SUPREME
COURT OF CANADA
Between:
Commission
des normes du travail
Appellant
and
Asphalte
Desjardins inc.
Respondent
Official English Translation
Coram: McLachlin C.J. and LeBel, Rothstein, Cromwell, Moldaver,
Karakatsanis and Wagner JJ.
Reasons
for Judgment:
(paras. 1 to 72)
|
Wagner J. (McLachlin C.J. and LeBel,
Rothstein, Cromwell, Moldaver and Karakatsanis JJ. concurring)
|
comm. normes du travail v. asphalte desjardins,
2014 SCC 51, [2014] 2 S.C.R. 514
Commission des normes du
travail Appellant
v.
Asphalte Desjardins inc. Respondent
Indexed as: Quebec (Commission des normes du travail) v. Asphalte
Desjardins inc.
2014 SCC 51
File No.: 35375.
2014: March 28; 2014: July 25.
Present: McLachlin C.J. and LeBel, Rothstein, Cromwell, Moldaver,
Karakatsanis and Wagner JJ.
on appeal from the court of appeal for quebec
Employment
law — Contracts — Contract of employment for indeterminate term — Obligation to
give notice of termination — Employee giving notice of termination to employer to
terminate contract of employment as of later date — Employer terminating
contract of employment before departure date announced by employee — Whether
employer who receives notice of termination from employee can terminate
contract of employment before notice period expires without in turn having to
give notice of termination or pay indemnity in lieu of such notice —
Civil Code of Québec, arts. 2091, 2092 — Act respecting labour standards, CQLR,
c. N-1.1, ss. 82, 83.
The
employee in question had been working for his employer since 1994. On Friday,
February 15, 2008, he gave his employer a notice of resignation in which he
announced that he would be terminating his contract of employment as of March 7,
2008, that is, three weeks later. On Monday, February 18, after failing to
convince the employee to stay with the company, the employer decided without
any other formalities to terminate his contract of employment the very next
day, February 19, 2008, rather than March 7 — the departure date announced by the
employee.
The
appellant, the Commission des normes du travail (“Commission”), claimed on the
employee’s behalf an indemnity equivalent to a notice period of three weeks,
which corresponded to the notice of termination given by the employee in his
letter of resignation. It also claimed, in the same proportion, the monetary
value of his annual leave. The Court of Québec found in the Commission’s
favour, but the Court of Appeal ruled against it.
Held:
The appeal should be allowed.
This
appeal raises the issue of the interplay of the provisions of the Civil Code
of Québec (“C.C.Q.”) and the Act respecting labour standards
that relate to the effect of the notice of termination in the context of a
contract of employment for an indeterminate term. The provisions in question
must be interpreted harmoniously, since they are all concerned with the same
subject, namely termination of the employment relationship.
A
party may unilaterally terminate a contract of employment for an indeterminate
term without giving reasons, but on condition that he or she give notice of
termination to the other party in reasonable time in accordance with art. 2091 C.C.Q.
The obligation under art. 2091 C.C.Q. to give notice of termination
applies to both the employee and the employer, for the entire term of the
contract.
Added
to the principles established in the Civil Code are the standards
provided for in the Act respecting labour standards, including the one
set out in s. 82, which imposes an obligation on the employer to give written
notice to an employee where it is the employer that terminates the contract of
employment. This section specifies the duration of the notice period, which
depends on the employee’s years of service. Absent such notice, the employer
must pay the employee an equivalent compensatory indemnity in accordance with
s. 83 of the Act respecting labour standards. In the context of this
appeal, the Act respecting labour standards clarifies the employer’s
obligations, and in light of its purpose, it should be given a large and
liberal interpretation.
A
contract of employment for an indeterminate term is not terminated immediately
upon notice of termination being given in accordance with art. 2091 C.C.Q.
The wording of s. 82 of the Act respecting labour standards confirms
that the contract of employment for an indeterminate term is not terminated at
the time of the notice. It is well established that a contract is not
automatically resiliated upon receipt of a notice of termination and that the
contractual relationship continues to exist until the date specified in the
notice given by the employee or the employer. This means that even after one
of the parties to a contract of employment for an indeterminate term gives the
other party notice of termination, both parties must continue to perform their
obligations under the contract until the notice period expires. This includes
the obligation to give notice of termination set out in art. 2091 C.C.Q.,
which the other party must meet if he or she wishes in turn to terminate the
contract before the notice given by the first expires.
It
is inappropriate to deal with the issue of the effect of notice of termination
from the perspective of renunciation. The notice announces the termination of
the contract of employment: it does not authorize a departure from the
principle that a party may not unilaterally cease performing his or her
contractual obligations, to the detriment of the other party’s rights. In this
context, the argument based on renunciation of the notice of termination is an
unacceptable fiction. An employer who advances the date of termination of the
contract after an employee has given notice of termination effects not a
“renunciation”, but a unilateral resiliation of the contract of employment, which
is authorized only as provided by law (arts. 1439 and 2091 C.C.Q.).
In
sum, an employer who receives from an employee the notice of termination
provided for in art. 2091 C.C.Q. cannot terminate the contract of
employment for an indeterminate term unilaterally without in turn giving notice
of termination or paying an indemnity in lieu of such notice. The notice given
by the employee does not have the effect of immediately releasing the parties
from their respective obligations under the contract. If the employer prevents
the employee from working and refuses to pay him or her during the notice
period, the employer is “terminating the contract” within the meaning of s. 82
of the Act respecting labour standards.
Moreover,
art. 2092 C.C.Q. does not establish an exception to the rule that a
party who wishes to terminate a contract unilaterally without giving a reason
must in every case, as required by art. 2091 C.C.Q., give notice of
termination to the other party. Indeed, art. 2092 C.C.Q. concerns not the
notice of termination itself, but the employee’s right to claim an indemnity if
the notice is insufficient. It is wrong to conclude that the absence of an
equivalent provision in the employer’s favour means that the employer may
“renounce” a notice of termination received from the employee.
Finally,
the distinction between circumstances such as those in the instant case and
circumstances in which an employee resigns effective immediately but
nonetheless offers to keep working for a certain time should be accepted. In
the latter case, if the employer does indeed want the employee to leave
immediately, there is a meeting of minds and notice of termination is
unnecessary, since a contract for an indeterminate term can be terminated by
agreement of the parties. In such a case, art. 2092 C.C.Q does not
apply, since the termination of the employment does not then flow from a
unilateral act by the employer. Nor would the indemnity provided for in ss. 82
and 83 of the Act respecting labour standards apply, since the
termination of the contract would flow from an agreement between the parties:
the employer could not be found to have terminated the contract.
In
this case, the circumstances of the employee’s resignation were not ambiguous.
