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COMM 315 Final: COMM 315 Final Notes

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COMM 315
Frank Crooks

CH7: Employment Law Employees Vs. Contractors 1. Employment law in Canada is complicated 2. 3 rules: a. general rules on contracts b. rules in civil code which are specific to employment contract c. excerpts from specialized laws Compare employment contract and service provider contract Employment (2085) Contractor/service provider (2098) Subordination- has to do what employer tells him to Autonomous- can do whatever they want Employer is liable Contractor/service provider is liable Within the business Outside the business Remuneration (wages/ salary) Paid a price (independent from the actual value of the act) - 2106, 2109 No profit All the profit for the interaction Works for employer Works for client Employee has to do his job personally Can hire helpà liable for checking that the job is done *exam • If you set a price, you have to stick to it • Article 2085: employee has to provide work; employer has to provide employee with remuneration (compensation in exchange of work); this con tract happens when the employer controls (subordination) • Employee can only be a physical person • If you are in a company, you are not considered an employee. o Exception: if the employer bullies you into creating a company because it reduces his own charge and if the judge notices that the compa ny has been imposed on you (still a subordination) the judge will say that even though the company exists, since you obey what the employer says, it can be re - qualified as a work contract. • An employer can be a physical person or a legal person • Formalism: you can conclude an employment contract with a handshake. You do not have to write down an employment contract. If there is a clause in your contract that prevents you from working for a competitor or starting your own business it has to be written down • An employment contract can be accepted tacitly . o If you do not sign a contract but he starts giving you paystubs, you can tell you’ve been hired • Capacity: categories à people who can sign employment contracts - people under productive custody (when they have the help of the people in charge of them) and regular people. o Someone is handicap and needs help to conclude the contract. If the handicap individual signs the contract on his own, it is void. If he signs it with the help of his curatorship, it is valid o You can work when you are 14 or older . If the employer takes advantage of the fact that you are underage, it is possible to renegotiate it to reach something normal- employer is trying to take advantage of a minor. Lesion can reduce contract o Tutorship when you need assistance for certain types of decisions. If you cannot make any decisions by yourself, it is a curatorship *may be reversed- tutorship may be stronger—look up • Contract is considered cancelled if one of three conditions are met: o Lesion: one party is exploiting another o Fear (if you are frightened into a contract because you fear an injury) ex: blackmail o Error- you contract into something believing it’s something else. Error is the one you see the most. Can be about: the object of the contract (condition of the contract), or on persons (ex: if the employer hires you because he thinks you have a diploma or quality but you do not have it) • Whoever made the mistake can ask the contract to be cancelled • De non vigilantibus non currant praetor- the law is not there to protect people who are negligent. You can ask for contracts to be void if you believe there is an error. If you failed to do reasonable background checks, etc. you cannot ask for it to be cancelled. • The employer is supposed to ask relevant questions - questions cannot be asked about things protected in the charter. • Since the employer has to ask questions that are relevant, the employee has to answer in good faith. The question has to be relat ed to the job. The employee does not have to provide information that the employer did not request. • If employee provides false information, it is in bad faith and the contract is void. Ex: pretending you have a diploma and you don’t, lie on medical or cri minal history. Sometimes, even being silent implies guilt (ex: truck driver who lost his license). Content • There are specific things related to duration of the contract • If you show up to an employment place and there is no work to do, since you are there and available, you have to be paid. • The object of the contract has to be legal. You cannot specify forbidden clauses in a contract (sell drugs, prostitution, to be a doctor when you’re not a doctor). • The employment contract has to be possible - it is not possible to sell beach holidays in Greenland (no beaches). • Employer controls the work of an employee (this is how employment differs from a mandate). Must determine the work relationship. To check subordination link, you must check who determines the work hours, the work place, an obligation to report, whether there are procedures to follow , whether your work is assessed, if you need authorization to perform things. • Usually the employer provides the materials and tools. Look at who maintains them, who pays for them. • If the employee has no share in the profits, it is an employee contract. If they do benefit it is a contractor contract. • The employer can impose sanction on employees who do not follow their orders/directives. • Remuneration: any kind of compensation for the work. If your company provides you with a car, it is considered a compensation. The form of the compensation doesn’t matter- as soon as there is a compensation it is considered remuneration. • Duration: in principle, 2086 tells us that it can be a fixed term or it can be an indeterminate term. You can have a contract with no end, but you cannot have a contract forever. If you have a fixed term contract and it’s over, 2090 tells you that the contract turns into an indeterminate contract if the employee continues to work for over 5 days and the employer says nothing about it being over. Terminate an Employment Contract • If your employer is a company and the company is purchased, your employee contract does not change. (Shareh olders just change). • Contracts can end because parties agree to an end. • The first unforeseen end to a contract is death - the contract is over • Employers can either be legal persons or physical persons. Depending on the contract, it is possible that the heir s of the employer will continue the contract. • Article 2091: Discretionary termination - termination at will. The only condition is that the employer is given reasonable notice. You have a right to finish a contrac t but you should not abuse this right. o If there was some damage from the termination in bad faith, you can get compensation for the damages o Ex: C works for B. A contacts C saying he will get better pay, more interesting job, etc. C leaves B and goes to work at A. A fter a couple of weeks A dismisses C because he couldn’t afford the promises he made. A is technically entitled to fire C but this dismissal causes damage to C because he lost a stable position at B. C can be compensated for what he lost at B. o A knew he could not afford the promises he mad e to C at the time he made them Termination of employment • When the structure of the company changes, there is no affect on the employment contracts. • Contracts can end when it is consensual (both agree to the ending) or unilateral (one person decides it e nds). • Consensual end: • when there is a fixed contract ( Article 2086) • indeterminate contract and the parties agreed that they were going to finish the contract (CCQ 1439) • Unilateral end: • when your employee dies (Article 2093 para. 1) • the employer dies. It will depend what is in the contract, it can either continue or end (Article 2093 para 2) - Think Batman; Alfred worked for Bruce’s parents, they died and he now works for Bruce. • Discretionary end (at will) (Article 2091 para 1) o The employee can leave for any reason, and the employer can dismiss for any reason. LIMIT: it must be in good faith (CCQ 7) o Need to give the person reasonable notice (Article 2091 para 2). It is based on the nature of the employment, the circumstances and the duration of the work. § Article 82 of the LSA says that it sets minimum standards. If you have been working for less than a year, you are entitled to a week of notice. 