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COMM 315 Final: COMM 315 - Final Exam Review

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Concordia University
COMM 315
Frank Crooks

COMM 315 – Notes for Final Week 8 – Class 2: October 23, 2013 2085 CCQ: Employee 2098 CCQ: Contractor Work for employer Work for a client Receive remuneration (incl. benefits, car,Receive price that is not automatically etc) linked to the work linked to the work. Depends on what you agreed w/ your client. Needs to be agreed upon in advance. Under employer’s control. Subordination No subordination. Working for yourself. link. Tools, procedures given to you by Free to organize the work the way you employer want as long as you provide the results Personal obligation to fulfill your work Can hire help if necessary Tends to be a bit greyer than this. Sometimes judges decide that one can be the other. Examples: • Work as a contractor but you only have one major client. You work for yourself but in practice you’re very dependent on the one client so it may turn into an employment contract • As long as an employees work for home, employer control is reduced. May go either way. 2085 CCQ: - Work - Remuneration - Subordination What do you need to have an existing employment contract? • Who is involved? o Employees have to be physical beings, can’t be corporations. o Employers can be a corporation or an employee • Formalism? o Can have an employment just by shaking hands & having an agreement. Doesn’t have to be written out (verbal = ok) o Only thing that needs to be written is a non-compete agreement • Capacity? o Minors > 14 o Incapacitated adults • Consent? Ways in which contracts can be cancelled. Signed due to: o Fear  when you sign a contract because you’re threatened into signing it o Lesion  when one side exploits the other (concerns minors & incapacitated adults) o Error  Some kind of mistake about the job itself, the tasks, the salary or the person (most common reason) For an error to apply, it needs to be done in good faith. 1 • Can only claim error if employer has done his verifications properly (if employer is negligent, he wont be able to cancel because he didn’t do his homework in the first place) • Limits to what can be asked  charter (discrimination, unrelated info, privacy) Employee has a duty to answer all questions in good faith. If employee lies, employer can claim there is an error on the contract • Must be careful with info pertinent to the contract • Ex: Truck driver needs to disclose that his license has been suspended even if the employer doesn’t ask • Bad faith examples that can be used to claim error: pretending you have a degree you don’t really have, forged documents proving things that are not true, Week 9 – Class 1: October 28, 2013 Question: Employment contracts in writing or not  Answer: d) Non compete has to be in writing, but not all employment contracts have to be in writing 1) Work  can be anything. Any kind of activity can be considered as work Limits • Should conform to public order (no illegal work allowed in an employment contract) • Needs to be something that is actually possible 2) Remuneration = wages, salary, compensation, car, benefits, pension plans, bonuses. Anything received in exchange for work can be remuneration • Can be by the hour, fixed sum, per day/week/month, determined on an individual basis 3) Subordination link  the fact that an employer can have some kind of control over employee. Not only power to sanction but the work environment too (under which circumstances are the work done & with what tools). These criteria are not clear cut (case by case basis). • Work execution: what are the hours? What is the place (from home, in an office), Report (proof that you’ve been working), procedures, authorization before going on with a client. Anything to prove that your employer decides how your work is performed. • Tool ownership (varies): Who paid for the tools in the first place? Who has to pay when you have to repair/replace the tools • Profit sharing: remuneration not linked to the profit you make. If you work for 10 hours, you’ll be paid for 10 hours o Remuneration not linked to risks Duration  Contract can be fixed term (agree in advance that it will be for a fixed period of time) or can be indeterminate (no date set & any party has a right to leave at any moment). EXAMPLE: Ballet company  Can ask… • Where & when the practices take place? • What equipment they use (room, gym equipment)? • What is the practice schedule? • Who they report to (artistic director, owner)? • Structure of remuneration? 