Restrictive covenants have great potential to protect an employer's business interests. In practice, however, enforcing restrictive covenants often proves a challenge since courts scrutinize these clauses carefully. Clauses must be clear and narrowed to what is necessary to protect legitimate business interests, including from a geographical and temporal standpoint. Courts traditionally won't hesitate to find issues with such clauses to declare them unenforceable. However, two recent decisions out of Ontario and Alberta suggest that this is spring in the restrictive covenant landscape, with interpretations relaxed in favour employers.

Ontario:2158124 Ontario Inc. v Pitton 2017 ONSC 411(PDF)

In Pitton, an insurance brokerage firm asked the Ontario Superior Court to grant it an injunction against its former employee, Mr. Pitton. To do so, the court needed to determine whether Mr. Pitton had breached his non-solicitation 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 non-competition 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 non-competition 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 non-solicitation clause was just that, and not a non-compete. It did not actually prevent Mr. 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 favour, but only with respect to the use of confidential information, not the non-solicitation piece.

Alberta: Jones v Gerosa 2016 ABQB 207 (PDF)

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 Dr. Jones, Dr. Gerosa and Dr. 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 Dr. Jones if they left him to commence another practice in the same small city. When Dr. Gerosa and Dr. Phan did in fact leave to start their own joint practice, Dr. Jones sued to recover these 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 km radius from Fort McMurray). In response, Dr. 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 favour of Dr. 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 Dr. 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 km 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 2 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.