1-5 years, you’re entitled to 2 weeks of notice, 5 -10 years, 4 weeks of notice and 10+ years, 8 weeks of notice. The exception to this rule is 82.1 - when you are not entitled to a notice. § The right to get your notice is a public order right. You cannot renounce any kind of notice ( article 2092). • serious reason to dismiss employee- something grave and justifies the end of the contract. Ex: bringing drugs to the workplace, trying to get employees to participate in an illegal strike, etc. Usually is linked to the employee himself. You do not need to give notice (article 2094) o If you believe you’ve been dismissed for no serious reason, the LSA allows individuals to bring the case to commission de nom de travaille (work in French) (?). (124 of LSA) They must have worked for over 2 years. (124 -128 LSA). If it was not for a serious reason, you can get compensation and be re-hired. • Managers and government jobs are covered by the CCQ but not the LSA. Most employment in Quebec falls under the LSA. • The employee can ask his now former employer for a certificate stating length of employment, position, etc. It canno t be used by provider to give feedback (article 2096). No serious reason àGood faithà notice (ex: company in economic trouble) No serious reason à Bad faith à notice and damages Serious reasonà no notice Health, Safety & Dignity • Article 2087: employer has to protect health and safety- anything that threatens the mental or physical well being. You must be able to work in a decent condition as an employee. • Employers must eliminate any kid of danger (ex: if they see a floor is slippery, the must eliminat e the risk). They have to provide safe tools and methods for maintaining the tools. • You must make sure your employees actually follow the rules. The duty to provide a healthy and safe environment extends to th e employees belongings. o Ex there is a man who has heavy tools which are inconvenient to bring back and forth from work everyday. The company agrees that they can leave their tools there. The building burns down and all the tools are destroyed. The employee goes to small cl aims and is awarded compensation for his tools. • The employer has a duty to provide the employee with a decent work environment. If someone is harassing one of the employees, that means the employer is not providing a good environment. The employer should not try to infringe an employees dignity. o A manager wasn’t happy with a worker. He brought him outside of the premises and started insulting her. She brought the case to the commission- the judge decided that he failed to protect her dignity because he was insulti ng her. o The difficulty in these kinds of cases are proving what happened. o If another employee tries to fight another employee, the employer has to step in. • There was a case where a man was harassing a bartender. The employer refused the man access since he was harassing his employee. The man went to the judge to try to re -gain access. The judge said no, the employer was protecting his employees dignity and was allowed to do that. • Article 2088: Even though the employer has the duty to provide the environment , the employee has to act prudently and respect and kind of safety rules the employer implements. • The employee has the duty to do his work safely. • The employee has a fiduciary duty to act in the employers best interest. There was an employee who was posting things about his company online. His boss found out and fired him. The judge said he should have been fired because he was saying bad things about his company. Article 2088: confidential information (what exists by default ). • The employer has designed it to be confidential. (In employment contract, it says that you should not disclose specific information) • Information to which access is restricted (info that not everyone in the company has access to) • Information that is confidential by nature (trade secrets) • When the employer decides information is confidential, he must explain why the information is confidential. • If you have a senior position, your standard of loyalty may be higher than someone with less responsibilities. • In the fiduciary (time)- idea is based on when you go to work for competitors. • Confidential- reputation and private life (ex: if you are secretary for a doctor, you can never disclose information on patients even if you no longer work for the doctor) OR other information • Loyalty- the duration is a reasonable time. It is usually from several months to a year. If you have an obligation to confidentiality or loyalty, the obligation starts when you get a new job. • Information about private life is always confidential. Trade secrets and Insider tradingà Fiduciary duty covers confidential information- trade secrets are an element of confidential information. All trade secrets are confidential information but not all confidential information are trade secrets. Need to meet all 4: 1. Information: a. Continuously used b. Formula, process 2. Not easily accessible a. Unknown in industry. 3. Should have commercial value a. If it’s disclosed, it causes a damage (information is valuable as long as it’s secret) Steps are taken to protect it à 1. Trade secrets can be an efficient way to protect secrets. 2. If a trade secret is breached, the judge will look at the cost to protect and create the trade secret 3. They compensate for loss of profit 4. The only time you wouldn’t be liable when you disclose a trade secret is when it has potential hazards on the public. Ex: if you learned that there are dangerous drugs in coke, you can disclose the trade secret. Insider Trading • Someone from inside the company using information to gain a profit • Rules are set at a provincial level. (not in CCQ- in securities act, 187-188) • The insider of a company (officer or director + outsiders under certain conditions) • They cannot trade securities, recommend a trade or disclose information because they have access to privileged information th at is not yet public. • The people from outside the company- it depends how they get their hands on the information o The psychologist of the wife of a CEO got information and was considered an insider. • Privileged information can be pretty much anything. o A kid choked to death on a Lego toy. Around this time, one of the officers sold his shares. They thought he knew of the impact this would hav e and that’s why he sold. They realized that the fact that he had sold the shares was not related to the death of the kid. • Exceptions: o If information is generally known- if it was on the news that the kid had choked, it is not insider information because it is publicly known. o Automatic investment plan- if you were supposed to get X amount of shares every year, you are not considered to have used