ADMS 3420 Study Guide - Midterm Guide: Oral And Maxillofacial Surgery, Toronto Marlboros, Wrongful Dismissal
26 Jun 2018
School
Department
Course
Professor
Seneca v. Bhaudaria
Section of the Course: Common Law -- Hiring and Recruitment Chapter 6
Key Facts (keep very brief): A woman (B) applies for professor job 10 different times, but never
even gets an interview – she alleges the jobs were filled with less qualified people who were
not East Indian. She sues Seneca alleging a ‘tort of discrimination’.
Legal Issue/Question (What issue is the court asked to answer?): Is there a common law tort
of discrimination that bans discrimination on basis of race?
Key Finding: No, there is no tort of discrimination in Canada. Canadian governments have
already addressed discrimination in contracts in human rights legislation, so that precludes the
court from developing its own common law tort of discrimination.
Important Point for course: Supreme Court ruled that there is no common law rule banning
discrimination in formation of contracts. This applies to employment contracts too. So this case
told us that common law doesn’t prevent discrimination in employment contracts. Need to look
to government regulation, like human rights codes, for rules banning discrimination, not
common law.
Braiden v. La-Z-Boy
Section of Course: Common Law -- Employment, Self-Employment, and Everything in Between
Chapter 2
Key Facts (keep very brief): Braiden works at La-Z-Boy as a sales person for 15 years as an
employee. One day the employer comes up to him and has him sign a contract which says he is
an independent consultant and not an employee. He agrees to sign it because he felt pressure
that he could lose his job if he declined. Years later, La-Z-Boy makes him sign another contract
that required him to set himself up as a business and invoice them as the corporation which he
agrees to as well. Eventually he gets terminated by La-Z-Boy. Usually, independent contractors
do not get notice of termination unless the contract says otherwise. Braiden argues that he is
still an employee and has a right to notice.
Legal Issue/Question: Is Braiden an employee that was terminated or an independent
contractor that simply didn’t have their services renewed?
Key Finding: The court looked decided that he was still an employee despite what the contract
said because his work arrangement better resembled one of an employee than an independent
contractor according to the scorecard.
Important Point for course: Courts tend to ignore if the contract says they’re an independent
contractor not because they know employees feel pressured to sign contracts. It is better to
determine what they are by using the scorecard approach.
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Girex Bancorp. V. Hsieh
Section of Course: Common Law -- Employment, Self-Employment, and Everything in Between
Chapter 2
Key Facts (keep very brief):
Legal Issue/Question: Were the two interns unpaid interns or employees according to their
training?
Key Finding:
Important Point for course:
Queen v. Cognos
Section of Course: Common Law -- Hiring and Recruitment Chapter 6
Key Facts (keep very brief): Queen lives in Calgary but looks for a new job. He gets interviewed
for a job from Cognos in Ottawa. He then gets offered the job which he accepts. He quits his job
and sells his house in Calgary and moves to Ottawa with his family. He starts the job in Ottawa,
but it turns out the job in Ottawa depended on Cognos getting an external source of funding.
They failed to get the external funding and could no longer afford to keep Queen so they
terminated him. The contract he had with Cognos allowed them to fire him with a very small
amount of notice which was given. Queen then sues them for negligent misrepresentation.
Legal Issue/Question: Did Cognos commit the tort of Negligent Misrepresentation by a
Prospective Employer?
Key Finding: The misrepresentation by the employer was silence. They did not tell Queen that
the job was dependent on external funding. He won the case and won back the money he lost
in real estate (he couldn’t sell the house for the same price he bought it for) and was given a
years salary based on what he was earning in Calgary (the court assumed he would only stay at
his Calgary job for a year).
Important Point for course: Tort of negligent misrepresentation is concerned with an
employer misleading a prospective employee. Misrepresentation does not have to be a lie.
Clark v. Coopers & Lybrand
Section of Course: Common Law -- Hiring and Recruitment Chapter 6
Key Facts (keep very brief): Clark lies about his academic qualifications in his CV and interview. He
works for a few years but at some point the employer learns that he did not have the qualifications. He
was then fired without notice even though his contract said he was supposed to have 3 months pay if he
was fired. The employer argues that he can’t rely on the contract because the contract never would
have been made if they knew about the fraud.
Legal Issue/Question: Did Clark have the right to notice?
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find more resources at oneclass.com
Key Finding: No. When a contract is formed because of the fraudulent misrepresentation, the employer
can treat the contract as void. Any obligations the employer owed are void.
Important Point for course: The two main things are: did the employee lie and did the employer rely on
that lie when they decided to hire? The employer must be able to prove that they relied on the
credential, otherwise the contract is not over.
Toronto Marlboros v. John Tonelli
Section of Course: Common Law -- The Requirements of an Employment Contract Chapter 7
Key Facts (keep very brief): At age 17, John Tonelli entered into a contract with the Toronto
Marlboro junior hockey team. It required him to play only for the Marlboros for three years,
and then pay the team 20 percent of his hockey earnings for his first three years of professional
hockey. In exchange, the Marlboros provided Tonelli with a nominal wage, paid for his room
and board and school tuition, and gave him coaching, exposure, and a chance to make the pros.
When Tonelli turned 18, he informed the Marlboros that he was repudiating (cancelling) the
contract, and he signed with the Houston Aeros, a professional hockey team. Tonelli argued
that the contract with the Marlboros was invalid because he was a minor when he signed the
agreement.
Legal Issue/Question: Was the contract “for the benefit” of the 17-year-old Tonelli and
therefore legally enforceable?
Key Finding: No. The contract was unenforceable. Although Tonelli received some benefits
from the contract, overall the contract was difficult for him and highly beneficial to the
Marlboros.
Important Point for course: Contracts with infants are only enforceable if the contract
better/equally benefits the infant compared to the whoever wrote the contract. Courts decided
on this because they know the bargaining power of the two parties are unequal and try to
protect the weaker party.
Sarmiento v. Wilding & Rampage
Section of Course: Common Law -- The Requirements of an Employment Contract Chapter 7
Key Facts (keep very brief): Sarmiento wants to be an intern at Wilding & Rampage. The
company agrees to have her has an intern and she does all of whatever she is told to do. She
later quits and sues the company saying she was an employee and was never paid. The
company argues that she was never an employee and was an unpaid intern.
Legal Issue/Question: Was there an intention from both parties agreeing it was a paid
employment contract?
Key Finding: There was never an intention that it would be a paid internship by either party.
The company told her she was an unpaid intern which she agreed to, treated her as an unpaid
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Section of the course: common law -- hiring and recruitment chapter 6. Key facts (keep very brief): a woman (b) applies for professor job 10 different times, but never even gets an interview she alleges the jobs were filled with less qualified people who were not east indian. She sues seneca alleging a tort of discrimination". Key finding: no, there is no tort of discrimination in canada. Canadian governments have already addressed discrimination in contracts in human rights legislation, so that precludes the court from developing its own common law tort of discrimination. Important point for course: supreme court ruled that there is no common law rule banning discrimination in formation of contracts. So this case told us that common law doesn"t prevent discrimination in employment contracts. Need to look to government regulation, like human rights codes, for rules banning discrimination, not common law.
