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These new measures should make the process go faster and cost less. It also proposes to make the process less combative through the use of mediation, arbitration and/or collaborative law.
Read more here from the CBCNews website: CBC News - Ottawa - Proposed changes to family law in Ontario applauded.]]>
Top 10 Ways To Get Fired By Your Lawyer]]>
In the past several months I have had to deliver both good and bad news after reviewing electronic communications between clients and their partners. The news is good in those “gotcha” moments when the partner puts in an email exactly what you are saying the deal is, but it is devastating to see something you have written which will surely come to light in any litigation to your disadvantage. Fair or unfair it takes evidence to win a dispute, and as courts recognize the admissibility of these communications, alternative means of resolving disputes through mediation and arbitration will follow suit and give weight to them.
In addition to the risk of complications in contractual relationships, there is also the broader issue of liability for the words used. Publication over the internet is a communication to the public, once it gets out of the hands of the intended user, and you could find yourself having to defend against allegations of libel and slander. Even without communication to the public, how about that disgruntled employee to whom you sent a note in haste and now uses it against you in a charge of constructive dismissal, harassment, or a violation of human rights etc.
Returning to business agreements, as entrepreneurs we all find ourselves moving forward with big plans and ideas and very often the legal agreements and paperwork follow. In the best cases the plans evolve and expectations both of the deal and the partnership relationships work out. In the worst of cases, money is advanced, commitments are made and disputes arise before there are any clear and signed legal agreements. At this point, best to stop twittering and emailing and stand back to reassess. Here are some practical steps:
The great benefit of electronic communications is we have technology that allows us to move forward with tremendous speed and efficiency. As with all technology, we need to remember that it is the tool and we are to use it always in our best interest!]]>
A person who is acquitted of a crime may recover against a police officer for negligent investigation. However, using a balance of probabilities test an acquitted person could be found “guilty” in a civil trial. An acquittal is not necessarily conclusive proof of innocence in a subsequent civil trial. The case law is equivocal. Of course, within a civil context, a conviction usually translates into a motion for summary judgment. The court did note that in the United States, victims may recover damages against a defendant who has been acquitted in criminal proceedings (i.e. OJ). Further, a Police Services Board and a police chief could also be named as defendants, by virtue of their vicarious liability and statutory liability.
The tort’s limitation period begins when it is clear that a suspect suffered compensable harm. A cause of action in negligence does not occur when the negligent act is committed, but rather, when the harmful causes of the negligence result. Therefore, the loss, or injury, as a result of alleged police negligence is not established until it is clear that that a suspect has been imprisoned as a result of a wrongful conviction; or, has suffered some form of compensable conduct as a result of negligent police conduct including non-penal consequences. It is important to note that the Supreme Court has made it clear that the limitation period begins after an acquittal occurs through a trial, or an appeal.
When the cause of action is complete, notice should be provided to the Crown, and the other defendants, under the Public Authorities Protection Act, R.S.O., 1990, as amended. This corresponds with the 6-month limitation period to file a complaint under the Police Services Act, R.S.O. 1990, as amended. Thus, an action must be issued within 6-months after the cause of action is complete. If the Province of Ontario is going to be a party, notice of the action’s issuance should be given 60-days before a Statement of Claim is issued under the Proceedings Against The Crown Act, R.S.O. 1990, as amended. If a demand letter is claimed seeking damages, all defendants should be notified of their liability for pre-judgment interest and post-judgment interest under the provisions of the Courts of Justice Act, R.S.O.1990, as amended. Further, such a letter ought to contain an admonition about the recovery of costs. Considering the nature of the tort, it is possible that under the right circumstances, cost recovery could occur on a full indemnity basis.
In addition to the foregoing, notice should also be provided of a claim for punitive damages. Pursuant to the Supreme Court’s Pilot Insurance decision, at an examination for discovery when such a claim is made, the examining party has the right to inquire about instances of similar conduct suffered by third parties. A court’s punitive damages award also takes into account conduct suffered by third parties, too.
If on a balance of probabilities, the compensable damage would not have occurred but for the negligence on the part of the police (even if other causes contributed to the injury unless the other contributions were so significant that the injury would have been caused anyway), then the causation requirement is met for the tort of wrongful investigation.