insider information. o Contract Non-Compete Clausesà • Article 2089: o It has to be in writing o It has to be express • If these 2 conditions are not respected, the clause is considered void. • Since the clause has to be written in express terms, thejudge cannot reduce it- he can only cancel it. It also has to be interpreted in favour of the employee. o If an employer writes something too big, it’s going to be void not reduced. • There are 3 elements o Time- the clause should have a reasonable duration. It should not be longer than the contract. If you are in an industrial setting, the clause shouldn’t be longer than the cycle of the goods. There has to be a clear starting point to the clause. If the clause saapplies during the contract and one year after- 1 year after is not a clear starting point. o Place- specialized when there are few competitors. Can’t have a broad and geographical scope. Clearly determined - a clause that says that a person can’t work in the Vancouver area - it is not clear. o Employment- it should be reasonable and should not prevent the person from finding a job in the field. It should also be clearly defined. • These only apply if the contract was terminated for serious reasons. If you were fired because the employer doesn’t like you, the employee doesn’t have to respect the clause. If employee just leaves the contract, he is bound by the clause. • 2088 cannot have an effect stronger than a non competition clause. • If nothing special is written in the contract, you have to be loyal and keep information confidential. However, the employee can do whatever he wants to prepare his future career as long as it doesn’t hide information from the employer (?) • A guy works for an employer and there is no clause about his work. Another guy contacts him and he changed companies. He still has access to his old clients. He can’t act in bad faith and take all his clients . Privacy 5 charter, 3ccq Employer has the control to control the work place Employer should be able to search anything in the work place Even if the employers have the right, in practice this is limited, risk of abuse on employer side Employers limited right to search • Usuasty when they make a search (should be restricted theoretically) • à 1 not discriminatory (only the same employe es, or ethnic background) • à2 ndshouldn’t search arbitrarily, **must have a legit reason to search, reasonable reason to start up a search ex: series of tt, that’s a reason to proceed with a search CAMERAS Use of cameras in the work place, shouldn’t be used to point directly at you. Employer cannot put cameras on premises for just prevention use. It can be a form of reaction but cannot just simply but them in without a series of elements to be justified (IE THEFT, vandalism) The sole use cannot be to monitor employees The employer needs a limited use and a legitimate motive Example of a plant that justified camera use to protect trade secrets • -Even though they wanted to legit keep their secrets private, by itself it does not justify • -Employer undertook the stipulation that he cannot use what could be seen as a means to discipline employees, that’s what essentially allowed him to continue with the use of the cameras • (expectation of privacy) Emails and the internet • BALANCE the private life and the employe r wanting work to be done • Employees have the right to privacy rights • The fact that the employer owns the device does not give him the right to take conversations Ex: high school teacher was accused of having porn on his laptop, the material that belonge d to the school they were allowed to search. The school had an annual maintenance, the people found juvenile porn . when they realized they took it to the police, the police accessed it and didn’t get a warrant since the computer was owned by the school SUPREME COURT SAYS à Does not deprive the employee the right for privacy à Accessing without warrant was a breach à whether or not you own it doesn’t really matter, the employee had a reasonable expectation of privacy à employees were aloud to use for personal use You cannot be expected to wave all your privacy rights If there is a justifiable breach you need a warrant Brassard vs Letuc Ex: SIGNS the city policy to use the computer Personal nature website browsing Judge asked the employer policy for internet use à fired because he knew he shouldn’t use it for personal use Phone Employers by default cannot record the conversation between employee and someone else Unlessà you have a disclaimer, unless you are told that you are being record then you they are allowed Sign a waver or told on the phone that it is being recorded If you record your own conversation with someone else, it is not a breach of privacy I can record my own convo, you can use the record for proof You need to make sure that the tape make it clear who is talking the document is a real one, it cannot be tempered Without the authorization of the other person you are having a conversation with. à still allowed A and B have a Convo à C ANNOT LISTEN TO THE CONVO AND RECORD IT A AND B HAVE A CONVOà THE CRIMINAL CODE DOES NOT COVER THAT THEREFORE ALOUD BUT THE CIRCUMSTANCES INCLUDE CLARITY, and has to be proved that the tape has not been tempered with. Not a breach and can be used a proof in a trial à What is required is that each time the problem revolves around determining when a convo is private or when its not private à Must look at the employee’s expectation of privacy (first check who is talking and second what is the nature of the information) àIt is important to investigate the employee’s subjective perception of privacy (look at whether the employee has signed or had any way to know the conditions) àWhether the perception is reasonable or not. Once again if the employee signs the document that the phone line is only professional and can be monitored. And you still use it anyways, there was no reasonable reason to think that you had privacy. à The nature of the communicationà if your talking to your wife, your expecting high privacy, if it is linked to a competitor the expectation for privacy is LOW. 2 examples: no expectation of privacy Ex1: Employer taped a convo with a competitor, since the taping was not linked to private matter , then the employer can use the elements. The tape was used to gain commercial behavior info not private. Shouldn’t have done it but it is a breach of privacy Ex2:The priest, was supposed to be there for long periods, was reasonable to let him use the phone for personal use, since the convo was with his mistress, the tape was a breach to his privacy Employers try to provide a code of conduct Make you sign documents sa ying that you should not expect privacy The code of conduct is one of many criteria to evaluate the employees perception of privacy Even though there is no code of conduct limiting the communication device use, it is still possible to fire an employee ove r phone etc A guy used 8 weeks of work out of a contract of 5 month, online instead of working From what the employer gathered the sites were porn The judge had a legit reason to fire him Medical Evaluation CHECK MENTAL AND PHSYCIAL HEALTH à Needs a reasonable motive ex fit for the job such as firefighters à When a employee is on a sick leave, they are aloud to make him see the employers doctor to ensure and check à If you get sick or injured the employer has the right to prove that you were not sick STMà a guy says he has a sick leave cause his back was in pain but on Facebook they saw that he was not sick and was aloud to be f ired à Construction dismissal …When a person’s job disappears or changes so much its lo longer their job anymore. Ex: Hassanie case à What is a interlocker injunction? It is an order from the judge will either allow or forbid a behavior When it is a order that sets something until the end of the trial Ex the copy fax case, doesn’t want him to able to work PSYCHOLOGICAL HARASSMENT Health and Safety 2087 The employer has to react when he realizes there is harassment. 