When he gave his employer a letter in which he announced that he would be
resigning, the employee did not terminate his contract immediately: rather, he
was complying with art. 2091 C.C.Q. and announcing to his employer that
their contractual relationship would be terminated in the near future. When
the employer asked the employee to leave before the announced date, it
terminated the contract unilaterally without giving sufficient notice of
termination, thereby defaulting on its obligation under art. 2091 C.C.Q.,
and this had the effect of triggering the application of ss. 82 and 83 of the Act
respecting labour standards. Since the employee did not claim the full
indemnity provided for in those sections, it is preferable to leave the
question whether the notice period of s. 82 of the Act respecting labour
standards and the equivalent indemnity of s. 83 are matters of directive or
protective public order for another occasion.
Cases Cited
Referred
to: ChemAction inc. v. Clermont, 2008 QCCQ 7353 (CanLII); Commission
des normes du travail v. 9063-1003 Québec inc., 2009 QCCQ 2969 (CanLII); Commission
des normes du travail v. S2I inc., [2005] R.J.D.T. 200; Commission des
normes du travail v. Compogest inc., 2003 CanLII 39374; Martin v.
Compagnie d’assurances du Canada sur la vie, [1987] R.J.Q. 514; Syndicat
de la fonction publique du Québec v. Quebec (Attorney General), 2010 SCC
28, [2010] 2 S.C.R. 61; Commission des normes du travail v. Centre de
décoration des sols inc., 2009 QCCQ 2587 (CanLII); Commission des normes
du travail v. Commission scolaire de Laval, 2003 CanLII 42505; Wallace
v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; Slaight
Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; IBM Canada ltée
v. D.C., 2014 QCCA 1320 (CanLII); Atwater Badminton and Squash Club Inc.
v. Morgan, 2014 QCCA 998 (CanLII); Aksich v. Canadian Pacific Railway,
2006 QCCA 931, [2006] R.J.D.T. 997; Nurun inc. v. Deschênes, 2004 CanLII
27918; Isidore Garon ltée v. Tremblay, 2006 SCC 2, [2006] 1 S.C.R. 27; Garcia
Transport Ltée v. Royal Trust Co., [1992] 2 S.C.R. 499; Commission des
normes du travail v. Quesnel, [1999] J.Q. no 6966 (QL); Transforce
inc. v. Baillargeon, 2012 QCCA 1495, [2012] R.J.Q. 1626.
Statutes and Regulations Cited
Act
respecting labour standards, CQLR, c. N-1.1, ss. 82, 83, 114.
Civil
Code of Québec, arts. 1380, 1439, 2085 to 2097, 2086, 2087, 2088, 2091,
2092, 2094.
Authors Cited
Béliveau, Nathalie-Anne, avec la collaboration de Marc Ouellet. Les
normes du travail, 2e éd. Cowansville, Qué.: Yvon Blais, 2010.
Gagnon, Robert P. Le droit du travail du Québec, 7e
éd., mis à jour par Langlois Kronström Desjardins, sous la direction de Yann
Bernard et autres. Cowansville, Qué.: Yvon Blais, 2013.
Lluelles, Didier, et Benoît Moore. Droit des obligations, 2e
éd. Montréal: Thémis, 2012.
Morin, Fernand. “Démission et congédiement: la
difficile parité des règles de droit applicables à ces deux actes” (2013), 43 R.G.D.
637.
Morin, Fernand, et autres. Le droit de l’emploi au Québec, 4e
éd. Montréal: Wilson & Lafleur, 2010.
Québec. Ministère de la Justice. Commentaires du ministre de la
Justice, t. II, Le Code civil du Québec — Un mouvement de société. Québec:
Publications du Québec, 1993.
APPEAL
from a judgment of the Quebec Court of Appeal (Pelletier, Bich and Fournier JJ.A.),
2013 QCCA 484, [2013] AZ-50948335, [2013] J.Q. no 2366 (QL), 2013
CarswellQue 2371, setting aside a decision of Massol J.C.Q., 2010 QCCQ 7473, [2010]
R.J.D.T. 935, [2010] AZ-50668866, [2010] J.Q. no 8693 (QL), 2010
CarswellQue 9152. Appeal allowed.
Robert
Rivest and Jessica Laforest, for the
appellant.
Claude
J. Denis and Frédérick Langlois, for the
respondent.
English version of the
judgment of the Court was delivered by
[1]
Wagner J. — This appeal concerns the notice required
to terminate a contract of employment for an indeterminate term. More
specifically, the question is whether an employer who receives a notice of
termination from an employee can terminate the contract of employment before
the notice period expires without in turn having to give notice of termination
or pay an indemnity in lieu of such notice. For the reasons that follow, I
would answer this question in the negative and allow the appeal.
I.
Background
[2]
The facts of this case are not in dispute. The
employee in question, Daniel Guay, had been working for the respondent,
Asphalte Desjardins inc., since 1994. Asphalte Desjardins is a paving company
that generates its income from contracts with municipalities and the provincial
government. There is some competition in that market, and contracts are
generally awarded under calls for tenders. Mr. Guay was employed as a project
manager and had access to confidential information, including the prices
proposed by the company in its tenders and the costs of performance of its
work.
[3]
On Friday, February 15, 2008, Mr. Guay gave
Asphalte Desjardins a notice of resignation in which he announced that he would
be terminating his contract of employment as of March 7, 2008, that is, three
weeks later. In handing in his notice, Mr. Guay explained that he was leaving
to work for a competitor, which had offered him a higher salary. He also
stressed that the intervening three weeks would suffice to finish his work and
ensure an orderly transition with his replacement.
[4]
On Monday, February 18, some Asphalte Desjardins
managers tried unsuccessfully to convince Mr. Guay to stay with the company.
Asphalte Desjardins then decided without any other formalities to terminate his
contract of employment the very next day, February 19, 2008, rather than March 7
— the departure date announced by Mr. Guay.
[5]
The appellant, the Commission des normes du
travail (“Commission”), claimed on Mr. Guay’s behalf an indemnity equivalent to
a notice period of three weeks, which corresponded to the notice of termination
given by Mr. Guay in his letter of resignation, even though under s. 82 of An
Act respecting labour standards, CQLR, c. N-1.1, he would have been
entitled to four weeks as an employee credited with five to ten years of
uninterrupted service. The Commission also claimed, in the same proportion,
the monetary value of his annual leave.
II.
Judicial History
A. Court of Québec, 2010 QCCQ 7473, [2010] R.J.D.T. 935
[6]
Judge Massol allowed the Commission’s action
with the exception of its claim for a 20 percent lump sum for itself under s. 114
of the Act respecting labour standards. In ordering Asphalte Desjardins
to pay the amounts claimed in respect of the notice period and annual leave, he
stated that where an employee gives an employer notice that he or she plans to
resign as of a future date and the employer decides to terminate the contract
of employment prior to the effective date of the resignation, the employer must
in turn give the employee notice or pay him or her an indemnity in lieu of
notice. In other words, the employee is entitled to be paid during the period
between the notice of resignation and the date it takes effect (para. 35).