2 • Who gives the costumes? • Do the dancers have leeway for improvisation or do they have to follow specific direction? • Work injuries & who pays for insurance • Is the dancer working with other orgs/contracts? Dancers were contractors (according to the court). Since their behavior was consistent w/ the agreement, the Canadian Tax Revenue agency lost. Termination of employment Within the employment contract, if there is no fixed term, you need to have a way out for both ppl (termination right). -> Unilateral rights for you to leave or employer to fire you 2097 CCQ  The fact that there is a change in structure of a business does not mean automatic termination of a contract • Does not prevent the company from changing the structure afterwards 2093 CCQ  If employee dies, contract is done • If employer dies, the employment contract can still be maintained 2091 CCQ  Discretionary termination right • Right to end an employment relationship at any time • Exists for the employer (to dismiss employees) and for the employee (to resign at any time) • Should terminate a contract in good faith (provide reasonable notice to employers if resigning, should receive notice if dismissed) • Notice should be reasonable o Depends on the circumstances o Right to notice = public order right (cannot renounce it) o Minimum length (according to the law). Cannot negotiate less notice but you CAN negotiate more notice. CCQ  Includes Work + Remuneration + Subordination • Labour Standard Act does not include all contracts • In terms of notice = if you’re under the CCQ but not the LSA, you will get something reasonable (EX: King vs. BioChem, Dube vs Volcano) • If contract is under LSA, notice will be calculated according to 82 & 82.1 of LSA (can find it on the website) • Managers, senior positions, state employees only in CCQ • Not all jobs benefit from the LSA protection LSA creates limits for employer to dismiss employees • Good & sufficient cause. o After 2 years of employment, whatever the reason is for dismissing an employee must be in good faith -> good reason to dismiss no longer freedom o Before 2 years -> dismiss employee for any reason as long as you provide notice • Serious reason to dismiss and employee (can dismiss w/o notice, must be linked to employee’s performance) 3 o 1 time really grave event. o Something not as serious but done repeatedly. Give notice the first time but if it reoccurs, can dismiss them. o Ex: breach of loyalty, threatening your boss, being under the influence at work, negative behaviour toward coworker, stealing/breaking things that belong to employer Question about termination: Answer b) She is entitled to notice. King vs. Biochem • Doctor hired by the company, fired w/o notice and she was shocked because she was receiving good feedback • She is in a senior position so she is not covered by the LSA • She received awards, got her probationary period reduced (they were happy w/ her), gave her stock options (also happy with her) • King never saw it coming, did not receive any warning & thought she was entitled to a notice • Employer claimed she was dismissed because they did warn her and said they were not happy with how she performed the work? • Judge compares what was more credible: King is more likely to tell the truth than the employer (balance of probability). Employers testimony was inconsistent • Decided to base the decision on what King said • She won. • What she obtained compensation for  reputation, stress, loss of benefits, loss of stock option, ($240,000 – 12 months of salary) • Based on the nature of the job, she deserved a 1 year salary. Very specialized & technical job so she’d have a hard time finding another place she can work. • She was entitled to receive anything she could have obtained in the 1 year, had she been working there. Proven she would have received stock options in 1 year notice. • Could have harmed her reputation because it’s a small industry. Employer was nasty. • Got relocation expenses Week 9: Class 2 – October 30, 2013 Dube vs. Volcano • Employee was dismissed. • Issue = whether or not he has been given reasonable notice • Employer says he should only give notice given by the LSA • Dube says he should receive notice that adheres to the CCQ • Company decided to remove his position due to economic difficulties = he SHOULD receive notice • Dube = general manager. Should get notice based on CCQ • When Dube signed a contract, it said he should only get notice based on LSA. The issue here is that the LSA is mentioned in the letter but not clear enough to explain that he was given reasonable notice. What is written in the contract is not enough to prove that they should only go by the LSA • Judge said that this was not enough & should give him notice based on the CCQ 4 • Dube claimed he should get compensation for his car. Since his job was over, there was no reason to get paid for car expenses • He got paid for his salary for 4 months but nothing else • He did not get compensation for moral damages because nothing was proved to be done wrong on the part of the employer Dube Question  Answer: d) Not covered by the LSA since he’s a general manager Content of contracts (cont). 