Paper type: Essay Pages: 15 (3545 words)
Fact: Dr King is hired by Bio Chem. She signed a special contract that specifies a period of probation. During this period, she can be let go but you have to be known the wrong behavior in order to be able to rectify it. If the wrong behavior persists then your contract will be terminated. Issue: Is the termination of the contract of Dr King for fault justified? Ratio
Employer version of facts:
1st meeting: after 5 months and a half, during this meeting, the management team are saying that they told her that she was being unsubordinated 2nd meeting: after 10 months, the management team told her that her behavior was still being not acceptable and that constitutes a second warning Employee version of facts
1st meeting: prohibition period was over (5weeks and a half instead of 6months) and she was offered stock options 2nd meeting: she got more stock options
The judges have now to decide which story is the more credible, the more logical? Based on the fact that the employer version is contradictory, why would someone discuss the possibility of having additional stock option to an employee that is on the second step to dismissal? A Dr King version makes more sense.
Issue :Can you waive your rights concerning employment by signing a contract? Ratio: According to article 2192: “the employee may not renounce his right to obtain compensation for any injury he suffers where insufficient notice of termination is given or where the manner of resiliation is abusive”.
In the case where an employee renounces one of his rights, it should be very précised and clear. Question: If it was explained more clearly, and was bought to the attention to the employee, could it have been considered as valid. Because the judges are not saying that it is impossible to waive employment rights relative to conditions of termination of contracts but rather that it should be clear and unambiguous. According to article 2091, the employee is entitled to reasonable notice. According to judges the minimum notice is only for very early departure. Case 3: Hasanie v. Kaufel Group Ltd.
Thomas & Bett Kaufel Group
After the acquisition, Hasanie realized that the reorganization of the group will dismiss him, that there were too much people doing the same job. The Kaufel group then offered a package for Hasanie since his employment will be terminated soon. There were still in period of negotiation when Hasanie went into holydays. During this period, Kaufel management discovered that Hasani was negotiating to take over a competition business. The management team therefore decided to take the deal out of the table and to fire Hasanie for fault. Issue: Was this dismissed of Hasanie for serious fault was fair? Ratio:
According to article 2188, “the employee is bound not only to carry on his work with prudence and diligence but also to act faithfully and honestly and not to use any confidential information he may obtain in carrying on or in the course of his work” Kaufel’s main argument is that Hasanie put himself in a position of conflict of interest and sought to advance his interests to the detriment of those of his employer, therefore breaching his duty of loyalty towards his employer. Hasanie is arguing that Dynergie is not a competitor of Kaufel. He is also arguing that he asked his direct superior if he could take this opportunity, and he agreed. However, the direct supervisor is denying.
There is not writing evidence of this authorization. The last argument of Hasanie is that he was a victim of constructive dismissal. Basically a constructive dismissal happens when an employer changes your working environment, inviting you to leave. However, Kaufel argues that they offered opportunities for growth within the group and that Hasanie was only waiting for his package. Finally they are arguing that they needed more time to reorganize the group and assign responsibilities. The judges conclude that Hasanie did not establish his case of having been dismissed without cause, or having been constructively dismissed. Case 4: CopyFax v. Lambert
The different injunctions
Institution of Proceeding Final Judgement Provisional InjunctionInterlocutory Injunction Permanent Injunction The provisional injunction is given
based on emergency criterias. It is used to maintain the status quo. The provisional injunction is valid for 10 days. Within these 10 days, the individual has to institute the proceedings and asks for interlocutory injunction. The interlocutory injunction would be valid for the entire period of the trial. In order to get the interlocutory injunction, the judge would first look if you have: A clear right
Doubtful right: in this case, you will have to prove balance of inconvenience. They would basically see which of the parties will end up with the most inconvenience, with the irreparable harm. Non-existent right: you will not get the interlocutory injunction Facts: Claude Lambert, worked for copyfax as a sales representative. However, he was also working for himself on the side, his employer did not allow that therefore Lambert decided to resign.
The contract included a non-competitive clause : Lambert was not allowed to work within 25 miles of Laval and Montreal for a year for the competitors of Copyfax. However, Lambert starts competing in the zone. Copyfax is arguing that he is using the Copyfax customers, therefore also breaching the confidentiality clause. They also included a penal clause of $6000 for breaching the contract. Issue: Should Copyfax be entitled an interlocutory injunction against the former employee Lambert that would limit him to make business in the region? Copyax has a doubtful right in the case of the non-competition clause.
