NOTES
RESTRAINT OF INDIVIDUAL LIBERTY IN
CONTRACTS OF EMPLOYMENT
Abraham Slawner *
A contract of employment is essentially one in which the employee
undertakes to provide his labour for the benefit of the employer in
consideration for the payment of salary or wages. It gives rise to
a “lien de droit” which constrains the employee to the prestation
and in effect “l’obligation emporte une restriction aux droits de
l’individu”.1 In an attempt to protect their own interests, employers
often add to the contract conditions which further restrict the indi-
vidual liberty of the employee but which have no direct bearing on
the performance of his work. Since our democratic society values
and respects individual human rights, it is important to examine to
what degree it legally tolerates these restrictions on individual liberty
in contracts of employment.
If contractual limitations of individual liberty have any validity
it is because “aux yeux des r6dacteurs du Code civil, une telle atteinte
[aux droits d’individu] n’est tol6rable que si le d6biteur y a volon-
tairement consenti”. 2 The autonomy of the will is the underlying
principle of the law of contracts in the Civil Code which permits the
contracting parties to freely regulate their juridical relationships
in accordance with their mutual interests. The resulting contract,
or meeting of the wills, becomes the law unto the parties.3 Is the
worker then free to validly contract out of his personal fundamental
rights in an absolute manner?
Under the Civil Code of the Province of Quebec, an individual
who is of the age of majority cannot obtain judicial release from
the contractual obligations which he freely undertook on- the grounds
of lesion, nor will the courts intervene on the grounds of equity alone.
“Seul le respect de la morale et d’un ordre public strictement limit6
Of the Junior Board of Editors.
iH., L., & J. Mazeaud, Legons de droit civil, 2e 6d., 1962, t. 2, p. 25; no 28.
2Ibid.
3 Chaput v. Bonhomme, (1925) 38 B.R. 27, and Art. 1022 C.C.
McGILL LAW JOURNAL
[Vol. 13
restreindra la libert6 de contracter.’ ‘ 4 Thus, article 13 C.C. states
that, “No one can by private agreement, validly contravene the laws
of public order and good morals”.
Although a precise definition is impossible, most authors would
agree with Trudel that, “L’ordre public comprend toute chose qui
int6resse plus directement la soci6t6 que les individus”.5 Many rules
of public order are expressed in statutes and in the Civil Code, but,
Le lgislateur, ne pouvant prdvoir d’avance toutes les circonstances oh
devront 6tre prot6g6s les int6rcts fondamentaux de la nation, accorde aux
juges l’autoritd de s’appuyer, pour supplier aux lacunes de la loi, arrater
l’6goisme trop souvent injuste des individus, sur l’ordre public.. 6
In the absence of a specific prohibition it is left to the courts
to determine as a question of law, what is the content of the concept
of public order.7
In the field of contracts of employment the only express rule of
public order is article 1677 C.C.,8 which prohibits the hiring of a
worker for life. One must therefore look to the jurisprudence to
determine whether a particular cause in a contract of employment
is contrary to public order. There are many decided cases which
invoke the judicial notion 1 of public order to invalidate restrictive
clauses which come into effect at the termination of employment,
but few, if any, cases on clauses which have the effect of limiting
the employee’s freedom during the term of the contract. In a recent
case before the Superior court Whitfield v. Canadian Marconi Co.,”0
Mr. Justice Nadeau was faced with the question of the validity of
this type of clause.
The parties had entered into a one year contract under which
the plaintiff was engaged as an electrician to assist with the mainte-
nance of a power plant on a military DEW line base in Northern
Quebec. One of the clauses in the contract stipulated that employees
on the base were prohibited from fraternizing with the native Indian
4 Mazeaud, Supra, footnote 1.
5 G. Trudel, Traiti du droit civil du Quibec, Montrdal, 1942, t. 1, p. 87.
(A. Perrault, Ordre public et bonne moeurs, (1949) 9 R. du B. 1, at p. 16.
7Ibid., p. 4; Hibert v. Sauv6, (1932) 38 R.L. n.s. ‘410 (S.C.), at p. 418.
s The -Civil Code contains only five articles relating to contracts of employment,
since under the old French law they were regulated by craftsmen’s associations.
See, G. Charlap, The Contract of Employment, in Journ6es de drolt civil frangais,
(1934), Livres souvenir, 1936, p. 417.
9 See, L. Baudouin, Le Droit civil de la Province de Qugbec, Montr6al, 1953,
p. 1272, where public order is described as <... une notion judiciaire, d6gag6e
par les magistrats et non l'oeuvre proprement dite du seul pouvoir l6gislatif s.
10 An unreported judgment of the Superior Court, (Montreal, 561, 864),
Nov. 19, 1965.
No. 3]
NOTES
or Eskimo populations living in settlements near the base, and that
any violation would constitute grounds for dismissal. The Plaintiff
happened to befriend a young Eskimo Woman and after refusing
to end the relationship he was dismissed before the termination of
the contract. He therefore instituted an action for breach of contract
on the grounds that the fraternization clause was illegal and null,
making his dismissal illegal as well.
