LESSON 11
they love to ask about the differences between
Contract of Employment (COE) vs. Contract of
Enterprise (COS); COE is a contract in which you
have 2 people, one person is called the employer,
another is the employee; obligation of employer is
to (1) provide the employee with work, give
something to do; (2) to provide with a safe working
environment, (3) to pay; employee owns to the boss
a duty of loyalty, which means that during the
course of his employment, he is loyal to the boss
and, most importantly, does not compete unfairly
with the boss; can’t put himself in the conflict of
interest; what if employee quits? the law says that
he is allowed to compete with his former employer,
but he has got to compete fairly; COE—there you
have a special relationship between 2 contracting
parties which is called surveillance and control
(directing and supervising the work of employee);
in the exam, have to look for the magical words,
situations of surveillance and control (which means
that the boss is allowed to direct the work of the
employee, he is allowed to tell the employee, It’s
not how you did this, etc.; here are the tools, this is
how it is done)
there is no such thing as COE for life; can’t force
somebody to work for life, however when we talk
about duration of the contract, the length of
contract, have to talk about 2 things: 1) contract
with determinate term (the parties sit down and
they agree the COE will be for 6 months; on the last
day of 6 months he is done; do not confuse with the
notion of part-time employment, he ain’t working
part-time, he is working as an employee for a
limited time period; fixed term; 2) indeterminate
term—traditional contract, old-fashioned, if the
term is not limited, if nobody said that in 6 months
you’ll disappear; determinate and indeterminate
have very different consequences/rules when it
comes to termination; if the kid does something
which constitutes what we call a serious reason for
having the contract terminated, he’s going to get
fired; can happen anytime; same thing with contract
with indeterminate term; the boss has a serious
reason to terminate the contract of employment,
BUT if there is no serious reason for dismissal (with
regard to serious reason you have to have common
sense; it depends on the situation; in some situation
you just give a written warning), sometimes the
contract gets terminated even if the guy doesn’t give
the boss a serious reason for doing so; Civil Code
says that for an indeterminate term contract if you
want to let somebody go, there’s not enough work,
they are outsourcing, so the job disappears; Fine,
the law says but you have to give him a reasonable
notice; why does a legislator call for a reasonable
notice regarding someone who is not terminated for
a serious cause…Civil Code says we have to
conduct ourselves in good faith; conduct yourself in
good faith means that you do not treat your
employees disrespectfully; employee merits a
certain amount of respect and protection; if in
indeterminate term contract let’s him go because the
business sucks, or the position no longer exists, or
because he believes that he can bring in somebody
else who can work faster or cheaper; he’s got to
give reasonable notice; says, Got to let you go but
before you leave I’ll give you a check and the
amount of check is in correlation with the number
of years the kid spent working there; notice—can
work two ways, the boss can tell the employee,
Can’t use you anymore, so I’ll give you 6 months
notice, one month for every year you’ve been here,
in the meantime you’ll get your salary; or: boss
we’ll say, I’ll make an offer, a check of 6 months of
your salary (smart way); he doesn’t want the kid to
come work 6 months, checking out other works on
his computer, doesn’t want him to do half-hearted
job; better give them the check, 6 months, 3 months
worth; the notice acts as a financial parachute;
problem is that the check looks good, 6 months
worth of salary, the check will always be less
deductions, income tax, contributions to the Canada
pension, so it’s always the smaller amount what the
employee needs; this results in a lot of social
problems; some employees mistakenly think that
the 6 months notice constitutes as damages, and
damages are not taxable, but salary paid in advance,
in the form of a notice, is always taxable; so the
employee has to do the calculations
if an employee is dismissed and there is no serious
reason (he performs the job badly or he is a
discipline problem) to dismiss him, he must receive
reasonable notice in indeterminate term contract;
(!)-> L has a 6 months contract with X, after 3
months, X decides that business sucks and she
decides to let the kid go, examiners want you to fall
into a trap…he has a fixed term contract, if X let’s
him go before expiry, it is not a question of notice
but it’s a question of breach of contract, because she
1