The judges found out that the non-competiting clause was lacking of clarity. The prohibited area is of 25 miles of Mtl and Lassale. What is the central point from which the area is calculated. Conclusion: The employer did not establish that he will suffer irreparable harm or injury if the interlocutory injunction is refuse, and the application of the test of inconvenience favours the employee: There is no evidence that the Copyfax (Petitioner) clientele was solicited The prohibited area of 25 miles would have the effect of depriving the employee of any realistic possibility of earning a livelihood given his present circumstances The stipulated duration of 14 months is excessive
Injunction against his ability to work is denied. The non-competition clause denied 2nd Issue: Should Copyfax be entitled an interlocutory injunction against the use of the client list They get an interlocutory injunction concerning the use of material and confidential information more precisely the customers being owned by the company. Case 5: Medicom Inc. v. Bergeron
Medicom has bought a petition for an interlocutory, provisional and permanent injunction against Bergeron and Hubert concerning the application of the non-competition clauses signed by each of them. Issue: are the non-competition clauses valid?
Ratio: For the first non-competitive clause asks a restriction of work worldwide during two years with any company that has a similar commercial activity. For the second clause, the restriction is for a period of 3 years, for all Canada,for any firm with similar commercial activity. Medicom has a non-existent right for the two contracts. There were not able to prove that there has a legitimate interest to defend concerning the non-competition clause. Case 6: Giroux v. Malik
Facts: Malik owns a piece of land, you cannot build on it, and he wants to sell it. Giroux decides to buy the piece of land from Malik. He goes to City Hal to get a constructive licence but they tell him that nothing can be built on this land. Issue: Giroux is asking for the cancellation of the sale and some damages. Ratio:
Malik misrepresented the facts. According to article 1400, “error vitiates consent of the parties or of one of them where it relates to the nature of the contract, the object of the prestations or anything that was essential in determining that consent”. Malik is arguing that he did not say anything, that he did not reveal tell Giroux the fact that you could not build on the land, but neither lied to him. However, according to article 1402, fraud can occur through silence. Malik is also arguing that his agent, the real estate agent was aware of this fact and hid By misrepresenting the fact, the consent of Giroux concerning the sale is vitiated. According to article 1419, the contract is considered relatively null. Giroux can get the annulation of the contrat, leading to the parties going back to pre-contractual state and he also get damages. Case 7: Peter v. Fiasche
Peter (Mrs Guicciardo) and her husband are looking for a safe investment that will assure a steady flow of revenue for the family as the husband is retiring soon. They both know Fiasche that held a smoked meat business. The two families come from the same region in Italy. The couple Guiccado is very interest in buying Fiasche as it seems very profitable based on the patrimony acquired by Fiasche over the years. Looking at the financial statements, it seems a bit disappointing however Fiashe is telling Guiccado not to worry that he has a special method to make this business profitable.
He will show him the trick but he needs 100 thousand of dollars as a deposit to be sure that the couple is a serious buyer. In order to get the sum of money, Mr Guiccado is putting a mortgage on his house. Fiasche explained him how to falsify the financial statements in order to minimize the income tax to be paid. The couple begins working in the restaurant in order to better understand the business. However, as the weeks pass, they realized that Fiasche over evaluated the business value. Issue: The couple Guicciardo is arguing that Fiasche misinterpreted the value of the business, vitiating their consent. They are asking for the annulment of the contract and the restitution to status quo. Ratio:
Concerning the misrepresentation of Fiasche, the judges argue that that is not a fraud of misrepresentation but an inexcusable error. It was conscious wrongful choice from Guicciardo, they could not avoid being aware that tax evasion was the root of the restaurant supposed profitability. Inexcusable misinterpretation does not vitiate the consent of the party. In addition the court is arguing that the cause of the contract was illicit and against public order as Fiasche desired to enrich himself by selling a fraudulent system and the Guicciardos by continuing it.
