Chap 13: Performance of Contractual Obligations

duty of honest performance # duty of disclosure or of fiduciary loyalty

Tender: the act of performing a contract or the offer of payment of money due under a
contract.
Tender of payment:
- The sum of money offered in payment at that time must be in accordance with the
terms of the agreement.
- If the form of payment is not specified, then currency, or legal tender, must be
offered to the seller. Legal tender (other than limited amounts of coin) may not be
refused when offered in payment, providing that it is the exact amount required.
- Unless specified in the agreement, a personal cheque, credit card, bill of
exchange, or other form of payment may be rejected by the seller. This would
constitute a failure to perform by the buyer. For this reason, buyers will often
include in a purchase agreement that payment may be made by personal cheque or
some other form of payment in lieu of legal tender.

In the case of a debt owing, once the debtor tenders (yêu cầu) payment to the
creditor in the proper amount of legal tender at the required time and place, the
tender of payment is complete. If the creditor is unwilling to accept payment, the
debtor need not attempt payment again. Once a proper tender of payment is made,
interest (lãi suất)ceases (k còn) to run on the debt. While the debtor is not free of the
obligation to pay, the debtor need only hold the amount of the debt until the creditor later
demands payment, then pay over the money. If the debtor should be sued by the creditor,
or if the creditor attempts to seize an asset of the debtor, the debtor may prove the prior
tender and pay the money into court. The courts, in such circumstances, will normally
penalize the creditor with costs for causing the unnecessary litigation (vụ kiện tụng) or
action.

Land transactions:

- The purchaser, on the date fixed for closing the transaction, has an obligation to
seek out the seller and offer payment of the full amount in accordance with the
terms of the contract.
- Once this is done, any refusal to deliver up the deed to the land (từ chối đưa
chứng thư đâts đai) would probably entitle the purchaser to bring an action in
court for specific performance.
- If the purchaser can satisfy the court that they were ready and willing to close the
transaction and were prepared to pay the required funds, the purchaser may
obtain an order from the court ordering the seller to deliver up the land.

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Tender of performance of an act

- The seller’s performance is not by tender of money, but by the tender of an act.
- For the sale of goods, the seller must be prepared to deliver the goods to the buyer
at the appointed time and place, and in accordance with the specifications set out
in the agree- ment. If the buyer refuses to accept the goods when the tender is
made, the seller need not tender the goods again. He or she may simply institute
legal proceedings against the buyer for breach of the contract.

If the contract concerns land, the seller must show that they were prepared to deliver the
title documents for the property to the purchaser as required under the agreement. It must
also be shown that on the closing date the seller attempted to transfer the deed, but
the purchaser was unwilling to accept it. Unless the purchaser had a lawful or
legitimate reason to refuse the tender of performance by the seller, the courts may order
the payment of the funds by the purchaser and require the purchaser to accept the
property

How does a contract end?

1. breach of contract: the failure to perform a contract in accordance with its

terms.

- one party hasn’t completed their portion

- Imperfect tender  imperfect performance  breach of contract

2. Termination as a Right (quyen cham dut)

- Option to terminate the agreement – mutually agreeing to the term included in

the contract
- One or more of the parties giving notice of its intention to terminate (i.e. 30,
60, 90 days)

- Agreements that contain a notice or option to terminate often provide for some
means of compensating the party who has partly performed at the time the
notice is given
- The right to terminate, if exercised in accordance with the specific terms of the
agreement, may entitle a party to terminate the agreement without liability for any
loss suffered by the other.

3. External Events

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 a) Express term: discharge (giai phong) by the occurrence of an event
specified in the contract.

- a particular date in the future when the contract is to come to an end.

b) Condition subsequent ( dk thay thế): a condition that alters the rights or

duties of the parties to a contract, or that may have the effect of terminating
the contract if it should occur.
c) Condition precedent (dk tiền đề)

A condition that must be satisfied before a contract may come into effect
 Examples in real estate contracts
- “subject to financing”

- “subject to home inspection”

d) Force majeure: a major, unforeseen, or unanticipated event outside of the

control of the parties that occurs and prevents the performance of a
contract.

e.x: war, insurrection, or natural disasters

- applies when contract is delayed due to events beyond your control

- Must be written into a contract
- Puts contract on hold- contract continues after Force Majeure event ends

e) Act of God: A natural disaster or other calamity beyond any human control
that prevents the performance of a contract or causes damage to property.