2087 CCQ (and beyond)  Employer is allowed to provide the employee with a safe & healthy environment. • If he has the control, he should be the one to provide it 1) Environment: making sure the environment is safe, anything that will affect the physical environment (cleanliness, o Must identify the risks (not just wait for something to happen to take action) o Must prepare (put signs, etc) o Must make regular checks o Provide training to employees o Provide safe tools & materials to keep them safe (ex: masks in a factory where the work could give you asthma) o Explain risks to employees o Once all the safety rules apply, there should be first aid kits available 2) Person & Belongings  everyone working on your premesis is safe o If something of yours if left in the workplace, they should be safe o CASE: Man would bring his own tools to work for a landscaping business but store it in the employers warehouse. Warehouse burned down and company did not want to reimburse him for his tools but by law they need to because their duty is to protect their belongings (if it is related to the work) 3) Relationships  human environment of employees is safe (ex: No harassment or discrimination) o Dignity of employees within the org (management, colleagues) o Protecting dignity of employees w/ clients Ex: Somebody working in a burger restaurant & took an employee with whom he was dissatisfied with her work. Took the employee to the back & insulted her. He can express dissatisfaction but cannot insult her. Employee was sanctioned Ex 2: Client was harassing a bartender to the point that it was inside & outside of the bar. Employer prohibited the client from re-entering. He was allowed to prevent this because he was protecting the dignity of the employee 5 • If employer gives you instructions & materials to keep a safe environment, you must adhere to the rules (use the tools/training given) • Just because you are in an office environment, doesn’t mean you have less of a concern with safety & health issues 2088 CCQ  Fiduciary duty of the employee 1) Fiduciary  focus is on loyalty (act in employers best interest, no conflict of interest, no harm to others, etc) • As long as you tell the truth in a court, you are not breaching loyalty for the company (ex: if your boss was being charged w/ sexual harassment) 2) Confidentiality (duty to act w/ discretion) What is Confidential information: • Something this is designed as confidential by the employer (anything he actually stated is confidential) • Restricted access to information = confidential • Confidential by nature (ex: Trade Secret) • Info that is private & confidential (ex: Medical file) The strength of the duty to keep the info confidential depends on the nature of your job (ex: cleaning ladies will not come across confidential info often so duties are not as strong as managers who come across it often) Fiduciary duty + most confidential info  lasts during the contract & after the contract for a reasonable time after • Reasonable time depends on the judges. Most of the time = several months to a year • Something about someone’s private life = lasts forever (ex: Medical files, address) - Important to keep this information confidential because it may affect the employee getting a future job. - Employer cannot prevent you from getting another job. - You should not do whatever you want to do through being unfair/unreasonable. Ex: if you’re looking for another job, don’t use company resources/tools/lists & don’t do it on company time Question (loyalty): Answer: d) Breach of loyalty because she destroyed data & took info (able to be disloyal even after contract is over), breach of confidentiality because she used private numbers. Hasanie v. Kaufel Group • Company was restructuring • Short term = no impact on Hasanie’s job. • New ppl gave him a promotion that he refused • When the org chart came out with the restructure, Hasanie’s job was not on the list. He starting looking into buying a competing company • They offered him a severance package but he refused because he wanted more than what they were going to give him 6 • The company found out that he was collaborating with a competitor & launched an investigation. Hasanie was not cooperative with the investigation. Gave no info • Found out that it was true & dismissed him with no severance, Hasanie is contesting him • Job changed so much that the employee doesn’t recognize his tasks anymore and indirectly pushes the employee to resign (is what Hasanie claimed) • Whether or not there was a good reason to dismiss Hasanie, he claimed that the old management gave him authorization to work with the competitor • Since he was a senior manager, the court says his duty to be loyal was higher than the loyalty duty of another employee. • Also claimed to be a breach of fiduciary duty = answering when the employer asks questions (which he did not do) • No proof of constructive dismissal (no change in work conditions since Hasanie kept his same job & pay until he was offered severance) • Hasanie was dismissed & since it was a breach of loyalty, he was not entitled to notice. Trade Secrets  No definition in the CCQ, case-by-case basis • Needs to be some kind of information (formula, business method, etc) o Info should give whoever owns it a competitive advantage, used continuously • Info = not easily accessible (not known in the industry, ppl in the field don’t know it) • Info should have some commercial value (because it’s a secret) • Owner takes steps to protect it (ex: Coke. 2 ppl know half of the recipe, 2 ppl know half of the safe numbers) What