create 500 jobs initially Many more in the future 156
  • 157. Summary Harvard Project – Development is a huge gamble – Countless Obstacles Key Ingredients – Vision – Political control – Assets – Development Strategy 157
  • 158. Information Sources http://www.ksg.harvard.edu/hpaied/pubs/p ub_120.htm Professors Stephen Cornell and Joseph P. Kalt Tembec Corporate Communication Statistics Canada 158
  • 159. Our offer to youPlease call if you have any HR, or workplace issue that you are overwhelmed withWe can help youWe also are pleased to do Free Workshops for your organization (some limits apply) Let us know what your needs are and we will make it happen! 159
  • 160. CG Hylton - Services HR Consulting  Benefits, Pensions, Job Descriptions EAP Salary Grids  Strategic Planning Wellness at Work  Drug and Alcohol programs Staff Morale  Dept re-orgs Training and Workshops  Leadership compensation Tel 403 264 5288 chris@hylton.ca 160