Date: Tue, 28 Oct 2008 15:55

From: Jason Neyers

Subject: New SCC decision

Another way to square it is to view the law as giving the employee an option: to either give notice or pay the lost profits suffered during the notice period. This is how the law related to the employer who dismisses is often described:  reasonable notice or lost salary (see the discussion of Wallace in Correia v Canac Kitchens).

Cheers,  

Jason Neyers
Associate Professor of Law &  
Cassels Brock LLP Faculty Fellow in Contract Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

Kelvin F.K. Low wrote:

Hi Jason,

Whilst the $225,000 was losses suffered after the notice period, they were held by the trial judge to be the result of competition during the notice period. By my reading, according to the trial judge, if the defendants had not engaged in unfair competition during the notice period, this loss would not have been suffered by the plaintiff. So it is plausible that the loss stemmed from the breach of contract, i.e. in failing to respect the reasonable notice period. Certainly this is my reading of the reasoning. They didn't seem to suggest that the cause of the loss was unfair competition after the notice period. If that is indeed the correct reading, then I would agree with you.

The scope of duty argument would fare better, I suppose. But there was no raising of either SAAMCO or Achilleas by the SCC.

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