Andria

Saba
COMM 315 Winter 2016

7.1 King v. BioChem Therapeutic Inc.
Deals with unjust termination.
Facts:
Dr. King was hired by BioChem, she worked there for about 10 months.
Less than a year after being hired she was fired.
BioChems position is that she is being fired for serious reason (CCQ 2094)
She disagrees with this reason and files a lawsuit against BioChem.
She claims that BioChem did not have serious reason to fire her.
Very long trial, takes 9 days and 11 witnesses
Judge says: Dr. King is a very credible witness and the witnesses for BioChem
are not credible.
BioChem is unable to prove that they had a serious reason to fire her.
o All evidence shows that Dr. King was a good worker; her probationary
period was shortened, her team won a prize, discussions about giving her
stock options.
o BioChem claimed that she was hard to work with, disagreeable, etc.
Real reason: the other woman in the office were jealous of Dr. King so to buy
peace, the company decided to fire her.
Discussion:
Tried to fire her under CCQ 2094 (serious reason) and the court says BioChem
does not have grounds. This now becomes a CCQ 2091 (reasonable notice)
termination.
o This means that she was fired and did not received notice, she should
have received notice, therefore the court will order the company to pay her
severance based on the number of weeks they should have given her.
o Dr. King claims she should have had 14 months severance.

The court feels that she is entitled 12 months severance, why is she entitled to
12 months if she only worked for 10?
o The court looked at the special circumstances:
She was fully employed in America and BioChem convinced her to
move to Montreal.
She then moved to Montreal and her husband and child, major
lifestyle disruption, she gave up a lot to move to BioChem.
Difficult for her husband to find work (especially due to language).
Child cannot go to regular school due to language laws (private
school).

Dr. King then asks for relocation allowance (something BioChem had undertaken
initially but never paid it).
o She provided proof and was granted the money asked.

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BioChem gave her stock options. She claimed that if she had been given a notice
period, 1/5 of her stock options would have been exercisable, she would have
bought them, resold them and made a profit.
o The court agrees and granted the equivalent of 2000 shares.

She asks for damages in lost bonus.

o Court says no because a bonus is discretionary.

Moral damage; stress, anxiety, and inconvenience.

o Court felt like the company acted in bad faith.
o The way they actually fired her was very unprofessional and petty.
o She asked for an additional sum for damages to reputation (they fired her
and made it known in a small industry that she is difficult to work with).
o Court granted her demand for moral and reputation damages.

She claims loss of benefits; all that she would have had if she was working.
o The only benefits the court recognizes are the tax saving provisions.
o Quebec gives employees who have moved into the province for work a tax
holiday (for 5 years).
o If she would have worked for the full 12 months, she would have been
entitled to a certain amount of money from the tax break.
o The court grants her the amount she would have received from this break.

Damages received by Dr. King (p. 243):

Breach of contract, damages under 1458

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7.2 Dub v. Volcano Technologies Inc.
Deals with employment termination.
Important because it talks about how the courts will not force an employee to be bound
by the Labour Standards Provisions when it comes to how much notice they are entitled
to (LSA 82).

Dube worked for 26 months and was fired.

Given two weeks severance (notice) but he feels that it is not enough.
He was 9 months without work before he started his own business.
He was fired under reasonable notice (CCQ 2091) for economic reasons.
Why did the company only give him two weeks notice?
o Thats what his employment contract says, according to the Labour
Standard Act (p. 234). This is not enforceable so,
o Court says public order rights (CCQ 2092) and notice of termination (LSA
82).

What would reasonable notice be for Dube?

Court said: he is 53 years old, he was unemployed at the time. He should have
received 18 weeks notice. Therefore, he is entitled to 16 weeks more than he
received.
Special circumstances:
o He is an older man and it is more difficult for him to find work.
Dube asked for a bonus:
Court said no because that is discretionary.
Dube asked for the automobile monthly allowance he had been receiving:
Court said no because that allowance was expressly so that he could get to and
from work. Proof made by the employer.
No moral damage in this case, the termination was not done in good faith.
Employer followed the employment contract.
The contract was probably drawn up a while ago and employer honestly thought
the information was still valid.
Employer had no intention of mistreatment.