[7]
Judge Massol stated that a distinction should be
drawn between an employee who announces that he or she intends to resign on a
specific date (as in this case) and one who announces that he or she intends to
resign immediately but also offers to keep working for a certain time
(as in ChemAction inc. v. Clermont, 2008 QCCQ 7353 (CanLII), at paras. 37
et seq.). In the instant case, because Mr. Guay had indicated clearly
in his letter of resignation that he would be resigning effective March 7,
2008, Judge Massol concluded that Mr. Guay had done more than simply offer to
remain in the employ of Asphalte Desjardins for the three weeks until his
departure date.
[8]
In this regard, Judge Massol stressed that it is
up to the employee to choose the time at which the termination of the
employment relationship will take effect. This choice must be respected
insofar as the employee satisfies his or her obligation under art. 2091 of the Civil
Code of Québec (“C.C.Q.”) to give notice of termination. Judge
Massol concluded that, [translation]
“[w]hen all is said and done, although the employer benefits from a protection,
that protection cannot be renounced to the detriment of the employee’s own
rights” (para. 49).
B.
Quebec Court of Appeal, 2013 QCCA 484 (CanLII)
(1)
Reasons of the Majority by Bich J.A. (Concurred
in by Fournier J.A.)
[9]
The majority of the Quebec Court of Appeal, per
Bich J.A., allowed the appeal of Asphalte Desjardins and dismissed the Commission’s
action. In the majority’s view, the purpose of the notice of termination
provided for in art. 2091 C.C.Q. is to protect the party who receives
the notice by enabling that party [translation]
“to limit the adverse effects of a termination [of a contract of employment]
that he or she can neither counter nor prevent” (para. 55). The majority
acknowledged that the party giving notice of termination may in practice derive
certain benefits from it, but nevertheless found that that is not the purpose
of art. 2091 C.C.Q. According to them, the notice of termination does
not “resul[t] in a synallagmatic obligation that would be binding on the party
who receives it” (para. 56), which means that an employee who gives notice to
his or her employer cannot place the employer under an obligation to comply in
full with the notice. Likewise, an employee cannot be forced to comply until
the very end with a notice from the employer that includes a period “to be
worked”, and if the employee in question decides to leave earlier, he or she
cannot be required to give notice of termination in turn or to indemnify the
employer (para. 58).
[10]
Nor, the majority added, is the notice of
termination provided for in art. 2091 C.C.Q. a condition for exercising
the power of unilateral resiliation that would serve to determine whether a
resiliation is valid: in the absence of such notice, the resiliation is not
null, and the right of the other party to the contract is limited to obtaining
compensation for the injury flowing from the fact that he or she was not given
notice of termination (para. 59).
[11]
The subject, purpose and nature of the
obligation to give notice of termination lead, at first glance, to the
conclusion that the recipient of the notice can renounce it (para. 60). But the
majority noted that, because of the risk of abuse that might entail for
employees, the legislature had established a measure designed to protect them,
in art. 2092 C.C.Q., by prohibiting any renunciation of their right to
an indemnity should the notice of termination be insufficient or should the
resiliation be abusive. They pointed out that this prohibition — which applies
only to the employee — shows that, were it not for art. 2092 C.C.Q., it
would in fact be possible to renounce the notice of termination (paras. 61-62).
The majority also pointed out that the prohibition set out in art. 2092 C.C.Q.
is not absolute and that an employee can, on certain conditions, renounce the
notice of termination his or her employer is required to give. In short, in
their view, both the employee (on certain conditions) and the employer (without
conditions) can renounce the notice of termination (paras. 63-65).
[12]
The majority noted that, as a general rule, the
contract of employment continues to exist during the notice period, unless the
party who receives the notice of termination renounces it (para. 66). However,
they added that an employer who renounces a notice of termination received from
an employee cannot be considered to be terminating the contract within the
meaning of s. 82 of the Act respecting labour standards. From the time
the employee gives notice of termination, the fate of the contract of
employment is [translation]
“inevitable” (para. 70). The notice merely delays the effect of the employee’s
unilateral decision to terminate the contract: “The employer’s renunciation of
the notice can change neither this fact nor its legal consequences” (para. 70).
In other words, a resignation does not become a dismissal if the employer
renounces the notice of termination.
[13]
As for the distinction between a situation in
which an employee announces that he or she intends to resign as of a subsequent
date and one in which an employee announces that he or she intends to resign
immediately but offers to keep working for a certain time, the majority
rejected it. They explained that, in either situation, the employer can renounce
the notice of termination without engaging s. 82 of the Act respecting
labour standards (para. 74). Despite the fact that it refers to
“terminating” the contract of employment, that section is not intended to
protect an employee who resigns, but instead concerns situations in which the
contract of employment is terminated on the employer’s initiative (paras. 77-80).
[14]
Turning to another topic, the majority expressed
the opinion that there was no reason to reconsider the practice according to
which an employer can, if he or she so desires, resiliate the contract
immediately and pay the employee an indemnity in lieu of notice of
termination. In their opinion, the analysis of Pelletier J.A., dissenting,
would, if applied, jeopardize that practice (para. 82).
[15]
In sum, the majority of the Court of Appeal held
that the employer can freely renounce the notice of termination the resigning
employee is required to give him or her under art. 2091 C.C.Q. and that,
in so doing, the employer does not terminate the contract of employment within
the meaning of s. 82 of the Act respecting labour standards, which does
not apply in such a case (para. 84).
[16]
Finally, the majority invited the legislature to
intervene to change the law with respect to the applicability of s. 82 of the Act
respecting labour standards in such a case, as they found that it could in
some circumstances lead to a result that would be unfair for the employee
(paras. 85-86).
(2) Dissenting Reasons of Pelletier J.A.
[17]
Pelletier J.A. would have dismissed the appeal
and affirmed the trial judge’s judgment. He noted that this case raises [translation] “the issue of the interplay
of sections 82 and 83 of the Act [respecting labour standards]
and the general law rules provided for in the Civil Code of Québec, and
in particular those flowing from articles 2091 and 2092 C.C.Q.” (para. 10).
He stated that the first step in considering this issue was to go back to
February 15, 2008, and he mentioned the trial judge’s finding that on that
date, Mr. Guay had clearly told Asphalte Desjardins that he would keep working
until March 7, 2008 (para. 23). In Pelletier J.A.’s view, the effect of that
finding was that the instant case can be distinguished from ChemAction
in that Mr. Guay had not offered Asphalte Desjardins an alternative that would
have given it the choice of immediately, on a consensual basis, terminating the
mutual obligations flowing from the contract of employment (paras. 24-25).
