From C&L
- Garry J. Wise, Toronto
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EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE
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"May I have a hint, please, Charlie:"
UPDATE - Sptember 13, 2008:
An Andrew Sullivan reader nails it:
A reader writes:
After watching that interview, can anyone honestly say that they think that Sarah Palin, the person who would take over the country in the event something happens to McCain, has more knowledge of policy than Charlie Gibson, the person giving the interview?
And isn't it supposed to be the other way around?
...Okay, isn't it at least supposed to be close??
- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net
EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE
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More on the nomination from this Government of Canada press release: “Thomas Cromwell’s candidacy was highly recommended by judges, lawyers and other Atlantic Canadians,” said Prime Minister Harper. “He is well qualified to serve on the country’s highest court.” Mr. Justice Cromwell is an eminently qualified jurist.. In 1997 the government of former Prime Minister Jean Chrétien appointed him directly to the Nova Scotia Court of Appeal. Cromwell is expected to appear before a parliamentary committee that will interview the nominee before the government appoints him. Cromwell, 56, from Kingston, Ont., initially studied music but got his law degree in Ontario in 1976. He practised and taught law, including two stints at the Dalhousie Law School in Halifax. He was the executive legal officer in the chambers of the Supreme Court's chief justice for three years. He first became a Nova Scotia appeals judge in 1997.
Prime Minister Stephen Harper today announced his nomination of the Honourable Mr. Justice Thomas A. Cromwell of the Nova Scotia Court of Appeal to fill the existing judicial vacancy at the Supreme Court of Canada.CBC also provides its coverage here, and adds the following background:- Garry J. Wise, Toronto
Many thanks to Sandra Bekhor and Sarah Halliday for their guidance and direction in this project.
- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net
EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE
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[33] There is no dispute about the legal principles that apply when determining whether a restrictive covenant in an employment contract is enforceable, as those principles have long been settled. Several decades ago in Elsley, the seminal Canadian case on this matter, Dickson J. described the principles as “well-established”.[2] He stated the test in plain terms: such a covenant is enforceable “only if it is reasonable between the parties and with reference to the public interest”.[3]
[34] This test reflects the competing principles that must be balanced when a court is called on to decide the validity of such a covenant. On the one hand, there is the “important public interest in discouraging restraints on trade, and maintaining free and open competition unencumbered by the fetters of restrictive covenants”.[4] Open competition benefits both society and the affected employees. Society benefits from having greater choice and employees benefit as they have greater employment opportunities. On the other hand, however, “the courts have been disinclined to restrict the right to contract, particularly when that right has been exercised by knowledgeable persons of equal bargaining power”.[5]
[35] While an overly broad restraint on an individual’s freedom to compete will generally be unenforceable, the courts must recognize and afford “reasonable protection to trade secrets, confidential information, and trade connections of the employer.”[6] In the present case, there is no suggestion that trade secrets or confidential information is involved. It is Staebler’s “trade connections” that warrant protection.
[36] Reasonableness is the mechanism by which a court decides whether a covenant is “overly broad” or is only that which is reasonably required for the employer’s protection. But how is a court to determine whether any given restrictive covenant is “reasonable”? Elsley offers a framework for making such a determination. The starting point is “an overall assessment of the clause, the agreement within which it is found, and all of the surrounding circumstances”.[7] Thereafter, three factors must be considered. First, did the employer have a proprietary interest entitled to protection? Second, are the temporal or spatial features of the covenant too broad? And, third, is the covenant unenforceable as being against competition generally, and not limited to proscribing solicitation of clients of the former employer?[8]
...[54] My view that Staebler has not discharged the burden of establishing that the Restrictive Covenant was reasonable[11] as between the parties is reinforced on a consideration of the third factor.
[55] A non-solicitation clause is sufficient in conventional employer/employee situations.[12] The Employees were two of ten commercial insurance salespeople that worked for Staebler. They did not play an exceptional role in the Staebler business – they were ordinary salespeople. They were not managers, directors or key employees. They did not stand in a fiduciary relationship with Staebler.
[56] Although the Employees had close personal relationships with their clients, that is the industry norm. Those relationships were not exclusive; other Staebler employees served the clients in various capacities. This is an important difference between the role that the Employees played at Staebler and that of Mr. Elsley who “was the business”.[13] Another significant difference between the present case and Elsley is that the Employees had no special knowledge of or influence over the Staebler business whereas Mr. Elsley “had control of [the employer’s] trade connections”.[14] Furthermore, and again in contradistinction to Elsley, there was an imbalance of bargaining power between the Employees and Staebler when the employment contracts were negotiated whereas Mr. Elsley bargained as an equal when selling his business and then carried on as its general manager.