happens if you disclose a trade secret? You need to compensate your company for the loss & compensate for the profit made based off the disclosure of the info. • Make sure there is no incentive to do it. • Exception: If there is a general concern about health & safety, If you disclose this info you will not suffer any consequences Insider Trading  Also outside CCQ • Illegal to sell or buy shares if you have priviledged info about these shares • Who: Insider (officer, director, anyone w/ access to priviledged info) • What kind of info: priviledged information (anything, provided it is not public yet) • Something scheduled in advance (ex: bonuses) would not be insider trading Week 10: Class 1 – November 4, 2013 • Employers will add a non-complete clause to an employment contract. This is the only part of the contract that HAS to be written down. • Limits about the employees ability to work should be clear • 2089, 2095 CCQ  In writing + express (needs to be explicit) • If the judges want to reduce the clause, he can. • Law sets limits to what you can set in a non-compete clause: o Time  Most of the time, judges don’t like clauses that last longer than 2 years (not too long). Clause must be clear & precise enough. Start date must be clearly identified 7 o Place  Finding a balance b/w where you can work with this clause and where you can’t (depends on the industry). Need to be precise here too. Geographical scope needs to be clearly identified from which the radius starts. ▪ Employee ability to work & employees best interest ▪ Competitive industry -> hard to impose broad clause ▪ Not many players worldwide -> clause cover 1 continent ▪ Origin of scope -> clear & precise -> specific o Type of employment  Employee’s activities may change overtime, must specify which activities exactly the employee shouldn’t do under the clause o Contract terminated for serious reasons  law wants to make sure that the law doesn’t have a super strict non-complete clause and then dismiss them so that they can’t work anywhere. So that they don’t cause harm to employee if they don’t like him. Non-complete clause cannot apply if they don’t like the employee and kick him out. • Limitations should conform with public order o Limits within clause should be legal o Example -> specific professions have rules -> patients have public order to choose doctor -> non compete disable doctor from seeing old patient • If judge is left to decided -> wtv he wants to do with clause o Review scope & cannot reduce in anyway -> clause will disappear Copyfax vs. Lambert case • Lambert hired for a company as a dispatcher (no managerial skills or strong responsibilities) & signed a non-compete clause • Was doing a good job and was promoted • Was suppose to last ____ months and was for 48 miles and couldn’t work with a competitor • Lambert created a company and started working on the side • Copyfax heard about it and dismissed him & sued him • Temporary injunction that is suppose to last the whole trial (Copyfax wanted to make sure that Lambert didn’t work as the trial went on) • 1) Geographical scope was not clear enough • 2) For the duration of the clause, Copyfax did not justify why the clause was that long • 3) Judge said there was NO link of the strength of the clause and the job as a dispatcher. Based on the nature of the job, the restriction was too strong • Based on all those elements, the judge said the clause was excessive and should NOT be applied • SOLUTION: Judge did not enforce the non-compete clause. Implemented an injunction saying what Lambert could do. Lambert was prevented from doing business with current clients of Copyfax (nothing would change in Lambert’s activities because he already wasn’t). o Lambert had to give back equipment and stuff he used from Copyfax Nina –Copyfax • No clear geographical limit • No justification on Copy fax part of 14 months • Judge [Symbol] no link with strength of job [Symbol] clause not appropriate for job • Based on job Lambert [Symbol] not key employee • Judge [Symbol]. Clause excessive [Symbol] should not be applied [Symbol] took out clause • Provided injunction limited Lambert ability to work [Symbol] Lambert could not work with Copyfax 8 clients Nothing would change with Lambert activities [Symbol] already NOT working with copyfax clients A. R. Medicom vs. Bergeron • 2 employees, both have non-complete clauses that are too broad • 1 clause was wrong cuz of geographical scope -> worldwide nd • 2 clause was too vague & lasted for 3 years • Judge insisted that there was no proven link from the employer of the clause to the employer’s interest • Minimum impact on the employee to reach your goal to protect your company • Request to maintain both clauses was subjected Privacy at Work • Employer has a right to search (limited). Can’t do whatever he wants 1) Do not always target the same employees (not discriminatory, specific groups of ppl) 2) Only use his rights to search in a way that is not arbitrary. Employer cannot come out of the blue to search employees. Needs a good reason: ▪ Reoccurring theft (Using a camera should be a reactive tool, not a preventative