Fact: Dr King is hired by Bio Chem. She signed a particular contract that specifies a period of probation. During this period. she can be let travel but you have to be known the incorrect behaviour in order to be able to rectify it. If the incorrect behaviour persists so your contract will be terminated. Issue: Is the expiration of the contract of Dr King for mistake justified? Ratio
Employer version of facts:
1st meeting: after 5 months and a half. during this meeting.
the direction squad are stating that they told her that she was being unsubordinated 2nd meeting: after 10 months. the direction squad told her that her behaviour was still being non acceptable and that constitutes a 2nd warning Employee version of facts
1st meeting: prohibition period was over ( 5weeks and a half alternatively of 6months ) and she was offered stock options 2nd meeting: she got more stock options
The Judgess have now to make up one’s mind which narrative is the more believable.
the more logical? Based on the fact that the employer version is contradictory. why would person discourse the possibility of holding extra stock option to an employee that is on the 2nd measure to dismissal? A Dr King version makes more sense.
Issue: Can you relinquish your rights refering employment by subscribing a contract? Ratio: Harmonizing to article 2192: “the employee may non abdicate his right to obtain compensation for any hurt he suffers where deficient notice of expiration is given or where the mode of resiliation is abusive” .
In the instance where an employee renounces one of his rights. it should be really precised and clear. Question: If it was explained more clearly. and was bought to the attending to the employee. could it hold been considered as valid. Because the Judgess are non stating that it is impossible to relinquish employment rights relative to conditions of expiration of contracts but instead that it should be clear and unambiguous. Harmonizing to article 2091. the employee is entitled to sensible notice. Harmonizing to Judgess the minimal notice is merely for really early going. Case 3: Hasanie v. Kaufel Group Ltd.
Thomas & A ; Bett Kaufel Group
After the acquisition. Hasanie realized that the reorganisation of the group will disregard him. that there were excessively much people making the same occupation. The Kaufel group so offered a bundle for Hasanie since his employment will be terminated shortly. There were still in period of dialogue when Hasanie went into holydays. During this period. Kaufel direction discovered that Hasani was negociating to take over a competition concern. The direction squad hence decided to take the trade out of the tabular array and to fire Hasanie for mistake. Issue: Was this dismissed of Hasanie for serious mistake was just? Ratio:
Harmonizing to article 2188. “the employee is bound non merely to transport on his work with prudence and diligence but besides to move dependably and candidly and non to utilize any confidential information he may obtain in transporting on or in the class of his work” Kaufel’s chief statement is that Hasanie put himself in a place of struggle of involvement and sought to progress his involvements to the hurt of those of his employer. therefore transgressing his responsibility of trueness towards his employer. Hasanie is reasoning that Dynergie is non a rival of Kaufel. He is besides reasoning that he asked his direct superior if he could take this chance. and he agreed. However. the direct supervisor is denying.
There is non composing grounds of this mandate. The last statement of Hasanie is that he was a victim of constructive dismissal. Basically a constructive dismissal happens when an employer alterations your working environment. ask foring you to go forth. However. Kaufel argues that they offered chances for growing within the group and that Hasanie was merely waiting for his bundle. Finally they are reasoning that they needed more clip to reorganise the group and assign duties. The Judgess conclude that Hasanie did non set up his instance of holding been dismissed without cause. or holding been constructively dismissed. Case 4: CopyFax v. Lambert
The different injunctions
Institution of Continuing Final Judgement Provisional InjunctionInterlocutory Injunction Permanent Injunction The probationary injunction is given
based on exigency criterias. It is used to keep the position quo. The probationary injunction is valid for 10 yearss. Within these 10 yearss. the person has to establish the proceedings and asks for interlocutory injunction. The interlocutory injunction would be valid for the full period of the test. In order to acquire the interlocutory injunction. the justice would foremost look if you have: A clear right
Doubtful right: in this instance. you will hold to turn out balance of incommodiousness. They would fundamentally see which of the parties will stop up with the most incommodiousness. with the irreparable injury. Non-existent right: you will non acquire the interlocutory injunction Facts: Claude Lambert. worked for copyfax as a gross revenues representative. However. he was besides working for himself on the side. his employer did non let that hence Lambert decided to vacate.
