schuettlaw Evaluating Your Dispute Presented by Calgary Construction Association and Robert Schuett Professional Corporation

Evaluating Your Dispute  Introductions Bob Schuett  Course Objectives understand the legal system and, in a broad sense, how it functions. understand the essential components of a contract. analyze a dispute and express the issues in an organized fashion. understand the proper role of legal counsel and know how to use a lawyer efficiently. make a decision regarding the appropriate venue for the resolution of a contract dispute,

Evaluating Your Dispute  Administration Teaching methodology/classroom discipline  Questions Are Necessary First time this course offered We will build on what we learn

Evaluating Your Dispute  The legal system What is the common law The Court System

Evaluating Your Dispute FILAC  A way of organizing and analyzing Lawyers

Evaluating Your Dispute  The common law  The Common Law Built on decisions of judges  Common Law vs Statutes

Evaluating Your Dispute Responsibility for justice system  Defined in the constitution  Administered by Provinces

Evaluating Your Dispute Canada’s Court System  Jurisdiction – geographic & topic  Supreme Court of Canada Alberta’s Court System  Court of Appeal  Court of Queen’s Bench Superior Court Masters  Provincial Court Civil Criminal Appeals

Evaluating Your Dispute

 Lawyers Expensive Treat like high priced equipment  Do your homework.  Sort out your documents.  Follow their legal advice Bound by code of conductcode of conduct Must use lawyer for certain thingscertain

Evaluating Your Dispute  Contracts Simply a promise between parties that is enforceable by a court Formed by “offer” and “acceptance” Does not have to be in writing Must be result of “consensus ad idem”

Evaluating Your Dispute  FILAC A methodology for the systematic analysis of legal problems. Different acronyms are used but they all amount to the same thing. Facts  All relevant facts should be listed Issues  Define the questions that must be answered Law  What law – both statutory and case law should be dealt with Analysis  Correlate the facts and the law Conclusion

Evaluating Your Dispute  Facts Only objective facts related to the issues to be decided No opinion Objective view important

Evaluating Your Dispute  Issues What is to be decided? Major issues  Sub-issues Example:  How much money does he owe me Do I have a contract What are the terms Did I perform…etc

Evaluating Your Dispute  Law What principles of law are involved  Generally leave this to the lawyers  EXCEPT Your understanding of your contractual or statutory obligations Ie: Did you fulfill your obligations under the contract - absolutely

Evaluating Your Dispute  Analysis Review facts in light of contract and issues Be Objective (3 rd party view) Let the facts + law(contract) drive conclusions

Evaluating Your Dispute  Conclusion When you get an unvarnished look at your dispute and your likely chance of success two things result  You have a better idea of what your negotiation strategy should be  You will have organized the materials for your lawyer

A Little Bit About Contracts  Agreement between parties for provision of one thing for another  Fundamental Elements are: Offer Acceptance Consideration  Characterized by An intention by both parties to enter the agreement and, An ability to enter into the agreement

Intention To Be Bound  Essential that both parties want to be bound by the terms  Generally manifest by some form of open agreement

Offers  Ad in Paper – 2014 Ford F150 $25,000  Is this an Offer?  Suit in Store Window – Sale $600  Is this an Offer?  Can you make an contract by going in and saying “I accept your offer”

Invitation to Treat  These were all invitations to Treat and you cannot count on creating a contract by saying “I accept”  You are more familiar with a quote that simply gives a price but does not contain the words – We offer to perform the work for $$$$$

Offer  If the duration of an offer is unspecified, it can last forever  If the offer does not say it is irrevocable, it can be withdrawn at any time before acceptance  Think about Tenders

Acceptance  Silence is not acceptance  The offer that was presented must be accepted as offered. Anything else is a counteroffer and the original offer is lost  Performance can be acceptance

Letter of Intent  Letters of Intent – Exercise An owner has received a quotation based on the use of a standard CCDC form 2 Stipulated Price Contract from a contractor for the construction of a building. Unfortunately, construction must start within 10 days for the owner to retain his development permit and the bank that is funding the project will not have approval in place for 30 days. In an attempt to secure his position, the owner writes the contractor a letter stating: It is my intention to issue the construction contract to you within 30 days but in any case, immediately after the funding approval from my bank… I would appreciate it if you can start mobilization and site work by the end of this week.

Letter of Intent  Letters of Intent – Exercise Is this situation altered if the owner added the following language to the letter?  I hereby agree to pay for any and all work undertaken by you prior to the issuance of the contract on a cost-plus basis and even if the contract is never issued. What are the terms of the contract that exists?

Tender Law  Old Law Offer and Acceptance = Contract  New Law Invitation to Tender = Offer Submission of Tender = Acceptance Contract “A” formed Terms – discussion Contract “B” is the main construction contract

Evaluating Your Dispute  Cases/Examples