LESSON 12
Unemployment Law—question: R & L signed a
fixed-term contract of 6 months, L advises R
that there is no more work available, business is
bad, I have to tell you go, how much notice
must L give R under the circumstances?—>it’s
0, no notices required, ever, only in
indeterminate term contract; under the
circumstances, the employee who signed fixed
term contract discovers he will be let go after 3
months, what is his recourse? what can he do?
—>he can sue for breach of contract and he will
ask the judge for damages (material—lost
wages for 3 months; ask to be awarded for the 3
months); L & R, a fixed term contract of 6
months, the employee was working in
laboratory, decides to light a cigar in a
laboratory in which highly inflammable
materials are, the boss finds this to be
unacceptable and wants to let the employee go,
under the circumstances is notice required?—
>No, the employer has a serious reason to
terminate the contract; fixed-term contract,
business sucks, no notice, got to honour the 6
month term; indeterminate term contract,
business sucks, the employee has to be
terminated, always give notice, reasonable
notice; if there’s a serious reason, if employee
demonstrates that he is undisciplined, unskilled,
disputatious, no notice is required, applies to
both fixed and indeterminate term contracts; if
the reason to terminate contract is serious, no
notice has to be given, regardless of the
duration of the contract…
termination is unjustified; how does the judge
valuate the notice he is required, what are the
elements/factors the judge must consider?—>
1-how long has he been working at the
company,2-how old is the employee,3- how he
came to the company (special circumstances—
was the employee enticed to leave his former
job to come to the new place; the boss came to
him, enticed to come over),4- the importance of
the employees job (closely related to the overall
performance, the success of the employee); it’s
always the employee who has to prove that the
contract was unjustified…a terminated
employee is a plaintiff, it’s always the plaintiff
who has the burden of proof
Labour Standards Act set a minimum; if you
want to terminate an employee here are the
minimums; if employee is working for
employer for 23 days=0 notice is entitled, but if
you take the case to Superior Court, that
provision may or may not hold
bound to be on: scenario: graduated from uni,
applied for work, goes to job interview, they
like you, happy to have you, but before we
finalize matters there are two docs we want you
to sign, doc number 1 says, I the undersigned
recognize that the trade secrets of this company
constitute the property of the company, and I
hereby promised and undertake never to tell this
info because to do so would be in breach of
loyalty—they don’t have to give it to you, it’s a
redundancy, because Civil Law already
stipulates that employee owns duty of loyalty,
and that secrets belong to the employer, they are
the property of the employer, and you can’t use
them for your own benefit, so sign it, it’s
unnecessary for the employer to make you sign
it; doc number 2: more controversial, big time
favourite of examiners, doc is known as
restrictive covenant, a non-compete—I
undertake and agree that following my
employment with this company, I will not work
in this industry, in North America, for a period
of 5 years; Civil Code says that following
employee’s contract of employment he is
allowed to compete fairly with his former
employer, but it is legal and acceptable for
employer to impose certain limits on employees
actions; restrictive covenant aims to cover
three things: 1) what am I prohibited from
doing (activity you promised not to do), 2)
where am I prohibited from doing it
(geography), 3) for how long am I prohibited
from doing it? (duration); example just given,
a classic example, a covenant which is doomed
to be thrown out, because: we believe in free
competition, that every human being has the
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right to take her skills and to market them, we
do not want skillful people to have to sit at
home for a long period of time and deprive the
Province of Quebec, or all of Canada, of their
skills, makes no sense; we invest amounts of
money in education; so if a boss wants to limit
these activities, he’s got to make sure of: 1)
he has to prove to the court that he needs the
protection, 2) prove that restrictions are
reasonable (if they are unreasonable in terms
of activities, geography, duration, they judge
will determine that this lack of
reasonableness is against public order; if it’s
against public order, it is null)…free mark: if
they ask, who has burden of proof when
determining if restrictive covenant is lawful
and reasonable—>the boss…he is the one
laying down the prohibitions, employee signs
the restrictive covenant and 2 weeks after he
leaves the company, he fails to comply, because
the restrictive covenant says he will not work
etc., but the employee ignores it, the boss will
sue, boss will try to get an injunction to put a
stop to what he considers as unfair competition,
boss has to prove to the Court that his restrictive
covenant was reasonable, he cannot come into
court and show the contract, He said he
wouldn’t work in our industry and now he is
working, this isn’t enough, boss has to prove to
Superior Court that every single aspect of
restrictive covenant is reasonable and that he
needs the protection; reasonable=based upon
evidence, what the judge believes company to
protect itself from employee who has quit and
works for another company; always based on
evidence; restrictive covenant came to being