The contract included a non-competitive clause: Lambert was non allowed to work within 25 stat mis of Laval and Montreal for a twelvemonth for the rivals of Copyfax. However. Lambert starts viing in the zone. Copyfax is reasoning that he is utilizing the Copyfax clients. hence besides transgressing the confidentiality clause. They besides included a penal clause of $ 6000 for transgressing the contract. Issue: Should Copyfax be entitled an interlocutory injunction against the former employee Lambert that would restrict him to do concern in the part? Copyax has a dubious right in the instance of the non-competition clause.
The Judgess found out that the non-competiting clause was missing of lucidity. The forbidden country is of 25 stat mis of Mtl and Lassale. What is the cardinal point from which the country is calculated. Decision: The employer did non set up that he will endure irreparable injury or hurt if the interlocutory injunction is refuse. and the application of the trial of incommodiousness favours the employee: There is no grounds that the Copyfax ( Petitioner ) patronage was solicited The forbidden country of 25 stat mis would hold the consequence of striping the employee of any realistic possibility of gaining a support given his present fortunes The stipulated continuance of 14 months is inordinate
Injunction against his ability to work is denied. The non-competition clause denied 2nd Issue: Should Copyfax be entitled an interlocutory injunction against the usage of the client list They get an interlocutory injunction refering the usage of stuff and confidential information more exactly the clients being owned by the company. Case 5: Medicom Inc. v. Bergeron
Medicom has bought a request for an interlocutory. probationary and lasting injunction against Bergeron and Hubert refering 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 limitation of work worldwide during two old ages with any company that has a similar commercial activity. For the 2nd clause. the limitation is for a period of 3 old ages. for all Canada. for any house with similar commercial activity. Medicom has a non-existent right for the two contracts. There were non able to turn out that there has a legitimate involvement to support refering the non-competition clause. Case 6: Giroux v. Malik
Facts: Malik owns a piece of land. you can non construct on it. and he wants to sell it. Giroux decides to purchase the piece of land from Malik. He goes to City Hal to acquire a constructive license but they tell him that nil can be built on this land. Issue: Giroux is inquiring for the cancellation of the sale and some amendss. Ratio:
Malik misrepresented the facts. Harmonizing 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 indispensable in finding that consent” . Malik is reasoning that he did non state anything. that he did non uncover Tell Giroux the fact that you could non construct on the land. but neither lied to him. However. harmonizing to article 1402. fraud can happen through silence. Malik is besides reasoning that his agent. the existent estate agent was cognizant of this fact and hid By beliing the fact. the consent of Giroux refering the sale is vitiated. Harmonizing to article 1419. the contract is considered comparatively void. Giroux can acquire the annulation of the contrat. taking to the parties traveling back to pre-contractual province and he besides get amendss. Case 7: Peter v. Fiasche
Peter ( Mrs Guicciardo ) and her hubby are looking for a safe investing that will guarantee a steady flow of gross for the household as the hubby is retiring shortly. They both know Fiasche that held a smoke-cured meat concern. The two households come from the same part in Italy. The twosome Guiccado is really involvement in purchasing Fiasche as it seems really profitable based on the patrimony acquired by Fiasche over the old ages. Looking at the fiscal statements. it seems a spot dissatisfactory nevertheless Fiashe is stating Guiccado non to worry that he has a particular method to do this concern profitable.
He will demo him the fast one but he needs 100 1000 of dollars as a sedimentation to be certain that the twosome is a serious purchaser. In order to acquire the amount of money. Mr Guiccado is seting a mortgage on his house. Fiasche explained him how to distort the fiscal statements in order to minimise the income revenue enhancement to be paid. The twosome begins working in the eating house in order to better understand the concern. However. as the hebdomads base on balls. they realized that Fiasche over evaluated the concern value. Issue: The twosome Guicciardo is reasoning that Fiasche misinterpreted the value of the concern. corrupting their consent. They are inquiring for the revocation of the contract and the damages to position quo. Ratio:
Refering the deceit of Fiasche. the Judgess argue that that is non a fraud of deceit but an inexcusable mistake. It was witting unlawful pick from Guicciardo. they could non avoid being cognizant that revenue enhancement equivocation was the root of the eating house supposed profitableness. Inexcusable misunderstanding does non corrupt the consent of the party. In add-on the tribunal is reasoning that the cause of the contract was illicit and against public order as Fiasche desired to enrich himself by selling a deceitful system and the Guicciardos by go oning it.
