August 20, 2018
Rochette, Bouchard, Levesque
Appeals from a judgment of the Superior Court granting an action for damages. Principal appeal allowed; incidental appeal dismissed, with dissenting reasons.
The trial judge found that the appellant, an insurance broker, committed a fault in terminating his contract of employment without notice and in communicating with his clients, a breach of his non-solicitation clause, to inform them that he was changing employer. Twenty-five of his clients followed him.
As the evidence accepted by the trial judge did not establish that the appellant had breached his obligation not to solicit, she could not condemn him to pay damages under that head. Furthermore, there can be no order related to the appellant’s breach of his duty of loyalty due to the lack of evidence establishing, on a balance of probabilities, a connection between the fault identified and the alleged damages (which have not been established). In this respect, even assuming that the respondent was deprived of the chance to retain the 25 clients that followed the appellant to his new employer, it nonetheless remains that the degree of probability thatsuch a chance would have been realized fails to meet the burden under art. 2804 of the Civil Code of Québec (S.Q. 1991, c. 64). Loss of chance may become a compensable injury if it satisfies the general rules of civil liability, that is, if it can be shown, on a balance of probabilities, that, but for the fault, the chance would have materialized. The respondent has not produced any evidence establishing that it could actually have retained some of the clients concerned had it been given 2 weeks to convince them to stay.
*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca.
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