81.18: Psychological harassment • Uexatious Behaviour à ABUSIVE, humiliating or offensive behavior (from the person who suffers from this behavior) ex a team always opposes you If they don’t like you, putting the employee in a isolating person that is a way to harass them, or any kind of harassment ba sed on the charter • Hostile or unwanted à can be small or obvious . the intention of the person does not matter what matters Is how the person subjectively feels. (ie a bad joke) • Affect dignity • Harmful work environment • It can happen at the workplace or somewhere else. • Can happen on Facebook or over the internet • That person can print the comments and use as a proof • Taking into consideration that all your colleagues may or may no have access to it. In which case the judge uses his judgment à When suffering from psychological harassment you file a complaint and has to be in writing or by yourself or union article 123.6 ( you have 90 days a fter the last occurrence) 1621 CCQ: Punitive Damages All the things that the commission can do for you from getting your job back all the way to affecting your compensation. The judge can award punitive damages Makes sure the amount is preventive but not too extensive • The severity of the fault • Patrimonial situation ( how rich the person is) • Extent reparation (set amount to what the person has already refused, goes beyond compensation) if you already received 60k , its already heavy amount the punitive damages may be reduced • Who pays ( the complaint is against the employer not the other colleague) failed to control the work environm ent. If he fails to do something it is his responsibility 1463 CCQ: Vicarious Liability Employer is liable for the actions of his employee, ie. objective liability There is no way for the employer to avoid liability when employee does something à Must prove that employee is working outside his scope or functions à Not his employee à NO CAUSAL FAULT (employee not involved) in a museum, you’re a cleaning person, at some point one of the guards opens a door and water leaks, someone then falls. Problem of causality, the roof and someone forgot to lock the doors, prove that your employee has nothing to do with the accidentIe he washed the floor 2 hours ago. In principle the employer is always liable. Whistle Blowing • Can be internal or external • When the company makes a an error to the public and the public should know • When someone from a company acts in a way that is a threat to public interest and that goes against its company’s mission • • There is no obligation, not a law requirement it’s a ethical d ecision o Disclosing true information (cannot be false to the media) o The employees intervention should be reasonable, should go to the company first before the press. Don’t go for the immediate and most damage ex; company builds entertainment complex, games and stuff. One employee was worried about the quality of water to bathe in. brought the results to the clsc. The guy took a reasonable step, to ensure safety and not just jumping to conclusions o Should be done in the general public interest, not personal i terest. Fraud, systemic abuse, polluting etc. not dealing with political matters o Ex: president of a union for drivers complained about the quality of the infrastrure and the arbitrator complained that it w as based on the bidding. Trying to prolong the bidding process and not the safety. o o Try internal procedures first, internal disclosing mechanisms. Only go outside If the internal mechanisms cant work. Only tim e you don’t have to go internal first is when you think the company would destroy evidence. Ex Erin Brokovich. Don’t have the duty to make the ethical choice, but the law does protect you to a certain extent. The employee can be fired if these previous criteria are not met. (4 MUST BE MET) The Individual Contract of Employment Appendix 7-A Selected Articles from theCivil Code of Québec Appendix 7-B Selected Sections from theQuébec Labour Standards Act Articles of the Civil Code to focus: All articles listed on pages 232 and 233 Section 7.2.3 (Labour Standards) and 7.2.4 (refers to charter articles from chapter 4) in the Book (p.226 -231) Articles of the Labour Standards Act: art. 81.18, 81.19, 81.20, 82, 82.1, 123.6, 123.7, 123.15, 124, 128 Case of King v. Biochem (dismissal without cause art. 2091, no disciplinary procedure, rules for bonus in damages). ( main facts, legal reasoning and decision) King Vs. Biochem • Doctor was fired even though she was doing well • Mrs. King was hired in Nov 1996. A couple of months after, she was doing so well tha t her employer nominated her for an award. They decided to end her probationary period earlier and make her contract finite. • They offered her stock options (only offer to employees who do well) • Suddenly, they decide to fire her with no notice • She sues the company • The company says she was not doing well, she was insubordinate, she was not working well and they had serious motive to dismi ss her • The judge looks at the facts and sees that they constantly give her marks for appreciation for her work; it is not consistent with the fact that they say she is not doing well. • The judge decides that Mrs. King can be trusted on what she says and the company’s testimony shouldn’t be retained • The judge rules that she was dismissed for no serious motive. • Since she was fired for no reasonable reason, she is entitled to reasonable notice. • It appears that she was never given reasonable notice considering the circumstances • She was entitled to reasonable notice and the judge awards the notice. He awards her the salary and benef its that would come along with the notice period. He says she should have had a 1 year notice and awards her all the accompanies that. • He also awards her all the holidays she had not been able to take up to that date. • Revenue Quebec allows people to bring people to Quebec (if they require specialized people and you cannot find anyone with the specialization in Quebec). Companies get a tax break for this. She is one of these people • The judge takes into consideration the tax break • The judge gives her stock options because due to the way the stock options were organized, she was supposed to get an amount of shares from the company during the period of her 12 months notice. She would have been able to realize a profit on these shares. • He also compensates her for the damage it causes on her reputation. She did not commit any fault but was fired - it looks bad on her. • He compensates her for stress injury - the employer was mean and made everything more complicated for her. • The judge also awarded her relocation expenses **When trying to figure out what an employee is entitled to, must first check if there is a serious motive for dismissal. If there is serious motive, you do not need to give notice. Fact: Dr King is hired by Bio Chem. She signed a special contract that specifies a period of probation. During this period, she can be let go but you have to b e known the wrong behavior in order to be able to rectify it. If the wrong behavior persists then your contract will be termIssue: Is the termination of the contract of Dr King for fault justified? Ratio Employer version of facts: 1st meeting: after 