November 12, 2018
Hogue, Gagné, Langlois (ad hoc)
Appeal from a judgment of the Superior Court allowing in part an application for damages for breach of a contract of employment. Dismissed.
The employee, a lab technician, resigned after 32 years of service to work for a competing business. The employer brought an action for damages based on the failure to give notice of resignation and breach of the duty of loyalty. The employer submitted that several clients had requested that their file be transferred to the competitor or had simply filed their new prescriptions there. The Superior Court found that the resignation was untimely and caused the employer prejudice. The Court fixed the reasonable notice of termination at 2 months’ salary ($12,000). It found that the employee did not breach his duty of loyalty. Finally, it ordered the employer to pay legal costs, except for expert fees.
An employee who decides to terminate the employment relationship without notice, in breach of article 2091 of the Civil Code of Québec (L.Q. 1991, c. 64) (C.C.Q.), may work for a competitor without violating his or her duty of loyalty. The employee nevertheless remains bound to make reparation for injury caused by his or her failure to give notice. The judge did not make any decisive error in concluding that the employee did not violate the duty of loyalty imposed by article 2088 C.C.Q. In addition, by resigning in an untimely manner, the employee did not commit a clear and distinct fault that could give rise to the theory of abuse of right.
The length of the notice of termination (2 months) was established in light of the criteria set out in the case law. There is no reason to intervene in this respect. The arbitrary use of the employee’s salary as a method of assessing the injury, however, is inappropriate. That being said, the indemnity of $12,000 awarded by the judge does not seem unreasonable given the evidence of lost profits. Moreover, the employer did not establish the likelihood that measures implemented during a reasonable notice of termination period would have been effective for retaining its customer base. The employer also failed to discharge the burden of proof incumbent on a party claiming compensation pursuant to the theory of loss chance. Finally, the reasons underlying the judge’s choice regarding legal costs can easily be inferred from the judgment, which grants only a small portion of the claim.
Interpretation of article 2088 C.C.Q.
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