Of course, it is not just police conduct that is encompassed by the tort. Any administrative agency undertaking an investigation is subject to the same duty. Actually, in all likelihood, investigating officers employed with other, quasi-criminal agencies are less likely to be as rigorously trained as the police in terms of their use of investigative techniques. As a consequence, it is possible that quasi-criminal agencies and their investigating officers could become susceptible to becoming party defendants. Similarly, it is an act of negligence for a solicitor, or a physician, to undertake a negligent investigation. For example, a lawyer has an obligation to undertake a reasonable investigation before issuing a claim, or even defending a client charged with an offence. Under certain circumstances, it is conceivable that a defendant in a civil action could claim against the plaintiff’s solicitor.
The evidentiary burden is borne by the suspectplaintiff in showing that police negligence during the course of an investigation caused harm compensable at law.
The standard of review is how a reasonable officer in similar circumstances would have acted. In other words, police officers must act as reasonably-prudent police officers. Minor errors in judgment do not breach the standard of a reasonably prudent police officer, as opposed to an unreasonable mistake breaching the standard of care. On the other hand, police conduct that is neither malicious nor deliberate, but merely fails to comply with standards of reasonableness, can cause a wrongful conviction. Exercising their duties unprofessionally, carelessly and unreasonably could also constitute grounds for a negligent investigation action. Suspects may reasonably be expected to rely on the police to conduct investigations in a competent, non-negligent manner. Being professionals, police officers are also subject to an additional requirement; namely, that they must live up to the standards possessed by persons of reasonable skill and experience in that calling. The statutory standards contained in the Police Services Act serve as non –definitive illustrations of the appropriate standard of care.
Using today’s standards, departures from acceptable police practices during the course of an investigation could include among other things: media publication of a suspect’s photograph, an incomplete record of witness interviews, interviewing two witnesses together, failing to blind-test photos put to witnesses, and a racially-skewed, or structurally-biased, lineup, or photo lineup. Although all of these circumstances occurred in Hill, the officers’ conduct were scrutinized under, 1995, standards-and not today’s standards.
Police officers are not required to make judgments about guilt, or innocence, before proceeding against a suspect. Yet, police are required to weigh evidence (but not by legal or judicial standards) to some extent during the course of an investigation. The police must investigate suspects reasonably.
Yet, the standard of care is flexible. For example, there would be different standards of care pertaining to varying aspects of police work such as; inter alia: arrest and prosecution, search and seizure, and the stopping of a motor vehicle. The only real, chilling effect on police conduct caused by the new tort is an obligation falling upon an investigator to act reasonably in the circumstances. Police officers can investigate on whatever basis and in whatever circumstances chosen-provided that they act reasonably and that the exercise of their discretion is reasonable.
Police officers do not have an unfettered discretion to investigate suspects. There is an underlying duty to conduct investigations in accordance with the law-including the restrictions imposed by the Canadian Charter of Rights and Freedoms and the Criminal Code. The duty of care afforded suspects enhances the values of liberty and due process animating the Charter and the Criminal Code. In summary, there is a salient and compelling public interest in a diligent investigation being conducted in accordance with the law.
It is reasonable for an investigation to occur in the absence of overwhelming evidence. However, when new information emerges that could be relevant to a suspect’s innocence, reasonable police conduct may require the file to be reopened and the matter reinvestigated. In particular, the court noted, “in some cases, merely examining the evidence and determining that it is not worth acting on may be enough. In others, it may be reasonable to expect the police to do more in response to newly emerging evidence. Reasonable prudence may require them to reexamine their prior theories of the case, to test the credibility of new evidence and to engage in further investigation provoked by the new evidence….The question is always what the reasonable officer in like circumstances would have done to fulfill the duty to reinvestigate and to respond to the new evidence that emerged.”
Hill suggests that an officer’s failure to intervene with the Crown and asking that it delay proceeding to trial in order to reinvestigate a case could also constitute the grounds for a wrongful investigation action, in light of societal perceptions concerning the dangers of wrongful convictions. As a result of Hill, the police must become more careful while conducting their investigations. Officers must balance the competing interests of caution and prudence against efficiency. The Court did note that investigations are not a “never-ending process extending indefinitely past the point of arrest.” Yet, the Court also observed that, “files must be closed, life must move on, but care must also be taken.”
