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Non-Competition, Non-Solicitation Agreements Lawyer

Explore the legal intricacies of non-competition and non-solicitation agreements to protect your business interests.

Understanding Non-Competition and Non-Solicitation Agreements in Surrey, British Columbia

Non-competition and non-solicitation agreements are designed to protect workers from undue employment hardships and to protect employers from losing their competitive edge. Because employees are entitled to considerable protections, enforceability is complicated.


As an employee, you may have signed an employment contract that includes language restricting specific actions during your employment – and after. The idea is safeguarding the employer’s business interests, but these contractual agreements are not without legal limits and employees’ rights matter. If you’re facing an issue with a non-competition or non-solicitation agreement, an experienced British Columbia employment lawyer is standing by to help.

The Essentials of Non-Compete Agreements

In British Columbia, non-compete agreements are only enforceable when all of the following apply:


  • Clear, unambiguous language is used. Any ambiguity or confusion in relation to scope is likely to be interpreted in favor of the employee and is, therefore, unenforceable.
  • The prohibited activities are clearly listed. In other words, the restrictions imposed by the agreement are well-defined.
  • The geographical boundaries set are reasonable and realistic. Generally, an employer can’t stop an employee from working anywhere in the country or even anywhere in the city – in some cases.
  • The duration of the restrictions are reasonable, which is often limited to one year.

Because non-compete agreements – or clauses – limit the ability of employees to earn a living and because they determine where employees can and can’t work in some cases, they are scrutinized by BC courts. Ultimately, a non-compete agreement is only enforceable if it is considered reasonable in relation to both employer and employee and regarding public interest.


Reasonable in this context includes all the following considerations:


  • The agreement is reasonable in scope, including in terms of duration and geographic restrictions and doesn’t go beyond legitimate business interests.
  • The agreement doesn’t restrain the employee unduly in terms of using their unique talents and skill set in the job market.
  • The agreement doesn’t interfere with the public interest.

Ultimately, non-compete agreements are designed to prevent unfair competitive advantages on the part of a former employee – such as by bringing their intimate knowledge of their former employer’s business to a new job that competes with that former employer.


Non-compete agreements typically outline restrictions that apply after the employment relationship has ended, and they generally specify that the employee in question won’t compete with the business for a limited period of time and within a limited geographic area. In those situations in which a non-solicitation agreement would suffice, the court is less likely to find a non-compete agreement enforceable.

Understanding Non-Solicitation Agreements in the Workplace

While non-solicitation agreements are similar to non-compete agreements, they serve a distinct role. Non-solicitation agreements or clauses are intended to prevent former employees from poaching clients or current employees from their former employers, and they apply for a specific amount of time after employment ends.


Non-solicitation agreements generally restrain or restrict employees from contacting prior, present, or even prospective clients of the employer for the purpose of selling goods or services. While a non-solicitation agreement can be set for a specific amount of time in a specific geographical area, it’s only enforceable if the restrictions included are deemed reasonable.

Distinguishing Between Non-Compete and Non-Disclosure Agreements

Both non-compete and non-solicitation agreements address restrictions that apply to former employees, but they have distinct goals. A non-competition clause stops an employee from taking their unique knowledge of their former employer’s business – such as trade secrets and confidential information – to a new employer or to a new business altogether for a specific period of time. A non-solicitation clause, on the other hand, addresses the solicitation of clients or employees by a former employee.


Non-solicitation agreements tend to be less restrictive than non-compete agreements because they do not restrict where employees can work, and this makes them less challenging to enforce. Courts in British Columbia take the rights of employees very seriously, and as a result, they carefully assess these contractual agreements in relation to all the following:


  • The clause is unambiguous and clearly worded.
  • The restrictions are reasonable in the context of the specific circumstances.
  • The clause is set for a reasonable duration.
  • The geographic restrictions are limited to a precise area.

The matter of what is clear and reasonable is determined on a case-by-case analysis that takes the unique circumstances involved into consideration.


It’s also important to note that both non-compete and non-solicitation agreements lose enforceability when the employee can prove they were wrongfully dismissed or when they received nothing in exchange for signing the contractual clause. For a contract to be legally binding, consideration must go both ways. When an employee enters an employment relationship, they perform work that the employer compensates them for. If the employee also signs a non-compete or non-solicitation agreement, enforceability can hinge on whether or not they receive additional consideration in exchange.

Role of Former Employees in Non-Compete Clauses

Non-compete clauses directly address former employees by implementing restrictions that apply to the employee in their next work endeavor, whether that means working for a new employer or starting their own business. The involved restrictions state the amount of time the employee must wait to work for or start a business that is a direct competitor of their former employer in a specific geographic region. In other words, the former employee is the subject of the non-compete clause.


