LESSON 13
them that a company acting in good faith to
Exam question: L signs a contract of
employment of indeterminate term, boss says, L
this is ur lucky day, I’ll offer you a salary that I
don’t usually offer, I’ll give you a higher salary,
but in exchange for this consideration I want
you to sign this: I hereby renounce to any of the
notice periods stipulated in the Labor Standards
Act…the gist is this: I can fire you at any time
without giving you any notice=>legal or illegal?
=> illegal!; if it’s illegal, everything else is a
nullity; why?=> the provision of that nature is
contrary to the public order; any failure to
respect public order will result in harsh
sanctions to the employer; null and void; cannot
give up your right to reasonable notice; doesn’t
mean that when you sit down to sign the
contract, you cannot arrange in advance that in
the event of a slow down of the work, or in
event of outsourcing, downsizing of the
company business, that the boss will agree to
pay the equivalent of 12 month salary; notion
that employee can sign away his right to claim
reasonable notice is a non-starter, won’t
happen;
read the cases; lots of questions based on the
cases; Dr. King—a big case; Volcano and
Dubé; Hassanie case; Copyfax Lambert (one of
their favourites; involves employer’s right to the
ownership of the property; don’t steal boss’s
client list; don’t steal marketing plan; you’ll get
hammered by the court; Copyfax…Judge said,
That stuff goes back to the boss; they got it back
because they asked for interlocutary injunction;
remember the distinction: interlocking is a court
order given immediately, in case of emergency,
eligible till final trial, where you get permanent
injunction; examiners loves this case: one shot
—injunction; 2nd shot—the only case where it
says that the boy won’t work in such such work
in such such place for such and such time…
Judge says, this is a crazy restrictive covenant,
it’s ambiguous, it doesn’t make sense…Judge
gives and takes away…gives them back their
property, but doesn’t allow that restrictive
covenant stand); case with Cabiacman—tell
protect its business, its sales, public image, is
allowed to suspend before they dismiss, deals
with suspension, suspension comes up in
Cabiac, because Cab. is charged with criminal
offence, gets arrested, once with criminal
offence, company suspends him, and take note:
yes suspension is legitimate if practices in good
faith, and that can be shown that it’s in interest
of the company, but guy wasn’t convicted, has
the guy been convicted then you can fire for
serious reason, but there’s no conviction, the
case has not yet gone to trial before criminal
courts, so they suspended him, which was okay,
but then they suspended him without pay(!), the
guy has not yet been convicted, his innocence
was presumed, however, with the view of
legitimately protecting the company decided to
suspend him until court decides if he’s guilty,
but don’t deprive him from his salary; even if
he was convicted, they still got to pay; send him
home, but pay; until the conviction is decided,
keep him home, but pay him because you don’t
know whether or not he’ll be convicted or
acquitted
restrictive covenants, unreasonable and
ambitious restrictions, it’s all about time, work,
geography he’s not allowed; if there’s
unreasonableness, the covenant is gone; if any
of the provisions is not clear, that RC is thrown
away; trick question: L signs RC where he
promises not to function as advertising man in
shampoo trade (good and specific) for a period
of 4 months (good), in Western hemisphere
(unreasonable)…or Eastern Canada (but where
does Eastern Canada start?…)…Judge will say,
I don’t like mysteries; it’s unclear therefore
against public order; whiste-blower has ethical
duty to act in public interest and bring to
public’s attention that something bad is
happening, but 1st he got to go to the boss,
before he calls CBC, and point out the problem;
key: once the guy leaves company, is he
competing fairly? this means you walk away
with your skills, but can’t walk away with the
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recipe the boss created years ago; must compete
fairly and must not take trade secrets; watch out
for: concluding simply because a guy is
employee, fine he is just employee but that
doesn’t give him right to divulge confidential
information, this belongs to the company; read
the chapter and watch out for the delays;
psychological harassment—90 days from the
last incident, and if the last incident occurred on
Sunday…she was harassed on the 1st of
February, harassed again on 5th of March,
harassed on 25th April the last incident…when
does the clock start to click—the day after!…
what if the day after is a Sunday…does it
matter? it’s only the last day that matters!; next
delay they love…want to take advantage of the
provision in Labor Act Standards…unjustified
dismissal…without being given reasonable
notice…condition that you must fulfill: how
much continuous employment must the person
have?=> 2 continuous years is what you need to