According to article 1411, “a contract whose cause is prohibited by law or contrary to public order is null” And according to article 1422, `”a contract that is null is deemed never to have existed. In such a case, each party is bound to restore to the other the prestations he has received. “ However the crucial question is whether parties to an illicit should have the benefit of restitution. In this case, the judges ordered for the restitution of the 130 thousand dollars to the Guicciardos and the restitution of the restaurant to Fiasche. Case 8: Carrefour Langelier versus Cineplex
Carrefour and Cineplex signed a lease. After the lease was signed and before Cineplex even occupied the premises, it approached Carrefour together with representatives of Guzzo to ask its permission to assign the lease to Guzzo but it was specified in the contract that Guzzo was suppose to operate under Cineplex banner and follow its criterias for operating theatres. However after a while, Guzzo decided to operate under its own name. Issue: Carrefour wants to enforce the obligation contracted by Guzzo in the initial contract to operate under Cineplex name. They apply to the court for specific performance order Ratio
The first argument used by Guzzo is that his consent was given through distress or fear. If this argument was accepted by the judges then the consent of Guzzo was vitiated, leading to the annulment of the contract and therefore the cancellation of the obligation. However this argument is rejected, the judges argue that this fear is part of the business environment especially within a competitive environment. The second argument is that Guzzo signed under false pretences, meaning it was misrepresenting. Again if the argument was accepted by the court, the consent would be vitiated and the obligation cancelled.
The court rejects this argument. In any case, guzzo has experiences in the industry and therefore the misrepresentation should have large enough to cancel the contract. The last argument brought up by Guzzo is that this is not a situation that allow for specific performance order. There are four different cases where specific performance cannot be obtained: When the obligation has got impossible to perform (this occurs when the person responsible for doing the obligation had an accident and is unable to fulfill his obligation) Time has elapsed ( for instance, if you are orgnaizing a concert at 7pm on the 3rd of April, after 7pm if the singer did not show up you can require a specific performance) When the property vanished
When the property has left the patrimony
In all those cases, you cannot order specific performance, however you will get damages. Let s see if Cineplex corresponds to any of these four cases: For Guzzo, it is possible to operate under Cineplex name as they did during a while The lease is successfully being performed, time has not elapsed The property is still working
The landlord still owns the property
Therefore in the case of Guzzo, ordering a specific performance is allowed. The final argument of Guzzo is that Carrefour did not face any damages and therefore they should not be able to order specific performance. The judges argue that to enforce specific performance order, you don’t need to have faced any damages. You only need three conditions for:
Valid contracted obligation
Person not fulfilling their obligation
You need not to be in a case where specific performance is not allowed Conclusion: the court ordered a permanent injunction order enjoining Guzzo to act under Cineplex name. Case 9: Copiscope Inc. and TRM Copy
TRM puts photocopy in other business in return for some royalties. They signed contract of adhesion with those businesses, that include a non-compete clause. This clause is saying that the parties signing those contracts cannot contract with competitors for a period of 1 years in order to protect the trade secrets shared with those clients. Recently, Copiscope has been soliciting business operators who had previously contracted with TRM to terminate their contract and has begun to place photocopies in those businesses. Issue: TRM is asking for interlocutory injunction for the respect of its non-compete clause. Ratio
The trial judge concluded that TRM had a doubtful right. The judge in appeal is looking at the non-competitive covenant to judge whether TRM has a clear, doubtful or non existent right. To do that they are looking at the validity of the noncompetition covenant: The judge is arguing that TRM has no legitimate interest to defend as they do not share any trade secret with the business they are contracting with. They are concluding that the restrictions set out in the covenant are exorbitant and are grossly excessive for the reasonable protection of TRM. The judges are concluding that this clause if abusing. According to article 1437, “an abusive clause in a consumer or contract of adhesion is null” As it is a nonexistent right, they don’t get an injunction Case 10:Harris v. Ostromogilski
Harris is leasing a cab from O., and every week, he comes to his place to pay for the lease. One night, there was a dispute. Harris got injured. Issue: each party version differs greatly, the judges have to assess the credibility of each version of acts and determine who was responsible. O. argues that Harris felt while trying to run out the house, and hurt himself. Harris version is that O. beat him with his fists. Harris injuries are uncontested facts. Considering all Harris injuries from the laceration of the left eye, to the laceration behind the right ear, to a hematoma on the right buttock and a fractured rib, the version of Harris is more credible. The court concludes that Harris version is more credible.