[18]
Pelletier J.A. stated
that there had not, in the case at bar, been a meeting of minds for the
immediate termination of the employment relationship (para. 25). He noted in
this regard that Asphalte Desjardins was not arguing that Mr. Guay had
consented to the immediate termination of the contract of employment. Rather,
it was submitting that Mr. Guay’s letter of resignation had given it the
opportunity to unilaterally renounce the performance of work for the time
remaining until March 7, 2008 and that the effect of that renunciation was to
release it from its obligation to pay Mr. Guay his salary (para. 26). In
support of this argument, Asphalte Desjardins expressly invoked the concept of
“release” within the meaning of the Civil Code of Québec. But,
Pelletier J.A. stated, there could not have been a release, since release from
a debt is a synallagmatic contract, requiring the agreement of both parties
(para. 27). He added that, according to the interpretation that was most
favourable to Asphalte Desjardins, this situation would constitute a
renunciation that had the incidental effect of releasing both parties (para. 28).
[19]
Pelletier J.A. pointed out that art. 2091 C.C.Q.
requires that a party wanting to unilaterally terminate a contract give notice
of termination to the other party. Where the termination of a contract of
employment for an indeterminate term flows from the will of only one of the
parties, it does not occur at the time the decision is announced, since the
period corresponding to the notice of termination must elapse first. This is
true both for the employer and for the employee (para. 31). Pelletier J.A.
explained that if an employee were to renounce in advance his or her right to
obtain an indemnity for any injury that might result from the employer’s
failure to perform the obligation under art. 2091 C.C.Q., that
renunciation would be absolutely null as a result of art. 2092 C.C.Q.
(para. 32). However, he stated that nothing would preclude the parties from
freely agreeing to immediately terminate their contractual relationship, in
which case art. 2092 C.C.Q. would not apply, [translation] “because the termination of the employment does
not result from a unilateral act on the employer’s part” (para. 34).
[20]
Pelletier J.A. added that it was in his opinion
inappropriate to analyze the issue before the court from the perspective of
renunciation, since the contract of employment between the parties had
continued to apply during the notice period and since only an agreement between
them, and not a unilateral act, could have released them from their obligations
(para. 36). Asphalte Desjardins had unilaterally terminated the employment
relationship for the purposes of s. 82 of the Act respecting labour
standards on February 19, 2008, thereby laying itself open to the
consequences provided for in s. 83 of that Act (para. 37).
[21]
Pelletier J.A. advanced two other arguments in
support of his analysis. First, in his opinion, the position of Asphalte
Desjardins meant that [translation]
“a resignation in compliance with article 2091 C.C.Q. would, for the
employee, amount to a renunciation in advance of the employee’s right to obtain
an indemnity for any injury he or she suffers” (para. 39 (emphasis deleted)),
whereas art. 2092 C.C.Q. expressly prohibits such a renunciation.
Second, Pelletier J.A. stated, regardless of whether the employer’s unilateral
act can be characterized as a “dismissal”, the employee’s compliance with his
or her obligation under art. 2091 C.C.Q. cannot cause the employee to
lose the protection afforded by ss. 82 and 83 of the Act respecting labour
standards and the minimum compensation for which they provide (para. 40).
[22]
Finally, in Pelletier J.A.’s view, because
Asphalte Desjardins had terminated the employment relationship for the purposes
of s. 82 of the Act respecting labour standards, it was the debtor of
the obligation provided for in s. 83 (para. 44). Pelletier J.A. accepted that
under s. 82, Mr. Guay would have been entitled to four weeks’ notice. However,
given that Mr. Guay had consented to the resiliation of the contract as of
March 7, 2008, and assuming that it could be inferred that Asphalte Desjardins
had consented to that same date, Pelletier J.A. found that the obligation to
pay an indemnity associated with the notice of termination had expired as of
that date: [translation] “In
other words, as of March 7, 2008, the dismissal ceased to be the sole
explanation for the termination of the contract of employment, which was then
also based on the agreement of the parties. When the mutual consent of the
parties to terminate their agreement took effect, it also, as it were,
terminated the application of sections 82 and 83 of the Act to the
rights and obligations flowing from the employment relationship” (para. 45).
III. Issue
[23]
This appeal raises the following issue: In the
context of a contract of employment for an indeterminate term, can an employer
who has received a notice of termination from an employee lawfully terminate
the contract before the expiration of the notice period without in turn having
to give the employee notice of termination or an indemnity in lieu of such
notice?
IV. Analysis
[24]
I would adopt Pelletier J.A.’s reasons in part,
allow the appeal and restore the trial judge’s judgment.
[25]
I will begin by noting that in their reasons,
the majority of the Quebec Court of Appeal underscored a certain confusion with
respect to the notice of termination concept, the effects of such notice and
what must happen for a court to find that a contract of employment has been
terminated. In so doing, they overruled a well-established line of authority
at the trial level in Quebec labour relations law according to which an
employer cannot renounce a notice of termination without engaging ss. 82 and 83
of the Act respecting labour standards (see, e.g., Commission des
normes du travail v. 9063-1003 Québec inc., 2009 QCCQ 2969 (CanLII); Commission
des normes du travail v. S2I inc., [2005] R.J.D.T. 200 (C.Q.); Commission
des normes du travail v. Compogest inc., 2003 CanLII 39374 (C.Q.)). That
line of authority is not unanimous, however. In ChemAction, the Court
of Québec held that an employer can renounce a notice of termination received
from an employee, that such a renunciation does not transform a resignation
into a dismissal and that the resignation is immediate, which means that the
employee cannot then demand an indemnity under either s. 83 of the Act
respecting labour standards or art. 2092 C.C.Q.
[26]
A decision by a court of appeal that overrules a
dominant line of authority at the trial level is not, of course, open to
challenge for that reason alone. On the contrary, such a decision is within
the jurisdiction of an appellate court. After all, someone always has to take
the first step if the law is to change. Nevertheless, it is impossible to
disregard the impact of such a radical reversal in a field of law whose general
principles, while based on civil law rules, are also subject to specific legislative
provisions relating exclusively to labour relations, which is what makes this
appeal so important.
[27]
I will begin by discussing certain principles
and standards applicable to the contract of employment for an indeterminate
term, after which I will consider the question of the notice of termination in
the context of such contracts.
A. Principles and Standards Applicable to the Contract of Employment
for an Indeterminate Term
[28]
The contract of employment is a synallagmatic
contract — one that creates obligations to be performed by both parties (art. 1380
C.C.Q.) — in which an employee undertakes for a limited period to do
work for remuneration, according to the instructions and under the direction or
control of an employer (art. 2085 C.C.Q.). Articles 2085 to 2097 of the
Civil Code set out the general law with respect to the contract of
employment, adding to the general framework of the law of obligations. A
contract of employment can be for a fixed term or for an indeterminate term
(art. 2086 C.C.Q.). The employer undertakes to allow the performance of
the employee’s work and to pay the employee’s remuneration while at the same
time protecting the employee’s health, safety and dignity (art. 2087 C.C.Q.).