Harmonizing to article 1411. “a contract whose cause is prohibited by jurisprudence or contrary to public order is null” And harmonizing to article 1422. `”a contract that is void is deemed ne’er to hold existed. In such a instance. each party is bound to reconstruct to the other the prestations he has received. “ However the important inquiry is whether parties to an illicit should hold the benefit of damages. In this instance. the Judgess ordered for the damages of the 130 thousand dollars to the Guicciardos and the damages of the eating house to Fiasche. Case 8: Intersection Langelier versus Cineplex
Carrefour and Cineplex signed a rental. After the rental was signed and before Cineplex even occupied the premises. it approached Carrefour together with representatives of Guzzo to inquire its permission to delegate the rental to Guzzo but it was specified in the contract that Guzzo was suppose to run under Cineplex streamer and follow its criterias for operating theaters. However after a piece. Guzzo decided to run under its ain name. Issue: Carrefour wants to implement the duty contracted by Guzzo in the initial contract to run under Cineplex name. They apply to the tribunal for specific public presentation order Ratio
The first statement used by Guzzo is that his consent was given through hurt or fright. If this statement was accepted by the Judgess so the consent of Guzzo was vitiated. taking to the revocation of the contract and hence the cancellation of the duty. However this statement is rejected. the Judgess argue that this fright is portion of the concern environment particularly within a competitory environment. The 2nd statement is that Guzzo signed under false pretensions. intending it was beliing. Again if the statement was accepted by the tribunal. the consent would be vitiated and the duty cancelled.
The tribunal rejects this statement. In any instance. guzzo has experiences in the industry and hence the deceit should hold big plenty to call off the contract. The last statement brought up by Guzzo is that this is non a state of affairs that allow for specific public presentation order. There are four different instances where specific public presentation can non be obtained: When the duty has got impossible to execute ( this occurs when the individual responsible for making the duty had an accident and is unable to carry through his duty ) Time has elapsed ( for case. if you are orgnaizing a concert at 7pm on the 3rd of April. after 7pm if the vocalist did non demo up you can necessitate a specific public presentation ) When the belongings vanished
When the belongings has left the patrimony
In all those instances. you can non order specific public presentation. nevertheless you will acquire amendss. Let s see if Cineplex corresponds to any of these four instances: For Guzzo. it is possible to run under Cineplex name as they did during a while The rental is successfully being performed. clip has non elapsed The belongings is still working
The landlord still owns the belongings
Therefore in the instance of Guzzo. telling a specific public presentation is allowed. The concluding statement of Guzzo is that Carrefour did non confront any amendss and hence they should non be able to order specific public presentation. The Judgess argue that to implement specific public presentation order. you don’t need to hold faced any amendss. You merely need three conditions for:
Valid contracted duty
Person non carry throughing their duty
You need non to be in a instance where specific public presentation is non allowed Decision: the tribunal ordered a lasting injunction order enjoining Guzzo to move under Cineplex name. Case 9: Copiscope Inc. and TRM Copy
TRM puts photocopy in other concern in return for some royalties. They signed contract of adhesion with those concerns. that include a non-compete clause. This clause is stating that the parties subscribing those contracts can non contract with rivals for a period of 1 old ages in order to protect the trade secrets shared with those clients. Recently. Copiscope has been beging concern operators who had antecedently contracted with TRM to end their contract and has begun to put photocopies in those concerns. Issue: TRM is inquiring for interlocutory injunction for the regard of its non-compete clause. Ratio
The test justice concluded that TRM had a dubious right. The justice in entreaty is looking at the non-competitive compact to judge whether TRM has a clear. dubious or non existing right. To make that they are looking at the cogency of the noncompetition compact: The justice is reasoning that TRM has no legitimate involvement to support as they do non portion any trade secret with the concern they are undertaking with. They are reasoning that the limitations set out in the compact are extortionate and are grossly inordinate for the sensible protection of TRM. The Judgess are reasoning that this clause if abusing. Harmonizing to article 1437. “an opprobrious clause in a consumer or contract of adhesion is null” As it is a nonexistent right. they don’t acquire an injunction Case 10: Harris v. Ostromogilski
Harris is renting a cab from O. . and every hebdomad. he comes to his topographic point to pay for the rental. One dark. there was a difference. Harris got injured. Issue: each party version differs greatly. the Judgess have to measure the credibleness of each version of Acts of the Apostless and determine who was responsible. O. argues that Harris felt while seeking to run out the house. and hurt himself. Harris version is that O. beat him with his fists. Harris hurts are uncontested facts. Sing all Harris hurts from the laceration of the left oculus. to the laceration behind the right ear. to a haematoma on the right cheek and a fractured rib. the version of Harris is more believable. The tribunal concludes that Harris version is more believable.