bring the employer to court; so you’re
dismissed, got 5 years of service, how many
days do they give to go to labour tribunal to file
a complaint?=> 45 days to file; same principal
for sexual harassement, 45 days start to run
from the day after the termination…last day
can’t fall on Christmas; check out the minimum
periods of reasonable notice—the chart—read it
before, refer to it…amount of notice that a boss
MUST minimally give you…
CIVIL LIABILITY
1457…circumstances in which you get sued by
committing a fault in the course of the
contract…civil liability is referred to as extra-
contractual because it has nothing to do with
contracts; 1457 says: every person has a duty to
abide….so as not to cause injury to another…
where he is endowed with reason…and fails in
his duty…is responsible for any injury…liable
for reparation…whether it be bodily or material
in nature…trick question: anyone who is
endowed with reason and fails to honour his
obligation to conduct himself as to not cause
injury may be held liable…a 9 year old kid
makes a snowball, icy, and throws it at a
passing bus, one of the passengers decides to
open the window, the snowball hits the
passenger in the face, breaking his eye glasses
and also causing a piece of the glass to lodge in
his eye…the law says: this kid is endowed with
reason, so the kid can be sued…what the law
says: you can sue him, but make sure that you
sue his mother father in that person’s capacity
as tutor to the kid…got to make sure that the
parent is named in the lawsuit as a tutor…sue
the kid thru the parent, the judge decides you
are entitled to compensation…good luck
collecting that money, the kid doesn’t have it…
so Civil Code says, move on to article 1459…a
person having parental authority is liable…the
fault of minor under his authority unless he
proves he himself has not committed any
fault…not only can you sue the kid for the
damages but also sue his parents for the
damages…makes sense, the kid doesn’t have
the money…; escape hatch in this article: can
only get money from the father if you can prove
that he also committed a fault…father’s fault
has got to be that there was something in the
kid’s upbringing….your case is dead, you can’t
show that father is a crappy parent, got to show
that he committed a fault in terms of raising the
child, this is very difficult to do, somehow
you’ll have to show that the father told the child
to throw the snowball; examiners love: article
1463…the principal is liable for reparation for
injury caused by the faults of its
sergeants/agents in performance of their
duties…classical example of: vicarious
liability, which means that…example: in the
house is Y…she has a leaking roof, enters into
contract of enterprise with R, who agrees in
advance on terms, R sends his two employees L
and M to do the job…near the house is ferrari
owned by S who lives down the street…parks
near Y house…M throws hammer at L, but
hammer falls and lends on roof of ferrari of S…
creates a large dent on the roof…the question:
what are S recourses?…he’ll call insurance
company that will sue…he’s got to sue L? no,
wrong…1457 says, that we must conduct
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ourselves to avoid injury…it’s not normal to
throw a hammer…the law says: S sues M
because he committed a fault, M should not
have thrown that hammer neither at L nor at
anyone else, and the law is clear—what you
need is a fault, then you need damages…
example of some guy, shoots a gun to the sky…
is it a fault? yes…but he hits nothing, there’s
the fault, but no damages, so no court case!; got
to prove that there’s a fault, that there are
damages, there’s cause and effect of the fault…
lien de causalité…there’s cause and effect
relationship…law says S will sue M because he
has committed fault…there’s direct link
between his fault and the damage…got all three
components, fault damage and connection…
cool!…M will be sued for sure…but many
years ago legislators decided we should
establish policy…if employee does something
stupid on the job, sure the victim will sue the
employee but the employee has no money, the
boss does..therefore it’s part of the cost of doing
business…S can also sue R because he is the
boss of M…from employment law he has the
surveillance and control of M…don’t sue Y…
she is not the boss of M…Y she is bound to R
in the contract of enterprise where there’s no
surveillance and control on the part of the
customer and roofer…but in this case R has
surveillance and control over M and L…then R
we’ll sue M for all the expenses; employee must
be in the performance of the duty…wasn’t paid
to throw hammers, was paid to fix roofs…
argument fails, no matter how stupidly the
employee behaves, no matter how outrageous
his fault, as long as he does that stupid thing
while performing his duty, boss is on the
hook…you loose..the only way in which R is
off the hook, escapes liability…the boy has
finished the work by 5, 4:30, they pack up their
tools, they leave R in the car and go off for
couple of beers then they get into a fight and
something happens…here R is not responsible.
