Non-solicitation clauses are clauses in contracts which prevent employees or others from luring clients, other staff or potential clients away after they leave. The Court in IBM Canada Ltd v Almond, 2015 ABQB 336 looked at this issue, saying at paragraph 62:
[62]Generally, non-solicitation covenants, as opposed to non-competition covenants, do not require territorial or geographical restrictions because non-solicitation covenants are narrower in scope than non-competition covenants. Courts have expressed preference for non-solicitation agreements, particularly where such a covenant will suffice to protect an employer’s proprietary interest. It is therefore appropriate to assess the reasonableness of a non-solicitation agreement in broader terms than with a true non-competition agreement: Payette v Guay Inc, 2013 SCC 45at para 69-73, [2013] 3 SCR 95; Senos v Pacesetter Performance Drilling Ltd, 2010 ABQB 533 at para 51, 497 AR 1.
And at 66:
The purpose of a non-solicitation clause is to protect an employer from having its established relationship with its customer or client interfered with by the departing employee. The covenant aims to provide the employer with a reasonable period of time without interference, during which it secures the relationship with its customer. But as stated previously, there is no property in a customer per se and a customer can always follow and move their business to the departing employee.
And at 75
[75] Similarly, the term “solicitation” is defined as “[t]he act or an instance of requesting or seeking to obtain something”: Black's Law Dictionary, 10th ed, sub verbo “solicitation”.
[76] These definitions suggest that solicitation involves an active step or overt action.
If you have questions about your employment contract, please feel free to contact us.
The information contained in this article is not legal advice. No solicitor client relationship is formed through this article. The reader is encouraged to retain counsel for advice in these matters.