because the boss will hire young employee, he
devotes time and personnel and money to teach
the person, he teaches the young person how to
perform effectively in the company, it’s an
investment, the last thing he wants is for the
employee to acquire the skills, the knowledge,
at the boss’s expense, while he is training, he is
paying you, and during the training, he isn’t
getting much back from you, the last thing he
wants from you is to take that knowledge and
run off to a competition and use this knowledge;
kid who works behind counter, does this kid
have to have a restrictive covenant thrown into
his face? is it legitimate for his boss to tell him
to sign the restrictive covenant?—> it’s absurd,
the boss doesn’t need protection, how possibly
can this kid hurt his business by going to the
neighbouring dépanneur; I promise not to work
in this industry for 5 years in North America;
1st thing judge will ask, What did the person
do for this particular employer? if this person
was devoted to research in the field of diabetes,
her job was to try to find medication which
would weaken symptoms, so she signs the
restrictive covenant and then she quits, 2 years
later, goes to work somewhere else, the
prohibition to work in the pharmaceutical
industry is unreasonable because it’s
ambiguous…what do you mean I can’t work in
pharmaceutical industry? can’t work as a
researcher, or statistician, or editor? the
prohibition is too broad, it’s not specific, it’s
not clear and for this reason alone it’s
unreasonable; secondly, in terms of the
geography, the covenant says I promised I will
not work in North America, why North America
if the evidence reveals that it’s an international
company and does business all over the world,
then the judge will say, In this case
geographical limitation is reasonable, but on
the exam, the company has its factory and does
business only in Quebec, established by the
facts of the case, the judge will say, Why North
America? your business is limited to Quebec,
you make the kid sign the contract that she can’t
go to Michigan because it’s in North America,
if all you do is you do business in Quebec then
say she can’t work in Quebec—not reasonable;
duration of the prohibitions—in the example is
the 5 years…every industry that involves high-
tech, scientific inquiry, changes every day, the
technology changes so rapidly that something
that was useful in 2014 becomes obsolete in
2017, why such a long limitation? why 5 years?
says poorly of your ability to innovate; as a
general rule, it’s not a rule inscribed in stone, if
you work for a company as HR, the best way to
avoid pissing off the judge is to say 6 months,
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maybe a year, but 5 years is absurd; look at it
from employees point of view…unreasonable…
against public order
trick: studied human rights legislation, in
contract of lease/franchise, any specific clause
which calls for discrimination is unlawful and is
of no effect, one provision in the contract which
is contrary to public order can be removed but
the rest of the contract remains intact, in
restrictive covenant it works like this: if
Superior Court finds that one, just one, of these
restrictions is unclear, exaggerated and
therefore unreasonable, therefore against public
order, he has to throw out the entire covenant;
so: if just one restriction is unreasonable, the
entire covenant is deemed unreasonable;
scenario: looking for work, HR person asks you
to sign the covenant, and you say, Wait a
second, restrictive covenant has got to obey
certain rules, it’s very specific, you’re looking
for a job as a repair person for Bell computers,
the covenant says I won’t do this job for a
competitor after I leave, ok that’s reasonable,
and then you read on, I won’t do this job for a
competitor in Quebec, that’s reasonable, then
you come to the 3rd restriction, the time, it says
10 years—completely unreasonable…so what
do you do?—>not a good idea to fight with
them…know what the law says, know your
obligations…should the case ever come to the
court, the Superior Court will say that 10 years
is too long, therefore this clause is
unreasonable, and the entire covenant is against
public order; employer can’t change it…judge
won’t allow it, because the judge will say to
employer that he won’t allow to change terms;
if guy signed restrictive covenant and gets fired,
I am a boss and I terminate the contract of a guy
who is lazy, argumentative, disrespectful...boss
wants such a person to go work for
competitor…first you fire him, then you say
you need protection, so why do you want
protection?…
stealing trade secrets—looking at a very
expensive and lengthy case…employer will
come at you with arsenal of lawyers and try to
destroy you…do not steal trade secrets, if you
do, this is what will happen: you helped a
company to create a profitable shampoo…
you’re good at what you do, company is making
lots of money, and you think you deserve
promotion, raise…you go to boss, boss says,
People respect you, you make decent money,
but you won’t get a raise this year…Fine boss, I
give you reasonable notice, I quit…you go out
and raise a bit of capital, meet up with
researchers and produce a shampoo which is
similar to the shampoo you developed for your
previous employer…the employer will see
this…what he’ll do: sue you for damages,
present and future, and ask for interlocutory
injunction … turn the clock back…we learnt in
certain contractual situations, the plaintiff, the
landlord can ask for permanent injunction,
specific performance…I want an injunction to
order him to do what he promised to do…render
an order for as long as the lease endures…