said to him (the promise): You’re gonna work for
me for 6 months…so before the contract expires
you’re throwing him out, he is coming out for you
for the remaining months of the contract, she will
get sued for 3 months…fixed term, dismissed
without serious cause…ain’t no notice, sue her for
every single day that left to that contract, pay me, I
don’t care about the markets; in the indeterminate
term—it’s the notice; so: L gets hired by X in
indeterminate term, after 5 years he gets fired, he
must get a notice, if it’s for a serious season (steals
the product secrets)…fired for a cause, no notice
needed, he is out; but if it’s for a financial reason
(business is going bad), give him the notice; juicy
court cases: X figures she’ll be a smart guy, tells the
kid, I like you but you are a bad worker…she’s
trying to fire him without giving the notice…he is
allowed to sue, he’ll sue for unjustified dismissal
— fire for no good reason; he’ll sue for his notice…
sue for the notice which he should have gotten but
didn’t…sue for reasonable notice, I’m here 5 years,
I figured that you own me 1 month per year +
damages (after X kicks him out, he falls into
depression…moral damages + material damages
(I’m out of work now for 16 months…no salary,
just unemployment insurance, the meager benefits
the law provides) + try to sue for damages to his
reputation… this happens with unjustified
dismissal);
fixed term—no notice required, still can sue for
remaining months of contract; indeterminate term—
notice; scenario: employee is an obvious liability,
comes to work stoned, late…a reasonable cause for
dismissal; trick question(!): they like loyalty, a
question in which the worker discovers that X is
putting fibber glass in mozzarella, X is engaging in
unfair business practice, and L is afraid somebody
will get sick, so he goes tell it to the newspaper, the
next day a huge scandal…examiners ask you the
following question: did he do the right thing, was X
justified in firing L? => answer: kid was disloyal,
kid is a whistleblower, but the law says the kid
didn’t go about it in the right way, he should have
taken his complaint/concerns to X first…you don’t
squill on the employer who is giving you money, go
to X first, and tell her, your cooks are doing terrible
things to the pizza…it’s only if X says to him, Kid,
mind your own business, shut your mouth; now he
is allowed to call the newspaper…because he does
have a duty to inform his fellow citizens…if the
boss is honest, the boss will tell him, Is that a fact?
Let me look into it, I’ll get back to you; boss
reprimands the cooks, the L has attained his
objective; but if X tells him to shut up, then he calls
the newspaper, then of course she’ll fire him, but
that will be unjustified dismissal; he did warn her in
advance, he was loyal…but he got to take it to X
first (!); they like ethics and loyalty
notice always means money or time; time—I’m
giving you 6 months notice, but after 6 months you
are gone; if he is not invited to work, then notice
becomes time translated into money; if you find a
new job after 4 months, and it pays the equivalent
of what we pay then we can’t stop paying…give
him his notice, if he finds a new job all that means
he can’t ask for damages but give the kid his notice,
one thing doesn’t have nothing to do with another;
if he finds a new job, he can’t ask for damages
contract of enterprise: very different; they love
asking about it; J owns an apartment building in
Montreal, tenants on top floor complain because
whenever it rains the water leaks thru the ceiling,
something’s wrong with the ceiling; J is a
responsible landlord so she calls a specialist, and
specialist is R, a highly reputable entrepreneur; R, I
have a problem with the roof, inspect it; it has to be
replaced R determines; J: ok R, I want an estimate;
give me a written estimate, how much will the work
cost me, material and labour; every year the court is
jammed with homeowners coming in and saying, I
asked this guy to renovate my kitchen and he
promised he would do it for 6K and now he is
saying 12K…she didn’t ask for a written estimate…
if R doesn’t want to give it to you in writing, send
him home; don’t do business with him; R is honest
and says, I will do the job for 82K…he can’t come
in after giving the estimate and say, It could not be
82K, etc.; so J says to R, I accept your estimate,
when can you start; what has happened: magic
moment…an exchange of wills, consents…
careful(!): will try tricking you into thinking that R
is an employee of J…not true…this isn’t a contract
of employment, because R is a specialist, is a
business person, he is a tradesman, and J has
absolutely no surveillance and control of the work;
R brings all the tools and he fixes the roof; what
happens if J decides one day that she’ll climb onto
the roof with R and says, Don’t you think you
should add a bit more tar, and R says, Madame,
2
