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We are a non profit swim club. We have a contract with our…

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We are a non profit...
We are a non profit swim club. We have a contract with our head coach from 2008 to 2016. We are disatisfied with his performance as he has not performed many of the duties as outlined in his contract. As well we have come to learn that he is seeking employment elsewhere and has interviewed with another swim club. Is he in breach of the contract because he is seeking other employment? Can we terminate the contract because he isn't performing as outlined? If we terminate what can we expect the head coach to do legally and what would be the exposure to our club.
Submitted: 8 years ago.Category: Canada Law
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Answered in 1 hour by:
6/24/2010
Lawyer: Yossarian (user name), Lawyer replied 8 years ago
Yossarian (user name)
Category: Canada Law
Satisfied Customers: 957
Experience: Lawyer
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I understand that the swim club is in Hamilton, Ontario, is this correct?

 

Is there a non-competition clause in the contract and what are its restrictions?

When was the employment contract drafted by a lawyer?

 

Has the club communicated its performance concerns (other than interviewing with other clubs) to the coach?

 

Is the club incorporated ?

 

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Customer reply replied 8 years ago
<p>Club is in Hamilton Ontario, He has interviewed in Oakville, Ontario.</p><p> </p><p>The non complete clasue states"   </p><ol><li>Non-competition/Non-solicitation</li></ol><p>The Head Coach undertakes that for a period of one (1) year following the expiration or termination of this Contract:</p><ul><li>i. The Head Coach will not be associated directly or indirectly as a Coach in any other capacity with any other swim club operating within 30 kilometres of the City of Hamilton;</li><li>ii. The Head Coach will not solicit in any manner any HAC swimmers as at the date of such expiration or termination to become a member of any other swim club operating within 30 kilometres of the City of Hamilton.</li></ul><p>The coach has had meetings where we have verbally expressed our concerns. We have minutes of the meetings. We are about to provide a performance review as of June 30th. His performance review last year also expressed concerns/issues around performance. We have not communicated to him that we know he has interviewed for the Oakville job. However he verbally told another coach with our club that he would take her with him if he gets the job. neither he, nor oakville have notified publicly confirmed this.</p><p> </p><p>A lawyer did not draft the contract. We copied a previous contract that may have been done by a lawyer</p><p> </p><p>We are incorporated as a non profit in the province of Ontario and the board had BOD liability insurance.</p>
Lawyer: Yossarian (user name), Lawyer replied 8 years ago

There is a good chance that the contract could be invalid because of recent Ontario Court Appeal decisions governing non-competition and non-solicitation clauses in employment contracts. The club should retain an employment law lawyer to review its existing contract to determine its enforceability and may need to have a new contract drafted for the future.

 

Interviewing alone would not constitute a breach of contract. Theoretically, the interview could be for a position after the contractual term. It is also possible that the coach has received legal advice suggesting that the contract is unenforceable.

 

The club should retain the lawyer to draft a termination of employment letter based on the performance issues.

 

If the coach sues for breach of contract, the liability would be limited to the club's assets if the coach obtained a judgment at trial. The club could face legal fees and even successful parties at trial are not fully indemnified for their legal fees.

 

The Law Society of Upper Canada's lawyer referral service can provide you with names of employment law lawyers in Hamilton.

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