Non-Solicitation Clauses — Ontario Employment Law
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About Non-Solicitation Clauses
While recent amendments to the Employment Standards Act, 2000 (ESA) prohibited employers from using non-competition agreements for most workers in Ontario, non-solicitation clauses remain entirely legal and are heavily utilized. A non-solicitation clause is a specific provision within an employment contract designed to stop a departing employee from actively poaching their former employer's clients, customers, vendors, or current staff for a designated period after the employment relationship ends. Unlike a non-compete, which attempts to stop someone from working in their chosen field altogether, a non-solicitation clause allows the former employee to work for a competitor or start a rival business, provided they leave the former employer's relationships alone.
However, just because these clauses are permitted does not mean Ontario courts will automatically enforce them. Judges view restrictive covenants as a restraint on free trade. For a non-solicitation clause to hold up in court, the employer must prove it protects a legitimate, proprietary business interest (such as a closely guarded client list or a highly trained workforce) and that its restrictions go no further than reasonably necessary. Courts closely examine the scope of the clause. If it lasts too long (such as three years instead of a standard six to twelve months) or covers too broad of a target group (such as forbidding contact with any client of the company, rather than just the clients the employee personally interacted with), it may be deemed invalid.
When a dispute arises, such as a worker leaving to start a competing enterprise, an employer might seek an interlocutory injunction from the court to immediately stop the alleged poaching. To succeed, the employer must demonstrate that they will suffer irreparable harm—damage that cannot simply be compensated with a financial award later on. Because the language used in every employment agreement is unique, and a poorly drafted clause that acts as a disguised non-compete will be struck down entirely, having the specific terms of your contract reviewed by a qualified Ontario legal practitioner is highly recommended to understand exactly where your boundaries lie.
Frequently Asked Questions
Can my employer force me to sign a non-solicitation clause?
If you are starting a new job, an employer can make signing a non-solicitation clause a condition of your employment. However, if they want to add one to your contract mid-employment, they must usually provide you with some form of 'fresh consideration'—such as signing bonus, a raise, or a promotion—in exchange for your agreement.
How is a non-solicitation clause different from a non-compete?
A non-compete clause restricts you from working in the same industry or for a direct competitor entirely. A non-solicitation clause allows you to work for a competitor or start a similar business, but prohibits you from actively reaching out to your former employer's clients or employees to convince them to follow you.
What happens if the non-solicitation clause in my contract is too broad?
Under Ontario law, judges generally will not rewrite or 'blue-pencil' a poorly drafted restrictive covenant to make it reasonable. If the clause is deemed overly broad or vague, the court will typically strike it down completely, leaving you free from those specific contractual restrictions.
Am I allowed to do business with former clients if they reach out to me first?
Generally, standard non-solicitation clauses prevent you from inciting or initiating contact with clients. If a client independently discovers where you went and chooses to bring their business to your new company without any prompting from you, it is usually acceptable, unless you signed a specific 'non-acceptance' clause or owe fiduciary duties as a senior executive.
Will a court grant an injunction against me if my former boss says I poached a client?
Not automatically. The employer must prove that there is a strong prima facie case that the clause is valid, and crucially, they must show they are suffering 'irreparable harm' that cannot be fixed by simply calculating lost profits and awarding damages at an eventual trial.
At what point should I have an employment lawyer look at my non-solicitation agreement?
You should seek professional review before signing an employment offer that contains restrictive covenants, or immediately before transitioning to a competitor, so you can safely plan how to announce your new role without inadvertently breaching your contractual obligations.
Common Scenarios
- An IT consultant leaves an agency to launch an independent firm and wants to recruit their former tech team, but their employment contract includes a strict 12-month non-solicitation of employees clause.
- A senior sales representative updates their LinkedIn profile to announce their new position at a rival company, and their former employer threatens legal action, claiming the public post constitutes active client solicitation.
- A former client tracks down an account manager at their new workplace entirely unprompted and asks to transfer their portfolio over, but the former employer accuses the account manager of breaching a non-solicitation agreement.
- An employer attempts to enforce a clause that forbids a marketing coordinator from contacting any of the company's customers worldwide, even though the coordinator only ever worked with local clients in the Greater Toronto Area.
What You Should Know
- Never assume a non-solicitation clause is invalid just because the ESA recently banned most non-compete agreements; courts routinely enforce reasonable non-solicitation terms.