you’ll leave this roof immediately, don’t bother me,
because if you persist in interfering my work, I’m
packing my tools and I’m leaving…there is no
reasonable specialist who is gonna allow the
customer to stand over his shoulder…no reasonable
entrepreneur will allow the customer to exercise any
surveillance or control…in the same way you don’t
tell the dentist how to do things; no surveillance and
control…it’s a COS, therefore (they try to trap you
believing if J doesn’t like R’s work, she has to give
him a notice; there’s no COE, how can there be a
notice)…another sucker punch: R sends two guys
(M and C) up to replace the roof, there is absolutely
no employment contract between R and J, but there
is contract of employment between R and the two
guys who work for him; if R doesn’t like M’s work,
then he has to give a notice, if he feels that M is not
required, he is an extra, he’s got to give him the
notice, but between R and, M&C, you have
surveillance and control…if R is unhappy, he’ll go
to C and ask what the hell are you doing; if J
doesn’t like the work, she has to sue; if she doesn’t
pay, she will get sued by R; but under no
circumstances is it a COE, therefore there is no
notice
what is reasonable notice? there is Civil Code and
Labour Standards Act (stipulates bare minimum for
reasonable notice; says these are the minimums that
you can offer your employee when you have to
terminate the contract; you can’t go below the
minimum, but can ask for more); example: notice of
termination of an employment contract…between 1
and 5 years = 2 weeks notice…remember: these are
minimums…the Civil Code says, Jurisprudence
says, In many cases, these minimum notices won’t
work; the boss doesn’t dare to go below that; Civil
Code, and Case Law, says, This is how you
calculate reasonable notice: 1) how long is he
working for you? 2) what is the importance of
his job? 3) how old is he? => age is a factor you
have to consider because judges understand that an
employee is 26 and is terminated, he is young,
strong, resilient, he can bounce back, he can enrol at
a school, take a new degree, market himself
effectively, but if the guy is 57 years and has been
working for 25 years at the same company as an
important sales representative, no matter how good
a track record he has, no matter how good he is, at
57 years he is at a serious disadvantage in labour
market; lots of companies are looking for young
people, they want to mould the young person + they
will not have to pay the young guy as much money
as the old guy, because with that CV and experience
and degree of success, he’s gonna be able to ask for
big bucks, at 57 years he’s gonna have trouble
finding new employment, so the judge looks at that
+ (!) they call it special circumstances—is there
something else that the judge should look for? =>
the judge will want to know 4) how the guy was
hired by the company; doesn’t matter if he is 57
years old, or 26, the judge wants to know how he is
hired? did he see the ad on Kijiji, in a trade
newspaper, applied on his own, or (!) did his boss
come to him and say to him I know you’re working,
making decent money, but if you come to work for
me you’ll do better…the boss is enticing the guy;
this will cost the employer money—>special
circumstances which will figure into the judge’s
estimate as to what is reasonable notice; the judge
will also look at something else: the boss let the
employee go, he had no good reason to fire him, he
made up a story, the story was that the guy’s sales
were slacking off (Canlii, Quebec Superior Court,
Bill Sayer vs. Sales Agency vs Schmitt—will give
you idea how judge determines that boss’ behaviour
is unfair; guy is let out for no good reason, and boss
subjects him into treatment; treatment: go to the
office, take a box, and pack your personal
belongings…pack everything up, then they send
security guy into his office, the guard accompanies
the guy outside…the guy is in a state of shock, he
has been fired…while he is walking out, the guard
is escorting him, everybody is watching…when the
judge sees that the guy for 27 years has been loyal
and faithful and never stole a thing and sees this
kind of treatment, the judge goes crazy, it doesn’t
figure into a notice, but it certainly goes into the
damages, because you’re humiliating him by
parading him in the office like a thief; do not
humiliate an employee who has been terminated);
on the exam, they won’t ask you how much notice
should be given, but they will give you choices:
duration of contract, nature of job, the age of
employee, and special circumstances=>can
determine the the lengths of notice; Labour
Standards Act is a minimum; question: R has been
working for an financial institution for 12 years, he
has been dismissed because the business is
downsizing, how much notice is he entitled to under
Labour Standards Act=> check the table in the
textbook, asking you the minimum.
