Surprising pro-employer decisions on post-employment restrictive covenants

by Kyla Stott-Jess and Stefan Mirkovic

Employers often place great faith in restrictive covenants to protect their assets when hiring key employees. In Canada however, noncompetition clauses have generally been very difficult to enforce outside of the context of a sale of business. Nonsolicitation clauses have also been carefully scrutinized by judges even though they are more readily enforced.

Courts have also been traditionally suspicious of “hybrid clauses” preventing the acceptance of certain business and “damages” clauses providing for a pre-set payment from a departing employee. Employers will be happy to know that two recent decisions out of Ontario and Alberta have favored more relaxed interpretations of restrictive covenants.

Ontario: 2158124 Ontario Inc. v Pitton 2017 ONSC 411

In Pitton, an insurance brokerage firm asked the Ontario Superior Court to grant it an injunction against its former employee, Pitton. To do so, the court needed to determine whether Pitton had breached his nonsolicitation covenant when he left StoneRidge and began working for a competing brokerage.

The employee had two strong arguments. Firstly, he argued that the clause titled “Non-Solicitation” was in fact a noncompetition clause. The last sentence of this clause required the employee to pay StoneRidge double the annual commission for any client that followed him to a new employer, regardless of whether solicitation of that client had occurred. The employee argued that this sentence was an unreasonable noncompetition clause since it had no geographic limitation, meaning the clause as a whole was not enforceable.

Secondly, the employee argued that the clause was overly broad because it lacked any definition of “client.” He argued that this failure to define or limit “client” meant that it prevented him from soliciting clients from other StoneRidge offices where he had never worked.

The court disagreed with the employee on both counts. Firstly, it affirmed that the nonsolicitation clause was just that and not a noncompete. It did not actually prevent Pitton from working in the insurance industry. Rather, it only limited his ability to solicit with certain StoneRidge clients. As a result of this, no geographic limitation was necessary.

Secondly, the court ruled that a lack of a definition for “client” was immaterial. Looking at the contract and the surrounding circumstances, the court was “persuaded that the Agreement [was] limited” solely to customers of the particular office where the employee worked.

A partial injunction was granted in the employer’s favor but only with respect to the use of confidential information, not the nonsolicitation piece.

Alberta: Jones v Gerosa 2016 ABQB 207

In Jones, the Alberta Court of Queen’s Bench also dealt with the enforceability of restrictive covenants. The action concerned a Fort McMurray dentist, Dr. Robert Jones, and two of his former associates, Dr. Mary Gerosa and Dr. Jack Phan. Prior to commencing work with Jones, Gerosa and Phan both signed agreements making them, in essence, independent contractors.

A restrictive covenant clause within the agreements required them to pay a fee of $90,000 to Jones if they left him to commence another practice in the same small city. When Gerosa and Phan did in fact leave to start their own joint practice, Jones sued to recover those fees.

The associates argued that the restrictive covenant was unenforceable as it did not specify a duration and was too broad in geographic range (a 50-kilometer radius from Fort McMurray). In response, Jones argued that the clause was not a restrictive covenant, and such limitations were therefore irrelevant.

The court disagreed with both parties’ reasoning but ultimately found in favor of Jones. The court noted that the clause did not amount to an “outright prohibition” on competition, but a restriction on competition. Relying in part on expert testimony regarding the potential loss of goodwill, which Jones could suffer in this scenario and similar practices in other industries, the court found that it was.

As far as the geographic scope and duration of the clause were concerned, both were deemed to be reasonable. Specifically, the 50- kilometer geographic limitation was reasonable. As for the temporal limit of the covenant, the court employed “a fair reading” of the clause and determined that the lack of a temporal limit was not fatal. The covenant would apply for “a reasonable period,” according to the court. As the two associates had started their own practice immediately after departing from their arrangement with Jones, they clearly had not respected a “reasonable period,” whatever it was.

Takeaway for employers

Pitton and Jones are bright blooms in an employer’s legal landscape. Against a background of previous decisions requiring employers to have tightly worded restrictive covenants, these cases suggest that the courts may be taking a more flexible approach.

That being said, it is important to note that these cases are still new. Time will tell if they represent the start of a real shift or if they are outliers. In the meantime and for the best chance of enforcement, employers are advised to draft their restrictive covenants with the clearest possible wording and to restrict the scope of their covenants as much possible. Ensuring that restrictive clauses are properly drafted may mean a rosier picture going forward.

About Kyla Stott-Jess and Stefan Mirkovic:
Kyla is an associate in the Litigation and Dispute Resolution Group with a focus in labour, employment and privacy. She has appeared before all levels of court in Alberta, as well as representing clients in tribunal and privacy commissioner hearings, arbitrations and mediations. Kyla’s practice encompasses a broad range of complex corporate/commercial and labour/employment disputes. She aims to help clients pro-actively meet their legal needs. In the broader corporate/commercial litigation context, Kyla provides practical advice that harmonizes business practicalities with legal requirements. She has assisted clients with complex contract issues on both large and small matters, including oil and gas and construction disputes. In the Labour and Employment context, this includes drafting effective employment policies and advising on best practices. In addition, she assists clients in injunctive relief applications, human rights complaints, wrongful dismissal disputes, grievances and other labour issues. Stefan is a graduate of the Faculty of Law at the University of Calgary. At law school, Stefan was awarded the Donnel O. Sabey, Q.C. Prize in Advocacy Law and selected to moot at the Donald G.H. Bowman National Tax Moot where his team won best overall. Stefan was also selected for the BLG Business Venture Clinic, where he provided start-up companies with pro bono legal information including non-disclosure, shareholder, and licensing agreements, as well as various legal memoranda. While at law school, Stefan volunteered with Student Legal Assistance, Pro Bono Students Canada, the Women’s Legal Education Action Fund and the Tax Court Assistance Program. Stefan was awarded the Student Legal Assistance Volunteer of the Year Award for his outstanding work and dedication to his clients.
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