- In Roman law – it meant a force of nature

- Partial destruction of the goods would not discharge the carrier from its
obligation to deliver, however, but the carrier would not be liable for the damage caused
by the Act of God.

f) Implied term: the insertion by the court of a standard or customary term

omitted by the parties when the contract was prepared.
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 g) Frustrated contract: a contract under which performance by a party is
rendered impossible due to an unexpected or unforeseen change in
circumstances affecting the agreement.

 Doesn't need to be written in the contract

 Contract is not delayed, but becomes impossible to perform (eg
destroyed goods)
 Does not put contract on hold- ends contract
 Frustrated Contract Act- judge may apportion losses between
parties that resulted from a Frustrated Contract. providing for the
recovery of deposits and/ or advances and the retention of part of
the funds to cover expenses, when a party has only partly
performed the contract at the time the frustrating event occurs.
The legislation also permitted a claim for compensation when one
party, by partly performing the contract, had conferred (mang lại)
a benefit on the other party.

However, a party who has received no benefit and paid no deposit under the contract
will not be obliged to compensate the other party to the contract for any work done prior
to the frustrating event. Under these circumstances the Act does not protect the party who
undertakes to perform or must perform a contract without the benefit of a deposit.

Example – herbicide company agrees to spray all of the city’s lands

◦ They later find out the herbicide costs are twice the price that it
contemplated at the time it made the agreement
◦ As a result it can only perform its part of the agreement at the loss
◦ Company sells the spraying equipment and claims that it cannot perform
them contract
 Can’t use frustration to end contract – self-induced frustration

- performance is rendered impossible due to circumstances not

contemplated by
the parties at the time the agreement was entered into, and through no fault of their
own (không thể thực hiện được do các trường hợp không được dự tính bởic
ác bên tại thời điểm thỏa thuận được ký kết và không do lỗi của riêng họ)

E.x: death, illness of one of the parties

- The courts will not release a party from performing simply because the
performance turned out to be more difficult or expensive than expected at the time

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 the agreement was made. Inability to obtain credit or a shortage of funds does
not constitute legal frustration of a contract
- non-culpable dismissal (sa thải k đáng trách): dismissal of an employee where
the inability to perform is not self-induced (tự gây ra) but due to frustrating
factors.
- In an employment situation, an employment contract may become frustrated
should matters turn out that a person hired for particular work simply cannot
perform the work, not because of any self-induced factor (disobeying
instructions, laziness, inattention), but rather as a result of insufficient skill or
lack of legally required certification (class of driver’s licence, trade
certificate) or the like. Dismissal of this nature, due to frustration, is termed non-
culpable dismissal. In such cases the employer must ensure that it is not, itself,
self-frustrating the contract by failing to provide training or supervision, lest it be
open to a claim of unjust dismissal.

h) Operation of Law
- Discharged by operation of law
e.x: if two companies entered into partnership to carry on unlawful business,
agreement discharged
- Specific legislation discharges certain contracting parties:
 Bankruptcy and Insolvency Act
 Bills of Exchange Act
- Law also comes into play when too much time passes before enforcing breach
of contract
 Doctrine of laches  undue delay in bringing an action against a party
for failure to perform at Common Law
 Limitations Act  actions not brought within specific time limit are
statute-barred
 Merger may also discharge contract

Method of Discharge Nature

By agreement Before the parties have fully performed
As a right
Option to terminate is in the agreement
Doctrine of
frustration Performance rendered impossible by
external event (example: war declared)

Condition precedent Express or implied term that must be

fulfilled before contract may be performed

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 Condition subsequent Act of God or Force Majeure
Express Term

Agreement:

1. Waiver: an express or implied renunciation of a right or claim

- If neither party has fully performed his or her duties, the parties may mutually
agree to discharge each other by waiver

- If one party fully performed but the other has not, performed party may waive
rights to performance
- Without consideration is a mere gratuitous promise

- Must either provide consideration or sign under seal

- if one of the parties has fully performed the agreement, it would be necessary to
have the termination agreement in writing and under seal in order for it to be
enforceable.