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COMM 315 Winter 2016

7.3 Hasanie v. Kaufel Groupe Ltd.
Facts:
Hasanie works for Kaufel.
He had been working there for ten years and was the third senior employee in
the company.
In 1998 the company is sold, new management took over and went through
senior management to see who to keep.
New management added one new senior woman above Hasanie, otherwise
everything remained the same.
Approximately seven months later, the new bosses terminate Hasanies employment
with 10 months severance pay.
Hasanie asks for 12 months and bosses say okay; he was leaving on his 3
week paid holiday and they told him they would work it out when he comes
back.
However, while he is on holiday, the bosses discover that Hasanie had been trying to
buy a competitor business.
This is a breach of Hasanies fiduciary duty.
Hasanies defense is that he did not buy it but the court say that thats not a
defense.
Because Hasanie breached his fiduciary duty, they no long have to fire him under
reasonable reason, they fire him under termination for a serious reason with no notice
and no severance.
His defenses: Three possible defenses
I did not buy the company.
o Court says that that is not a defense, even if he did not make a profit.
I told my boss at the time. Mr. Blais knew what I was doing and gave
authorization.
o Good defense because no breach of fiduciary duty or conflict of interest.
o Problem: Mr. Blais denies it, Hasanie did not get it in writing, he should
have known better, he is not credible because someone of his experience
should have gotten it written down.
Constructive dismissal (claim): where the boss tries to make the employees life
difficult so that the employee will quit; change the persons functions without their
consent and hope that they will leave. Courts treat this as if it was an unjust
termination.
o Hasanie could not show proof to the court.
Conclusion: Hasanie lost the case.

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COMM 315 Winter 2016

7.4 Copyfax Inc. v. Lambert *VERY IMPORTANT
Deals with a non-competition clause.
Facts:
Lambert was a sales rep for Copyfax.
Lambert signed an employment contract saying that should he leave the
company he would not for 14 months accept a job with any employer selling
photocopy machines and/or supplies in this area that could be a competitor to
Copyfax (non-competition clause).
o In the contract that he signed, it says that the employee agrees that this is
reasonable.
o Just because you sign an employment contract that has something
unreasonable in it does not make it reasonable. This is an adhesion
contract; employee has not bargaining power.
In January 2000 Lambert was fired because his employer found out that he
started a competing business.
o Fired for breach of fiduciary duty.
o Copyfax asks for two temporary injunctions against him:
To prevent Lambert from using confidential information and
customer lists. (Lambert agrees to that, there is no proof that
Lambert took any confidential information)
Ordering Lambert to respect the non-competition clause (Lambert
fights this one)
Is the non-competition clause enforceable?
Copyfax has not yet replaced Lambert, there is no sales rep for his area.
Court says that:
o The companys actions contradict the purpose of the large area Lambert
cannot take a job in in a related company.
o The interlocutory injunction to enforce the non-competition clause is
refused.

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COMM 315 Winter 2016

7.4 A.R. Medicom Inc. v. Bergeron

Both Bergeron and Hubert have non-competition clauses

The court rejects their employers request for an injunction to enforce the noncompetition clause.
Court says: it cannot be legitimate interest of the employer to prevent these two
men from working in their field in any capacity whatsoever.

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COMM 315 Winter 2016

8.1 Giroux v. Malik

*VERY IMPORTANT CASE

Deals with fraud (of the Civil Code)

Facts:
Malik put up his property for sale, he had owned it for about 10 years before
selling it to Giroux.
Malik had tried selling this property twice in the past and made disclosures to the
effect that there was a problem with installing a septic tank because the property
was not well drained and thus could not build a house on the land.
The third time that he tried to sell the land (through a real-estate agent), he does
not disclose the above information.
Giroux is not represented by a broker, appeared to be inexperienced and relied
on Malik and his broker.
After buying the property, Giroux had plans drawn up for a house for the
property.
o Went to get plans approved at the city and wanted to get the house built
by June.
o City clerk told them they cannot build on the property.
o This means that Giroux now has no house, no money and a piece of land
that cannot hold a house.
Court Says:
Malik did not disclose the issue with the land so this is fraud through silence.
Court believes that Maliks broker gave misleading information.
Malik has to repay the purchase price and in addition has to pay moral damages.
Contract is annulled.

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COMM 315 Winter 2016

8.2 Peter v. Fiasche
A franchise situation.

Mr. and Mrs. Peter know this guy names Fiasche (a well respected entrepreneur)
Fiasche has a smoke meat kiosk (Chez Gino) and would like to franchise it.
Mr. Peter gets notice that his job will be terminated, Fiasche suggests that he
buys a Gino franchise.
Mr. Peter does not want to open a restaurant from scratch so Fiasche decides to
sell the existing restaurant to the couple.
The restaurant is running at a loss.
o Fiasche tells Mr. Peter that it appears to be at a loss but in reality he
pockets $100,000 every year.
o Then why would Fiasche sell for such a low cost or tell anyone about this?