Therefore, certain of your clients’ cases cry out for the need to take a more proactive approach for the defense by mounting an aggressive offense. The first shot across the bow needs to be a demand letter to the appropriate parties. Such letters can be sent to the officers’ residences, too. Fraud cases lend themselves particularly well to such an approach. Any relatively complicated matter involving information not considered, or perhaps interpreted improperly by the police lends itself to such an approach. In my view, such letters can simultaneously present the new evidence to be considered in combination with threatening litigation. Although officers are indemnified from personal liability through insurance coverage, acts that are ultra vires the scope of coverage, are not insured. If it is possible, the allegations should be couched in language that contemplates a characterization of ultra vires conduct, in order to enhance the letter’s impact.
Parties in litigation are permitted to undertake detailed asset and liabilities audits of each other in order to determine a party’s capacity to satisfy a judgment.
To illustrate the power and scope (shock ‘n’ awe) of discovery, contemporaneously with the delivery of the demand letters, freedom of information applications foreshadowing the extent of future disclosure requests should be sent.
As an aside, the principles associated with the tort of wrongful investigation could also apply to matters involving a pro forma, mechanical response by the police. For examine, it is common practice in sexual assault matters to only interview the victim. On a prima facie basis, such investigative practices appear to be unreasonable.
To bolster such letters’ influence, they should note that negligent policing has been acknowledged as a significant contributing factor to wrongful convictions. Even one wrongful conviction is too many-and Canada has had more than one. The police need to be reminded that the effective and responsible investigation of crime is one of their paramount duties.
Criminal defence lawyers should also consider calling or having called police witnesses who would not otherwise play a role in the proceedings for the purposes of demonstrating a negligent investigation. For example, in a domestic assault context, the police will often only interview the complainant, and ignore that the accused offered to provide hisher version of the events. Since no statement from the accused is taken, the officer is not likely to be called as a witness. However, a defence lawyer at a criminal trial may want to examine the officer on this point to build a record for subsequent civil litigation.
There will be other, similar strategic considerations which will arise on the facts of each case, and a criminal defence lawyer would be well-advised to look at each file from this perspective. Determining when to retain civil litigation counsel to send a demand letter to the police is another strategic consideration requiring an assessment of each case. In some cases, such a tactic could prevent prosecution.]]>
LawyerLocate.ca Inc. Starts a LinkedIn Group for its Members
LawyerLocate.ca Inc. is pleased to announce the recent launch of their LinkedIn Group. The purpose of this group is to provide an additional networking venue for our members. This LinkedIn Group will help our members stay informed and keep in touch with people who share an affiliation with LawyerLocate.ca.
If you are member of LawyerLocate.ca, you may join our LinkedIn Group by visiting this page: http://www.linkedin.com/groups?gid=1910440
LinkedIn is free to join. When you join, you create a profile that summarizes your professional expertise and accomplishments. You can then form connections by inviting trusted contacts to join LinkedIn and connect to you.
For more information on LinkedIn, please visit the website at www.linkedin.com
For more information on LawyerLocate.ca Inc. please contact:
Natalie Waddell, Founder of LawyerLocate.ca Inc.
Perhaps, the most frustrating part about running your own business is not getting paid for the work you have done.
You’ve sent bills. Calls about your unpaid accounts have been ignored. As a last resort, you can always sue. If the debt is less than $10,000.00, you can represent yourself in Small Claims Court. Despite the aphorism about people representing themselves, Small Claims Court is intended to be a dispute resolution system where lawyers are not needed. While there is a lot of paperwork, starting a lawsuit on your own is not an extraordinarily daunting task. On the other hand, if you are motivated enough, and have the resources, being a professional advocate, a lawyer will do the most effective job of representing your interests in Court.