Mr. Justice Nadeau dismissed the action on the following grounds.
In the first place, the plaintiff had freely consented to all the terms
and conditions of the contract. This was, therefore, the law between
the parties. Secondly, the condition in question was not against public
order or good morals. This second ground was based on a decision
of the Cour d'appel de Paris in Epoux Barbier v. Cie Air France.1
The question in that case was the validity of a condition which
prohibited air hostesses from marrying while under contract with
the airline. The court held that it was a celibacy clause and was
therefore contrary to public order because
... le droit au mariage est un droit individuel d'ordre public qui ne peut
se limiter ni s'ali6ner... et qu'a moins de raisons impdrieuses 6videntes,
une clause de non-convol doit 6tre d~clar~e nulle comme attentatoire i un
droit fondamental de la personnalit6... 11
Mr. Justice Nadeau used the same line of reasoning to reach the
opposite conclusion on the facts. He decided that the condition pro-
hibiting fraternization was not a celibacy clause and furthermore,
even if did amount to such a clause, there were "des raisons imp6-
rieuses 6videntes" to justify it
(protection of the natives due to
their different social and moral habits and their low resistance to
contageous diseases carried by white men, and the strict discipline
required on a military base).
The final decision as to the validity of the fraternization clause
may have been correct, but the method of reaching that conclusion
is, it is submitted with respect, questionable. The test for questions
of public order of "des raisons imp6rieuses 6videntes" was formu-
lated by a French court and may not necessarily be valid in Quebec.
When faced with a question of public order, the court is supposedly
making a decision in the interest of society, that is, the society in
which it operates. It follows, therefore, that reference to foreign
decisions as authority is not warranted 12 except, perhaps, where
the interests of the two societies on a particular issue are almost
1 D. 1963, 428.
12 Perrault, Supra, footnote 6, p. 1.
524
McGILL :LAW JOURNAL
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identical. 3 Certainly, when an established line of jurisprudence
already exists and when it would lead to a different solution of
the question decided by the foreign court, the latter's decision can-
not be used as authority. Although the notion of public order is not
static and is constantly changing, the judgment of Mr. Justice Nadeau,
it is respectfully submitted, was not rendered in recognition of such
change but merely introduced a foreign test of public order and
ignored the criteria already established by Quebec jurisprudence.
Inalienable individual freedoms form an important part of the
notion of public order and therefore even a partial restraint on
individual liberty would be null as a general rule. The freedom to
work is as fundamental a right as the freedom to marry and yet
the courts have recognized the validity of contractual restraints of
the right to work under certain conditions despite their policy
to protect the individual's freedom of action and his right to
"...
earn a livelihood" 4
The restriction on the freedom to work usually takes the form
of a prohibition on the employee from competing directly or in-
directly with his employer after the termination of the contract. To
determine the validity of these prohibitive clauses the courts have
formulated what may be called the "doctrine of reasonableness". The
restriction must be reasonable as regards the interests of the parties
and those of the public, otherwise it will be contrary to public
order. 5
The locus classicus for the development of the "doctrine of
reasonableness" is the decision of Mr. Justice Salvas in Dominion
Blank Book Co. v. Harvey.16 The basic premise is that although "]a
libert6 pour l'individu de travailler ou d'exercer son art ou sa pro-
fession est de droit naturel et d'ordre public",' 7 the employer is
nevertheless entitled to protection of his special interests, for ex-
13 C.A. Sheppard, The Enforcement of Restrictive Covenants in Quebec Law,
(1963) 23 R. du B. 311, at p. 314,
Obviously, foreign doctrine or precedents can only have a limited relevance
in this area of our law. They can be used for illustration or for enunciation
of general principles accepted by our courts. They are certainly not binding
and their persuasiveness
is restricted. Hence, the importance of Quebec
jursprudence.
'14 Sheppard, Supra, footnote 13, p. 316.
15 Nordenfeldt v. Maxim Nordenfeldt Gun Co., (1894) A.C. 535, at p. 565 as
cited in Grossman v. Schwartz et Kafka, (1943) B.R. 145, at p. 150.
16 (1941) 79 C.S. 274.
'7 Ibid., p. 275.