The employee is bound to perform his or her work with prudence and diligence,
and faithfully and honestly (art. 2088 C.C.Q.).
[29]
More broadly, art. 1439 C.C.Q.
establishes the principle that a contract is irrevocable: a party cannot
resiliate it unilaterally except on grounds recognized by law or by agreement
of the parties. The parties to the contract must therefore, inter alia,
respect its term. This principle also applies to a contract for an
indeterminate term, such as the one at issue in the case at bar. Thus, D. Lluelles
and B. Moore state that [translation]
“the contract for an indeterminate term is, in principle, just as irrevocable
as the contract for a fixed term. . . . A contracting party cannot be allowed
to revoke the contract suddenly, brusquely and immediately” (Droit des
obligations (2nd ed. 2012), at pp. 1218-19).
[30]
The power of unilateral resiliation provided for
in legislation [translation] “is
an exceptional privilege whose intended scope is narrow” (Lluelles and Moore,
at p. 1198). Where the contract of employment is concerned, the Civil Code provides
for two circumstances in which a party may terminate the contractual
relationship unilaterally. First, a party may unilaterally resiliate a
contract of employment for a serious reason without giving notice (art. 2094 C.C.Q.),
regardless of whether the contract is for a fixed term or for an indeterminate
term. Second, as in the instant case, a party may unilaterally terminate a
contract of employment for an indeterminate term without giving reasons, but on
condition that he or she give notice of termination to the other party in
reasonable time in accordance with art. 2091 C.C.Q., which reads as
follows:
2091. Either party
to a contract for an indeterminate term may terminate it by giving notice of
termination to the other party.
The
notice of termination shall be given in reasonable time, taking into account,
in particular, the nature of the employment, the specific circumstances in
which it is carried on and the duration of the period of work.
[31]
It should also be mentioned, given that this is
crucial to the outcome of this appeal, that the obligation under art. 2091 C.C.Q.
to give notice of termination applies to both the employee and the employer,
for the entire term of the contract.
[32]
Added to the principles
established in the Civil Code are the standards provided for in the Act
respecting labour standards, the purpose of which is to correct the
imbalance of power between employer and employee by establishing minimum
standards for employees by means of provisions of public order (Martin v.
Compagnie d’assurances du Canada sur la vie, [1987] R.J.Q. 514 (C.A.), at
p. 517; Syndicat de la fonction publique du Québec v. Quebec (Attorney
General), 2010 SCC 28, [2010] 2 S.C.R. 61, at paras. 6-8). These standards
supplement the framework established in the Civil Code.
[33]
The standards in
question include the one set out in s. 82 of the Act respecting labour
standards, which imposes an obligation on the employer to give
written notice to an employee where it is the employer that terminates the
contract of employment. This section specifies the duration of the notice
period, which depends on the employee’s years of service. Absent such notice,
the employer must pay the employee an equivalent compensatory indemnity in accordance with s. 83 of the Act respecting labour standards.
Sections 82 and 83 read as follows:
82. The employer
must give written notice to an employee before terminating his contract of
employment or laying him off for six months or more.
The notice shall be of one week if the employee
is credited with less than one year of uninterrupted service, two weeks if he
is credited with one year to five years of uninterrupted service, four weeks if
he is credited with five years to ten years of uninterrupted service and eight
weeks if he is credited with ten years or more of uninterrupted service.
. . .
This section does not deprive an employee of a
right granted to him under another Act.
83. An employer who
does not give the notice prescribed by section 82, or who gives insufficient
notice, must pay the employee a compensatory indemnity equal to his regular
wage excluding overtime for a period equal to the period or remaining period of
notice to which he was entitled.
. . .
[34]
The purpose of s. 82 is
to advise the employee that the employment relationship will soon be terminated
and to give him or her reasonable time to try to find a new job (see, e.g., Commission des normes du travail v. Centre de
décoration des sols inc., 2009 QCCQ 2587 (CanLII), at para. 38; Commission des normes du travail v. Commission scolaire de
Laval, 2003 CanLII 42505 (C.Q.), at para. 15). The Act
respecting labour standards does not impose similar minimum periods for
notice given by an employee, although art. 2091 C.C.Q. does require that
an employee who wishes to unilaterally terminate a contract of employment for
an indeterminate term give notice of termination “in reasonable time”. This
asymmetry is not surprising given that the purpose of the Act respecting
labour standards is to protect employees as vulnerable members of society,
a fact that has been acknowledged on many occasions (Wallace v. United Grain
Growers Ltd., [1997] 3 S.C.R. 701, at para. 93; Slaight Communications
Inc. v. Davidson, [1989] 1 S.C.R. 1038, at p. 1051).
[35]
The parties can agree to lengthen the minimum
notice period provided for in the Act respecting labour standards.
Moreover, even if there is no such provision in the contract, it is possible
for an employee to be entitled under art. 2091 C.C.Q. to a notice period
longer than the one provided for in s. 82 of the Act respecting labour
standards. The cardinal rule with respect to the unilateral resiliation of
a contract of employment is the giving, in reasonable time, of a notice of
termination that takes into account, in particular, the nature of the
employment, the specific circumstances in which it is carried on and the
duration of the period of work. The courts have, although without suggesting
that these were maximums, accepted notice periods of 9, 12, 15 and 18 months,
and even 24 months in certain circumstances (R. P. Gagnon, Le droit du
travail du Québec (7th ed. 2013), at p. 166; IBM Canada ltée v. D.C.,
2014 QCCA 1320 (CanLII), at para. 39; Atwater Badminton and Squash Club Inc.
v. Morgan, 2014 QCCA 998 (CanLII), at para. 17; Aksich v. Canadian
Pacific Railway, 2006 QCCA 931, [2006] R.J.D.T. 997, at para. 124).
[36]
Having reviewed the principles and standards
applicable to the contract of employment for an indeterminate term, I must
reiterate that this appeal raises the issue of the interplay of the provisions
of the Civil Code and the Act respecting labour standards that
relate to the effect of the notice of termination. In my opinion, the
provisions of the Civil Code and the Act respecting labour standards
in question must be interpreted harmoniously, since they are all concerned with
the same subject, namely termination of the employment relationship. The Civil
Code forms the backdrop for the contractual relationship between employees
and employers in the workplace and establishes the general law that applies to
all those who are bound by contracts of employment. As for the Act
respecting labour standards, in the context of this appeal it clarifies the
employer’s obligations, and in light of its purpose, it should be given a large
and liberal interpretation.