tool) ▪ Nature of job (ex: Miners can’t leave with gold for themselves) By default, not suppose to have cameras in the workplace. CASE: • Company w/ trade secrets • Employees said that cameras were placed everywhere • The employer agreed that they’d never use it for disciplinary purposes (ex: checking if ppl are late). Can only use for safety concerns/theft. • Judge allowed it. Emails & Social Media  Employees have the right to privacy in the workplace. CASE: • High school teacher w/ work laptop • Laptop needed to come back once a year for maintenance • Found out he had child pornography on the laptop • Judge determined that the teacher was entitled to privacy (even though it was illegal), the police needed a search warrant first. The school cannot open the computer and sue without a search warrant.  If you’re spending all your time on Facebook/e-mails & it affects your performance or productivity, it IS a grounds for dismissal.  But employees ARE allowed to privacy  Also applies to phones. Employer cannot record phone convos unless they warn you in advance. If the disclaimer is unlear, recording the convo is illegal.  Only time you can record without warning is if your safety is on the line. Medical evaluations: Can ask an employee to take a medical test: 9 • If its linked to the job. • If the employee went on sick leave (if employee is faking illness it is grounds for dismissal) 3) Monitoring vs. Expectation of privacy • Employee’s perception • Is the perception reasonable  circumstances • Nature of information (talking to your wife = private. Talking to a client = not private) EX: Case of indian priest in the temple. Was suppose to be working but he was on the phone talking to his mistress. • Ppl were unsatisfied w/ quality of his work & wanted to find out why he was on the phone for so long • They could not use it as grounds for dismissal because he had the right to privacy  Use tools (ex: code of conduct) to determine privacy rules.  If there is no code of conduct, Truck Question: d) No history of stolen truck so not allowed to put a camera. Week 11: Class 1 – November 11, 2013 2087 CCQ: Health & Safety • Rules of psychological harassment is linked to this duty • In addition to what you find in the CCQ, you also find the rules of psychological harassment in the LSA 81.18 LSA  Definition of being in a state of psychological harassment • Vexaxious behaviour (offensive, humiliating, abusive to whoever receives it) o Ex: Isolating an employee from others, any harassment based on the charter grounds for discrimination • Hostile/Unwanted (all about the perception of the person who receives the behaviour) • Affects the dignity of the person (anything that makes you feel belittled, etc.) • Needs to be creating a harmful work environment  Just because there is a conflict, doesn’t mean there is psychological harassment  Depending on the situation, some employees may take offense to comments made or feel victimized, even if it wasn’t intended that way. Legitimate use of the power to sanction.  All 4 need to be there to be considered a situation of psychological harassment  Anything that happens online can be taken into account as harassment as well.  Example -> something happened on MSN/Facebook -> comment  If people do stuff or post on Facebook during work hours -> can be used against them Exemptions  Employer allowed to punish employee to ensure that all work is being done properly -> good faith  Legitimate use of employers power to sanction 10  Situation of conflict 81.19 LSA  Employer’s duty Complaints to CNT/CRT (what you can do when harassment happens) • 123.6 LSA = Complaints in writing o Allows person who suffered harm to act OR the union to act for you • 123.7 LSA = Need to complain w/in 90 days of the act • 123.15 LSA: Remedies = getting job back, compensation = to wages lost, have employer take measures to stop harassment, compensation for moral damages, pay for psychological support that employee needs, any measures that the commission feels are fair/reasonable • employees can testify in court -> they do not have to be loyal as long as they are telling the truth 1621 CCQ  Punitive damages • Employer’s punitive damages will be more than a regular person’s punitive damages (the richer the company, the higher the damages) Vicarious liability • Whatever the employee does w/in the span of his job, the employer is liable for it, no matter what • Objective liability -> happens no matter what • Employer more wealthy them employee -> if something happens the employee is covered • 1463 CCQ (p.24) • Difficult for employers to prove they’re not liable. If you cannot prove the points below, employer will be liable no matter what. • Way to avoid liability: o Person is not an employee o Prove that their employees are not involved (not at fault/a factor) ▪ Person was employee -> employee did NOT participate at fault -> reason why something happened was something out of control ▪ Land slide, hurricane ▪ Result of victims behavior o If the employee is outside of his functions (will depend on the amount of control the employer has on the employees) ▪ Bell