liability of the manufacturer for defects and the
objects sold…manufacturer of a movable
property is liable…by reason of a SAFETY
DEFECT even if it is incorporated…; movable
property are not the buildings, movable=cars,
cans of paint, power drills, bicycles; if there is a
safety defect in a window or a door, and the
window or door are attached to building it is
still considered a movable…person distributing
under his name or to any supplier…big
problem: person buys can of corn, corn was
grown and packed in a foreign country, there’s
safety defect in the can, it’s toxic, there is some
microbe in the can which causes injury to the
consumer, if the liability was limited to the
manufacturer of the corn, the victim is in big
trouble…go try sue manufacturer in the foreign
country…Civil Code says, Don’t worry, under
this article, it’s not just manufacture but also the
importer who gets sued, it’s the retailer who put
cans of corn, can sue every party who is
involved in manufacture, sale, distribution of
the product…why should Provigo take a hit for
a product which was approved by Agriculture
Canada over which it had no control especially
with regard to manufacturing, the law says, it’s
permissible, it’s fair, because in the event
Provigo gets sued, Provigo can call in other
parties in warranty, Provigo can say to the
court, 1) victim must prove that there was a
fault, 2) prove link between fault and cause…
but Provigo brings in the distributor, the
importer, sue them, because they are the ones
dealing with manufacturer, and the importer
will sue the manufacturer, ultimately the Court
figures out who is liable for injuries suffered by
the consumer…fault/damages/causality…the
injury can be material, moral…key: got to be a
safety defect…legislators tell us: 1469…a thing
has safety defect where it does not afford safety
person is entitled to expect…poor
preservation…lack of sufficient indications…
safety precautions…this explains why if you
buy a small bottle of medicine, there’s always a
piece of paper…pharmacy company stipulates
all the terrible things that can happen if you
don’t take the medicine correctly…they are
very careful; in the exam: a guy buys a can…
something bad happens…in this problem, guy
suffers serious burns because of that can, the
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court has (1) to examine quality of the
product…is there a safety defect? is there smth
wrong with the liquid? (2) the judge has to look
at a can…what’s written on the can?…the
advices, the signs, judge wants to know this:
what’s on the label, did the manufacture take
necessary care to spell out all the terrible things
that can happen by using this product…law says
consumer isn’t a baby therefore if product is by
its nature dangerous, you don’t need warning
labels, the manufacturer selling dynamite
doesn’t need warning signs, but if manufacturer
selling cans, judge wants to see what’s on the
can…are warnings sufficient? has the consumer
been warn of the dangers? …if the (!) judge
decides instruction is insufficient that is a safety
defect!…inadequate labels constitute a safety
defect…however, judge will also look at person
using the product, if person using the product is
a professional renovator specializing…judge
will say, this person should have known what to
expect from that liquid in the can…one of the
argument raised in the case: guy is chemical
engineer, if he was ordinary person wanting to
enhance quality of the floor that’s smth else, but
as engineer he should have known and that’s
why it says: (1470) a person may free himself
from liability…by proving that injury results
from superior force…superior force means a
hurricane, earthquake, force majeur,
unforeseeable force which renders
manufacturer’s obligation to ensure safety of
consumer…1473 (huge; they love this)—
manufacture/distributor/supplier of immovable,
not liable if proves that victim knew of the
defect…this provisions looks at 2 scenarios: 1)
everybody agrees that there’s safety defect…the
label was not sufficiently detailed, the warning
wasn’t sufficiently spelled out…3 defences: 1.
gross negligence from the part of the user, 2.