With or without a lawyer, you should assemble all of the relevant documents relating to the case such as invoices, letters and notes, or recordings, of any telephone calls. A corollary business practice ought to be regularly filing such materials in an organized fashion in case they’re ever needed. It’s also a good idea to spell out the interest rate for unpaid accounts on invoices stating the rates on a monthly and per annum basis. Of course, an even better preventative measure is ordering a credit check on your clients before credit is advanced. New customers should complete a standard credit application disclosing their financial arrangements along with authorizing the disclosure of their financial circumstances through a consumer reporting agency.
If regular credit checks are not economically-viable, self-help options are available. Clearly, it’s much more prudent to undertake steps to mitigate the possibility of being stiffed, than being a regular actor in the court system. You can do your own secured creditor searches through Ontario’s Ministry of Consumer and Commercial Relations. Such a search can reveal that a company’s provincial sales taxes are not being paid; or, an overwhelming amount of other creditors’ debt pledged to assets. You can also obtain searches through law firms, or court, to determine if a new customer has a history of unpaid judgments, or is frequently sued. There are additional public records available that can be searched to provide a cursory snapshot of a new customer’s financial health. Another prudent, defensive strategy is copying all incoming cheques in the event of a subsequent default. Since the hardest part about litigation is collecting, knowing a defendant’s banking arrangements can often be quite useful.
A plaintiff commencing a Small Claims Court claim must pay a $50.00 filing fee to the Small Claims Court when the plaintiff’s Claim is issued. Unlike other courts, evidence is attached to the Claim. The Claim should recite the history of your involvement with the customer. A claim for a debt would seek damages for breach of contract and damages for unjust enrichment. Of course, anyone with a claim for damages (like an injury or wrongful dismissal) can sue in Small Claims Court, too.
Once a claim has been issued, a plaintiff must serve the claim in accordance with the Small Claims Court Rules. Claims can be served by mail. Contemporaneously with serving the claim, you should file an Affidavit Establishing Proper Forum, an additional court form relating to the Court’s jurisdiction to hear the case.
If you do decide to hire a lawyer for a Small Claims Court case, you won’t recover anything near the full amount of your legal fees. In Small Claims Court, there are substantial costs ceilings on the amounts awarded for legal fees. In order to mitigate fees, most lawyers start the process, by sending a demand letter to a potential defendant threatening legal action.
A defendant has 20-days to serve a Statement of Defence after it’s served. Subsequently, a Reply to the allegations contained in the Statement of Defence can be served. After this exchange of pleadings, the Court will schedule a Settlment Conference as an attempt to settle the dispute without further litigation. Quite often, this process is successful.
Depending upon the merits of the defence, a plaintiff also has the right to short-circuit this path (and the ensuing trial), by bringing a motion to strike the defence on the basis that it does not disclose a reasonable defence. This can be an economical and effective tactic. While a trial could easily last longer than a day, such a motion could be heard in a time span of less than two hours-and potentially on the phone. A claim with strong supporting evidence has a much better chance of success on this front – again demonstrating the importance of diligent record keeping.
There have been substantial amendments to the Small Claims Court Rules designed to accelerate the process. For example, certain motions may be made to the Clerk of the Court. Some of these motions include amending a claim or defence, adding/deleting/substituting a party, or setting aside a noting in default. Further, motions and settlement conferences can occur by telephone or video conference, by filing a request with the court.
In an undefended action, a plaintiff has 6-months to note a defendant in default and obtain a default judgment; otherwise, the lawsuit will be dismissed by the court as abandoned. Similarly, in a defended action, a settlement conference must be completed within 150 days of the filing of the first defence. A motion to a Clerk can restore a matter that was dismissed on this basis.
If a defendant has not defended the claim within 20 days after service, the plaintiff must request that the Court note the defendant in default. Subsequently, a default judgment for liquidated damages (such as an unpaid account) can be obtained on an over-the-counter basis from the court. To obtain judgment for unliquidated damages (such as an injury), a motion in writing for an assessment of damages must be filed with the court. If the evidence presented through the motion’s supporting affidavit is not satisfactory, it is possible that the Court will order the filing of additional affidavits; or, schedule an assessment hearing for a trial of damages. At such a hearing, liability is not an issue but the plaintiff must prove the quantum of damages sought in the claim.