It would take Mr. Peter two weeks to have his lawyer look over the documents but
Fiasche says the deal is now or never.
o They decide to pay Fiasche right away before going over the documents.
o The money came from mortgaging their house.
o Now Fiasche has all of the bargaining power.
o Their lawyer refuses to represent them since they made the agreement.
o They signed all of the documents in Mrs. Peters name so that Mr. Peter
could get his unemployment insurance for six months.
Once into productions, sales are not meeting Fiasches.
Fiasche becomes more difficult to speak to and get a hold of.
Realized that there was no money saving from buying their supplies from
Fiasche.
Seemed to have a government woman lurking around the restaurant, Fiasche
told them not to worry about it.
Tax fraud investigation against Fiasche.
Federal government seized and sold the restaurant.
The Peters sue Fiasche for fraud.
However, there was nothing fraudulent in writing.
The Peters were willing participants.
Sale cannot be annulled.
Judge:
The cause/reason of this contract must have been to defraud the government,
that the only reason that made this contract make economic sense, making the
cause illegal, therefore the contract can be annulled.

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o Annulled under 1422: each party has to return what they received and get
back what they gave. No moral damages awarded.
o The Peters got back their investment in the restaurant but nothing more
because no fraud was recorded or could be proven.

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COMM 315 Winter 2016

8.3 Carrefour Langelier v. Cineplex Odeon Corp.
Deals with injunction, breach of contract (1590).
Facts:
Landlord: Carrefour Langelier
Tenant: Cineplex
The landlord asks for an injunction to operate a cinema and as a Cineplex.
Cineplex signed a lease and the sublet the permission to Guzzo.
o Required landlords permission, Carrefour said that Guzzo can operate but
has to operate as a Cineplex Odeon.
o Parties agreed and signed an agreement.
Down the road, the Guzzo guy changes his mind and replaces all of the Cineplex
signage with Guzzo banners.
o Under 1590, Carrefour claimed breach of contract
o Requested an injunction to force Guzzo to operate as a Cineplex, as they
had originally agreed.
About the various defenses that Guzzo uses to raise to argue why the unjunction should
not be granted.
Issues/arguments that Guzzo brings up to court:
A cinema is a cinema; he has not changed nature of the business or the
agreement.
o Court disagrees with that; there is clearly a different in the name.
Said that they only signed the agreement because they had not choice, Cineplex
was impeding on Guzzos business and steal their clientel.
o Appears that Guzzo has had this type of agreement with Cineplex before
so it seems to be a type of business strategy.
Claim that the owner of the shopping center begged them to operate as a
Cineplex for reputation purposes, made false representation.
o The court said that Guzzo is a professional business so the court does not
believe that they would believe the owners claim. Not something that
would swat a professional business owner.
Claimed bad faith on the part of the shopping center.
o Guzzo says that Carrefore does not really care which name they operate
under and that the reason they are being difficult is because they want to
increase the cost of rent.
o No proof so court cannot rely on it.
Claim that the injunction requested will be hard to enforce because its enforced
by the court.
Issue of balance of hardship; will it be fair?
o Hardship for Carrefour: spent money on a theater but wont have the
tenant it was built for.

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COMM 315 Winter 2016

o Cineplex and Guzzo: respecting the contract that they signed. Court feels
that this is not a hard ship on their part.
Conclusion: the injunction is issued (permanently) ordering them to operate under the
Cineplex banner.
In common-law they give you an injunction when other options are not available,
would have said to cancel the lease and sue for damages.

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COMM 315 Winter 2016

8.4 Copiscope Inc. v. TRM Copy Centers
Case about injunction.
Law suite against Copiscope (Court of Appeal).

TRM convince convenience store owners to install photocopier machines in their

stores.
TRM maintains the machines and gives the store owner a certain percentage of
total cash revenue.
Copiscope may have gotten a list of TRMs customers.
Copiscope goes to stores that already care TRMs product and offers more
money to the owner if they replace it with Copiscope.
Original agreement between the convenient stores and TRM had a clause saying
that the convenience store can cancel given 30-days written notice and if they do
cancel you will not be entitled to have any photocopy machine in any store
directly or indirectly related to you for a period of one year (a non-competition
clause)

Copiscope and TRM have no contractual relationship, so how can TRM sue
Copiscope?
TRMs claim: Copiscope is inducing/encouraging TRM customers to breach their
contract with TRM (the breach being replacing the machine).
Court says that if TRM can prove that Copiscope is encouraging their customers
to breach the contract, you can take an injunction against them.
The only defense that Copiscope has is that the non-competition clause in the
TRM contract is not enforceable.
o Its an adhesion contract
o And it is not enforceable because it is too harsh.

