Non-Competition Agreements
and Non-Solicitation Agreement

STACEY REGINALD BALL

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STACEY REGINALD BALL

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Two common restrictive covenants are non-competition agreements and non-solicitation agreements

RELEVANT CASE LAW

​Non-Competition Agreement

Employers often want employees to sign these agreements as part of their employment contract. These covenants attempt to impose additional obligations on the employee both during and after employment has ended. If an employer wants to enforce a restrictive covenant which is a restraint of trade, they will need to demonstrate that it is justified and reasonable. Please see the article titled “Restraint of Trade Clauses” for more information and examples of relevant case law. Non-competition agreements aim to prevent employees from working with a competitor of the employer’s for a specific period of time, during and after employment has ended. This can make it very difficult for an employee to find new work, especially if they work in a specialized field and there are limited job opportunities available to them. If challenged, the employer must show that the restriction is reasonable in the circumstances. If the courts are required to rule on the enforceability of a non-competition agreement, they must first determine that the employer has a proprietary interest to protect. Courts will then consider several factors in determining whether a non-competition agreement is reasonable. These factors include the length of the restriction, the geographic scope, whether the covenant is clear, certain and not vague, and the general reasonableness with respect to the public interest.

Non-Solicitation Agreement

Non-solicitation agreements aim to prevent departing employees from poaching their former customers, clients, suppliers or coworkers. Without a proper non-solicitation clause or agreement, it would be much easier for employees to poach former clients, suppliers or fellow employees once their employment with a company has been terminated. Just like non-competition agreements, the courts will consider several factors in determining whether a non-solicitation agreement is reasonable. These factors include the length of the restriction, the geographic scope, whether the covenant is clear, certain and not vague, and the general reasonableness with respect to the public interest. This test for restrictive covenants from Nordenfelt v. Maxim Nordenfelt Guns & Ammunition Co. in 1894 was addressed by the Supreme Court of Canada in Elsley v. J.G. Collins Insurance Agencies Ltd., (1978), 83 D.L.R. (3d) 1 (S.C.C.) Employers should be aware that a great deal of skill is required in drafting an enforceable post-employment restrictive covenant. Employees should carefully review an employment agreement, non-competition agreement or non-solicitation agreement and seek legal advice before signing such a document. Please note that the above information does not constitute legal advice. It is general information about the law. If you require legal advice and assistance with regards to drafting or understanding a restrictive covenant or an employment agreement, please contact the experts at Ball Professional Corporation.

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CLIENT REVIEWS

Google Reviews

Steven Wang
Steven Wang
19:58 18 Mar 19
Stacey was the third lawyer that I had hired to represent me, after the previous two didn't achieve anything for me. Stacey is very different. He is not only the author of Canadian Employment Law with profound knowledge and experience, he is also the most efficient one, direct to the point. He is the toughest one, well known by HR people, and he takes care of his client all by himself. There is no junior lawyers under him. That's the big difference comparing with other big employment law firms on Google, where I could only meet with a young lawyer with little experience. After he spoke with me for 45 minutes, he found the best way to break through. He didn't need to ask for a lot of document and he didn't bill hours to review them. His fee structure is aligned with his client's best interest. My problem was solved very quickly with a great result, and I only have to meet with him twice and exchange some emails. He's not just a tough fighter and negotiator, he got great strategy to make a deal. He answered my emails during the holidays. He comes in the office very early, and we had a conference call at 7am in the morning when we need to make a quick decision. To me, he is the best employment lawyer, a patient teacher and a friend. I strongly recommend him to those who need help.
Aiden Nix
Aiden Nix
01:13 06 Apr 19
Stacey was super helpful and increased my settlement a significant amount. He is very busy so you have to chase him down a bit but that is minor issue compared to all of the positives. Overall if you need a good labour lawyer then talk to him right away. He is THE lawyer to go to in Ontario!Thanks Stacey!
Sergei R
Sergei R
05:01 06 Dec 18
My experience with Stacey R. Ball was very positive. His fees are reasonable and value I received for the money was outstanding. Luckily, after his advice my situation was resolved almost amicably. You will not believe how reasonable some people can become after they start suspecting you have a good lawyer. An ounce of prevention is worth a pound of cure. If you suspect you might need a lawyer in the future because of some developing situation at work, I highly recommend you wait no more and talk to Stacey.
Danny T
Danny T
18:34 26 Feb 19
Stacey has recently represented me. He’s patient, but to the point which I can appreciate. No fluff. He worked quickly and even responded during his holidays. Definitely highly recommended.
Alexa Arsenault
Alexa Arsenault
19:36 01 Nov 18
If I could give Stacey Ball 30 stars I would! Stacey was right on the “ball” when it came to my legal matter. I called his office and his efficient staff scheduled me for an appointment the next day. He’s a great listener and comes to the point quickly, confidently, and succinctly. He explained best and worst case scenarios and dealt with my matter without delay. He was successful in concluding my legal matter to my satisfaction and met all my expectations. I highly recommend Stacey for all your legal matters.Alexa
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