even if there’s warning, the guy is the engineer,
he should have known because of his
specialized knowledge, if that can be proven,
manufacturer is off the hook; 3. when we put
this product on the market it was approved by
drug agency, approved by Canada’s health,
everybody said it was ok, 5 years later, the
product causes cancer in 2% of users, the label
doesn’t say, Beware, this product has been
known to cause cancer among certain
consumers….the reason why it’s not on the
label is because the science at that time was not
sufficiently refined, we didn’t know, the
regulatory agencies didn’t know—that’s our
defence…Judge has to ask, would every
researcher in that field, at that time, in that
place, have concluded? if the researcher takes
the stand and says we knew about this, why
didn’t these guys selling this product know?
read each article in the chapter…watch out for
contributory negligence (CN)…CN is a person
who gets invitation to a party on a Saturday
night and decides to walk down the stairs of
apartment building to the taxi cab near the
house in her high heels even though surfaces are
icy, that’s the 1st thing defence lawyer asks:
madame, what were you wearing on your feet
when you fell down the stairs? … landlord
knew the surface surface is icy, he should have
put sand on the slippery stairs, but the victim
will get hammered too, because failure to wear
adequate footwear is also a fault, so when judge
sees victim also committed fault, the judge will
say it was contributory negligence…the
person was to partially blame for her
problems…the person who willingly assumes a
risk must bear the consequences thru their own
faulty behaviour; another thing they love: 3
guys who go hunting, had couple of beers, out
in the woods, 3 of them are all using the same
sort of rifle, hear somebody in the bushes…it
turns out a cow, they all shoot together, one
bullet kills the cow, cow is worth 43K, the
owner will sue them all, the law says, in case
like this where you can’t really determine
whose bullet it was, all 3 of them are solidary
liable because all 3 were part of the project, all
are solidary on the hook; watch out for SIGNS,
waiver forms, I hereby promise that if I
participate in this and that and I get this, that I
will not hold you responsible…paintball owner
got to show the victim knew of the waiver…
often it’s not a problem…Civil Code says, if the
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injury is a bodily injury, so if you walk into cracker…something happens with the eye…
paintball place with a sweater on, and the trick question: Judge awards punitive
sweater gets ruined, don’t whine…if it’s case of damages…in Quebec it ain’t happening…
bodily injury, that sign is useless because what besides the company was in fault, it awards the
the paintball owner will say: here’s the victim usual damages but also punitive
warning…he signed the waiver, Judge will damages…; read the case and be able to tell
ignore this waiver because somebody got hurt, them why punitive damages were awarded.
will want to know how the person got injured; if
there was gross negligence on the part of
employee of the parking lot, the sign means
nothing, the waiver is not a defense in case of
gross negligence…Civil Code says(!): however,
the sign may serve to show that at very least the
customer was aware of the danger…if there’s
negligence sure parachute is dangerous but it’s
more dangerous if it is not adjusted properly…
(2) if somebody gets killed/injured, the judge
will want to hear the case…

Court cases; read them; 1st case: Harris vs

Osk…a fist fight…guy gets badly beaten; the
plaintiff gets all sorts of damages, the guys asks
for punitive damages, the Judge said no…the
reason is this: the puncher went to jail…and the
judge said, the purpose of punitive and
exemplary damages is to teach the guy a
lesson…punitive damages means the guy will
have to pay more to the victim…if the guy had
to go jail ain’t no need for punitive damages,
because he already got a lesson; case Walker vs
Singer…man is awarded with damages because
somebody called the police, accused of sexual
assault which turned out to be a lie, significant
damages were awarded…read what the judges
gives the victim and why…; … vs Jacuzzi…
contributory negligence..yes there was fault on
the part of manufacturer, direction were
insufficient but no, mother also committed a
fault, there’s fault on both sides, therefore if it’s
20K $, judge decides that it’s 50% liability on
part of manufacturer, 50% damages on the part
of the victim, 10K $ is what victim gets; case
with beverages…can’t get the cap off…the kid
couldn’t open it, it was too tight…the
manufacturer gave a warning, don’t apply more
than pressure than this…manufacturer of soft
drink….the kid tries to open the cap with nut
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