Even if a party has a lawyer, parties must appear at Settlement Conferences. While judges can make a substantial amount of procedural orders at Settlement Conferences, such as amending a claim or even dismissing a claim, the primary purpose of a Settlement Conference is to simultaneously encourage settlement of the action and to assist the parties to prepare for trial. At a Settlement Conference, the parties’ lists of witnesses are presented and the Court ensures that proper disclosure of documents has occurred. Judges at Settlement Conferences are often proactive and make recommendations to the parties relating to the lawsuit.
In order to list a lawsuit for trial, a plaintiff must file a trial request form and pay the court another $100.00 filing fee. Generally speaking, it is not uncommon for a lead time of 12-18 months from the time a claim is issued to the date a trial is heard.
In Ontario, a judgment is enforceable for 20-years. As a partial saving grace, post-judgment interest is always calculated on the unpaid debt until it’s paid. Meanwhile, on an annual basis, you can compel a judgment debtor to attend an examination in aid of execution to provide disclosure of their financial affairs and determine their ability to honour the judgment. Writs of seizure and sale can be issued against judgment debtors’ vehicles, some of their personal property and their homes. Yet, at that point, there is a good possibility that most debtors would rather pay the judgment instead of continuing to subject themselves to the process of the Court.]]>
One method that companies use to guard against the loss of their proprietary information is by inserting non-solicitation clauses in their employees’ employment contracts. This type of provision prohibits a departing employee from soliciting customers of his, or her, former employer. It is quite common for employers to insist that their employees sign an employment contract containing a non-solicitation clause.
A non-competition clause in an employment contract prohibits a departing employee from taking a new position in the same industry. Such clauses usually contain geographic boundaries and time limits. Despite their prevalence in employment contracts, the general rule in most common law jurisdictions is that non-competition clauses in employment contracts are not enforceable.
The public policy reasons in favour of open competition trumping freedom of contract were established in cases like Nordenfelt v. Maxim Nordenfelt Guns & Ammunition Company Limited,  A.C.535 at 565 [H.L.]:
The public have an interest in every person carrying on his trade freely: so has the individual. All interference with individual liberty of action in trading, and all restraints of trades themselves, if there is nothing more, are contrary to public policy, and are therefore void. That is the general rule.
Court cases interpreting the enforceability of non-competition clauses turn on balancing the competing interests between restricting restraints of trade and upholding the right to contract. Ordinarily, courts are disinclined to restrict parties’ freedom to contract unless a more compelling societal value needs to be paramount. Nordenfelt was cited with approval by the Supreme Court of Canada in Elsley v. JPG Collins Insurance Agencies Limited,  2 S.C.R. 916, the leading Canadian case dealing with non-competition clauses. In Elsley, a vendor of a business had a 10-year non-competition clause as part of the sale of his business along with a non-competition clause contained in his corresponding employment contract for 5-years following his employment’s termination. In light of the court’s perception of Elsley as a knowledgeable person of equal bargaining power in his negotiations with the business’ purchaser, the non-competition clauses were enforced.
Dickson J. observed that “it is difficult to envision a factual situation in which an employee would be in a better position than that of Elsley in the present case, to obtain personal knowledge of and influence over the customers of his employers”. Dickson J. concluded that in his view a covenant against solicitation would not have been adequate protection for the purchaser’s protection of its proprietary interest. Dickson J. also noted that when the employment agreement was drafted, it was known that Elsley had or would acquire a “special and intimate knowledge of the customers of his prospective employer and the means of influence over them.” Similarly, in Friesen v. McKague , 96 D.L.R. [4th] 341, Scott C.J. stated that a non-competition clause should be enforced “where the nature of the employment will likely cause customers to perceive an individual employee as the personification of the company or employer.”
In Elsley, Dickson J. discussed the distinction made by courts between restrictive covenants contained in an agreement for the sale of a business and one contained in an employment contract at p.924:
A person seeking to sell his business might find himself with an unsaleable commodity if denied the right to assure the purchaser that he, the vendor, would not later enter into competition. Difficulty lies in definition of the time during which, and the area within which, the non-competitive covenant is to operate, but if these are reasonable, the courts will normally give effect to the covenant.
