Restrictive covenants in employment agreements, commonly known
as non-competition or non-solicitation clauses, are notoriously
difficult to enforce. Employers seeking recourse after an employee
has left to start or join a competing business are often frustrated
and disappointed to learn that the non-compete provisions of their
employment agreement are unenforceable. Usually, this is because
the clauses are too vague or too broad. Through an established body
of court cases, Canadian judges have set out very strict
requirements for a restrictive covenant to be enforceable.
Courts have justified this approach on the grounds that
employees have very little bargaining power upon entering the
employment relationship, and that to unnecessarily restrict their
ability to earn a living post-employment would be unjust.
Accordingly, restrictive covenants contained within an employment
agreement are subjected to a higher scrutiny than those found
within an agreement to purchase a