The idea behind a non-compete clause is preventing a former employee from gaining an unfair competitive advantage that could prove detrimental to their former employer’s bottom line. An enforceable non-compete clause can stop a former employee from taking the unique skills or business secrets they learned on the job to a new workplace – benefitting a competitor of their former employer in the process.


Because Canadian courts recognize that the playing field is far from level when it comes to employers and employees, they place special emphasis on employee rights. The fact that a non-compete clause can interfere with the employee’s employment freedoms leads to careful scrutiny by the courts.


Employers have good reasons for implementing non-compete agreements, including safeguarding proprietary knowledge, trade secrets, and other closely held information that allows them to keep their competitive edge. Employees, however, have the right to work and make a living, and as a result, non-compete agreements must be within the legal guidelines for purposes of enforceability. When a non-compete agreement is overly restrictive or interferes with the worker’s employment opportunities to an unreasonable degree, the court can deem it unenforceable.

Intellectual Property Concerns in Employment Contracts

Non-competition agreements are not solely focused on keeping employees from working for the competition but also help protect the former employer’s intellectual property that the employee had access to during their employment tenure. Employment contracts often include language that is expressly designed to protect the employer’s intellectual property.


In Canada, there is a legal presumption that employees benefit from patent ownership in relation to anything they invent while employed – even when the invention benefits the employer’s business directly. The only exceptions are when one of the following applies:


  • There is an express and legally binding employment contract that contradicts this presumption.
  • The employer can prove that the employee gained employment at the company for the express purpose of inventing or innovating something.

When the employee is a company executive, they owe their employer a more considerable duty of care, and this heightens the enforceability of any non-compete agreement they enter. As long as the senior employee wasn’t hired for the specific purpose of innovating or inventing, however, they’re not prevented from claiming patent rights.

Competitive Advantage and the Use of Non-Compete Clauses

Non-compete clauses, which are also called restrictive covenants, are specifically designed to prevent employees from gaining an unfair competitive advantage over their former employers. Employees, on the other hand, have the right to make a living and take advantage of employment opportunities, and non-compete agreements are intended to strike a balance between these competing rights, with an eye toward the imbalance of power involved.


When the restrictions included are overly broad or vague, are too harsh, or are otherwise deemed unfair, the court is very likely to find the non-compete agreement unenforceable. An enforceable non-complete clause can afford an employer a competitive advantage. When the employer, however, takes unfair contractual liberties that place too many limits on the employee, the non-compete clause is unlikely to hold.

Legal Perspectives on Enforcing Non-Compete Agreements

When it comes to enforcing non-compete agreements, courts in British Columbia employ heightened scrutiny that addresses the power imbalance, and in the process, they carefully assess factors like the following:


  • The nature of the business interest that the employer is attempting to protect
  • Whether a non-competition agreement is necessary to protect the business interest in question
  • The scope of the non-compete restrictions needed to protect the employer’s valid business interest

Ontario has seriously limited the use of non-compete agreements, but a recent case heard by The Supreme Court of British Columbia Quick Pass Master Tutorial School Ltd. v Zhao highlights the fact that they remain enforceable in BC – when the applicable guidelines are followed. The basic facts include:


  • Quick Pass offers tutorial services to students seeking real estate licensing.
  • Mr. Zhao was a former Quick Pass tutor.
  • Students of Quick Pass are required to sign non-compete agreements to help prevent unauthorized use of the educational materials.
  • Mr. Zhao signed a non-compete, a non-solicitation, and a confidentiality agreement, and in the process, he agreed not to work for a similar tutoring service in the three cities that Quick Pass operated in for 18 months after his contract ended.
  • One day after ending his employment relationship with Quick Pass, Mr. Zhao opened a school in direct competition with his former employee. In his new school, which was located in one of the three cities’ names, he used the teaching materials he helped develop at Quick Pass.
  • Quick Pass obtained an injunction that stopped Mr. Zhao from operating his school until the expiration date of the non-compete agreement.
  • In the interim, Mr. Zhao moved his school to a town about 10 minutes away.
  • Quick Pass sought compensation for Mr. Zhao’s breached non-compete agreement.

Ultimately, the Court found Quick Pass’s non-compete agreement both reasonable and enforceable. A deciding factor was that Mr. Zhao had been paid an additional $15 an hour, which was the consideration he received in exchange for accepting the non-compete clause in the first place.