2. Novation (su nang cao): a mutual agreement to amend (sua doi) the terms or
parties to an existing agreement.

 Requires consent of all parties

 Replaces original agreement with new contract
 Merger  terms and parties remain the same, the form of agreement
changes
 Substituted agreement  change of parties or change of terms or both

3. material alteration: the major alteration of an agreement that has the effect of
discharging the contract and replacing it with another.

 Change must go to root of agreement

 Minor alterations or a number of minor alterations is not enough

Substitute Agreement  discharge an existing contract

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 Chap 14: Breach of Contract and Remedies
The courts may either grant compensation for the injury suffered as a result
of the non-performance or, in some cases, issue an order requiring
performance according to the terms of the contract by the party who
committed the breach.

1. Express Repudiation

Repudiation: a refusal to perform a contract.

anticipatory breach (vi pham du kien): an advance determination that a party

will not perform his or her part of a contract when the time for performance arrives

- If the repudiated promise represents an important condition in the agreement,

then the repudiation of the promise would entitle the other party to treat the
agreement as at an end

- Entitles injured party to a release from his or her promise of performance

- If partial performance can only rescind if repudiation goes to root of contract

- If the injured party should elect to follow the latter course, presumably with the
hope that the party who repudiated the agreement might experience a change of
mind, the injured party must assume the risk that the agreement may be
discharged by other means in the interval  lose his right of action for breach of
contract.

- a breach of contract that takes the form of express repudiation would entitle the
injured party to a release from his or her promise of performance under the
contract. But if the promises are such that each party must perform independently
of the other, the injured party may not be entitled to treat the contract as at an end
and entitled to bring an action against… for damages arising out of the breach.

condition: an essential term of a contract.

Subsidiary promise:

 Warranties where a sale of goods is concerned

 Similar to doctrine of substantial performance
 Allows for damages but not rescission

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 doctrine of substantial performance: where a party that has committed a breach
has largely performed, the injured party cannot unfairly avoid their own
performance, but is entitled to a deduction in price, or damages.

 Prevents injured party from taking advantage of party who commits

breach after fulfilling most of contract

- If the repudiated promise is one that has been substantially (đáng kể) performed
before repudiation, the injured party is usually bound to perform the agreement in
accordance with its terms, subject only to a deduction for the damages suffered as
a result of the breach by the other party.

- When the repudiation is of a subsidiary promise rather than an essential part of

the agreement  If the repudiated promise does not go to the root of the
agreement, or is not a condition (an essential term), then the parties should both be
required to fulfil their obligations under the agreement.

2. Implied repudiation ( du doan ben kia se huy hop dong truoc ngay du kien
ket thuc hop dong)

- This occurs when the repudiation must be ascertained from the actions of a party,
or implied from statements made before the time fixed for performance. For
example, if a party acts in a manner indicating that he or she might not perform on
the specified date, the other party to the agreement is faced with a dilemma.

3. Fundamental breach (vi pham co ban): a breach of the contract that goes to
the root of the agreement.

- When the performance by a party is so far below that required by the terms of the
contract  Fundamental breach (khi hiệu suất của một bên thấp hơn rất nhiều so
với yêu cầu của các điều khoản của hợp đồng)

- Fundamental breach permits the party injured by the breach to be exonerated

from performance, even though the contract may specifically require performance
by the party in the face of a breach (Vi phạm cơ bản cho phép bên bị thương do vi
phạm được miễn trừ thực hiện, mặc dù hợp đồng có thể yêu cầu bên đó thực hiện
cụ thể khi vi phạm).