5 months and a half, during this meeting, the management team are saying that they told her that she was b eing unsubordinated 2nd meeting: after 10 months, the management team told her that her behavior was still being not acceptable and that constitutes a second warnin g Employee version of facts 1st meeting: prohibition period was over (5weeks and a half instead of 6months) and she was offered stock options 2nd meeting: she got more stock options The judges have now to decide which story is the more credible, the more logical? Based on the fact that the employer version is contradictory, why would someone discuss the possibility of having additional stock option to an employee that is on the second step to dismissal? A Dr King version makes more sens e. We conclude that because the termination of the contract was unfair, she should have received reasonable notice she is ened to damages. Damages include: Damages due to stress, anxiety and inconvenience, Damages to reputation, Loss of salary, Vacation pay, Loss of stock options, Relocation expenses Case of Dubé v. Volcano (dismissal without cause art. 2091, renunciation 2092): (main facts, legal reasoning, decision) Dube Vs. Volcano Technologies. • Dube was hired by Volcano as a manager- he was not covered by LSA (covered by CCQ) • Company sent him a letter saying contract can end at any time under LSA 82. • The company said they only need to give him 2 weeks notice and 3 weeks of untaken holidays. • He is covered by CCQ and he asks for 9 months. • The judge looks at what the party actually negotiated - there was no real official discussion. • Because of the way the letter was written, it was not an actual renunciation to civil code rights. To be valid, it shoulclear, not ambiguous. • He uses 2091 to determine that a reasonable notice for this job would be 4 months. • He gets the salary for 4 months; he does not get a bonus; he doesn’t get the car loans. Since the contract is over, there is no need for him to receive the car loans • He does not get awarded costs for moral damages because there is no proof Fact: Mr Dube was recruited in September 1997 as the production manager for one of the plants of the company Volcano. In his contract, it was indicated t hat “votre emploie pourra etre termine en tout temps par la Societe pour cause or motif serieux, avec les preavis ou indemnités équ ivalents prevue sur la loi sur les normes du travail. ” He was laid off in December 1999 for financial reasons. He was given two weeks notice and plus 3 weeks of vacation. DURÉE D U SERVICE CONTINUE Issues: Can you waive your rights concerning employment by signing a contract? Ratio: According to article 2192: “the employee may not renounce his right to obtain compensation for any injury he suffers where in sufficient notice of termination is given or where the manner of resiliation is abusive”. In the case where an employee renounces o ne of his rights, it should be very précised and clear. Question: If it was explained more clearly, and was bought to the attention to the employee, could it have been considered as valid. Because the judges are not saying that it is impossible to waive employment rights relative to conditions of termination of contracts but rather that it should be clear and unambiguous. Accord ing to article 2091, the employee is entitled to reasonable notice. According to judges the minimum notice is only for very early d eparture. Case of Hasanie v. Kaufel group (dismissal with cause art. 2094, obligation of loyalty, constructive dismissal): (main facts, legal reasoning, decision) Hasanie Vs. Kaufel Group • Hasanie was hired by Kaufel • Kaufel was purchased by another company • His title did not change, he kept receiving his pay etc. • Hasanie realized that the organization was restructuring and his name wasn’t on the structure. • He got in touch with another company to potentially buy them • The company offered Hasanie a severance package • During Hasanie’s holidays, the company realizes he’s been negotiating with another company. • They realize he is doing something that is a breach of his duty to act loyally. • He makes things very unclear and complicated • After a while, the company decides they have enough support to say he wasn’t loyal and they fire him without a severance pack age. • 2 points brought up: o whether there is a dismissal with a cause - it appears that Hasanie is not very credible. What he says is not very consistent. He pretends the company he is trying to buy is not a competitor but it is. Judge says that since he’s in a senior position, he has a higher obligatio n to loyalty. The judge says there is a breach to act loyally so the company could fire him without severance. The dismissal had a serious reasonà consequence was that the company could kick him out without a severance package. o whether or not there is a constructive dismissal - this is when the employer acts in a way that makes the job disappear (rearranging the company in a way that prevents you from having any work). He thinks they are trying to fire him through getting rid of his job. There is n othing that could lead Hasanie to believe his job was being destroyed. Hasanie could not anticipate constructive dismissal (because he was offered an alternative). • Hasanie’s claim is rejected. • Hasanie has to support part of the legal costs of the employer Facts: Thomas & Bett Kaufel Group H H After the acquisition, Hasanie realized that the reorganization of the group will dismiss him, that there were too much people doing the same job. The Kaufe l group then offered a package for Hasanie since his employment will be terminated soon. There were still in period of negotiation when Hasanie went into holydays. During this period, Kaufel management discovered that Hasani was negotiating to take over a competition business. The management tea m therefore decided to take the deal out of the table and to fire Hasanie for fault. Issue : Was this dismissed of Hasanie for serious fault was fair? Ratio: According to article 2188, “the employee is bound not only to carry on his work with prudence and diligence but also to act f aithfully and honestly and not to use any confidential information he may obtain in carrying on or in the course of his work” Kaufel’s main argument is that Hasanie put himself in a posit ion of conflict of interest and sought to advance his interests to the detriment of those of his employer, therefore breaching his duty of loyalty towards his employer. Hasanie is arguing that Dynergie is not a competitor of Kaufel. He is also arguing that he asked his direct superior if he could take this opportunity, and he agreed. However, the direct supervisor is denying. There is not writing evidence of this authorization. The last argument of Hasanie is that he was a victim of constructive dismissal. B asically a constructive dismissal happens when an employer changes your working environment, inviting you to leave. However, Kaufe l argues that they offered opportunities for growth within the group and that Hasanie was only waiting for his package. Finally they are arguing that they needed more tim e to reorganize the group and assign responsibilities. The judges conclude that Hasanie did not establish his case of having been dismissed without cause, or having been constructively dismissed. Case of Copyfax v. Lambert (injunction, non-competition 2089): (main facts, legal reasoning, decision) • Lambert employee, non completion clause • Terminated employment • Ligament non completion clause • Lambert was a dispature, 5 years later, a new sales rep position • 2nd contract is the same non completion clause • Did