B. Effect of the Notice of Termination
[37]
The Quebec Court of Appeal in the instant case
(both the majority and the dissenting judge), like the academic writers,
rightly recognized that a contract of employment for an indeterminate term is
not terminated immediately upon notice of termination being given in accordance
with art. 2091 C.C.Q. (paras. 31, 66 and 70; see also Nurun inc. v.
Deschênes, 2004 CanLII 27918 (Que. C.A.), at para. 44). The wording of s. 82
of the Act respecting labour standards also confirms that the contract
of employment for an indeterminate term is not terminated at the time notice is
given: “The employer must give written notice to an employee before
terminating his contract of employment . . . .” Nevertheless, the
majority of the Court of Appeal in the case at bar expressed the opinion that
the fate of the contract of employment is [translation]
“inevitable as of the time when the employee announces his or her resignation”
(para. 70).
[38]
It is well established that a contract is not
automatically resiliated upon receipt of a notice of termination and that, on
the contrary, the contractual relationship continues to exist until the date
specified in the notice given by the employee or the employer. This means that
even after one of the parties to a contract of employment for an indeterminate
term gives the other party notice of termination, both parties must continue to
perform their obligations under the contract until the notice period expires.
This includes the obligation to give notice of termination set out in art. 2091
C.C.Q., which the other party must meet if he or she wishes in turn to
terminate the contract before the notice given by the first expires. The
argument that the parties’ legal situation “crystallizes” when notice of
termination is given in that the notice merely delays the termination of the
employment by postponing the employee’s date of departure must therefore fail.
The notice of termination does not immediately terminate the contract of
employment, preserving only the conditions of employment during the notice
period. Rather, the contract itself continues to exist in its entirety until
that period expires.
[39]
I agree with Pelletier J.A. that it seems
inappropriate to deal with the issue of the effect of notice of termination
from the perspective of renunciation. The notice announces the termination of
the contract of employment: it does not authorize a departure from the
principle that a party may not unilaterally cease performing his or her contractual
obligations, to the detriment of the other party’s rights. In this context,
the argument based on renunciation of the notice of termination is an
unacceptable fiction.
[40]
An employer who advances the date of termination
of the contract after an employee has given notice of termination effects not a
“renunciation”, but a unilateral resiliation of the contract of employment,
which is authorized only as provided by law (arts. 1439 and 2091 C.C.Q.).
By “renouncing” a notice received from an employee, the employer prevents the
employee from performing his or her work and ceases to pay the employee,
thereby defaulting on the contractual obligations the employer is required to
fulfil until the expiration of the notice period. In the case at bar, as
Pelletier J.A. rightly stated at para. 36 of his reasons, [translation] “[u]ntil that date, only an
agreement, and not a unilateral act, [can] release the parties from their obligations.”
[41]
In sum, an employer who receives from an
employee the notice of termination provided for in art. 2091 C.C.Q.
cannot terminate the contract of employment for an indeterminate term
unilaterally without in turn giving notice of termination or paying an
indemnity in lieu of such notice. The notice given by the employee does not
have the effect of immediately releasing the parties from their respective
obligations under the contract. If the employer prevents the employee from
working and refuses to pay him or her during the notice period, the employer is
“terminating the contract” within the meaning of s. 82 of the Act respecting
labour standards.
[42]
Unlike the majority of the Court of Appeal, I
cannot bring myself to conclude that the general principle that the contract
continues to exist during the notice period is subject to an exception that
applies where the party who receives the notice of termination renounces it. With respect, if this
conclusion were accepted, it would also have to be accepted that it is the
party who “renounces” the notice who unilaterally terminates the contract, with
the consequences that would entail for the employer.
[43]
I agree with Bich J.A., writing for the majority
of the Court of Appeal, that the notice of termination does not result in a
synallagmatic obligation that would be binding on the party who receives it
(para. 56). It is because of the contract of employment for an indeterminate
term that the parties have reciprocal obligations: if, on being advised of the
date when the other party wishes to terminate the contract in accordance with
art. 2091 C.C.Q., the party receiving the notice (the employer in the
instant case) objects, he or she must in turn give notice of termination under
art. 2091 C.C.Q.
[44]
Of course, the notice
period chosen unilaterally by the employee cannot be “imposed” on the
employer. An employer can deny an employee access to the workplace during the
notice period, but must nonetheless pay his or her wages for that period,
provided that the employee’s notice of termination was given in reasonable
time. The employer can also choose to terminate the contract by giving notice
of termination in reasonable time or by paying the corresponding indemnity in
accordance with art. 2091 C.C.Q. and under ss. 82 and 83 of the Act
respecting labour standards (F. Morin, “Démission
et congédiement: la difficile parité des règles de droit
applicables à ces deux actes” (2013), 43 R.G.D. 637, at p. 651; see also
F. Morin et al., Le droit de l’emploi au Québec (4th ed. 2010), at para.
II-179; N.-A. Béliveau with M. Ouellet, Les normes
du travail (2nd ed. 2010), at p. 364).
(1) Reciprocal Nature of the Obligation to Give Notice of Termination
Provided for in Article 2091 C.C.Q.
[45]
The majority of the Court of Appeal reached the
following conclusion regarding the obligation to give notice of termination at
para. 58 of their reasons:
[translation] Thus, an employee cannot
place an employer under an obligation to comply in full with a notice that the
former gives, unilaterally, to the latter; likewise, when it is the employer
who resiliates the contract and gives the employee notice including a period
“to be worked”, the employee cannot, in my opinion, be forced to comply with it
until the very end and, if the employee decides to leave earlier, he or she
certainly cannot be required to give notice in turn of that earlier departure
or to indemnify the employer, which was counting on receiving his or her
services until the notice period expired. [Emphasis added.]
[46]
The obligation to give notice of termination
provided for in art. 2091 C.C.Q. applies equally to both parties to the
contract. The obligation’s reciprocal nature means that, contrary to the
conclusion reached by the majority of the Court of Appeal, an employee who,
after receiving from his or her employer a notice of termination that includes
a period to be worked (as opposed to an indemnity in lieu of such notice),
stops working without in turn giving notice of termination defaults on his or
her contractual obligations and could be sued for damages. In practice, this
consequence for the employee will tend to be hypothetical given that the
employer would be required to prove that he or she has sustained an injury. Be
that as it may, if the employer was able to prove an injury caused by the
employee’s failure to perform his or her contractual obligations, the fact that
the employee had received a notice of termination from the employer could not
prevent the employer from bringing an action against that employee. An
employee who has received such a notice is, like the employer, still bound by
his or her contractual obligations.
[47]
Of course, since the contract is an intuitu
personae contract, specific performance is not an option if the employee
wishes to leave the company. He or she will nevertheless be required, in turn,
to give notice of termination in reasonable time in order to satisfy the
requirements of art. 2091 C.C.Q.
