ARCHIVE: http://littletobacco.blogspot.com/2004/12/ ARCHIVE: http://littletobacco.blogspot.com/2005/01/ ARCHIVE: http://littletobacco.blogspot.com/2005/02/ ARCHIVE: http://littletobacco.blogspot.com/2005/03/ ARCHIVE: http://littletobacco.blogspot.com/2005/04/ ARCHIVE: http://littletobacco.blogspot.com/2005/05/ ARCHIVE: http://littletobacco.blogspot.com/2005/06/ ARCHIVE: http://littletobacco.blogspot.com/2005/07/ ARCHIVE: http://littletobacco.blogspot.com/2005/08/ ARCHIVE: http://littletobacco.blogspot.com/2005/09/ ARCHIVE: http://littletobacco.blogspot.com/2005/10/ ARCHIVE: http://littletobacco.blogspot.com/2005/11/ ARCHIVE: http://littletobacco.blogspot.com/2005/12/ ARCHIVE: http://littletobacco.blogspot.com/2006/01/ ARCHIVE: http://littletobacco.blogspot.com/2006/02/ ARCHIVE: http://littletobacco.blogspot.com/2006/03/ ARCHIVE: http://littletobacco.blogspot.com/2006/04/ ARCHIVE: http://littletobacco.blogspot.com/2006/09/ ARCHIVE: http://littletobacco.blogspot.com/2006/10/ AUTHOR: Little Tobacco DATE: 9/30/2005 10:12:00 a.m. TITLE: Plant Protection - Simple is Smart ----- BODY:

Check out Quick Wrap Burlap.... this stuff really works

-------- AUTHOR: Little Tobacco DATE: 9/30/2005 06:49:00 a.m. TITLE: First they came for the tobacco comapnies ----- BODY:

First they came for the tobacco companies and I did not care for, while I was a smoker, the evil tobacco companies made me do it.

The problem with this decision is the door it opens. From now on when the government needs cash, they can sue any company that makes any product that they feel has contributed to the health care costs of this country. Watch out Big Chocolate!

The Supreme Court of Canada is so weak right now. Paging Justice Dickson ... your guidance is needed .... LaForest J., we miss you so .... Bertha Wilson has won.

-------- AUTHOR: Little Tobacco DATE: 9/26/2005 12:37:00 p.m. TITLE: The Non-Compete in employment law ----- BODY:

When will the employers of this world learn that the non-competition clause that they include in employment contracts have to be reasonable so not as to not be void as against public policy as a restraint of trade.

I just finished looking at a non-compete for a relative. The industry is investor relations for mining companies. The non-compete says no working in the industry for a year anywhere in North America. While a company is allowed to protect its client base, this certainly does not mean that the employer can restrain an individual from making a living within their area of competence. The non-compete must be

The employer in this case practically admits that the geographic area and the duration of the clause may be unreasonable. They put in a second clause that has the employee agree that the geographic area and the duration is reasonable. Not that the employer sent the employee out to get independent legal advice to advise what reasonable means in the particular circumstances. No lawyer would agree that clause was reasonable.

The seminal case comes from late 19th century England where in Nordenfelt v. Maxim Nordenfelt Guns & Ammunition Co., [1894] A.C. 535 at 552 (H.L.), where it was held

the general policy of the law is opposed to restraints of trade that cause harm to the public interest,
although the freedom of individuals to contract must be respected.

The public has an interest not only in having people working, but also in the expansion of the market place and increased competition. A non-compete cannot therefore be an unreasonable restraint on trade. A clause that bans the employee from the market must be as narrow as is possible to protect the proprietary interests of the employer.

Canadian legal principles are set out by the Supreme Court of Canada in Elsley v. J.G. Collins Ins. Agencies, [1978] 2 S.C.R. 916:

a non-compete will be enforceable only if it is reasonable between the parties and with regard to the public interest;
"reasonableness" must be considered in the context of the non-compete clause, the entire employment contract, and all of the surrounding circumstances;
a non-compete clause will be construed more strictly against the employer than a restrictive covenant in a contract for the sale of a business against the seller.
an employer seeking to rely on a non-compete must prove that it has a proprietary interest entitled to protection and that the geographic restrictions and the duration are no wider than what is reasonable to provide adequate protection to said proprietary interest.
once the employer has shown that the covenant meets these criteria, the onus shifts to the employee to prove that the non-compete is contrary to the public interest.

You can add to this that independent legal advice is should be recommended to the employee and the employer may want to pick up the tab for such advice.

The danger in making a non-compete unreasonable is that it may well lose its validity in total. Where a reasonable clause will protect the client base and trade secrets, the step into the unreasonable may put the client base in legitimate play for the former employee.

-------- AUTHOR: Little Tobacco DATE: 9/16/2005 03:54:00 p.m. TITLE: Terry Fox & the CBC ----- BODY:

Picketing the Terry Fox Run is one thing, breaking out a cancer victim to put forward a point in union negotiations is another. In St. John's the media guild broke out a cancer survivor who informed the viewing public that she had cancer and will probably see it again, and when she does her friends will have to hold a fund raiser for her to pay the bills (I bet she is a strong supporter of the Canada Health Act). Why? Because she is a contract employee of the CBC and they will not hire her full time. Even worse, Canadians from coast to coast get the "benefit" of her "work and creativity" yet when she gets sick she will have to rely on her friends instead of the Crown Corp insurer.

I feel for her that she is a cancer victim. And it is too bad that she did not buy her own disability insurance before she got sick, but from what I can gather, her friends acted like friends. However, the argument that we Canadians are the beneficiary of her work and creativity holds no water. One can only assume that her work is valueless or she would not need the state to pay for it. We receive no benefit otherwise we would be purchasing it.

There is a famous trusts case Re: Pinion in which an eccentric old man who collected "art" and painted himself left his house, his collection and his own paintings as a gallery for the people of his home town. He allocated a portion of his estate as a charitable trust for the maintainence of the said gallery. It turns out that one requirement for a charitable trust is the existence of a public benefit. The collection of "art" was worthless. The trust was struck down for lack of a public benefit.

The old man thought that he was quite the painter. He thought that he was creative. He was not. His collection was without worth. The lesson, just because you create something, it does not make it worth anything, nor does it make you creative in the sense our CBC non-employee meant, or, more specifically to the case at hand, a benefit to Canadians.

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