[57] The 50 mile radius clause which Staebler had with five of its other commercial salespeople is significant. Under its terms, those employees could solicit their clients and customers and conduct business with Staebler clients so long as they did so outside of a 50 mile radius of the Waterloo region. No explanation was given to justify this differential treatment among Staebler’s commercial insurance salespeople which leads me to conclude that Staebler itself viewed the 50 mile radius clause as sufficient protection of its interest. Clearly, the terms of the Restrictive Covenant are far more restrictive than are those of the 50 mile radius clause.[15]
[58] Other provincial appellate courts have affirmed that suitably restricted non-solicitation clauses are likely to be found to be reasonable for “ordinary” salespeople in the insurance brokerage industry whereas non-competition clauses are not. See, for example, Valley First Financial Services Ltd. v. Trach, [2004] B.C.J. No. 1127 (C.A.).
[59] It follows from my determination that the Restrictive Covenant is not enforceable that Stevenson & Hunt are not liable for inducing a breach of contract.
- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net
EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE
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TABLE OF CONTENTS
EXECUTIVE SUMMARY
INTRODUCTION
1 BACKGROUND — THE CURRENT LAW OF SPOUSAL SUPPORT
1.1 The Legislative Framework
1.2 Judicial Interpretation
1.3 The Problem of Spousal Support and the Need for Guidelines
1.4 Why Guidelines Now?2 THE GUIDELINES PROJECT
2.1 The Nature of the Guidelines: Informal and Advisory
2.2 The Challenges of the Project
2.2.1 Theory and practice
2.2.2 Reflecting current practice, changing current practice
2.2.3 National guidelines and local spousal support cultures
2.3 The Development of the Guidelines and the Release of the Draft Proposal
2.4 The Second Stage of the Process: Information, Feedback and Revision
2.5 The Response to the Advisory Guidelines
2.5.1 Widespread use of the Advisory Guidelines
2.5.2 Criticisms of the Guidelines
2.5.3 The Advisory Guidelines in the courts
2.5.4 Results of the feedback: "the ranges are about right"
2.5.5 Unsophisticated use3 AN OVERVIEW OF THE ADVISORY GUIDELINES
3.1 Income Sharing
3.2 Preliminary Issues — The Applicability of the Advisory Guidelines
3.2.1 Form and force
3.2.2 Entitlement
3.2.3 Application to provincial/territorial law
3.2.4 Application to agreements
3.2.5 Interim orders
3.2.6 Review and variation
3.3 The Formulas
3.3.1 Two basic formulas
3.3.2 Determining income
3.3.3 the without child support formula
3.3.4 The with child support formula
3.3.5 Length of marriage
3.3.6 Ranges
3.3.7 Ceilings and floors
3.4 After the Formulas Have Been Applied
3.4.1 Using the ranges
3.4.2 Restructuring
3.4.3 Exceptions4 ENTITLEMENT
4.1 Entitlement as a Threshold Issue: The "No Entitlement" Cases
4.2 Entitlement at Other Stages of the Guidelines Analysis
4.3 Entitlement Issues on Review and Variation5 APPLICATION
5.1 Application to provincial/territorial law
5.2 Application to agreements
5.3 Interim orders
5.4 Review and Variation6 INCOME
6.1 The Starting Point for Income Determination
6.2 Social Assistance Is Not "Income"
6.3 The Child Tax Benefit and Other Child Benefits
6.4 The Universal Child Care Benefit (UCCB)
6.5 Benefits for Children Other Than Children of the Marriage
6.6 Non-Taxable Incomes
6.7 Time for Determining Income7 The without child support formula
7.1 The Basic Structure of the without child support formula
7.2 Merger over Time and Existing Theories of Spousal Support
7.3 Determining the Length of the Relationship
7.4 The Formula for Amount
7.4.1 The equalization of net income cap
7.4.2 The problem of amount in short marriages
7.5 The Formula for Duration
7.5.1 The tendency to ignore duration
7.5.2 The meaning of "indefinite" support
7.5.3 The "rule of 65": the age factor and indefinite support
7.5.4 Time limits in short marriages
7.5.5 Lowering the threshold for indefinite support?
7.5.6 The problem of time limits in medium length marriages
7.6 Making the Formula Concrete — Some Examples
7.6.1 A short-marriage example
7.6.2 Some medium-length marriage examples
7.6.3 Some long-marriage examples
7.7 After the Formula8 THE with child support formula
8.1 The Compensatory Rationale for Spousal Support
8.2 Background to the Basic Formula
8.3 The Basic Formula
8.3.1 Calculating individual net disposable income
8.3.2 The Basic Formula: Dividing Individual Net Disposable Income
8.4 Amounts of Spousal Support: Examples of the Basic Formula
8.5 Duration under the Basic Formula
8.5.1 The creation of a range for duration in the basic formula
8.5.2 The length-of-marriage test for duration