Exploring the Employer-Employee Relationship in Non-Compete Contexts

An important element of employer-employee relationships is the power differential. An employer can fire an employee for any reason – or for no reason – which puts employees in a vulnerable position. As a result, courts take matters of enforceability in the context of non-compete clauses very seriously. Enforceability in these non-compete tends to hinge on factors like the following:


  • The imposed restrictions are reasonable
  • The employee was afforded consideration for agreeing to the non-compete clause
  • The duration of the non-compete agreement isn’t overly restrictive
  • The geographical restrictions aren’t overly harsh
  • The employee wasn’t wrongfully dismissed

Key Considerations When Signing Non-Compete Agreements

If you’re asked to sign a non-compete agreement, there are several important considerations to keep in mind, including:


  • The duration of the agreement should be reasonable, which usually means no longer than two years.
  • The agreement should be designed to specifically protect your employer’s legitimate business interest – without being too broad and without overly restricting your own competitive edge.
  • The agreement should be clear in relation to geographic restrictions and shouldn’t include excessive restrictions regarding location.
  • The agreement shouldn’t overly restrict your ability to find new work.
  • The agreement shouldn’t be against the public interest and shouldn’t form a monopoly in a specific area.
  • The agreement should be clear and concise, and you should be provided reasonable notice prior to signing off on it.
  • You should receive something of value in exchange for agreeing to the terms, which refers to the necessary element of consideration.

Protecting Employer's Business Interests through Confidential Information

Businesses gain an advantage by securing exclusive use of their proprietary and confidential information, which makes protecting this resource paramount. Failure to do so can lead to a loss in terms of market advantage. In Canada, employees owe their employers a duty of good faith that translates to acting with honesty and concern regarding the employer’s best interests, which includes protecting confidential information. This responsibility on the part of the employee applies in all the following situations:


  • When there is a specific employment contract in writing that addresses confidentiality and non-disclosure, and when there is not
  • Whether the employee is a fiduciary or not
  • Throughout the employee’s employment and after their employment ends

While a written contract isn’t specifically required to protect the employer’s confidential information, having one puts employees on notice about which information is considered confidential and their associated obligations. Addressing confidentiality in a written contract, in other words, affords employers greater protections in terms of business interests.

Commencement of Employment Relationship and Agreement Implications

Non-compete and non-solicitation agreements go into effect when the employment relationship begins, but the terms of the agreement often apply to the employee’s actions post-employment. By signing the agreement, the employee agrees to the restrictions included – as long as the agreement is considered reasonable in relation to the unique circumstances involved. Suppose the contractual agreement is deemed unreasonable, overly restrictive, overly broad, or overly vague. In that case, it won’t be enforceable in the first place and will have no effect on the employee’s post-employment actions.


Other factors that can affect enforceability include wrongful dismissal and failure to include consideration for the employee’s contractual agreement. While non-competition and non-solicitation clauses can be effective, they must be exacting to retain the force of the law.

Common Law and Employment Law Influences on Non-Competes

Non-compete agreements are enforceable in relation to common law, but this is true only when the employer can demonstrate that the restrictions included are reasonable in all regards. When the language used lacks specificity or is ambiguous regarding the geographic restrictions, the duration, or the terms, the non-compete clause will very likely be found unenforceable.


Recently, the highest court in British Columbia made it clear that a non-compete with all the following can hold up in court:


  • Specific language
  • Reasonable restrictions
  • Fair geographical boundaries
  • A reasonable end date
  • Consideration for the employee

While employment law affords employees considerable protection, a fair non-compete agreement that meets all the legal requirements can be enforced.

The Evolution of New Non-Compete Agreements

Non-compete agreements have been around in one form or another for centuries, but the modern standard began with King George I. While non-competes have deep historical roots in North America, they are among the most contentious employment provisions. When Ontario recently banned non-compete agreements – except under highly restrictive circumstances – they were only the second jurisdiction in North America to do so. British Columbia has no such ban. Canada supports a competitive labour market and, therefore, employs exacting legal scrutiny in response to non-compete agreements.

Legal Governing Factors of Non-Competition Contracts

Non-competition contracts are only enforceable in BC when the restrictions included are deemed reasonable. Canada is invested in protecting every employee’s right to find work and, as such, takes serious precautions in relation to non-compete clauses. The basic legal governing factors include all the following:


  • The restrictions included must be reasonable in relation to the unique circumstances involved.
  • The duration of the agreement and the geographic restrictions must be reasonable.
  • The employee must have been given reasonable notice about the non-compete agreement and must have received some form of consideration for accepting it.
  • The employee can’t have been wrongfully dismissed.
  • The agreement can’t be overly broad, can’t be put in vague terms, and can’t be overly restrictive.
  • The language used must be specific.

