The Court of Appeal accepted Mr. Lemieux`s appeal on the founding grounds of Justice Lévesque and Bouchard J.A. and set aside the Superior Court`s judgment. The appelnce judges found that proof of non-compliance with a contractual obligation was not, in itself, sufficient to support a claim for damages and that a particular injury (damage directly related to non-performance) also had to be proven. The trial judge therefore erred in compensating Aon on that basis. Simply invoking Mr. Lemieux`s lack of loyalty and the application of the resignation clause was not enough; some kind of damage should have resulted from these facts. Since the evidence did not show that Mr. Lemieux breached his duty of non-claim, the overall replacement action against Mr. Lemieux and Mr.
Renaud was unjustified. Non-compete and non-solicitation agreements are back on the news in Indiana. On December 18, 2019, the Indiana Supreme Court gave its strongly shared 3-2 opinion in American Consulting, Inc. v. Hannum Wagle – Cline Engineering, Inc. et al. 136 N.E.3d 208 (Ind. 2019) and reviewed the liquidated claims provisions found in the competition and non-tender contracts signed by three employees of American Consulting Inc. (“ASI”) prior to their departure for competitor Hannum Wagle-Cline (HWC). The Court found that the damages provisions in these particular agreements and in those circumstances were “unenforceable sanctions,” as specified by these specific agreements and in those circumstances.
The Horizon decision sounds like a reference to caution for employers (and for that matter workers) who seek damages for the loss of income due to an infringement. All future income forecasts contain assumptions, but it is important for parties trying to recover future profits to give juries and judges some concrete evidence on which these assumptions are based. Although Horizon called on an expert to report on its lost future benefits, the expert`s advice was based on evidence from Horizon. As soon as the court found that this basis was wobbly, the power of the expert`s statements – and Horizon`s case for the shortfall – was crumbling. During the conclusion of the proposed termination, the new entity was informed that each employee was subject to non-invitation restrictions as part of its employment contracts.