A (Small) Win for BlackBerry

A (Small) Win for BlackBerry

Greg Dobney
Posted April 8, 2014 Category: Businesses

While BlackBerry may continue its struggles in the smartphone market, it can put a small mark in the victory column after a disagreement with one of its departing executives about his resignation.

In early 2013, Sebastien Marineau-Mes was employed with BlackBerry as Senior Vice-President, Software.  He was promoted in the fall of 2013, becoming the Executive Vice-President, Platform Development.  At that time, he signed an employment agreement that included a term requiring him to provide BlackBerry with six months’ notice of resignation.  That fall, BlackBerry encountered difficult times and appointed a new CEO.  The new CEO spoke with Marineau-Mes regarding his future with BlackBerry and discussed with him that his new role may be narrower than originally thought.

Marineau-Mes had also been in discussions with competitor Apple Inc. in the fall of 2013.  In December, Apple offered Marineau-Mes a job as Vice-President Core OS.

Marineau-Mes submitted his written notice of resignation to BlackBerry on December 23, 2013.  The next day, he informed BlackBerry that he would likely be joining Apple in two months’ time.  BlackBerry took the position that Marineau-Mes was obligated to provide six months’ notice in accordance with his contract and brought a court application for a declaration that Marineau-Mes was bound by the employment contract and was required to give notice as set out in that contract.

Marineau-Mes attacked the contract on a number of fronts, arguing that it violated the Employment Standards Act, that he did not actually start in the role of Executive Vice-President, Platform Development, that the notice provision was equivalent to a “non-compete” restrictive covenant, and that he had “Good Reason” as defined by the contract to terminate without providing six months’ notice.

Justice McEwen of the Ontario Superior Court rejected each of Marineau-Mes’ arguments, declaring that he was bound by the contract and that the notice period ended June 23, 2014.  It is worth noting that BlackBerry only sought declarations regarding the contract and was not seeking and Order preventing Marineau-Mes from working for Apple nor was it seeking damages.

While it is common for an employee to bring an action for wrongful dismissal where his/her employer has failed to provide adequate notice, it is rare for an employer to bring an action for an employee’s failure to provide sufficient notice of resignation.  This is, at least in part, because these notice periods tend to be much shorter – their purpose is to allow the employer a reasonable time to find a replacement employee.  While it is relatively straightforward for an employee to prove his/her loss of wages because of inadequate notice, it is generally more complex for an employer to prove damages it may have suffered as a result of being provided with inadequate notice.

BlackBerry may have won the application but the question remains as to what the true consequences are to Marineau-Mes.  The parties both now know that the notice period in the contract is valid, but there is no order preventing Marineau-Mes from moving on to Apple before June 23, 2014.  If he does, BlackBerry could bring an action for breach of contract and would not need to prove that the contract is valid.  However, it would still need to prove that it suffered damages as a result of the breach.

To read the decision follow the link:  BlackBerry Limited v. Marineau-Mes, 2014 ONSC 1790

Greg Dobney
Posted April 8, 2014 Category: Businesses

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