 Allows injured party to rescind contract and sue for damages

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 - Exemption clauses protect sellers from the risks of liability for defects (khiem
khuyet), price changes, and the obligation to comply with implied warranties and
other terms designed to protect the buyer.

Warranty: in the sale of goods, a minor term in a contract. The breach of the term
would allow the injured party damages, but not rescission of the agreement.

e.x; Anil buys another camera on eBay and discovers that while the camera
functions perfectly, its fitted case is badly soiled (vo boc ben ngoai bi ban). In this
instance he would be only entitled to lesser damages for breach of warranty.

Remedies

1. The Concept of Compensation for Loss

- A breach of contract gives the party injured by the breach the right to sue for
compensation for the loss suffered. Loss or injury as a result of the breach must
be proven.

- Form of monetary damages, specific performance, quantum meruit a quasi-

contract remedy

e.x: Fuller offers to sell Brown 600 crates of apples at $50 a crate. On the date
fixed for delivery, Fuller delivers the apples to Brown, but Brown refuses to
take delivery. Fuller later sells the apples to Caplan, but the price by then has
fallen to $40 a crate. Fuller has suffered a loss of $10 a crate, or $6,000 in total,
as a result of Brown’s breach of the contract. If Fuller should sue Brown for
breach of contract, the courts would probably award Fuller damages in the
amount of $6,000 to place Fuller in the same position that he would have been
in had Brown carried out his part of the agreement.

restitutio in integrum: to restore or return a party to an original position, “to

make the party whole,” or to compensate for the loss suffered.

2. Types of Damages:

a) general damages: restitution (sự bồi thường) for losses naturally

expected to flow from a breach of contract

- Try to avoid “consequential damages” (thiệt hại do hậu quả)

- e.x: it is difficult for a courier company to exclude liability to refund

its freight charge (hoàn trả phí vận chuyển) to a client when it fails to
deliver a package on time, but the courier will be interested in excluding
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 liability for the consequences to the client of late delivery. The courier
has no knowledge of the contents of packages; a day late in delivery
may mean nothing to one client, but may spell disaster for another.

- e.x2: Consider the similar position of a design engineer. Having

designed an enormous machine for a mining company, if the design is
faulty, the engineer should expect to be held accountable for fixing the
design and repairing the machine. The engineer will, however, want the
design contract to specifically exclude consequential damages resulting
from the mine coming to a standstill while the machine is fixed, such as
the payment of wages to idle mine workers, and the loss of profits that
would have been generated from active operations. When negotiating
the design contract, the mining company will want to explicitly include
responsibility for consequential damages.

Restitution: to restore or return a party to the position to an original

position

- General damages are monies awarded by the court, intended to place

the injured party in the position they would have been had the contract
been performed in accordance with its terms, and represent
compensation for losses that would naturally (generally) flow from the
breach.

- e.x: where a cement contractor failed to perform a contract to deliver

cement to a high-rise building site, general damages would be those that
restored the builder who had to pay much more for cement to be
delivered on an urgent basis from another contractor in another city.

b) special damages: specific damages that do not otherwise flow normally

or naturally from a specific breach of contract. Chi phí phát sinh

- Special damages are monies awarded by the courts for damages that
do not
arise naturally or generally from the normal course of events following
such a breach; they are in fact, special.

e.x: having to cover moving costs from Toronto to Vancouver in a failed

house sale. a seller who made a contract to sell their Vancouver business
to another person, and then backed out. If the business purchaser
plaintiff had to sell her home in Halifax and move to Vancouver to

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 operate the business, and this was known to the defendant, the breach
would result in special damages (for the cost of the move, capital loss
on a house), in addition to the general damages. These special damages
differ from consequential damages because a failed business purchase
does not naturally lead to the wasted cost of a move, but a failed mining
machine naturally leads to an inoperable mine.

c) punitive damages: damages awarded by a court to punish a wrongdoer.

Not normally awarded for ordinary breach of contract.

- not compensation of the plaintiff, but rather punishment of the

defendant for a breach of contract which is deceitful, malicious, or
offensive to ordinary standards of morality.