employee with truck ->uses truck to sell drugs on the side • If cannot prove 1 of these 3 situation -> will be liable Whistleblowing • In Canada, not detailed rules about whistleblowing. Approach is based on overarching principles that serve as guidelines. • Focus on the private sector (case law) • Witnessed behaviour: o Contrary to org’s mission o Threat to public interest Need to make sure that: 1) Information disclosed is true 11 2) Intervention is reasonable (not harmful to the company. Don’t go to the media right away) 3) Motive = public interest (should not do it with the purpose to enhance your own situation/interests). Ex: fraud, dangerous products. Can be sanctioned if used for own interest 4) Internal procedures first (if there is a way to deal with internally first, do that. UNLESS you think the company can destroy the evidence by doing that) NINA-Whistle blowing • Someone in organization witness behavior [Symbol] contrary to organization mission & threat to society • More common within USA [Symbol] have detailed rules to protect whistle blowing • Private sector [Symbol] not many rules [Symbol] Canadian approach to whistle blowing based on principle • Mix of case law & criminal code • Need to ensure information that is disclosed is true [Symbol] if not true employer can sue them • Ex. Hydro Quebec involved with group [Symbol] not true [Symbol] company • Intervention should be reasonable [Symbol] not harmful to company • Instead of going to the media right away • Ex. Company making water in complex poisoned [Symbol] contact CLSC to tell them [Symbol] judge said it was reasonable did not go to media right away • Motive [Symbol] public interest • Fraud, conflict of interest, harmful products • Ex. Union worker critic safety of public bus [Symbol] was fired [Symbol] Judge said good because he was trying to get into contract with bus [Symbol] personal interest • Internal procedure [Symbol] first • Canada Post has specific code of conduct • If there was a way to deal internally [Symbol] do first • Exemption [Symbol] if you think it will allow company to remove evidence & continue • Rules integrated in criminal code Illegal to dismiss Psychological harassment remedies question: Answer: e) Vicarious Liability question: Answer b) Professional Standards • Confidentiality • Fiduciary duty • Conflict of interest Codes of conduct Obligation = contract + liabilities Contracts • All contracts area created by adults who know what they’re doing • Contracts for businesses that are generally not negotiated • For specific cases, you need specific rules NINA-Contracts 12 Contracts Legal obligation [Symbol] framework • personal rights [Symbol] obligations what is obligation • creditor & debtor [Symbol] creditor suppose to receive something from debtor • 2 types of obligation • contracts & liabilities what is contract? • Contract defines civil code [Symbol] agreement of wills • Civil code [Symbol] old & contracts are supposed to be between 2 people with people of equal strength • Not something that really works [Symbol] contracts usually not negotiated • Civil cod e[Symbol] introduce notions [Symbol] fit more with reality • For specific case [Symbol] specific codes • Core of contract [Symbol] agreement between 2 people • Has impact on what is written • 8.2 in book • mutual agreement [Symbol] contract that was actually negotiated • adhesion [Symbol] not negotiated [Symbol] 1 party imposes contract on another • buy a ticket to a show • bilateral [Symbol]at least 2 people [Symbol] more than 1 person • unilateral [Symbol] 1 person [Symbol] pledge to give money to charity • onerous [Symbol] compensation • gratuitous [Symbol] free • commutative [Symbol] know what you are contracting for [Symbol] whatever each person is giving is defined in advanced • aleatory [Symbol] do not know what you are signing for [Symbol] insurance contract [Symbol] pay all your life [Symbol] may never receive anything • instantaneous [Symbol] contract happens in 1 time [Symbol] sale • successive performance [Symbol]contract that last over time [Symbol] employment contract [Symbol] do work over time & receive pay over time • rent of property • consumer contract [Symbol] between consumer & business • trigger consumer protection act • consensual [Symbol] agreement & contract exist [Symbol] no specific format • solemn [Symbol] law obliges people to have specific format [Symbol] if not format [Symbol] no contract example [Symbol] buy a car [Symbol] need to have written contract 1378 CCQ Definition (agreement of wills) • Core = when 2 ppl agree Types of Contracts (Section 8.2 in book) • 1379 CCQ  Mutual agreement vs. adhesion (One party imposes the conditions on the other) o Adhesion = take it or leave it • 1380 CCQ  Bilateral vs. Unilateral (ex of unilateral = donate to a charity, not looking for something in exchange) • 1381 CCQ  Onerous vs. gratuitous (paid vs for free) 13 • 1382 CCQ  Commutative vs. aleatory o Aleatory = don’t know what the outcome will be • 1383 CCQ  Instantaneous vs. Successive o Instantaneous = happens at one time o Successive = happens over time (ex: employment contract, rent/lease) • 