Therefore O. will hold to pay compensatory amendss that include bodily. moral and material amendss. The amendss include the cost of the shirt torned during the affray. the loss of income during two hebdomads. the hurting and the agony and the broken spectacless. Refering punitory amendss. they will non be award because O. has already been condemned for this mistake in condemnable tribunal. You can’t have a dual hazard. be condemned twice for the same discourtesy. Case 11: Walker vs Singer
Walker and Singer were holding a love matter. While Walker was outside the metropolis. Singer destroyed Walker apparels. Police investigated the missing apparels and charged her for mischievousness. intending an offense against belongings. She goes to condemnable tribunal. she pleaded guilty and she got absolute discharge. Then Singer attacked Walked in condemnable tribunal for sexual assault. Walker went to tribunal and won his instance. Now Walker decided to attacker Singer into civil tribunal for false accusals. Issue: Walker is seeking compensations.
He is reasoning that these false accusals had a direct consequence of his impossibleness to be in a relationship. He besides caused him emphasis and anxiousness and damaged his repute. Walker is besides inquiring for punitory amendss. Singer was ne’er sentenced in condemnable tribunal therefore she can be awarded punitory amendss. She will be responsible for compensatory moral & A ; material amendss ( compensatory amendss ) and punitory amendss. Case 11: Farmakis and Canadian Tire
He bought a measure ladder at Canadian Sur. He shipped it from Canada to Greece to restitute his house. He felt from the ladder and broke his heel. Issue: Farmakis is reasoning that Canadian Tyre is apt for his accident and is inquiring for amendss. Ratio:
The married woman sent back the ladder from Greece to Canada. The attorney got the ladder inspected from an expert in metal. In the adept study. he argues that the measure ladder had a pre-purchase default. However. the two travels of the ladder leave ample chance for harm to the ladder caused by beginnings other than the suspect. The 2nd statement used by Farmakis is that the maker did non state the victim that he should non mount if he was more than 200 lbs. However. this information was indicated on the spines that were on the ladder. The spine is losing but there are groundss that the four spines were present on the ladder antecedently. Decision: Farmakis action is dismissed.
Case 12: Walford v. Jacuzzi Canada.
The household had a four-foot deep pool and a slide. The Dendranthema grandifloruom told the teenage miss non to skid the caput foremost. However. the adolescent miss did non listen. She broke her cervix and stop up in quadriplegia. Issue: The household is actioning Jacuzzi for failure to warn of danger. Pioneer employees were non asked whether or non a four pes pool and a 10 pes slide could be used together However the tribunal found carelessness on the portion of Jacuzzi for neglecting to give equal warnings to users of the slide of the utmost dangers of serious hurt from improper usage. The Judgess are first measuring who is the direct and immediate cause of the accident.
The Judgess concluded that non listening to her Dendranthema grandifloruom was the direct and immediate mistake that caused the accident. The instance went in entreaty. The tribunal decided to divide the mistake between the Dendranthema grandifloruom and the pool company for conducive carelessness: their deficiency of warnings. 75 % of amendss are claimed against the pool company and 25 % against the Dendranthema grandifloruom. Case 13: Morse & A ; Cott drink
The miss tried to writhe the cap of a bottle of Cott drink. She could non. therefore she took a nutcracker. The cap blew in her oculus and caused serious amendss to her oculus. Issue: Is Cott drink liable for the hurt and the ensuing hurting? Ratio:
The maker of the cap procedure gave a manual to Cott drink refering the cresting procedure: the Alcoa system. It is clearly stated that the remotion torsion should be between 5 and 14 inch lbs. However. the twenty-four hours of the hurt. the records from the fabricating procedure of Cott shows that for 16 out of 24 bottles testicles was above the recommended interval. The record farther indicated that no accommodation was taken to guarantee the production was within the specified tolerances. Within the manual. it is besides indicated that: ”bottles may non be openable by manus.
This may ensue in hurt if the closing is improperly removed utilizing a tool or some other devices. “ The justice concludes that Cott has breached the statutory guarantees of acceptable quality and fittingness. She besides concludes that Cott committed a gross carelessness. Therefore harmonizing to article 1469. the maker is responsible for bodily. moral and material amendss ( compensatory amendss ) : Loss of income
In add-on. the Judgess award the maker punitory amendss or model amendss because they released inherently unsafe merchandises and therefore
endangering the safety of the populace. They had to pay to dual sum of general amendss or compensatory amendss ( 18000 ) in model amendss ( 36000 ) .