(2) Notice of Termination That Benefits Both Parties
[48]
As I mentioned above, the majority of the Court
of Appeal noted that the purpose of the notice of termination is to enable [translation] “the party who receives
it to limit the adverse effects of a termination that he or she can neither
counter nor prevent” (para. 55 (emphasis in original)). They stated that
although the notice of termination may in practice result in benefits for the
party who gives it — by providing him or her with a transition period,
for example — that is not the purpose of art. 2091 C.C.Q., which is
instead designed to protect the other party (para. 55).
[49]
However, notice of termination is not given
solely to benefit the recipient. Regardless of who terminates the contract,
the notice can benefit both parties: When it is given by an employee, he or
she counts on the notice period for financial planning purposes, while the
employer can use it to limit any adverse effects of the employee’s
resignation. Likewise, when notice of termination is given by an employer, the
employer can benefit from the transition period corresponding to the notice
period to finalize certain projects on which the employee has been working,
while the employee can use it if necessary to get his or her finances in order
and find a new job.
[50]
In sum, it is my opinion that the notice of
termination serves the interests not only of the party who receives it, but
also of the party who gives it, and that this is true in circumstances that are
far from being as exceptional as the reasons of the majority of the Court of
Appeal suggest in this regard. Unlike the majority of the Court of Appeal, I
conclude that the notice of termination not only benefits its recipient, but in
fact benefits both parties to the contract of employment.
(3) Protection Afforded to the Employee by Article 2092 C.C.Q.
[51]
Article 2092 C.C.Q. prohibits the
renunciation of the employee’s right to an indemnity. It reads as follows:
2092. The employee may not renounce his right to obtain an indemnity for
any injury he suffers where insufficient notice of termination is given or
where the manner of resiliation is abusive.
[52]
Article 2092 C.C.Q. makes it impossible
for an employee to renounce redress for an injury flowing from, inter alia,
insufficient notice of termination. Put differently, art. 2092 C.C.Q.
precludes the employer from limiting his or her liability. It nullifies any
clause in a contract of employment by which the employee has renounced the
indemnity to which he or she would be entitled should the employer terminate
the contract unilaterally without sufficient notice.
[53]
This is a protective provision of public order,
and the employee — the party for whose benefit the provision was enacted —
cannot renounce the right in question until it has been acquired (Isidore
Garon ltée v. Tremblay, 2006 SCC 2, [2006] 1 S.C.R. 27, at para. 60; Garcia
Transport Ltée v. Royal Trust Co., [1992] 2 S.C.R. 499, at pp. 530-31).
[54]
Article 2092 C.C.Q. does not establish an
exception to the rule that a party who wishes to terminate a contract
unilaterally without giving a reason must in every case, as required by art. 2091
C.C.Q., give notice of termination to the other party. Indeed, art. 2092
C.C.Q. concerns not the notice of termination itself, but the employee’s
right to claim an indemnity if the notice is insufficient. The commentary of
the Minister of Justice on art. 2092 C.C.Q. is revealing: [translation] “The purpose of this
article is to confer a right on the employee. Like wages, the indemnity is
a vital element, and it is accordingly viewed as replacing an essential
element of the contract. It seemed reasonable to prohibit any renunciation
of the indemnity; this article is therefore of public order” (Ministère de
la Justice, Commentaires du ministre de la Justice, vol. II, Le Code civil du Québec — Un mouvement de société (1993),
at p. 1315 (emphasis added)).
[55]
In commenting on the scope of art. 2092 C.C.Q.,
F. Morin et al. stress that [translation]
“[t]his is an incapacity of protection . . . that applies solely to
the employee and ensures that the employee is entitled to a sufficient indemnity”
(Le droit de l’emploi au Québec, at para. II-37 (emphasis added)).
Article 2092 C.C.Q. thus relates not to a right to receive a notice of
termination, that is, to an actual period of work, but to its monetary
equivalent.
[56]
Furthermore, art. 2092 C.C.Q. confirms
the legitimacy of the practice according to which an employer gives an employee
an indemnity if the employer wants to terminate the employee’s contract
immediately, since it establishes the employee’s right to receive an indemnity
if he or she is not given sufficient notice.
[57]
Contrary to the view expressed by the majority
of the Court of Appeal, art. 2092 C.C.Q. concerns not a situation in
which an employee renounces the notice of termination, but, rather, one in
which the employee renounces the indemnity in lieu of such notice. The Court
of Appeal stated:
[translation] Paradoxically, however, the
fact that the legislature, in article 2092 C.C.Q., thus precludes the
employee from renouncing a notice of termination given in reasonable time
or the indemnity in lieu of such notice confirms that absent this
prohibition, such a renunciation is possible. And it is in fact because it
is possible that the legislature wanted to bar the employee from doing so.
Otherwise, it would not have been necessary to enact this provision.
Moreover, I note that the courts
have held that article 2092 C.C.Q. does not establish an absolute
prohibition: the employee can renounce the notice the employer who resiliates
the contract is required to give him or her, provided that this is done after
the termination of the contract and that certain requirements are met. This
being said, I do not see why the employer would be precluded from renouncing
the notice given by a resigning employee, and I would also find it odd to
preclude the employer from renouncing it in advance (by means, for example, of
a contract clause agreed on while negotiating the contract that would allow the
employee to resign without notice). [Emphasis added; emphasis in original
deleted; paras. 62-63.]
[58]
With respect, this a contrario reasoning
of the majority of the Court of Appeal cannot be accepted. The fact that the
legislature established a measure to protect employees by enacting art. 2092 C.C.Q.
merely shows that, without this article, it would be possible for the employee,
while negotiating the contract of employment for example, to release the
employer from the obligation to pay such an indemnity. This is a
possibility the legislature wished to preclude because of the employee’s
vulnerability in relation to the employer.
[59]
Given that art. 2092 C.C.Q. deals with
renunciation of the indemnity to which the employee is entitled in cases
in which the notice of termination is insufficient (or in which the manner of
resiliation is abusive), it is wrong to conclude that the absence of an
equivalent provision in the employer’s favour means that the employer may
“renounce” a notice of termination received from the employee. The
prohibition established in art. 2092 C.C.Q. does not imply — as the
majority of the Court of Appeal suggest — that otherwise the possibility of
renouncing the notice of termination of art. 2091 C.C.Q. is the
“default” rule.
[60]
With respect, I am of the opinion that the
majority of the Court of Appeal erred in their analysis of art. 2092 C.C.Q.
by confusing renunciation of the indemnity with renunciation of the notice of
termination. This article cannot in fact preclude an employee from renouncing
the notice of termination: specific performance cannot be required in the case
of an intuitu personae contract. It is the monetary equivalent — the
indemnity — that is at issue in art. 2092 C.C.Q.