1384 CCQ  Consumer contract (triggers application of consumer protection act • 1385 CCQ  Consensual vs. solemn o Consensual = just an agreement, nothing more o Solemn = must be a specific format (ex: in writing). If format is not respected, contract = not valid (ex: marriage contract) Week 11: Class 2 – November 13, 2013 Copiscope v. TRM Case • Non-complete clause b/w TRM and it’s clients (business operators). TRM asked non- compete to protect their activities • No link between TRM & Copiscope -> nothing signed between copiescope & clients • Non-compete clause did not work very well because clients started working with Copiscope • Interlocutory injunction = order or measure that the judge decides to impose during a trial (TRM obtained one to prevent Copiscope from working with their clients) • Copiscope sues because interlocutory injunction should have not been granted • in first place -> decision taken to apply during trial but not in trial yet • Copiscope decided to sue because they don’t think the injunction should have been granted in the first place. Arguments: o The only reason they were granted the injunction was because of the non-compete o Complaints: Non-compete was ▪ 1) Excessive ▪ 2) Was a contract of adhesion (1 party could not negotiate) ▪ 3) Clause was not precise/justified • During the trial, Copiscope was still allowed to work with the clients • Copiscope points Only reason why there is an injunction [Symbol] because of non compete If non compete valid [Symbol] injunction valid Look at contract [Symbol] what non compete says at first sight Non compete is excessive Not explained why only 1 year Did not explain geographical scope Clause not precise & not justified Non compete adhesion Judge said [Symbol] non compete was not valid • Therefore [Symbol] injunction not valid • Meant during trial [Symbol] cipiscope still allowed to work with clients 1385 CCQ: formalism • No legal obligation to write down the contract. But it always helps. • More interest to protext -> law will be formalize 14 • Contract has been complete -> specific format -> if modified needs to have same format o Ex. Modify something -> need to notify notary about modification & get aproval • Exception = when the law requires a certain contract to be in writing (ex: Consumer protection act, car, property, marriage, non compete clause) • The more dangerous a contract is/interest you have to protect, the more likely it needs to be written If you have a contract in writing that needs to be modified, you need to modify it in writing (not verbally) When do you have an offer? • 1386 CCQ  Tacit or express (ex: Tacit/implicit = taxi cab. The light on indicates that they are ready to do business with you) • 1388 CCQ o Serious = Offer should indicate a person’s willingness to be bound. ▪ Should intend to sign contract ▪ People keep the right to choose -> not offer o Complete = should have all the elements necessary to be bound (essential to the contract. Ex: A sale = number of items, type of items, price) ▪ Nature of goods, price, quality, time, delivery ▪ Adjust depending on the goods o Precise = all info must be clear enough so that the other guy knows it’s a contract • 1389 CCQ: Offerer  Person who brings all the elements of the contract together. If the person fails to include an element of the contract (ex: price), he is not an offerer. When the person fills in the price, then they are making an offer, according to the civil code o no automatic way to determine who is making the offer o last person to bring all elements of contract • 1393 CCQ: From the moment you get the offer is the moment that the contract can be accepted Job description = not an offer. Inviting applicants to make an offer but they can decide whether to accept or not. • 1390 CCQ  Offer can be addressed to a specific person or to the public. Offer cannot be discriminatory. o Fixed or indeterminate term o During the fixed term, cannot revoke the offer in a way that’s harmful o During a reasonable period, offer cannot be revoked unless its in good faith ▪ Person you are negotiating with -> take time to think • 1394 CCQ  Silence does not mean acceptance o Exceptions ▪ Agreement that silence means acceptance ▪ When the law says that silence = acceptance (ex: mandates) ▪ Usage (practice of the industry is that silence means yes) When according to the law is the offer accepted? • 1387 CCQ  According to the law, when the offerer receives acceptance (not when the offer is accepted (especially important w/ business from other countries) 15 • 1391 CCQ  Issues (offer being revoked): • 1392 CCQ  Expiry of offer, Refusal (cannot change your mind anymore), Death, Bankruptcy or incapacity (offer is no longer valid) • 1395 CCQ  Reward. Offerer still needs to pay reward even though the person who brings back desired object doesn’t know there is a reward. o Leslie question: d) Leslie must pay • 1396/1397 CCQ  Promises vs. Contract o Elements of an Offer = complete, precise & serious o Promise = Offer made to a specific person + person undertook to consider the offer
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