A different situation, at least in theory, obtains in the negotiation of a contract of employment wherein an imbalance of bargaining power may lead to oppression and a denial of the right of the employee to exploit, following termination of employment, and the public interest and in his own interest, knowledge and skills obtained during employment. Again, a distinction is made. Although blanket restrictions on freedom to compete are generally held unenforceable, the courts have recognized and afforded reasonable protection to trade secrets, confidential information and trade connections of the employer.
However, determining reasonableness is an amorphous, subjective test as noted earlier by Dickson J. at page 923 in Elsley:
The test of reasonableness can be applied, however, only in the peculiar circumstances of the particular case. Circumstances are of infinite variety.
In determining reasonableness, a court may examine industry practices; however, evidence of industry standards (i.e. competitors using similar employment contracts) does not necessarily justify a restrictive covenant period.
Even in Nordenfelt, Lord MacNaghten noted that a restraint on trade could be valid if it was reasonable in the interests of the contracting parties and also reasonable in the public interest. Therefore, some employment agreements can contain clauses that contain reasonable restrictive covenants restricting competition. Exceptional circumstances could extend to a key employee in senior management; or, an owner-operator selling an interest in the business. Otherwise, in all likelihood, a non-competition clause will not be enforced. Although corporate-commercial solicitors often insert such terms as a psychological deterrent for departing employees, employment contracts containing non-competition clauses are likely to be characterized by a court as invalid and unenforceable.
In Staebler, the Court of Appeal provided a succinct summary of the jurisprudence on this issue:
In short, general principles flowing from Elsley and reiterated in Lyons is that a non-solicitation clause – suitably restrained in temporal and spatial terms – is more likely to represent a reasonable balance of the competing interests and is a non-competition clause. An appropriately limited non-solicitation clause offers protection for an employer without unduly compromising a person’s ability to work in his or her chosen field. A non-competition clause, on the other hand, is enforceable only in exceptional legal circumstances.
In Staebler, the Court of Appeal also noted that, “Elsley makes it clear that a non-solicitation clause is normally sufficient to protect an employer’s proprietary interests and that a non-competition clause is warranted only in exceptional circumstances.” Unless an employee falls within the category of exceptional cases, an employer does not have a proprietary interest in people who are not actual, or potential, customers.
The Court of Appeal’s characterization of the employment agreement at issue in Staebler was consistent with its earlier decision in Lyons v. Multari (2000), 50 O.R.(3d) 526 where MacPherson J.A. summarized Dickson J.’s analysis in Elsley regarding the factors that ought to be considered during a court’s examination of a restrictive covenant in an employment contract:
There are three such factors: first, whether the employer has a proprietary interest entitled to protection; second, whether the temporal or spatial features of the clause are too broad; and, third, whether the covenant is unenforceable as being against competition generally, and not limited to prescribing solicitation of clients of a former employee.
In Lyons, the Court of Appeal also said that a court will not enforce a non-competition clause if a non-solicitation clause adequately protects an employer’s interests. Both Elsley and Staebler contain Viscount Haldane’s implicit warning to solicitors drafting contracts in Mason v. Provident Clothing & Supply Company  A.C. 724 at p. 732
…the question is not whether they could have made a valid agreement but whether the agreement actually made was valid.
In other words, the fact that a clause might have been enforceable had it been drafted in narrower terms will not save it. Prudent solicitors will draft clauses providing evidence of exceptional circumstances justifying a non-competition clause while simultaneously speaking to the reasonableness of the limits of the restrictive covenant in an employment agreement containing a non-competition clause.
The trial judge in Staebler characterized the restrictive covenant as a hybrid non-solicitation and non-competition restrictive covenant and held that it was enforceable. The restrictive covenant in Staebler is below:
In the event of termination of your employment with the company, you undertake that you will not, for a period of 2 consecutive years following said termination, conduct business with any clients or customers of H.L. Staebler Company Limited that were handled or serviced by you at the date of your termination.
The Court of Appeal disagreed with the trial justice’s characterization of Staebler’s restrictive covenant as a hybrid clause:
On the plain reading of the restrictive covenant, it is a non-competition clause. It does nor purport to merely restrain the Employees from soliciting the clients and customers they had served when they worked at Staebler, it prohibits the Employees from “conduct[ing] business” with any such clients or customers.