not check if it made sense to the new contract • The clause said that lambert should not be able to work for a competitor 14 mile radius and 14months • Lambert wants to be possible to quit as an employee and wants to be a service provider • Wants to work as a contractor more independent • The company refuses, lambert decides to make one anyways • 6 months later, →jan 2000, copyfax learns that he did it anyways and wants to terminate the contract • Wants to sue lambert and panasonic (client of his) • no discussion on fact, parties don’t disagree about the clause • should the judge grant copyfax allowing him to fire him • does not address details, just what appears to be the solution • asks for injunction to make sure he cant work with competitors during the trial to protect the interest of copyfax (forbids h im to work with competitors) • The judge notes that there is a problem about the 25 mile radius, from Montreal and laval does not say from where to start → unclear • The contract says it lasts 14 months, does not explain way no justification • The judge notes that even though copyfax expresses a worry about working wi th a competitors, if they had a problem with loosing a sales rep, they should have hired a new one • The initial dispature position does not require technical knowledge, does not make sense to have a clause that strong to the first contract • Finally the judge notes that Lambert did not try and contact copyfaxs clients • Judge says that the clause is unbalanced the employer does not show why the clause is necessary and poses a heavy burden • considers the clause to be too vague- did not maintain the RULING →CANNOT CONTRACT WITH COPYFAXS CLIENTS →Since Lambert used equipment from copyfax he has to bring the equipment →COSTS are split no bad faith The different injunctions Institution of Proceeding Final Judgement Provisional InjunctionInterlocutory Injunction Permanent Injunction The provisional injunction is given based on emergency criterias. It is used to maintain the status quo. The provisional injunction is valid for 10 days. Within these 10 days, the individual has to institute the proceedings and asks for interlocutory injunction. The interlocutory injunction would be valid for the entire period of the trial. In ord er to get the interlocutory injunction, the judge would first look if you have: A clear right Doubtful right: in this case, you will have to prove balance of inconvenience. They would basically see which of the parties will end up with the most inconveni ence, with the irreparable harm. Non -existent right: you will not get the interlocutory injunction Facts: Claude Lambert, worked for copyfax as a sales representative. However, he was also working for himself on the side, his employer did not allow that therefore Lambert decided to resign. Th e contract included a non-competitive clause : Lambert was not allowed to work within 25 miles of Laval and Montreal for a year for the competitors of Copyfax. However, Lambert starts competing in the zone. Copyfax is arguing that he is using the Copyfax customers, therefore also breaching the confidentiality clause. They al so included a penal clau se of $6000 for breaching the contract. Issue: Should Copyfax be entitled an interlocutory injunction against the former employee Lambert tha t would limit him to make business in the region? Copyax has a doubtful right in the case of the non-competition clause. The judges found out that the non -competiting clause was lacking of clarity. The prohibited area is of 25 miles of Mtl and Lassale. What is the central point from which the area is calculated. Conclusion: T he employer did not establish that he will suffer irreparable harm or injury if the interlocutory injunction is refuse, and the application of the test of inconvenience favours the employee: There is no evidence that the Copyfax (Petitioner) clientele was solicited The prohibited area of 25 miles would have the effect of depriving the employee of any realistic possibility of earning a livelihood given his present circumstances The stipulated duration of 14 months is excessive Injunction against his ability to work is denied. The non-competition clause denied 2nd Issue: Should Copyfax be entitled an interlocutory injunction against the use of the client list They get an interlocutory injunction concerning the use of material and confidential information more precisely the customers being owned by the company. Case of Medicom v. Bergeron (injunction, non-competition 2089): (main facts, legal reasoning, decision) 2 EXAMPLEs of clauses that are too broad clause needs to be linked to the employer’s interest If the interest does not justification the clause it should be dismissed • → First: Preventing someone to work worldwide • → Second: It is outrageous, too much stipulation No legit interest to clauses Judge awards the cost to be by the employer The employee has a duty to be loyal even if the clau se is considered to be VOID Medicom has bought a petition for an interlocutory, provisional and permanent injunction against Bergeron and Hubert concerni ng the application of the non- competition clauses signed by each of them. Issue: are the non -competition clauses valid? Ratio: For the first non-competitive clause asks a restriction of work worldwide during two years with any company that has a similar commercial activ ity. For the second clause, the restriction is for a period of 3 years, for all Canada, for any firm with simila r commercial activity. Medicom has a non-existent right for the two contracts. There were not able to prove that there has a legitimate interest to defend concerning the non -competition clause. Case 6: Giroux v. Malik Chapter 8: Contract and Liabilities 1378 CCQ: DEFINITION OF CONTRACT “agreement of wills” • Voluntary • Binding effect (consequence of the fact you agreed) • 1 or more persons • Covers prestationà perform or you don’t perform 1379 CCQ: CONTRACT OF ADHESION -When a party sets up rules that are non negotiable and must be adhered to -Has consequences on the way we interpret the rules -Ex: a products rules and regulations and you click accept Mutual Agreementà a contract that is based on negotiating power 1380 CCQ: Bilateral v Unilateral • Bilateral: In a SYSTEM that is based on a reciprocal contract. o EX: I only pay for a car, if I receive the car (takes into consideration of the other person’s performance) Unilateral: Undertakes a contract and he performs those acts on his own. • EX: Offer to buy a house, the offer is open for a limited amount of time. The other party does not have to accept the offer. 1381 CCQ: Onerous v Gratuitous • Onerous: Employment contracts compe nsation. • àProfessionals • Gratuitous : Contracts that are not completed for money. • à A mandate entered into between two natural persons is presumed to be by gratuitous title. 1382 CCQ: Communitive vs Aleatory • Communtive: Both parties expect to receive someth ing and its known. The exchange is certain. • Aleatory : Ex insurance , the outcome is random and it may not even happen. The exchange is unknown. 1383 CCQ: Instantaneous v Successive • Instantaneous: Everything is done at once • Ex: You pay for a car and get a car • EX: Sell your pencil case. This is done right away. • Successive: Depends on the performance, several steps and lasts over time. (These have ongoing responsibilities) • • Ex: A lease, you continuously pay rent/receive rent. o EX:Construction of a building, leases, renting a car for 12 months. 