- If former clients reach out to you independently at a new job, keep meticulous records of their initial communications to prove you did not actively initiate the contact.
- During the hiring process, try to negotiate the scope of the non-solicitation clause so it is limited only to the specific clients you will personally manage or interact with in the year leading up to your departure.
- Before sending out mass emails or social media updates announcing your departure or new business, have a legal professional verify whether the wording could be interpreted by Ontario courts as an invitation to solicit.
Featured Cases
Salina Chagpar Professional Corporation v Jin
2023 ONSC 3153 (CanLII) · 2023-05-26Employment Contract: Injunction Granted for Non-Solicitation and Confidentiality
A court granted injunctive relief to prevent a former employee from soliciting clients and disclosing confidential information, upholding non-solicitation and confidentiality clauses in the employment contract. The court also awarded partial indemnity costs to the plaintiff.
PureFacts Financial Solutions Inc.et al. v. Cheung et al.
2022 ONSC 961 (CanLII) · 2022-02-10Employment Contract Dispute: Non-Solicitation Clauses and Enforceability
A case involving restrictive covenants in employment contracts, specifically non-solicitation clauses. The court reviewed the enforceability of these clauses, the use of proprietary information, and the inference of intent to underbid. The arbitrator's application of legal principles was challenged, but the court found no significant errors.
Downtown Kids Academy Inc. v. Zakrzewski
2017 ONSC 5045 (CanLII) · 2017-08-25Non-Solicitation Clause Dispute: Interim Injunction Denial
A former employee launched a competing business and allegedly solicited employees and clients of her former employer. The court considered whether an interim injunction should be granted to enforce the non-solicitation clause, ultimately denying the injunction due to a lack of evidence of irreparable harm.
Benson Kearley & Associates Insurance Brokers Ltd., v. Jeffrey Valerio
2016 ONSC 4290 (CanLII) · 2016-06-28Enforceability of Non-Solicitation Clauses in Employment Contracts
A case regarding the enforceability of non-solicitation clauses in employment contracts, focusing on the test for injunctive relief and the balance of convenience. The court also considered whether former employees owe fiduciary duties and whether they used or disclosed confidential information.
2261897 Ontario Inc. v Quest Audio Visual Inc.
2015 ONSC 2428 (CanLII) · 2015-04-16Constructive Dismissal: Court Dismisses Claims Against Employee
A constructive dismissal case where the court examined whether an employee was wrongfully dismissed due to a toxic work environment and repudiation of the employment contract. The court also considered the enforceability of a non-solicitation clause and dismissed claims of client diversion and negligence by the employee.
Belzberg Technologies Inc. v. ITG Canada Corp.
2005 CanLII 35788 (ON SC) · 2005-10-04Non-Solicitation Clause Breach: Employee Hired Without Permission
A breach of contract case involving a non-solicitation clause where the defendant hired the plaintiff’s employee without seeking required permission. The court considered whether this constituted a breach and whether there was a genuine issue for trial regarding the similarity of the employee’s new duties to her previous role.
Syntax Systems Ltd. v. Mid-Range Computer Group Inc.
2003 CanLII 29363 (ON SC) · 2003-09-17Non-Solicitation Clause Injunction in Employment Contract Dispute
An interlocutory injunction case involving a non-solicitation clause in an employment contract.
W. R. Grace & Co. of Canada Ltd. v. Sare et al.
1980 CanLII 1568 (ON SC) · 1980-04-02Enforceability of Non-Competition and Non-Solicitation Clauses in Employment Contracts
A case involving the enforceability of non-competition and non-solicitation clauses in an employment contract. The non-competition clause was found unenforceable due to vague territorial scope, while the non-solicitation clause was upheld as protecting the employer’s proprietary interest in customers. The court applied principles from the Nordenfelt and Elsley cases and considered the balance between the employer’s interests and public policy.
Cantol Ltd. v. Brodi Chemicals Ltd. et al.
1978 CanLII 1377 (ON SC) · 1978-12-08Enforceability of Non-Solicitation Clause in Employment Contract
An interlocutory injunction motion in an employment contract dispute involving the enforceability of a non-solicitation clause. The employee allegedly brought pre-existing customers to the employer and was subsequently terminated, leading to a claim about the reasonableness of the restrictive covenant and whether injunctive relief should be granted.