(4) Notice of Termination or Agreement to Terminate the Contract
[61]
The distinction between circumstances such as
those in the instant case and circumstances in which an employee resigns
effective immediately but nonetheless offers to keep working for a certain time
should be accepted. This distinction seems to me to have legal consequences,
and contrary to the majority of the Court of Appeal, I find that it is more
than a [translation] “question of
semantics” (Court of Appeal’s reasons, at para. 73). Disregarding this
distinction removes some flexibility from the analysis with respect to the
termination of the employment relationship. Yes, the notice of termination is,
until the notice period (and the contract) expires, an obligation for both the
employer and the employee, but the two parties can very well agree, if they so
wish, to terminate the contract immediately and thereby avoid the obligation to
give notice of termination (see, e.g., Commission des normes du travail v.
Quesnel, [1999] J.Q. no 6966 (QL) (C.Q.)).
[62]
An employee who tells the employer that he or
she intends to resign effective immediately but who nonetheless offers to
remain for a certain time must be aware and accept that the employer could
renounce the right to notice of termination: if the employer does indeed want
the employee to leave immediately, there is a meeting of minds and notice of
termination is unnecessary, since a contract for an indeterminate term can be
terminated by agreement of the parties (art. 1439 C.C.Q.). In such a
case, art. 2092 C.C.Q., which precludes the employee from renouncing his
or her right to obtain an indemnity, does not apply, since the termination of
the employment does not then flow from a unilateral act by the employer. Nor
would the indemnity provided for in ss. 82 and 83 of the Act respecting
labour standards apply, since the termination of the contract would flow
from an agreement between the parties: the employer could not be found to have
terminated the contract.
[63]
Thus, there is an important legal distinction between
such a fact situation and the one at issue in the case at bar. I agree with
the majority of the Court of Appeal that employees do not always express
themselves perfectly clearly in announcing to their employer a decision — which
will often have been difficult to make — to quit a job. But that does not
eliminate the fundamental difference between the two situations.
(5) Practical Considerations
[64]
I wish to point out that the decision of the
majority of the Court of Appeal would have undesirable practical consequences.
Employees — who are already vulnerable — would in fact face losing wages simply
because they must comply with art. 2091 C.C.Q. if they want to terminate
their contract of employment for an indeterminate term. Furthermore, such an
outcome would be inconsistent with art. 2092 C.C.Q., which expressly
prohibits any advance renunciation by the employee of the indemnity for
insufficient notice of termination. If some employees were to refuse to place
themselves in a situation of vulnerability such as this, the decision of the
majority of the Court of Appeal would encourage them to quit their jobs
surreptitiously, without giving notice of termination to their employer.
[65]
This result is of course not to be desired, as
the majority of the Court of Appeal in fact wisely and properly acknowledged
before suggesting that the legislature take action. Legislative intervention
is not needed, however, as such an outcome can be avoided adequately by
interpreting the relevant provisions of the Civil Code and the Act
respecting labour standards harmoniously.
C. Application to the Facts of This Case
[66]
In this case, the circumstances of Mr. Guay’s
resignation were not ambiguous. When, on February 15, 2008, he gave his
employer a letter in which he announced that he would be resigning effective
March 7, 2008, Mr. Guay did not terminate his contract immediately: rather, he
was complying with art. 2091 C.C.Q. and announcing to his employer that
their contractual relationship would be terminated in the near future.
[67]
From February 15, 2008 to March 7, 2008, both
Mr. Guay and Asphalte Desjardins continued to be creditors and debtors of the
obligations flowing from the contract of employment for an indeterminate term,
which was to terminate on the latter date. When Asphalte Desjardins asked Mr. Guay
to leave on February 19, 2008, it stopped performing its obligations under the
contract of employment, namely those of allowing Mr. Guay to perform his work
and paying his remuneration (art. 2087 C.C.Q.). Mr. Guay, on the other hand,
was prepared to perform his work until March 7, 2008. In acting as it did,
Asphalte Desjardins terminated the contract unilaterally without giving
sufficient notice of termination, thereby defaulting on its obligation under
art. 2091 C.C.Q., and this had the effect of triggering the application
of ss. 82 and 83 of the Act respecting labour standards.
[68]
In this regard, it is irrelevant that Mr. Guay
had already obtained another job and that the new employer had agreed to have
him start working earlier in response to the decision of Asphalte Desjardins to
advance the date of termination of the contract. As a general rule, absent
fraud or conspiracy to injure, a third party — which is what Asphalte
Desjardins was in relation to the contract of employment between Mr. Guay and
his new employer — cannot take advantage of such a contract so as to be
released from his or her own obligations (Transforce inc. v. Baillargeon,
2012 QCCA 1495, [2012] R.J.Q. 1626, at para. 75).
[69]
On the basis of the minimum periods provided for
in the second paragraph of s. 82 of the Act respecting labour standards,
an employee who, like Mr. Guay, is credited with five to ten years of
uninterrupted service is entitled to four weeks’ notice if the employer
terminates the contract of employment. Mr. Guay himself had given three weeks’
notice, indicating clearly on February 15, 2008 that he would be quitting his
job on March 7, 2008. That is what the Commission claimed on his behalf — an
indemnity equivalent to three weeks’ notice of termination. Thus, he did not
claim the full indemnity provided for in ss. 82 and 83 of the Act respecting
labour standards.
[70]
Pelletier J.A. would have awarded an indemnity
equivalent to three weeks’ notice on the basis that the parties had reached a
meeting of the minds: as of March 7, 2008, the termination of the contract of
employment was no longer the result solely of a unilateral act of the employer,
but flowed from an agreement of the parties (para. 45). This approach,
although intuitively appealing, is problematic insofar as it attributes to the
employer an intention to terminate the contract effective March 7, 2008. It is
hard to accept this reasoning, given that Asphalte Desjardins clearly wanted
Mr. Guay to leave on February 19, 2008.
[71]
In my opinion, it is preferable to leave the
question whether the notice period provided for in s. 82 of the Act
respecting labour standards and the equivalent indemnity provided for in s.
83 are matters of directive or protective public order for another occasion.
The scope of the Commission’s action in this case is clearly defined, and this
question was not properly argued in the courts below, nor did the parties raise
it or make submissions with respect to it in this Court. I feel that it would
in the circumstances be best to refrain from speaking to it.
V.
Conclusion
[72]
For the foregoing reasons, I would allow the
appeal with costs. The Commission can claim on Mr. Guay’s behalf an indemnity
in lieu of notice of termination equivalent to three weeks’ salary, together
with the amount due in respect of annual leave, in accordance with the total
amount determined by the trial judge.
Appeal allowed
with costs.
Solicitors for the appellant: Rivest,
Tellier, Paradis, Montréal.
Solicitors for the respondent: Claude J.
Denis, Laval; Deveau, Bourgeois, Gagné, Hébert & associés, Gatineau.