In the recent decision of Transport Guy Bourassa inc. c.
Meloche, the Court of Quebec accepted that an
employer transform an employee's termination into a dismissal
for cause after discovering a new fact. In this case, the employee
held a senior management position and prior to her departure,
induced two other senior employees to leave their employment and
this, without having any benefit to gain from their resignations.
The Court concluded that by doing so, the employee violated her
duty of loyalty provided by the Civil code of Quebecas well as her
contractual obligations. Moreover, the Court imposed a penalty
clause and ordered the employee to pay $25,000 to her former
On May 16, 2005, Ms. Meloche began her employment at Transport
Guy Bourassa Inc. (TGB) in the position of Security Director. Soon
thereafter, Ms. Meloche executed a non-solicitation,
confidentiality and non-competition agreement in favour of TGB.
This agreement also contained a penal clause of $50,000.
Ms. Meloche progressed within the enterprise and in November
2006, was granted the position of Operations Manager. On May 21st,
2010, Ms. Meloche was advised that her services would no longer be
required at TGB.
Following the termination of Ms. Meloche's employment, TGB
learned that prior to her departure, she induced their accountant,
Mr. Louis Bissonnette, as well as Mr. Karl Béland, a sales
representative, to leave their employment with TGB. More
specifically, in May 2010, the employee indicated to Mr.
Bissonnette that "if he wanted a real job", he would find
it at Le Centre du Camion Gamache Inc. Mr. Bissonnette, at this
time, had not expressed any interest in leaving his employment nor
did he solicit the advice of Ms. Meloche. Furthermore, in March
2010, while Mr. Béland was actively searching for a new job,
Ms. Meloche indicated to him that Omniplast Inc. was looking to
hire a sales representative. Ms. Meloche then provided useful
information to Omniplast Inc. and recommended the hiring of Mr.
Béland. Ultimately, Mr. Bissonnette did not resign from his
employment with TGB. However, Mr. Béland did accept
employment with Omniplast Inc.
TGB then proceeded to claim $50,000 from Ms. Meloche pursuant to
the penal clause stipulated in her agreement.
By referring to Article 2088 of the Civil code of Quebec as well
as the teachings of the Supreme Court and the Court of Appeal with
respect to an employee's duty of loyalty, Justice Michel
Bédard concluded that it is evident that Ms. Meloche
committed a fault by suggesting to two long-standing employees to
quit their job and referring them specifically to another
In his analysis, Justice Bédard concluded that even if
the accountant Bissonnette did not leave his employment, the
context and the content of his inducement to leave TGB constituted
a fault. Furthermore, Justice Bédard noted that even though
Mr. Béland was seeking new employment, it was Ms. Meloche
who directed him towards Omniplast Inc. and who facilitated his
transfer by providing recommendations to the Human Resources
department of Omniplast Inc. Ms. Meloche's actions constituted
serious faults, in violation of the terms of her non-solicitation
agreement as well as her legal duty of loyalty, the whole
justifying a dismissal for cause.
Justice Bédard also concluded that the penal clause
stipulated in the non-solicitation agreement was applicable in the
circumstances. However, the Court found the amount of the penal
clause to be unreasonable, taking into account the circumstances,
and reduced the penal clause to $25,000. It is important to note
that considering the general terms of the clause and the automatic
application of the fixed penalty, the judge in this case appeared
somewhat clement. Indeed, it would have been possible for the judge
to declare the entire clause invalid instead of reducing the amount
stipulated. As such, an employer who wishes to avail itself of a
penal cause should ensure that the amount of the penalty is
proportionate to the importance of the obligation sanctioned.
This decision demonstrates the scope of an employee's duty
of loyalty, particularly in the case of an employee holding a
management position. In this case, Ms. Meloche did not, in any way,
benefit from inducing the other employees to leave their
employment, for example by soliciting them to join her new employer
or her own business. Indeed her comments seemed gratuitous and did
not show any direct benefit to her. The Court however, did not
consider these elements as diminishing in any way the fault she
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