3

Dr.King case: they wouldn’t give her what she
asked for (stock options)…the bonus is
discretionary, won’t get it; gave her moving
expenses…here’s the questions (!): look at the all
things judge awarded her, combining notices and
damages, this woman was discriminated on the
basis of gender, there was evidence to suggest one
of the reasons for termination was because she was
a woman, which law did that company breach by
kicking her out because she was a woman? =>
human rights…she is a victim of discrimination;
punitive damages…not in Civil Code, but in the
Quebec Charter; they ask: how come Dr.King never
got punitive damages or damages based on
discriminatory reasons? ANSWER: her lawyer
forgot to ask for it, therefore she didn’t get it,
because the judge is not allowed to give an award
which is not requested, had the judge awarded these
damages that would have been the ruling of ultra
petita…if you don’t ask, you don’t get it
Volcano vs. Dubé case: the judge makes the
following decision—Dubé wants reasonable notice
and damages, and feels he has been unjustifiably
dismissed; (!) love this case: Judge says, the
employer did not do anything wrong, the boss
dismissed D but there is no bad faith, therefore all
that D gets is a reasonable notice…judge decides
that all D is entitled to is reasonable notice, but no
damages.
lowers his commission rate, denies his bonus, he
kicks him out of a nice office, true story: a man
employed in research company, high ranking
chemist, manager didn’t like him, personality
conflict, jealousy, envy, whichever was the
reason…but he couldn’t get rid of him because he
was too good, didn’t do anything wrong, no serious
reason to fire him + they were outsourcing, the
business was booming, couldn’t say we have to fire
you because business sucks; what they did: they
kept him on the same salary, but moved him to the
floor where they kept laboratory animals, his job
was to clean the shit from the cages…he said, there
was no salary cut…I’m not using my PhD as a
shovel to sweep up rat shit, he quits, then he sues
them…unjustified dismissal, notice, damages…boss
comes into court and says, This case shouldn’t last
longer than 5 mins, it’s a resignation; Judge: oh
yea? I want to hear the evidence, and the company
got hammered because what the employer did (!) is
he significantly changed the conditions of the work
in such a way as to compel the guy to leave…that’s
the difference between your standard unjustified
dismissal (Dr.King) and constructive dismissal (I
don’t have to fire him, I’ll set it up in a way so that
he will quit)
read every case in ch7; all articles in Civil Code and
Labour Standards Acts; special attention on
psychological harassment; chapter on civil liability

Hassanie case: Hassanie sues and says, I’m the

victim of constructing dismissal (CD) — Hassanie
doesn’t get anything, he looses the case, because H
was shown to have been disloyal while he was
employed to C; he set up his own business at the
side, the judge didn’t like that so H lost the case; in
constructive dismissal—the boss doesn’t call and
tell the worker pack the bag and get out, what boss
does is this: he proceeds to make the life of the
worker so miserable as to motivate the guy to
resign; (!) if the employee quits, if he says I’m out
of here, he has to give reasonable notice too, can’t
dump the boss, got to give him reasonable notice; if
the guy resigns, ain’t no reasonable notice, he
quit…he made a decision to terminate the contract;
this could be advantageous for the boss, because
there’s no notice to pay; boss doesn’t have to pay
him anything, no notice, no damages; in CD, here’s
what the boss does: he downgrades the guy, he
4