Non-Solicitation — Ontario Employment Law

In Ontario employment law, non-solicitation refers to the obligation of a departing worker not to actively pursue, invite, or encourage their former employer's clients, customers, or employees to follow them to a new business. Unlike a non-competition restriction—which attempts to block someone from working in a specific industry or geographic area entirely—non-solicitation generally allows an individual to compete in the same market, provided they do not cannibalize their former employer's established relationships.

A central issue in non-solicitation cases is the distinction between 'soliciting' and 'accepting' business. Under Ontario common law, solicitation requires an active step or an 'ask.' If a former client discovers you have changed companies and independently decides to move their business to you without any prompting, this is typically viewed as accepting business rather than soliciting. However, the line between a simple professional social media update and a targeted marketing push can be remarkably thin, and courts scrutinize the nature of the communication carefully.

While many employees are only bound by non-solicitation if they signed a specific written agreement (a restrictive covenant), special rules apply to 'fiduciary' employees. Senior executives, directors, or key managerial staff who possess critical influence over the company's relationships owe a common law fiduciary duty to their employer. In Ontario, courts have consistently ruled that fiduciaries are prohibited from soliciting their former employer's clients or staff for a reasonable period after resignation, even if they never signed a formal non-solicitation contract.

When employers suspect non-solicitation obligations have been breached, they often take swift legal action. They may seek an 'interlocutory injunction'—a temporary court order demanding the immediate halt of the solicitation until a full trial can happen. If a court determines that wrongful solicitation occurred, the departing employee (and potentially their new employer) can be forced to pay damages, which are frequently calculated based on the lost profits resulting from the poached clients or staff.

Because the boundaries of acceptable post-employment conduct depend heavily on your former role, the industry norms, and how courts interpret the specifics of your departure, it is always recommended to have an employment lawyer review your situation before you reach out to former business contacts.