Leave Applications Granted Continued

As promised last week, here are the remaining summaries of the leave applications that were granted last Thursday. Please note that since the Mustapha case was covered in detail yesterday, a summary of it won’t be repeated here.

RBC Dominion Securities Inc. v. Merrill Lynch Canada Inc., 2007 BCCA 22 (CanLII)

In this tort law case coming from the BC Court of Appeal, the key issue the Supreme Court of Canada (“SCC”) will assess is the duty owed by an investment firm branch manager to his original employer where the branch manager orchestrated a mass exodus of his financial advisors and their assistants to a competitor. While the trial judge found that the branch manager and his compatriots “breached their duty to not compete unfairly against their former employer,” the majority at the appellate level held otherwise, calling the plaintiff a ‘sophisticated business’ who should have sought non-compete clauses if they had wanted their employees to not jump ship. While the dissent did not outrightly recognize the trial judge’s duty, she did generally recognize the unfairness of the behaviour on the basis that it breaches the notion of good faith bargaining.

Though there are a host of other issues that the SCC may speak on (such as the determination of damages and whether departing employees can take information with them), it will be interesting to see where the SCC comes down on the duty issue. Whereas the seemingly unfair actions of the employees cry out for a remedy in equity, the court will have to grapple with whether imposing such a remedy interferes too heavily with the market forces for labour in this industry.

Desrochers v. Industry Canada, [2007] 3 FCR 3

This case deals with the challenge under the Official Languages Act, RSC 1985, c 31 (“OLA”), of an Industry Canada-funded economic development corporation operating in North Simcoe. In deciding whether their inability to provide services of equal quality in both official languages constitutes a breach of the quasi-constitutional piece of legislation, the SCC will have to take into account the empowering provisions of the Department of Industry Act, SC 1995, c 1, and the scope of what constitutes a ‘federal institution’ in the OLA. Prior to leave being granted, the commissioner of official languages had found that the corporation did fall short of its language obligations, whereas the Federal Court found otherwise. At the Federal Court of Appeal, the appeal from the Federal Court decision was allowed. The SCC will have an opportunity here to clarify the extent of involvement a federal ministry must have with respect to an undertaking before coming under the scope of the OLA.