No. 3]
NOTES
ample, his clientele or trade secrets.' 8 The freedom to compete is a
rule of public order and "un droit l6gitime",19 but the courts re-
cognize the right of the employer to protect himself from the possible
unfair competition of his former employee who has the advantage
of knowing confidential information regarding his former employer's
business. 20
To be reasonable, the restriction must be "... de moindre 4tendue
et Rtablie dans une mesure strictement n6cessaire" 21 for the adequate
protection of the employer's legitimate rights. For example, to pro-
tect his clientele, the employer may prohibit his salesman from
making any contact with that clientele for a reasonable period of
time necessary to permit him "de se trouver un nouveau vendeur,
de le mettre en contact avec la clientele que desservait le d6fendeur,
de fagon A retenir et garder cette clientele selon les lois de la libre
concurrence" .22 Hence, the restriction must operate within clearly
defined limits as to time and place. The Court of Appeal in Gross-
ran V. Schwartz, approved these criteria and added that the nature
or scope of the prohibited acts must also be described in definite
terms.2
It must be pointed out that the restriction on the right to work
may be reasonable yet not be valid because it is contrary to another
rule of public order. In the case of T. v. B.,2 4 which involved a medical
doctor, the court held that even if the restriction were reasonable in
every respect, it -would still be invalid because it limits the right of
the public to choose a doctor in whom they have confidence. In Cam-
peau V. Terrault,251 a one year restriction on a newspaper advertising
salesmen was held to be invalid since the employer could effectively
get rid of all competition by successively hiring and firing the few
qualified salesmen in the area. The five year restriction imposed in
18 See Ibid., p. 275 and Mutual Life & Citizens Assurance Co. Ltd. v. Picotte,
(1936) 61 B.R. 390 in relation to clientele. In regard to trade secrets, see,
Grynwald v. Playfair Knitting Mills Inc., (1959) C.S. 200.
19 Chabot V. McGregor, (1921) 27 R.L. 31 (C.S.), at p. 33.
20A. Perrault, Libertd du commerce et travail, art. 1S, 989,990, 1667, C.C.,
(1943) 3 R. du B. 279, at p. 280. This is a case comment on Grossman v. Schwartz,
cited Supra, footnote 15.
2 1 Dominion Blank Book Co. v. Harvey, Supra, footnote 16, p. 275.
22 Ibid., Mount Royal Dairies Ltd. v. Russman, (1934) 72 C.S. 211.
23 Grossman v. Schwartz, Supra, footnote 15; Perrault v. La Laiterie des
Producteurs de Joliette Ltie, (1959) C.S. 45.
24 (1958) C.S. 587; See a case comment by J.G. Cardinal. Clause restrictive
quant & l'exercice futur dune profession dans un con trat; d'engagement, (1958-59)
61 R. du N. 330.
25 (1959) C.S. 449.
McGILL LAW JOURNAL
[Vol. 13
Dominion Blank Book Co. v. Harvey26 on a forty-seven year old man
amounted to a perpetual alienation of the right to work and was
invalid as a violation of article 1667 C.C.
Quebec jurisprudence makes a distinction between the alienation
of a right and the reasonable, temporary limitation thereof. If the
restraint on the individual's liberty is reasonable, that is;
1) operates within clearly defined limits, 27
2) protects a legitimate interest of one of the parties, 28
3) does not violate an express rule of public order,2
4) does not adversely affect the public interest,30
it will not be declared invalid as contrary public order. An employee
could then be validly bound to a condition which prohibits marriage
for a limited term "...
si elle n'a pas pour effet d'imposer un c6libat
perp6tuel". 3
If one would apply the above criteria to the restrictive clause in
the case of Epoux Barbier V. Cie France32 the result would be dif-
ferent. The restriction was not perpetual and the employer had a
legitimate interest to protect. The efficiency of its operation would
be detrimentally affected if it employed married women due to the
likelihood of their becoming pregnant. Therefore, this case cannot
be invoked as authority in Quebec. Hence, in Whitfield v. Canadian
Marconi Co.,33 the non-fraternization clause effectively limited the
plaintiff's right to marry, but it would not be contrary to public
order according to the "doctrine of reasonableness". The contract
and the clause were limited to a one year term and the employer was
protecting a legitimate interest (the health, and welfare of the
native population and the strict discipline required on a military
base).
The general rule is that parties to a contract are free to regulate
to their mutual interests.
their juridical relationship according
Messrs. Mazeaud speak of "un ordre public strictement limit6",3 4
a view which is justified by the fact that the notion of public order is
2 6 Supra, footnote 16.
27 Grossman v. Schwartz, Supra, footnote 15.
2 8 C aron-Jetti Ltde V. Drapeau, (1943) B.R. 494.
29 Dominion Blank Book Co. v. Harvey, Supra, footnote 16.
30 T. v. B., Supra, footnote 24.
31 L. Faribault, Traitg de droit civil de Qudbee, Montr6al 1959, t. 8, p. 26, no 30.
32 Supra, footnote 11.
33 Supra, footnote 10.
34 Supra, footnote 1.
No. 3]
NOTES
an exception to a general rule. This fortifies the argument against
the use of the test of "des raisons imp6rieuses 6videntes" since it
is much wider than the already established test of "reasonableness". 5
Of course, the notion of public order is not a static one,3 6 but some
sense of predictability is possible. The established jurisprudence
should, therefore, be followed to the extent that it conforms to the
present needs of the society.
35 The court in Epoux Barbier V. Cie France stated that a celibacy clause
would be valid in the case of military service.
36 Sheppard, Supra, footnote 13, p. 313;
... public order is essentially a social concept, peculiar to each society,
and in that sense, unique and mobile.