8.5.3 The age-of-children test for duration
8.5.4 The use of the two tests for duration: whichever is longer
8.5.5 The problem of short marriages with young children
8.6 Shared Custody
8.6.1 Adjusting for rotating child benefits
8.6.2 Adjusting the ranges for child support that departs from the set-off
8.6.3 Adjusting the limits of the range
8.7 Split custody
8.8 Step-Children
8.9 A Hybrid Formula for Spousal Support Paid by the Custodial Parent (The Custodial Payor Formula)
8.10 A Hybrid Formula for Adult Children and Section 3(2)(b)
8.11 Crossover to the with child support formula9 USING THE RANGES
9.1 Strength of Any Compensatory Claim
9.2 Recipient’s Needs
9.3 Age, Number, Needs and Standard of Living of Children
9.4 Needs and Ability to Pay of Payor
9.5 Work Incentives for Payor
9.6 Property Division and Debts
9.7 Self-Sufficiency Incentives10 RESTRUCTURING
10.1 The General Concept: Trading Off Amount Against Duration
10.2 How Does Restructuring Work? Some Examples
10.2.1 Example 1: restructuring by front-end loading
10.2.2 Example 2: restructuring by extending duration and reducing amount
10.3 When Should You Think About Restructuring?
10.3.1 Restructuring under the without child support formula
10.3.2 Restructuring under the with child support formula
10.3.3 Restructuring under the custodial payor formula11 CEILINGS AND FLOORS
11.1 The Ceiling
11.2 The Floor
11.3 Payor Income Above the $350,000 Ceiling
11.4 Payor Income Below $20,000/$30,00012 EXCEPTIONS
12.1 Compelling Financial Circumstances in the Interim Period
12.2 Debt Payment
12.3 Prior Support Obligations
12.3.1 Prior support under the without child support formula
12.3.2 Prior support under the with child support formula
12.3.3 Prior children in the spouse’s care
12.4 Illness and disability
12.5 The compensatory exception in short marriages without children
12.6 Property Division, Reapportionment of Property
12.6.1 Reapportionment of property (British Columbia)
12.6.2 An exception for high property awards?
12.6.3 Boston v. Boston
12.7 Basic Needs/Hardship: Without Child Support, Custodial Payor Formulas
12.8 Non-Taxable Payor Income
12.9 Non-Primary Parent to Fulfil Parenting Role under the Custodial Payor Formula
12.10 Special Needs of Child
12.11 Section 15.3: Small Amounts, Inadequate Compensation under the With Child Support Formula13 SELF-SUFFICIENCY
13.1 Entitlement
13.2 Imputing Income
13.3 Using the Ranges
13.4 Restructuring
13.5 Time Limits: the without child support formula
13.6 Time Limits: The with child support formula
13.7 Review Orders
13.8 Indefinite Support Is Not Permanent Support
13.9 Real Incentives for Self-Sufficiency14 VARIATION, REVIEW, REMARRIAGE, SECOND FAMILIES
14.1 Material Changes, Reviews and Issues of Continuing Entitlement
14.2 Applications to Reduce Spousal Support Because of Changes in Income
14.3 The Payor’s Post-Separation Income Increase
14.4 The Recipient’s Reduced Income After Separation
14.5 Crossover Between the Two Formulas
14.6 The Payor’s Remarriage or Re-partnering
14.7 The Recipient’s Remarriage or Re-partnering
14.8 Second Families15 THE ADVISORY GUIDELINES IN QUEBEC
15.1 The Definition of Income
15.2 Length of Marriage Under the without child support formula
15.3 Child Support and the with child support formula
15.4 The Current State of the Advisory Guidelines in Quebec16 CONCLUSION
What Canada's bloggers are saying about Vice Presidential candidate Sarah Palin's introductory performance yesterday at the Republican Party's national convention:
The right wing claptrap she dished for the benefit of the Republican base is what America should be trying to deliver itself from, not embrace. The ideology inherent in Palin's line of thinking will make America more, rather than less unilateral in its approach. In some respects she out-Bushes Bush.
Obama is calling for healing and reconciliation. Palin seems determined to reignite the culture wars that pit small town America against urban America. Her rhetorical knifework aimed at Obama was delivered without an angry edge - but when you read the text there is no mistaking that this was a nasty speech.
Kevin Brennen at Peace Order and Good Government adds:
The one thing this made clear, if there was any doubt, is that the Republicans have nothing left but attempts to co-opt Obama's message combined with culture war. The next 60 days are going to get very nasty indeed. In the end, I don't think it will be enough. They've already conceded the need for change. Attacks on Obama do nothing to convince people they can deliver it.
- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net
EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE
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