Marcotte, Hogue, Moore

Appeal from a judgment of the Superior Court granting in part an action in damages for breach of a contract of employment and for reinstatement. Allowed in part.

The trial judge ordered that the respondent be reinstated in his position with financial compensation and granted him $20,000 in non-pecuniary damages, because he deemed that the contract of employment [translation] “for life” before him was not contrary to public order and was equivalent to the employer waiving the ability to end it with notice of termination.

In Uniprix v. Gestion Gosselin et Bérubé inc. (S.C. Can., 2017-07-28), 2017 SCC 43, SOQUIJ AZ-51412992, 2017 EXP-2143, [2017] 2 S.C.R. 59, the majority of the Supreme Court recognized the legality of perpetual contracts, except where the legislature has expressly provided otherwise, as with contracts of employment. In this case, the testimony of those who signed the agreement shows that the respondent was not binding himself for life. The testimony also establishes that there had been a waiver (in exchange for the respondent assigning a video collection) of the employer’s ability to resiliate the contract under article 2091 of the Civil Code of Québec (S.Q. 1991, c. 64). In this context, given the fact that the appellant had set aside certain grounds of contestation, the contract at issue does not a priori appear to be contrary to public order, and the characterization as a sui generis contract to which the judge referred is appropriate. However, the judge erred by ordering the respondent’s reinstatement, because the intuitu personae nature of the contract was a bar to such a measure. In addition, because the respondent’s position had been abolished, reinstating him offered only an illusory remedy and presented drawbacks that were likely to make it undesirable. It is therefore proper to intervene in this respect and to grant an appropriate indemnity, taking into account the principle of the mitigation of damages. This obligation is not eliminated by the existence of guaranteed employment. Furthermore, the respondent’s undertaking to assign his collection makes it possible to particularize this case in light of the usual principles that apply to notice for a contract of employment for an indeterminate term. Thus, in light of the respondent’s age (59 years old), his abilities, and his difficulty finding employment, it is appropriate to grant him, until he reaches 65 years of age on November 26, 2030, damages equivalent to the salary and benefits he has lost since February 7, 2020. Finally, the Court sets aside the judge’s conclusions on non-pecuniary damages because, in the circumstances, it would result in double compensation.

Text of the decision: http://citoyens.soquij.qc.ca