Key Issue: What type of remedy is available to the former ER? Decision: The sales EE’s that left were NOT fiduciaries With respect to the branch manager, he only spent 30% of time managing branch and his discretionary powers were limited, often needed approval from people higher up to make significant decisions, and so even he was not a fiduciary There was no non-compete agreement b/w the EE and the ERs, and is no general duty on non-fiduciary EE’s not to compete This case encourages due diligence on the part of the ER – if you want no competition, you need to put in a no compete clause EE’s DO have an obligation to give reasonable notice prior to resigning The ER can obtain damages for failure to give notice of resignation but cannot also claim damages for competition during this notice period WHY? Post employment duties are restricted to not misusing confidential information (as well as fiduciary duties and restrictive covenants) If there is a loss of profit, it cannot be too remote The branch manager had an implied term in his K, which was to retain RBC’s EEs who were under his supervision – so orchestrating mass resignations by co-workers was a breach of the DGF under the employment K And his actions caused the virtual collapse of RBC RBC was awarded nearly 1.5 million on this finding alone Duty of confidentiality does not necessarily prevent the departing EE from taking client contact information Dissent (Abella) If he/she has competed or made improper use of confidential information Human Rights in Employment Common Law and Legislation At C/L, freedom of contract included freedom to discriminate at will Before human rights legislation, no legal avenue for claim based on discrimination or gender Prohibited grounds of discrimination – race, color, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, age, or criminal conviction (IF it is unrelated to the employment of that person) The Human Rights Code How the legislation works: S. 2: No intention necessary – discrimination is discrimination
Key Issue: What type of remedy is available to the former ER? Decision: The sales EE’s that left were NOT fiduciaries With respect to the branch manager, he only spent 30% of time managing branch and his discretionary powers were limited, often needed approval from people higher up to make significant decisions, and so even he was not a fiduciary There was no non-compete agreement b/w the EE and the ERs, and is no general duty on non-fiduciary EE’s not to compete This case encourages due diligence on the part of the ER – if you want no competition, you need to put in a no compete clause EE’s DO have an obligation to give reasonable notice prior to resigning The ER can obtain damages for failure to give notice of resignation but cannot also claim damages for competition during this notice period WHY? Post employment duties are restricted to not misusing confidential information (as well as fiduciary duties and restrictive covenants) If there is a loss of profit, it cannot be too remote The branch manager had an implied term in his K, which was to retain RBC’s EEs who were under his supervision – so orchestrating mass resignations by co-workers was a breach of the DGF under the employment K And his actions caused the virtual collapse of RBC RBC was awarded nearly 1.5 million on this finding alone Duty of confidentiality does not necessarily prevent the departing EE from taking client contact information Dissent (Abella) If he/she has competed or made improper use of confidential information Human Rights in Employment Common Law and Legislation At C/L, freedom of contract included freedom to discriminate at will Before human rights legislation, no legal avenue for claim based on discrimination or gender Prohibited grounds of discrimination – race, color, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, age, or criminal conviction (IF it is unrelated to the employment of that person) The Human Rights Code How the legislation works: S. 2: No intention necessary – discrimination is discrimination
Walsh%20-%20326A%20Employment%20-%202010%20Final.docx