1384 CCQ: Consumer contract • Involves people, qualifying as a consumer contract triggers other rules • NATURAL PERSON: the consumer, acquires, leases, borrows or obtains in any other manner, for personal , family or domestic purposed, property or services from the other party, who offers such property and services as part of an enterprise which he carries on. • • This is a one-sided contract. It is like a contract of adhesion. Ex: You buy a computer for per sonal use (to study with). 1385 CCQ: Consensual v Solemn • Consensual à you can just hand shake • Most contracts can happen even without a signature • • Solemnà the law allows you to make specific rules for specificactions. Rule for cars: you have to get it approved and its used to protect. Specific contracts can have specific regulations • Ex: Marriage contract, it must be written down • àSpecial formalities need more important contracts • Ex: If you buy a car, you have a consumer protection act • àLaw wants to protect certain contracts and protecting formalities Vicarious liability • à Employer is liable for what the employee does Unless , the employee acts outside his employment contract and or you prove that the employee is not working for him or was not part o f the cause • Can employer sanction an employee for disclosing info to the press • à yes, the employee must go through internal mecha nisms and a appropriate course of action. He should act reasonably. st 1 strive for internal mechanisms, n or go through government agency. Then the press . • What are the remedies available in case of psychological harassment? à allows for job reinstatement à indemnity for compensation of damages à punitive damages if he failed to protect employees à pay for the loss of employment à can pay for medical bills • When can an employer citizen en employees work? • àWhen it’s justified and he doesn’t do in a reasona ble way 1385 CCQ Ppl = no writing Exception= Law Requires Case: COLOSCOPE VS TRN TRN IS A COMPANY that works with several businesses • Copscope starts a program to include companies to leave trn and deal with them • They ask for an interlocutory injunction to make sure copiscope cannot work intil the trial • Since this is a decision that is taken before the trial and evaluation of the trial • He believes that the interlocutory is invalid • Judge looks if there is a apparent right “at first site”, if the agreement justifies the injunction • If it is valid then it should be maintained • The non competition clause is between trn and the business • The clause is somewhat ambiguous • Broad because it prevents copiscope from ev en contacting other people • All the restrictions in the agreement are excessive • Contract of adhesion, the contract has been imposted by trm on their business people there was no negotiations • The agreement contains trade secrets, in this case there is no tr ade secrets • ADHESION 1379 CCQ à At first sight the non competition agreement is not valid therefore cannot be used as the basis for an injunction 1414 CCQ àFormalism to conclude = formalism to modify • Formalism is used to protect the parties • Ex when a grandma wants to give money to kids, the impact is great, taxes etc, therefore she needs a notary. Helps to provide he r information and when there are contracts that are dangerous or when you add layers to the contract it helps to protect people • When you have a contract that needs formalism, when you have a specific kind of formalism ex for cars, when you make any modifi cations they should still be as formal • Exception: when there are promises, in which case you don’t need the same level of formalism • Article 1386à your contract can be implicit or tacit • Ex a cab driver with a light on • 1388à You have the intention to be bound by the person who accept the offer, and it needs to be complete and conside the person who makes the offer must be willing to be bound by the offer. As soon as someone accepts the offer it is bound and it exists. You can still negotiate the terms it is n ot an offer • The contract is concluded when the offer is accepted • 1389à The offer or is not neccarly the first person who initi ates the negation/transaction. He often is but not always • Most of the time = person who initiates the negotiation • Reallyà person who brings the last essential criteria/ element. • Whoever brings the last element is the offer or BUT NOT ALWAYs, and who ever brings the last element to the contract concludes the contract • The contract needs the nature, the object and the price which allows you to complete the transaction • 1393à If you send an application to a company then you are the offeror • A makes an offer to B and then be refuses and makes a counter offer and then B becomes the offeror 1390à • Specific person or to the public, person needs to respect the charter and can choose whoever • Fixed or indeterminate term • 1391àFixed term contract • You have to revoke before the person receives the offer, Ex If I send my offer by post and change my mind, and then the • Once it is received, you cannot revoke the offer. • 1394à silence means you do not accept • Exception: • The will of the parites, the law, special circumstances (prior relationships) • mandates , people with a prior business relationship and continues on the same basis • 1387à once the offeror receives the confirmation or the acceptance, then the contract is valid is formed 1392à offer disappears, expiry, refusal death and bankruptcy and incapacity (must need a tutor or curator) then the offer becomes void 1395à reward, even if the person is not aware of the reward he or she is still entitled. Ex lost cat and you bring the cat back and didn’t know about the reward. You still deserve and are entitled to the reward 1396à Promises v contract Sometimes companies like to take extra time to check accounting etc before the contract is actually instated -firm clear offer (1388) -specific person - the offeree says he will consider it seriously • Gives a delay to consider the offer seriously • What that creates is a sort of “option to contract” = promise • It’s a preferential option to conclude the contract • It doesn’t have the same effect of the contract • Consequence: if someone breaches the promise, then you cannot obtain the same things you would have if it was a contract. à Ex A promises B to sell him a house. Theres a promise/ firm offer, being is made to a specific person and B said that he would c onsider it seriously. In that time A sells the house to C. that promise does not give a sufficient enough of a reason to cancel the contract that A made with C. • The only thing B can get is damages for the breach of the promise o Can act against the person who should have respected the promise (A) for damages o Right against to act against C if he knew about the promise (b had with A) c is in bad faith. • à But cannot get the contract cancelled between A and C • You must take good faith into consideration. If a company tries to us e that strategy through negotiation. Several criteria that needs to be filled to get a valid contract • Sometimes formalism(depends on the nature of the contract) • Capacity ( of age and sane, not under tutorship or curatorship) • Cause( 1410-1411ccq) the reason why the people enter the contract. Its about WHY people sign the contract • -Can be considered as void if the reason is against public order • Ex anyone can buy a piano, for a brothel, the cause of the contact is against public order • The object is ok (piano is ok) but the brothel is( not okay) • Object (1412,1413ccq)what the contract is about ? ex surrogate mother, you cannot make a contract based on babies. Ex 2: cannot sell electricity • selling kidneys. • Objectà NOT ALLOWED SELLING BODY PARTS (not okay) • Cause à(you need the money OKAY) Can you cancel a contract