- cases involving fraudulent misrepresentation, vulnerable parties, or

some cases of fundamental breach that would qualify for punitive
damages.

3. The Extent of Liability for Loss- Reasonable Foreseeability

For breach of contract, you are only liable for foreseeable damages
- any damages actually caused by a breach of any kind of contract is
recoverable, providing that when the contract was made such damage
was reasonably foreseeable as liable to result from the breach

4. The Duty to Mitigate Loss (giam thieu ton that)

- mitigation: the obligation of an injured party to reduce the loss flowing from
a breach of contract.

If the party fails to take steps to reduce the loss that flows from a breach, then
the defendant, if he or she can prove that the plaintiff failed to mitigate, may
successfully reduce the liability by the amount that the plaintiff might
otherwise have recovered, had it not been for the neglect  the courts may
not compensate the injured party for the full loss.

e.x: Ashley enters into a contract with Bentley for the purchase of a truckload
of California grapes. The purchase price is fixed at $10,000, but when Bentley
delivers the grapes, Ashley refuses to accept delivery. If Bentley immediately
seeks out another buyer for the grapes and sells them for $5,000, Bentley
would be entitled to claim the actual loss of $5,000 from Ashley. On the other
hand, Bentley may do nothing after Ashley refuses to accept delivery of the
grapes, and, as a result, the grapes become worthless. Then a claim against

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 Ashley for the $10,000 loss suffered by Bentley may be reduced substantially,
if Ashley can successfully prove that Bentley did nothing to mitigate the loss.
If Ashley refused to accept the grapes, and Bentley sold them to Carter for
$10,000, Bentley would still have a right to action against Ashley for breach of
contract. Bentley, however, would only be entitled to nominal damages under
the circumstances, because he suffered no actual loss

5. Liquidated Damages ( thiet hai thanh li)

liquidated damages: a bona fide estimate of the monetary damages that would
flow from the breach of a contract (ước tính xác thực về những thiệt hại tiền tệ
sẽ phát sinh từ việc vi phạm hợp đồng).

- At the time the contract is entered into, the parties may attempt to estimate
the damages that might reasonably be expected to flow from a breach of
contract, and they may insert the estimate as a term: co the dua su uoc tinh
vao nhu mot dieu khoan

- If the amount is unreasonable in relation to the damage suffered, the sum may
be treated as a penalty (hình phạt, tiền phạt) rather than liquidated damages,
and the courts will not enforce the clause.

- If a party (buyer) has paid a substantial portion of the purchase price at the
time the contract is entered into, and the contract contains a clause that entitles
the seller to retain (giữ lại) any payments made as liquidated damages, a failure
to perform by the buyer would not entitle the seller to retain the entire part-
payment (>=50%). The seller, instead, would only be entitled to deduct the
actual loss suffered from the partial payment and would be obliged to return
the balance to the purchaser.

- Are pre-estimated damages – that would flow from a contract

e.x: “if you break this contract, you agree to pay me $1,000,000”
- General Rule: Liquidated damages are seen as a penalty which is not
enforceable
- Exception to Rule: non-refundable deposits
• If non-refundable deposit is larger than industry standard it is considered an
“installment”
• Installments are fully refundable

6. Remedies for Particular Situations

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 a) Specific Performance

specific performance: an equitable remedy of the court that may be

granted for breach of contract where money damages would be
inadequate, and that requires the defendant to carry out the
agreement according to its terms. một biện pháp khắc phục công
bằng của tòa án có thể được đưa ra đối với hành vi vi phạm hợp
đồng trong đó các khoản bồi thường thiệt hại về tiền bạc là không đủ
và yêu cầu bị đơn thực hiện thỏa thuận theo các điều khoản của
mình.