Therefore O. will have to pay compensatory damages that include bodily, moral and material damages. The damages include the cost of the shirt torned during the altercation, the loss of income during two weeks, the pain and the suffering and the broken glasses. Concerning punitive damages, they will not be award because O. has already been condemned for this fault in criminal court. You can’t have a double jeopardy, be condemned twice for the same offense. Case 11: Walker vs Singer
Walker and Singer were having a love affair. While Walker was outside the city, Singer destroyed Walker clothes. Police investigated the missing clothes and charged her for mischief, meaning an offence against property. She goes to criminal court, she pleaded guilty and she got absolute discharge. Then Singer attacked Walked in criminal court for sexual assault. Walker went to court and won his case. Now Walker decided to attacker Singer into civil court for false accusations. Issue: Walker is seeking compensations.
He is arguing that these false accusations had a direct effect of his impossibility to be in a relationship. He also caused him stress and anxiety and damaged his reputation. Walker is also asking for punitive damages. Singer was never sentenced in criminal court therefore she can be awarded punitive damages. She will be responsible for compensatory moral &material damages (compensatory damages) and punitive damages. Case 11: Farmakis and Canadian Tire
He bought a step ladder at Canadian tyre. He shipped it from Canada to Greece to renovate his house. He felt from the ladder and broke his heel. Issue: Farmakis is arguing that Canadian Tyre is liable for his accident and is asking for damages. Ratio:
The wife sent back the ladder from Greece to Canada. The lawyer got the ladder inspected from an expert in metal. In the expert report, he argues that the step ladder had a pre-purchase default. However, the two travels of the ladder leave ample opportunity for damage to the ladder caused by sources other than the defendant. The second argument used by Farmakis is that the manufacturer did not tell the victim that he should not climb if he was more than 200 pounds. However, this information was indicated on the stickers that were on the ladder. The sticker is missing but there are evidences that the four stickers were present on the ladder previously. Conclusion: Farmakis action is dismissed.
Case 12: Walford v. Jacuzzi Canada.
The family had a four-foot deep pool and a slide. The mum told the teenage girl not to slide the head first. However, the teenage girl did not listen. She broke her neck and end up in quadriplegia. Issue: The family is suing Jacuzzi for failure to warn of danger . Pioneer employees were not asked whether or not a four foot pool and a ten foot slide could be used together However the court found negligence on the part of Jacuzzi for failing to give adequate warnings to users of the slide of the extreme dangers of serious injury from improper use. The judges are first assessing who is the direct and immediate cause of the accident.
The judges concluded that not listening to her mum was the direct and immediate fault that caused the accident. The case went in appeal. The court decided to split the fault between the mum and the pool company for contributory negligence: their lack of warnings. 75% of damages are claimed against the pool company and 25% against the mum. Case 13: Morse &Cott beverage
The girl tried to twist the cap of a bottle of Cott beverage. She could not, therefore she took a nutcracker. The cap blew in her eye and caused serious damages to her eye. Issue: Is Cott beverage liable for the injury and the resulting pain? Ratio:
The manufacturer of the cap process gave a manual to Cott beverage concerning the capping process: the Alcoa system. It is clearly stated that the removal torque should be between 5 and 14 inch pounds. However, the day of the injury, the records from the manufacturing process of Cott shows that for 16 out of 24 bottles testes was above the recommended interval. The record further indicated that no adjustment was taken to ensure the production was within the specified tolerances. Within the manual, it is also indicated that :”bottles may not be openable by hand.
This may result in injury if the closure is improperly removed using a tool or some other devices. “ The judge concludes that Cott has breached the statutory warranties of acceptable quality and fitness. She also concludes that Cott committed a gross negligence. Therefore according to article 1469, the manufacturer is responsible for bodily, moral and material damages (compensatory damages): Loss of income
In addition, the judges award the manufacturer punitive damages or exemplary damages because they released inherently dangerous products and therefore
jeopardizing the safety of the public. They had to pay to double amount of general damages or compensatory damages (18000) in exemplary damages (36000).
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Case1 : King v.BioChem Therapeutic Inc. (2016, May 09). Retrieved from https://studymoose.com/case1-king-v-biochem-therapeutic-inc-essay