just because you were promised to a contract? • àYou can obtain damages but you cannot cancel a contract The difference between an offer and a invitation to make an offer? • àAn offer is binding and an invitation is up for negotiation • The offer: • àOffer must indicate a willingness to be bound • àAn offer needs to encompass all the necessary elements of the contract • If one of those things are missing, then you have an invitation to make an offer When can you revoke a fix term offer? • you cannot revoke a fixed term contract before the end of the contract (as stipulated) • àYou can only revoke affixed term contract before the other person actually receives the offer Capable person free and enlightened consent 1398 1399 CCQ: you shouldn’t be drunk or in shock or depressed Honest Error à can only get the contract cancelled cannot get damages 1400 CCQ :Honest Error • You thought the situation was actually different then what it was • Nature, object or anything essential to determine the contract • Nature: if they think they are signing something different, • exà warranties , confused between insurance and RRSSP • Object: you buy something that was not what you thought it was • exà someone buys pesticides thinking it was fertilizer. • Essential Element: the reason or the cause of the contract • Exà celine dion fan that wants a old dress of hers, considering that she wore the dress. If you only bought it because of that es sential element you can ask the contract to be void • In order to get it canceled (3 elements) • Decisive: The criteria your wrong about is determinate, it has to be on the main element • Proved: must be able to prove, the person that suffered from the error has to prove the e rror. You have to use something other than your testimony. Other justifiable elements • Excusable: has to be something that other people probably would have done also. 1401 CCQà Fraud Error You can ask for damages and the contract to be revoked. Intention: to provoke an error, if it’s in good faith then it’s not fraud, it has to be intentional. Fraudulent Action: Lying ex creating false financial statements, false leads. Actions that provoke an error on person. Omissions are consider ed to be a fraudulent action. When someone has the intention of provoking an error Ex: selling a car that has had an accident and you refuse to disclose the accident Information that should be disclosed but you do not reveal it. Ex: not disclosing an asset during a marriage Ex: selling a painting with false information about it àMust be decisive, proved and provoked (Must prove the intention and the error) The error does not have to be excusable 1402 CCQ: Violence threats (objective) and Fear (subjective) àViolence Coerced into signing the contract (exterior to the person) imposed from the outside Something real and that actually exists. Has to be exerted by the contracting party, if its by someone else then you can’t uesit to cancel a contract Can be moral and physical (beating or blackmail) EX: Threatening to sue something , to go to court in order not to ask for insurance àFear Threatening , feeling pressure to contract is not considered a fear It has to be a balance between the circumstances and the person 1403 CCQ: Abuse of a right It is possible to threaten with an abuse of a right Ex an employer using its subordination on a employee to do something Ex: state of necessity + good faith To pay a ransom if your husband is being held hostage If you sell your house to pay the ransom then the contact cannot be cancelled Ex2: if you are on the side of the road with your car on fire, if someone offers a fire extinguisher for 5000$ then the contact ca n be cancelled because it is in bad faith and it is an abuse or extortion 1406 CCQ: Exploitation Excessive imbalance between 2 parties, presumption of disproportion The person who invokes a right must prove The stronger party must prove that they are not exploiting ( the burden of proof is shited to the stronger ones) 1405 CCQ: Persons Protected People who are minors or people under supervision can use a lesion Exception is when the law says so. Ex: If a minor buys a car for 5000$ that’s actually worth 1000$. If the garage tries to take advantage of the young minor. An adult can ask for a lesion only when the law says so. Lesion: when one party is exploiting another person. Between parities leading to a disproportion. When a lesion is proved: the plaintiff can ask for damages and the contract to be cancelled Ex1: if a car that is defective and the car is worth less than the repairs. Creates a presumption that the mechanics are trying to exploit the young kid. EX2 : If you buy a house that has an annuity, under a contract that payments will stop when seller dies, because contract is aleatory you are less likely to claim lesion 1407: sanction of violated consent Honestà only cancel contract NO DAMAGES Lesion, or fraud à can ask for damages and cancelation 1416: People contract is annulled ie FORMS OF NULLITY Absolutely null When you protect public order, general interest, can be invoked by anyone. 1417 general interest 1418 invoked by any person Ex: Surrogate mother, protecting the societies interest. Cannot be legitmate in any way. Relatively Null 1419: only the person that is protected can ask for annulity. Ex: kid buying the car, his interests are being protected. That is, only he is protected and only this guy can act. The judge cannot bring that ground for claim if the person does not bring it to court. Since it is only relatively null it is possible to be confirmed. 1422 CCQ: NULLITY means that it is deemed never to have existed Instantaneous : When it is canceled, or nulled, you put the parties back to where they were before the contract. Ex a sale of something Successive: When there is a lease, the nature of the contract lasts over time Ex: When the contract is cancelled, you can only cancel it for the future. You wouldint get your money back for past months . you cannot replace the fact that you have been living in that apartment. You’ve been occupying the premise. (since you’ve benefited already you cannot give it back) 1438: Clause only = void except when the contract is invisible When you have a contract and you can isolate the clause then just tha t clause can be void. 1423, 1424 CCQ: CONFIRMATION (??) When you have a nullity that is relative it is possible to confirm the contract Doing nothing is considered to be accepted. Tacit or Express Personal à only applies to the person who has confirmed. Q: Difference between honest error and a fraud? àFraud: DOING SOMETHING OR BEING SILENT. And those actions have to be done intentionally àHonest error: an error that was not provoked Q: Effect of the nullity of a contract? à When a contract is null, the parties go back into the situation before they entered Instantaneous: goes before Successive: only canceled for the future Q: Who can invoke lesion? à Minors àProtective supervision (insane etc) à When the law specifically s ays so: consumers (people from which the law says can ask for a lesion) When the judge interprets the contract he looks at the intent and the circumstances under which the moment the contract was c oncluded. Since the CCQ is based on the parties’ will 1425 :Rules of Interpretation: à what do the parties want? à what’s within the contract? à circumstances to explain confusion à In a way that makes sense of everything in the contract, and coherent To NOTE: In general the judge will try and interpret in favor of the person that does not have control ( in cases of adhesion ie consu mers etc) 1435 CCQ: Exter
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