Comm315

Topics: Contract, Damages, Tort Pages: 22 (5488 words) Published: May 31, 2014
COMM 315 - FINAL EXAM REVIEW

Contract of Employment: *Contract: document/understanding between two people)

[2085] Employer directs/controls work (give work, feedback, job tools, place to work) of Employee

Contractor: No direction and control, contractor sets his own daily schedule, vacation schedule, provides his own tools (e.g. computer) e.g. lawyer: is hired as an agent/agency, does not direct/control

[2086] contract can be for a fixed period of time or indeterminate time (open-ended)

[2087] Health Safety Dignity: Obligations of the Employer to the Employee: To provide the work / To pay for the work / To protect the health, safety (e.g. protective clothing), dignity

[2088] Fiduciary duty (Trust): Obligations of the Employee to the Employer: work with prudence/ diligence, work faithfully/ honestly, protect confidential info (“a proprietary right”). Whistle blowing: disclose info about company. Internal WB: Write msg to boss with problem. External WB: go see lawyer if bosses not doing anything (Journalis). Lastly: government.

[2089] Non-competition: If you leave/ fired for a reason there can be prohibitions on where you can work The Shake Test: 5 steps to proving validity of a non-competition clause (the answer to each step must be “yes” for the clause to be valid; burden of proof on EER) 1. Is it in writing? (cannot be verbal)

2. Does it specify time/ place/ type of employment?
3. Does the EER have a “legitimate” reason to protect? (can you damage the EER by using knowledge gained?) Burger flipper = EEE talent / Game developer = EER paid for EEE to develop IP 4. Are the limitations from (2) reasonable?

E.g. appropriate place? (North America covers a lot of ground) E.g. time? (one year is not reasonable if lifetime of software is ≤ six months) E.g. type of employment?

[2095] If you’re fired without cause cannot invoke a non-competition clause:

[2091] indeterminate term: either side can end at any time providing reasonable notice is given, don’t need cause. Reasonable notice depends on: Precedent, how long has been working. Employer has the option of giving a couple of weeks salary instead of notice.

[2092] You can get indemnity (compensation for loss or damages) in lieu of reasonable notice you can’t waive your right to deserved indemnity if the length of time for the notice wasn’t reasonable or the compensation was insufficient (i.e. your EER can’t make you sign a paper saying that you won’t sue for more appropriate compensation)

[2093] When EER dies, if business continues on then the EE’s contract continues on. If EE dies, contract ends.

[2094] EEE or EER may resiliate the contract without prior notice for Serious reason (Fiduciary Duty/Safety)

[2097] Sale of business: EEE’s contract is still in effect after a buyout, etc.

[2098] Contract of enterprise or for services, contractor or the provider or services undertake to carry out physical or intellectual work for another person that will pay

[2100] Contractor/Service provider bound to act in best interests of their clients, with diligence and prudence

[1457] Breach to duty. Any person that fails the duty to abide the rules of conduct, is responsible for any injury caused to another person and liable to reparation whether it is material, physical or moral.

[1458] Breach of contract: Duty to honor contractual undertakings. Liable for any physical, material or moral injury caused.

[1463] EER is responsible for EEE’s damages  For the EER to be responsible, must prove: 1. person is an EEE (as per [2085] – EER directs and controls person) 2. person is at work at the time of the injury

[1611] Compensation: the damages dues to creditor compensate for the amount of the loss he has sustained

[1621] Punitive damages: Amount may not exceed what is sufficient to fulfill their preventive purpose Gravity of debtors fault
Patrimonial situation
Extent of reparation for which debtor is liable to the creditor...
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