In Staebler, the Court of Appeal also found that the absence of geographical boundaries combined with a blanket prohibition on conducting business rendered the restrictive covenant “overbroad and unenforceable”, by unreasonably restricting the employee’s economic interests and going beyond that which was reasonably necessary to protect Staebler’s proprietary interest. The Court of Appeal reiterated that a non-solicitation clause is sufficient in conventional employer-employee situations. The employees in Staebler were not managers, directors, or key employees, and did not stand in a fiduciary relationship with their employer.
Although the employees in Staebler had close personal relationships with their clients, their relationships were not exclusive to their clients as other Staebler employees could serve their clients, too. Unlike the circumstances in Elsley, the Court of Appeal observed that Staebler’s employees had “no special knowledge of or influence over the Staebler business whereas Mr. Elsley had control of [the employer’s] trade connections.” In addition to the foregoing, the Court of Appeal noted that there was an imbalance of bargaining power between the employees and their employer in Staebler, while Mr. Elsley “bargained as an equal when selling his business and then carried on as its General Manager.” Similarly, in Valley First Financial Services Limited v. Trach  [B.C.J. No.1127], the British Columbia Court of Appeal held that a suitably-restrictive, non-solicitation clause is likely to be found reasonable for ordinary salespersons in the insurance brokerage industry as opposed to a non-competition clause.
Consequently, most employees who have terminated their employment are not prevented from competing with their former employers but could be subject to post-employment duties relating to the non-solicitation of former employees. Further, a departing employee might be liable for actionable conduct such as the improper use of confidential information, misuse of confidential information as well as duties arising out of their fiduciary duty. For example, in Canadian Aero Service Limited v. O’Malley  S.C.R. 592 Laskin J. noted that under certain circumstances the fiduciary duties of a senior employee remain even after the termination of an employment relationship. Damages for failing to provide reasonable notice of termination could be sought, if an employee failed to provide an employer with appropriate notice of an employment relationship’s termination.
These circumstances were recently examined by the Supreme Court of Canada in a decision involving the departure of all investment advisors at a RBC Dominion Securities Inc. branch to Merrill Lynch at the instigation of the RBC Dominion Securities Inc.’s branch manager. In RBC Dominion Securities Inc. v. Merrill Lynch Canada Inc. et al.  SCC 54, the Supreme Court of Canada held that the RBC employees breached the implied terms of their employment contracts requiring them to provide reasonable notice to their former employer of the employment relationship’s termination; however, it expressly held that the employees were not under a general duty not to compete:
To the extent the trial judge awarded damages on the basis that the employees continued to be under a general duty not to compete, this award of damages was wrong in law.
The Supreme Court upheld the trial judge’s fixing of the notice period at 2.5 weeks taking into account the effect on RBC Dominion Securities Inc. of the simultaneous departure of virtually the entire staff at the branch. Along with being liable for punitive damages, the branch manager who organized the en masse departure to a competitor was also held liable for breaching his contractual duty of good faith – an implied term of the branch manager’s employment agreement.]]>
Natalie A. Waddell Named New Regional Director of Roaring Women
Kitchener - Waterloo Cambridge and Guelph area
Roaring Women Ltd has recently announced the appointment of Natalie A. Waddell, founder of LawyerLocate.ca Inc., as the new Regional Director for the Kitchener-Waterloo, Cambridge and Guelph area.
“Ms. Waddell really understands the Roaring Women internet networking concept, and she brings valuable insight as a successful business owner and a long-term member of Roaring Women” says Mandie Crawford, Founder and President of Roaring Women.
“I am excited to accept this appointment and pleased to assist in the expansion of the Roaring Women Network in this area of the country. Women need information and support to excel in the business world. And they need the ability to connect and collaborate with other women. Roaring Women is an excellent, no-nonsense venue to do all of this and more.” says Ms. Waddell.
For more information please contact:
Natalie Waddell Founder of LawyerLocate.ca Inc. and Regional Director, Roaring Women Ltd.
Mandie Crawford, Founder