here’s what happens: employer goes to court,
this guy ripped me off, he stole the company’s
product, I’m suing him for $3 million, but it
takes time, how long will it take my law suit to
terminate, 2-3 years, unless we do something
today, the damage will be done, irreparable,
because for every day that this shampoo stays
on the shelves, I’m losing market share, my
loyal customers are buying the fake product
because it’s a dollar cheaper…I will lose
permanent market share…3 years down the
line, Judge, interlocutory injunction—give me
temporary court order which remains in force
until 2-3 years down the line another judge
decides that your case is without merit and
therefore the interloc should not process, or if
this is a legit case, therefore I will transform
the interlocutory injunction into a
permanent injunction…; provisional
injunction—restricted to extreme
emergencies…remains in force for 10 days…
it’s Friday afternoon, it’s 4 pm, I have secretary
who went home, you’re telling me someone has
ripped you off, you’re asking me for interloc, I
got to study this more, come back in a month,
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but Judge, it’s urgent, give me a provisional,
give me an injunction for 10 days, this
injunction is subject for renewal; for interloc
have to show judge: you have the right to this
shampoo…if this injunction is not rewarded,
situation will be catastrophic for you.
to remain in effect until final judgment;
paragraph 2, to immediately cease business;
paragraph 3, orders…to immediately return all
documents and materials containing any info to
the business of the company…case…p286
psychological/sexual harassment: sanctions in
the event of psychological harassment (doesn’t
necessary have to be sexual harassment)…not
just talking about women, talking about people
with physical disability, guy with speech
impediment, a person manifestly overweight, a
person very short/tall, a person with accent…
the legislator can only do so much…harassment
in the work place will not be tolerated; if
employee is psychologically harassed, the
victim has recourses (the victim finds her life
has been made so miserable, she quits…looks
like resignation…but she was compelled to
leave in order to keep her self-respect and
sanity; this woman can sue two people or five
or how many she wants, sue the individuals
who are tormenting her, can sue the boss—sue
for reasonable notice, for her material damages,
out of work for 6 months because she cannot
bring herself to reenter the job market, moral
damages for torment, insomnia, loss of self-
respect, humiliation in public…the cost of her
psychotherapist, cost of medication + (!)
punitive damages (law says, in the event of
psychological harassment, may ask for punitive
exemplary damages, and court will not hesitate
to award them if justified by evidence)…if the
boss participates in the conduct, the boss will be
sued, the employer will be sued, but that’s not
where it ends, if the victim can make proof that
employer was aware of the torment, or should
have been aware of the torment because there
were enough complaints, then the employer is
also on the hook; classic example: employer
who is approached by a woman in tears, or a
fellow worker who says, Boss, you got to do
something…in order to save himself from
personal liability has got to intervene, make
sure that the conduct comes to an abrupt holt,
far too often, a complaint is brought to
employer, but employer ignores it…an attitude
like this: a cause of liability; on the exam will
ask: what does a smart employer do?—>
establishes a policy of 0 tolerance and makes it
public, puts up a sign in the coffee room, etc.,
which spells out that no harassment in the
workplace will be tolerated and that failure to
comply will result in the termination of the
contract of employment…; this issue is only
brought to the public consciousness thru
newspapers…only becomes a big deal when it’s
in the news
employment law—p.258; art 81.18; watch out
for the delays (!) on the exam when they use
recourse = remedy (what can the victim do)…
any complaints concerning psychological
harassment must be filed within 90 days of
the last incident of the offending behaviour
because the problem is that people who engage
in sexual/psychological harassment are into
power…it’s not about pleasure, it’s about
power; how can I impose my authority over this
woman…that seldom happens once, it’s usually
repeated…watch out—90 days from the last
incident…it protects the victim, she might have
been tormented on July 2, 2016 but since afraid
she’ll lose her job she does not do anything and
the clock starts to click and 90 days begin to
pass, comes the 91st day, she hasn’t done
anything, she lost her recourse, however on day
94, he is trying it again, so she gets another
chance, can sue when it happens for the 1st
time, or 2nd time, or at any time, but remember
the golden rule: the 90 days clock starts to
click on the day after the incident, so if the
woman was abused on a Monday, the 90 days
clock starts to click on a Tuesday, if it happens
on a Friday, it starts to click on a Saturday…
the working day is only important on day 90,
if 90th day falls on a Saturday, Christmas,
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Easter, that day does not count, it’s pushed
over to the next day…the last day can never
fall on the holiday because it’s not fair...pertains
to the harassments in the workplace; if the
person is tormented on the job on the course of
2 years, her life made miserable, the defendant
can’t come to the court…she is entitled to sue
90 days from the incident…can only sue for
your own particular damages.
