Non-solicitation Agreements and Restrictive Covenants
See e.g. Terra Engineering Ltd. v. Stewart (1994), 56 C.P.R. (3rd) 77 (B.C.S.C.); and Lyons v. Multari, (2000), 50 O.R. (3d) 34 (C.A.)
Canadian and Ontario employment law heavily regulate post-employment competition. These types of clauses are often unenforceable. Many factors contribute to the degree of enforceability.It is often assumed that if a provision is included in an employment contract then that contract seals the fate of how an employee must act in the future. This is not at all true.
Employment contracts may be unenforceable completely or in part. One common misconception is the restraint of trade agreement or clause, non-competition agreement or clause, and restrictive covenant. These clauses attempt to limit the employee’s ability to work in the same area or industry as the employer or solicit the employer’s customers once they leave their employment.
These types of clauses, as well as others, should not automatically be considered enforceable even when agreed upon. Employers should be aware that a great deal of skill is required in drafting an enforceable post-employment restraint.
The Supreme Court of Canada, in yet another recent case reversing the British Columbia Court of Appeal, has confirmed that the court will not rewrite an ambiguous or vague restraint (See Sharon v. KRB Insurance Brokers (Western) Inc.,  S.C.J. No.6).
In the employment context the courts are now sensitive to the generally accepted imbalance in power between employee and employer which justifies more rigorous scrutiny of restrictive covenants, as opposed to those contracts which exist for the sale of a business. The party seeking to enforce a restraint must now show it is reasonable.
Courts will now classify as illegal restraints of trade provisions which not only directly through express terms prohibit post employment competition, but also ones which attempt to do so through indirect means. See Rhebergen v. Creston Veterinary Clinic Ltd., 2014 BCCA 97.
At Ball Professional Corporation we take the legal issues around Non-solicitation Agreements and Restrictive Covenants very seriously and are committed in making sure your employment and Human rights are represented at the highest level and addressed in the most professional manner. We will try to minimize the cost to you by using our vast experience in negotiations while making sure you get what you are legally entitled to according to Canadian employment law. Stacey Ball is one of the top employment lawyers in Toronto and represents clients acrosss Canada. If you are not getting what you deserve we will fight for your rights all the way to the supreme court of Canada where Stacey Ball has fought and won protecting the interests of his clients