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COMM 315 Winter 2016

9.1 Harris v. Ostromogilski
A 1457 case, duty to act in a reasonable not to injure others, non-contractual liability.
Facts:
Harris drives a taxi.
Ostromogilski owns a taxi.
Apparent that Harris would visit Ostromogilski every week or so presumably to
pay his taxi fees or discuss something to do with the taxi.
One day Harris shows up at Ostromogilskis apartment
o Harris claims that Ostromogilski beat him up very badly
o Ostromogilski claims that he did not do such thing, Harris was aggressive
and all Ostromogilski was but his hand up to him.
Harris suffered several injuries all over his body.
Ostromogilski suffered bruising to hands and knuckles.
Based on courts assessment: yes, Ostromogilski beat Harris up without any justification.
Harris is claiming compensation under 1457
Moral damage:
o Loss of income for two weeks
o Permanent and partial injury
o Loss of enjoyment of life
o Pain and suffering
Material damage:
o Eye glasses
o Cost of the ambulance
o Cost of clothing
Asks for additional money claiming that this assult is a violation of his rights
under the Chater of Human Rights (section 4, protection of person and
reputation).
Issue before the court: Can you claim charter damages under this type of a situation?
(Wants to ask for punitive damages).
Harris is awarded all of his compensatory damages, he has proved his actual
damages and they are all reasonable.
Regarding punitive damages, court says, the damages would be available under
the charter but in this case they are not appropriate because Ostromogilski has
been convicted of two criminal charges of assault. Ostromogilski has already
been punished, will not impose a double punishment.

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9.2 Walker v. Singer
Talks about 1457, duty not to injure people.
Facts:
Walker and Singer met and then started to date.
After a short period of time Walker no longer wanted to date Singer anymore and
Singer did not take it well.
They were both renting rooms from some guy in Westmount.
One day, Walker catches Singer tearing up his clothing.
o Calls the cops and charges her with vandalism (a criminal charge).
o Singer files criminal charges against Walker right after, makes up that
Walker sexual assaulted her.
The criminal charges against Walker were unfounded but his name remains on a
watch list for the following ten years.
o He is awarded compensation for the damaged clothing (material damage)
o Awarded damages to reputation and dignity (moral damage)
o Awarded damages for stress and inconvenience (psychological damage)
o He also asked for punitive damage, court says yes because Singer is a
lawyer, she should have known better than to file a false charge. She also
was not punished by the criminal court system.

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9.3 Farmakis v. Canadian Tire Corp.
Deals with safety defects, manufactures duty and obligation.
Facts:
Mr. Farmakis bought a ladder from Canadian Tire and took it to Greece with him.
While using his ladder one day, he ended up on the ground, according to him by
no fault of his own.
Mr. Farmakis sues Canadian Tire for manufactures defect.
Mr. Farmakis has no evidence
o Tries to prove that there was a defect (difficult to prove because the travel
has been through a lot), would have had to prove that there was a
damage that existed before he bought it.
o Next claim is, inadequate warning labels (that he had pealed off himself).
Mr. Farmakis looses his case, no safety defect was proven.

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COMM 315 Winter 2016

9.4 Walford v. Jacuzzi Canada Inc.
Facts:
Mrs. Walford has an above ground pool in her backyard, bought the pool used.
Two years after the purchase, she bought an old waterslide that was missing
parts so she goes to a local supply store.
o Asked the store if the slide was okay to use and they never said that it was
not okay and sold her the necessary parts.
o She installed it herself
Mrs. Walfords daughter uses the slide, goes head first and breaks her neck and
becomes paralyzed.
At trial, the courts hold the girl to be fully contributory negligent for her injuries.
Shes old enough
She was told not to go head first
She should have known better
At the Court of Appeal, they say no to the above statement.
Mrs. Walford was going by the expertise of Pioneer pool, she was entitled to rely
on their expertise.
Pioneer pool had a duty to warn.
Problem with the slide: it was designed for a deeper pool, Pioneer pool should
have known this.
Pioneer pool failed in their duty of care.
The girl is contributorily negligent for 20% of her damages.
Pioneer pool is 80% liable and Jacuzzi Canada is not liable at all.

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COMM 315 Winter 2016

9.5 Morse v. Cott Beverages West Ltd.
Facts:
Morse is a 16-year-old girl and wanted some soda, 2L bottle of no name cola and
could not open bottle so opened a nutcracker to open top.
o Top comes up and damages her eye severely.
o Court assessed compensatory damages of $18,000
Morse sues Cott Beverages through her mother.
Records of Cott Beverages, caps are made by a separate company.
o The external company specifies how tightly to close the caps and warns
against risk of over-tightening it, specifically to the eye.
o The external company has warned Cott Beverages.
It was proven that Cott Beverages was tightening their bottle caps past the suggested
limit.
Court said that Cott Beverages should have known or did know.
They had an obligation of warning the consumer of the danger.
Morse is entitled to her full $18,000 in damages
And they are awarding her punitive damages because the company was in bad
faith.