e.x: Contract concerns the sale of land: the courts expect the injured
party to show that the fault rests entirely on the party in breach
before the remedy will be granted. The plaintiff (the injured party)
must satisfy the court that he or she was willing and able at all times
to complete the contract, and did nothing to prompt the refusal to
perform by the party in breach. To satisfy this particular onus, the
plaintiff must usually make a tender of either the money or the title
documents as required under the contract. This must be done strictly
in accordance with the terms of the contract on the day, and at the
time and place fixed for performance. The plaintiff must also satisfy
the court that the other party refused to perform at that time. If the
court is satisfied on the evidence presented that the plaintiff did
everything necessary to perform, and that the other party was
entirely at fault for the breach, it may issue a decree of specific
performance that would require performance of the contract by the
party in breach.

b) Injunction (lenh cam): an equitable remedy of the court that orders

the person or persons named therein to refrain from doing certain
acts that the party promised that he or she would not do

- where someone promised that they would not do something, and later
goes ahead and does it anyway, in breach of that promise.

một biện pháp khắc phục công bằng của tòa án ra lệnh cho người hoặc
những người có tên trong đó không được thực hiện một số hành vi nhất
định mà bên đó đã hứa rằng mình sẽ không làm.

e.x: Maxwell and Dixon enter into an agreement. Maxwell agrees to

work exclusively for Dixon for a fixed period of time, and to work for
no one else during that time. If Maxwell should repudiate her promise
and work for someone else, Dixon may apply for an injunction to

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 enforce Maxwell’s promise not to work for anyone else. If the
injunction should be granted, it would enforce only the negative
covenant, and not Maxwell’s promise to work exclusively for Dixon. In
other words, Maxwell need not remain in the employ of Dixon, but
because of the injunction, she would not be permitted to work for
anyone else  if circumstances were such that Maxwell did
not have independent means, and was obliged to work for Dixon in
order to support herself, the courts may not issue an injunction

e.x: contract for the sale of a business to enforce a covenant made by

the vendor, where the vendor agrees not to compete with the purchaser
within a specific geographic area for a specified period of time.

e.x2: negative covenant with respect to the use of premises or

equipment.

Dawson may enter into an agreement with Ballard to allow Ballard the
use of certain premises for business purposes. In turn, Ballard promises
that he will not operate the business after a certain hour in the evening.
If Ballard should continue to operate the business past the stipulated
hour, Dawson may be entitled to an injunction to enforce Ballard’s
negative covenant.

c) Quantum meruit

quantum meruit : “as much as he has earned.” a quasi-contractual

remedy that permits a person to recover a reasonable price for
services and/or materials requested, where no price is established
when the request is made. một biện pháp khắc phục theo hợp đồng
cho phép một người thu hồi một mức giá hợp lý cho các dịch vụ và /
hoặc vật liệu được yêu cầu, trong đó không có giá nào được xác lập
khi yêu cầu được đưa ra.

- Usually offered when the contract has been partly performed at the
time there was a breach
- The “injured party” must show that they other party epudiated the
contract or did some act to make the performance impossible.

- quantum meruit would not apply if a party had fully performed

their part of the contract at the time the breach occurred  The
appropriate remedy in that case would be an action for the price if
the party in breach refused or failed to pay.

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 - Quantum meruit would also be inapplicable if the contract itself
required complete performance as a condition before payment might
be demanded.

- Ordinary breach of contract, the remedy of monetary damages is

designed to place the injured party in the position that the party
would have been in had the contract been completed. This is not so
with quantum meruit. When a claim of quantum meruit is made, the
courts will only be concerned with compensation to the party for
work actually done.

7. Enforcement of Judgement

Writ: a court order in formal written form, usually incorporating an instruction for
enforcement.

 Carried out by court officer or sheriff

Types of Writ

 Writ of seizure and sale

 Against debtor's land and personal property
 Writ of sequestration
 Seize and maintain income-producing property of debtor, with income used to pay
off debt
 Writ of possession
 Voluntary or forced removal of existing occupants of land or building

 Writ of delivery
 Recover possession of personal property that a person refuses to return to rightful
owner

 Notice of garnishment
 Recover money owed to debtor by someone else
 Usually attached to garnishment of wages of debtor's bank deposits

 Examination in aid of execution

 Judgement debtors examined under oath as to property and financial prospects

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 Chap 19. The Employment Contract
Restraint of Trade Clauses
- Employment / management contracts

 Limits employee/managers ability to learn secrets, meet clients and suppliers and
then quit and use info to compete

Restraint of Trade

 Must be necessary
 Contact with clients?
 Privy to confidential information?