Only when the non-compete clause meets all these requirements is it legally enforceable.

Supreme Court Rulings Impacting Non-Compete Agreements

In the 2022 case Quick Pass Master Tutorial School Ltd. v Zhao, the Supreme Court in British Columbia made it clear that non-compete agreements are enforceable. This is in contrast to Ontario’s 2021 prohibition against non-competes – other than in highly specific situations that include the following:


  • A business owner sells their business and immediately becomes an employee of the new owner.
  • The employee in question is an executive of the company and, therefore, has a more considerable responsibility to the company.

The Comprehensive Nature of Entire Agreement Clauses

An entire agreement clause – or whole agreement clause – is a contractual provision that is designed to shield the party relying on it from liability in relation to any statements or representations made – including those made prior to the contract – except in those situations that are expressly laid out in the agreement. In effect, this means that all the terms of the agreement are included within it – ensuring that no additional restrictions or terms apply. Employment agreements in British Columbia generally include entire agreement clauses.

Analyzing the Efficacy of Non-Solicitation Agreements

Non-solicitation agreements are generally used to stop employees from luring their employers’ clients or employees away from them. While the same standard of reasonableness applies to non-solicitation agreements that apply to non-compete agreements, this form of employment agreement tends to have greater enforceability.


Non-solicitation clauses put limitations on former employees in terms of soliciting talent or clients, but it doesn’t limit where the employees can work, which makes them less restrictive. Canada is motivated to protect employees, and toward this end, the courts attempt to limit restrictions related to employability. The fact that a non-compete clause can directly affect where an individual can find work makes it more challenging to enforce.


Non-solicitation agreements are highly effective at helping employers limit the influence a former employee may have over their clients and current employees. This said the restrictions included must be deemed reasonable by the court for enforceability to attach. Such restrictions include those related to geographic location and duration.

Challenges and Limitations in Enforcing Non-Solicitation Clauses

While non-solicitation clauses have greater enforceability than non-compete agreements do, they are not without limitations and challenges that include all the following:


  • If the employee was wrongfully dismissed, the non-solicitation clause is unlikely to be enforced.
  • If the non-solicitation agreement is couched in vague language, is ambiguous, or lacks specificity, enforceability is doubtful.
  • If the non-solicitation agreement is too broad in terms of its overall scope, its duration, or its geographic restrictions, it’s unlikely to hold up in court.
  • The non-solicitation agreement can’t interfere with the public interest and can’t be against competition generally.
  • The employee must have received a consideration – or something of value, such as increased wages – in response to accepting the non-solicitation agreement.

The employee’s position in the company can also affect the enforceability of a non-solicitation clause. For example, if the employee is a senior executive, you can expect the non-solicitation agreement to have more enforceability

Case Studies and Judicial Trends in Non-Compete and Non-Solicitation Disputes

Canada recognizes the imbalance of power between employees and employers, and courts throughout the country favor comprehensive employee rights. While Ontario has done away with non-compete agreements – with very few exceptions – the same is not true of British Columbia. In fact, a recent Supreme Court finding demonstrates that, when the non-compete agreement is reasonable, specific, and not overly restrictive, it can be enforceable.


Non-solicitation clauses – on the other hand – are less restrictive in terms of where an employer can work and, therefore, have greater enforceability. Nevertheless, Canada is protective of employees’ rights and treats every non-solicitation dispute on a case-by-case basis that takes factors – such as whether or not the restrictions are reasonable are how specific the language used is – into careful consideration.

Turn to an Experienced British Columbia Non-Compete Agreement Lawyer for the Help You Need Today

Non-compete agreements and non-solicitation agreements can be enforceable in British Columbia, but they must follow exacting legal guidelines that also protect employees’ rights. Vague terms and ambiguous language lack the specificity that courts in British Columbia are looking for. However, when the restrictions laid out in the agreement are reasonable in relation to the employee’s rights and the terms are clear, enforceability becomes far more likely – as a recent Supreme Court case indicates.


If you have a non-compete claim – whether as an employer or an employee – having the professional legal counsel of a dedicated non-compete agreement lawyer on your side can greatly improve the outcome. Robert Doran at Doran Law – proudly serving Metro Surrey and Vancouver since 1981 – is an accomplished non-compete agreement lawyer with more than four decades of experience helping clients like you effectively and efficiently resolve their non-compete disputes with their rights intact. We look forward to also serving you, and because your rights as an employee or employer are important to your future success, we encourage you to reach out and contact or call us at 604-542-9455 for more information about what we can do to help you today.


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