Cogeco pays for third-party interference

Cable company refused to let former employee, hired by a contractor, work on its projects
By Brian Kreissl
|hrreporter.com|Last Updated: 06/24/2008

Employers can find all kinds of ways to land themselves in legal hot water. Firing an employee without cause. Unilaterally changing a worker’s duties with no notice or consideration. And turning a blind eye to harassment, to name a few.

Most employers are well aware of those pitfalls. But there are other, less-known areas of law that can put employers on the hot seat. Cogeco Cable found one of these ways when it refused to let Kevin Drouillard, a former Cogeco employee who had been hired by Mastec, a contractor it does business with, to work on its equipment. Drouillard sued Mastec for wrongful dismissal and also set his sights on Cogeco under the tort of wrongful inducement of breach of contract.

Somewhat surprisingly, inducing someone to breach a contract is an action founded on the law of tort, as opposed to the law of contract. A tort is a civil wrong resulting in losses arising out of the breach of a legal duty of care, which is not dependent on the existence of a valid contract between the parties in question.

Claims of wrongful inducement of a breach of contract can be brought against a third party to the employment relationship — someone other than the employee or employer themselves — as Cogeco found out.

According to the

Employment Law Manual

, published by Carswell, the tort of wrongful inducement of breach of contract would occur by inducing:

•an employee to resign from her position without providing reasonable notice to the employer;

•an employer to terminate an employee without reasonable notice; and

•an employee to breach fiduciary obligations, such as the duty not to divulge confidential information to a competitor.

The ruling by the Ontario Court of Appeal in

Drouillard v. Cogeco Cable Inc.

provides an interesting example of the second bullet point listed above. After Cogeco refused to let Drouillard work on its equipment, Mastec withdrew its offer of employment to him. Droullard had been hired to work in Windsor, Ont. After Cogeco refused to let him work on its projects, Mastec gave him the option of working in London, Ont., or Kitchener, Ont., but he turned this offer down.

Rumours spread about Drouillard in the Windsor area, and he was unable to find work in his field. That’s when he decided to launch his lawsuit. He settled the wrongful dismissal suit with Mastec out of court, but pursued the claim for tort of wrongful inducement of breach of contract against Cogeco in court.

The trial judge found Drouillard “was a competent and able technician, and there was no reasonable basis for Cogeco’s refusal to allow Mastec to assign Drouillard to Cogeco projects.”

Cogeco appealed the trial court’s decision. The Ontario Court of Appeal agreed with the trial judge, using a four-part test to determine:

•Drouillard had a valid and enforceable contract with Mastec;

•Cogeco was aware of the existence of this contract;

•Cogeco intended to and did procure the breach of the contract; and

•as a result of the breach, Drouillard suffered damages.

The Court of Appeal further held that Cogeco was not entitled to claim a defence of justification, owing to the fact “Coegeco had meddled with and violated Drouillard’s employment agreement with Mastec, had acted contrary to its corporate policy and its conduct was malicious and punitive.”

It awarded damages of $107,544.77 for Drouillard’s lost wages and damage to his career as a cable and fibre optic technician.

“These tort claims are becoming increasingly common in wrongful dismissal litigation,” said Michael Fitzgibbon, a lawyer with Borden Ladner Gervais in Toronto. “While the circumstances of this case are unique and, I’d argue, rare, the pattern of plaintiffs joining torts to wrongful dismissal litigation is not.”

For more information see:

Drouillard v. Cogeco Cable Inc.

, 2007 CarswellOnt 2624 (Ont. C.A.)

Brian Kreissl is the managing editor for Consult Carswell. He can be reached at (416) 609-5886 or brian.kreissl@thomsonreuters.com. For more information visit www.consultcarswell.com.

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