 Must be reasonable
Is the geographic area too great?
Is the restriction period too long?
Is the scope (pham vi) of restriction too broad?

 For employment management contract, a judge will re-write the clause to make it
reasonable
 For a sale of business contract - a judge won’t re-write the clause to make it
reasonable and won't throw it out. Why?

Employment Standards Act

- Governs the contractual relationship between the employer and employee
- What if there is no written employment contract?

 What are the employment terms?

 Who imposes these employment terms?
 Who determines things such as:

 Pay
 Hours of work
 Vacation
 Breaks
- Governs the contractual relationship between the employer and employee

 Certain minimum requirements in the employment relationship

 Deals with various issues arising in the contractual relationship including the
following:

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  Minimum wage
 Overtime pay
 Vacation pay
 Hours of work
 Notice provisions to terminate contract
 Process to deal with disputes

Health and Safety

- Employers have a duty that employees are protected from occupational and safety
hazards
- Employees need to be trained where hazards exist in the workplace
- Workers Compensation Act - employers are responsible for providing worker
instruction and training
- Occupational Health and Safety (OHS) Regulation also requires mandatory worker
education, training, and/or certification in many cases.

- Requirements and working from home

- Potential implications on employer responsibility
e.x: Air Canada employee who fell on stairs in her home eligible for worker’s
compensation: Judge

Human Rights
- Employers can’t discriminate in hiring practices

 Includes race, ancestry, age, sexual orientation, ethnic origin, marital status
 Physical disability included – as long as it does not affect the performance of
the job/duties.
 Retirement at 65 – human rights legislation in some provinces has removed
right of an employer to terminate.

 Has been held in some instances where it is in the employment contract

Duty to Accommodate
- Employers may not terminate employment if an employee develops a disability
during employment
- Employer has to make efforts to accommodate

 If accommodation puts an undue hardship on the employer, then employment

may be terminated.

Workplace Discrimination
- Employer’s obligation to maintain a discrimination-free work environment

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  Includes sexual harassment
- Many employers have policies in place regarding safe working environments and
reporting mechanisms.

Termination of Employment Contract

- Employment Standards Act provides the minimum amount of notice period that an
employer must give an employee if the contract is terminated.
- Courts will step in if there has not been reasonable notice or severance
- Severance is based on the number of years that you have worked for an employer.
- Many employers will give “working notice” where the employee is expected to
work during that period of time and the employer will accommodate the employee to
find new work

Notice Provisions- BC

Length of employment Amount Required

3 months or less No notice and/or pay
More than 3 months 1 week of notice and/or pay
More than 1 year 2 weeks of notice and/or pay
More than 3 years 3 weeks of notice and/or pay, plus 1
week of notice/pay after each additional
year of employment (to a maximum of 8
weeks)

Dismissal for cause (su sa thai)

- Typically the employee has been “fired” for dishonesty or has breached some key
term of his/her employment contract
- Employee is not entitled to severance

Dismissal without cause

- The employer has decided to terminate the employment contract with the employee
by giving the employee with notice (either according to the contract or legislation)
- Employee is entitled to severance

Wrongful dismissal
- Where the employer has wrongfully dismissed an employee, the employee may
claim for damages

Conduct Outside of Work

- May be grounds for dismissal
e.x: Fired for fake sick leave

Duties of Employees
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 - Employees have a duty to act in the best interests of the employer when performing
their duties
- Duty to obey all reasonable orders
- Duty to use property / information of the employer in a careful and reasonable
manner – includes duty of confidentiality (both during employment &
afterwards)
- Courts have indicated that executives of a corporation may have a higher duty to
their employer (fiduciary duty).

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