In this edition, read about:
- Some of the RSS Business Law Practice Group’s noteworthy transactions and commercial litigation
- RSS in the news
- Economic hardship and termination of employment
- The importance of negotiating in good faith
- Venting your frustrations on Facebook? Think twice…
- Website user comments: to monitor or not?
- Address of directors under the Canada Business Corporations Act
In this edition, read about:
In January 2012, the Québec Court of Appeal dismissed the appeal from a Superior Court decision awarding damages against a website owner for defamatory content on its website (Canoë inc. v. Corriveau, 2012 QCCA 109). In that case, a journalist running a blog on a website owned by Canoë inc. (“Canoë”) published a blog post regarding the conduct of a certain criminal lawyer in the defence of her client, who was accused of sexual assault of a minor. The blog post elicited various defamatory and injurious comments from the website’s users targeted at the lawyer. The website’s terms and conditions for the blog prohibited the posting of defamatory content and provided that Canoë could remove messages from its blog that violated its policy, implying supervision over content.
In April 2012, the Superior Court of Québec rendered a decision (9080-5128 Québec inc. v. Morin-Ogilvy, 2012 QCCS 1464) that has a direct impact on the use of social media applications to which both adults and children are growing more accustomed.
In this case, one of the defendants used Facebook to vent her frustrations concerning one of the plaintiffs, a former friend. Following the deterioration of relations between the parties, including a disagreement over the repair of the defendant’s car at an automobile repair shop owned by the plaintiff, the defendant published comments on her Facebook Wall and sent messages privately through Facebook regarding the plaintiff, her daughter and her conduct surrounding the car repairs.
Article 1375 of the C.C.Q. states that parties must generally interact in good faith. Under Québec law, the duty to act in good faith is implicit in every contract and is defined as the absence of malicious intent in a prudent and diligent contracting party. As such, the contracting party’s behaviour must be compatible with the achievement of the parties’ common goal. The parties must abide by this obligation as soon as pre contractual negotiations begin, even if such an obligation is not expressly provided for in the pre-contractual documents. A party acting in bad faith can be found liable for any harm caused to the other party by such behaviour.
A recent judgment of the Québec Court of Appeal (CMP Advanced Mechanical Solutions Ltd. v. Snow, 2012 QCCA 1692), reiterated that even if an employer is going through unexpected economic hardship and must terminate an employee, the employer must still give him notice under Article 2091 of the Civil Code of Québec (“C.C.Q.”) which has to be of a reasonable length considering, among other factors, the length of the relationship, the nature of the work, the age of the employee and his level of education and skills.
An expensive lesson for a large franchisor operating in Quebec was learned earlier this year. In the decision Bertico Inc. et al v. Dunkin’ Brands Canada Ltd. (2012 QCCS 2809), the Superior Court of Quebec emphasized some of the consequences that might be faced by a franchisor which let its brand “slide” or failed to protect and enhance it.
The highly publicized case known as Eric v. Lola reached its pinnacle on January 25, 2013. In a Judgment rendered by a divided bench, the Supreme Court of Canada rendered judgement in favour of “Eric”, recognizing the constitutional validity of the existing legal treatment of “de facto” or “common law” spouses in Quebec (Quebec (Attorney General) v. A, 2013 SCC 5).
Contrary to all other Canadian provinces, common law spouses in Quebec do not enjoy the legal protections afforded to married or civil union spouses upon the breakdown of their relationship, such as the partition of the family patrimony and partnership of acquests, the right to claim a compensatory allowance, and most notably to request spousal support. Historically, the Quebec legislature justified this distinction under the guise of respecting the freedom of choice of non-married spouses who did not wish to be subject to the rights and obligations associated with marriage (or civil union).
THE EXCLUSION FOR GROSS NEGLIGENCE IN A FINANCIAL PLANNER PROFESSIONAL LIABILITY INSURANCE POLICY IS INOPPERATIVE BECAUSE CONTRARY TO PUBLIC POLICY, AND THE REAFFIRMATION BY THE COURT OF APPEAL OF THE STATE OF THE LAW IN QUEBEC REGARDING THE NOTION OF CONCURRENT CAUSES
In the ruling Souscripteurs du Lloyd’s c. Alimentation Denis & Mario Guillemette inc., rendered on August 2, 2012, the Court of Appeal ordered a financial planner’s liability insurance carrier to indemnify the former’s client.
In theory, section 2160 of the Civil Code of Quebec is clear. In fact, the mandator is liable to third persons for the acts performed by the mandatary in the performance and within the limits of his mandate and even if the acts exceed the limits, unless the mandator has not ratified such acts.
In the field of insurance, where every company does business with numerous adjustors, a simple mistake on coverage could benefit insureds who could eventually receive an insurance indemnity not otherwise owed.
In the judgment De Melo vs. Promutuel L’Outaouais, the Court of Quebec rendered an interesting decision regarding whether acts and words of an adjustor were binding upon the insurance company which had given him a mandate.
As individuals become increasingly aware of how little knowledge and control they often have over their personal information online, it is crucial that all businesses, both small and large, provide users of their websites or services with complete and detailed privacy policies.
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