p.259, recourses against dismissal…if one is
terminated for no good reason, then he goes to
Superior Court, can take 2-3 years to resolve,
Labour Standards Act says, You don’t have to
go to Superior Court, you can come here, before
Labour Commissioner, and there are
advantages…advantages to sue as apart of
Labour Standards Act: 1) if you’ve been fired
simply because the boss wants to save money,
or doesn’t like you, in other words you’ve been
terminated without a serious reason, or a
justification, you can come to Labour
Standards office, 2) they supply with the
lawyer…you don’t have to pay for a
lawyer…the government lawyers are really
good…the Commission for the lawyer, he takes
charge, you don’t have to pay, 3) only the
Labour Commission/Tribunal can order
reinstatement of the employee, because
everybody is asking the same thing when they
were fired without fairness…they want notice,
how much they should have given me before
boss threw me out, want moral/material
damages…the only difference is that some
workers want to go back to their old job…only
a Labour Commissioner can order a
reinstatement, can order boss to take
employer to take back, but Superior Court
cannot do that(!); both courts can call for
reasonable notice, material damages,
psychological damage…if you so desire, you
can ask to get the old job back…another
distinction which lies in article 124, p259:
present complain in writing, mail it to...within
45 days(!)…for being fired without just cause
—it’s 45 days from the day of the firing…
curve ball: can only go to the Labour
Commission, only take advantage of skillful
lawyers for free, if you have worked in the
same job for 2 years; they may ask a nasty
question about this business of 2 years of
uninterrupted service…applies to full-time,
part-time…can work 2 days a week…can have
recourse as long as you have worked for 2 years
straight; you work for an enterprise, a
restaurant, an actual case, owner of restaurant
decides to sell, a new guy comes in, he wants to
make changes, change the name of the place,
the format, that’s fine, but he can’t come in and
say, Fine, she’s been here for 25 years,
uninterrupted service, but not for me, but the
Judge will say, Shut up, sit down, it’s the same
restaurant…so new guy comes in, he had
waitresses who knew everyone, like good aunts,
but this guy decides to change the look, the
ambiance, he doesn’t want middle-aged women
working as waitresses, he wants youth, so each
of them starts to get a notice, next month you
will not employed, you’ve got a law suite, 2
years of uninterrupted service, if she worked
from 2012 to 2014, and then she quits, and went
to work elsewhere, until 2017, her service has
been interrupted, she worked, she quit, she
came back, her work has been interrupted, her
uninterrupted service starts to count on the day
she comes back…he is allowed to make
changes, but he has to give a reasonable
notice…if she can make proof because she is
being discriminated, because of her age, she can
sue…what’s important is the calculation of
reasonable notice; classic case: boss sits down
with the worker and says, I will hire you, I like
you, you can stay here as long as you want, but
here’s how it’s going to work: we’re going to
sign 12 months contracts, from Jan to Dec, and
then comes New Year, we’ll sign a new
contract, etc., and the boss is creating what
appears to be a series of fixed term contracts…
you don’t have to give reasonable notice in
contracts…the judge will see thru that scam…
this ain’t no fixed-term contract, it’s a contract
with indeterminate contract which is made to
look like a fixed-term…he is doing this because
you got to have 2 years of uninterrupted
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service…the guy will say sue, the boss will say
you can’t sue before Labour Standards…you
have fixed terms…nonsense…it’s scam…not
really a fixed term contract…it is made to
resemble a fixed term contract…

read all the cases…Cabiakman vs. Industrial…

next week we’ll knock off Civil Liability…