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you immediately ramp up. It's very time intensive, and you have to get strong evidence right off the bat, usually from the customers. People don't want to drag their customers into a court proceeding. Worse yet, if there's any weakness in the clause, the application for an injunction is likely to fail and the other side will know it's unenforceable. That gives them carte blanche to compete or solicit as they want." McHardy points out that if you make a claim, it creates a bit of a freeze, and to the extent that there may be any damages, they are starting to accrue. "So by com- parison, an action for damages may slow down the defendant's efforts to compete, irrespective of whether the covenant is enforceable or not." In Quebec, where restrictive covenants are governed by the Civil Code, there is no sign of a trend away from injunctions, according to Bernard Synnott, a partner at Fasken Martineau DuMoulin LLP in Montreal. "Here in Quebec, if the other party can demonstrate that the plaintiff will get a better ending with damages, the judge could refuse, but frankly, it never happens. When you have a clear covenant that respects all the criteria of the Civil Code, an injunction will be granted." What Synnott is observing is an increased sophistication amongst employ- ers. "There is a trend to treat what you can and cannot do more narrowly. Employ- ers are distinguishing between clients assigned by the firm and those brought to the firm personally by the employee, by cold calls or other means. They are only forbidding the employees from solicit- ing the assigned clients. This is a new approach that we are seeing in Quebec." Chan agrees that employers are becoming more sophisticated. "Absolute- ly. We are getting a lot more requests from our clients to review their covenants and make sure they are enforceable. Where there are clauses that they have used for some time, or that came to them from a national office or a U.S. parent, they are very conscious that they may not cut the mustard." This all comes back to the judicial push, originally emanating from the 2009 SCC decision in Shafron v. KRG A balanced approach recognizes that learning is a two-way street. The most productive relationships are born of mutual understanding. That's why we're as committed to learning about a client's business as we are to helping clients understand the intricacies of labour law. Insurance Brokers (Western) Inc., for more careful drafting. It gives strong direc- tion to judges not to rewrite or "read down" overly broad restrictive covenants as this practice encourages employers to impose unreasonable restrictions on their employees. "Employers have typi- cally taken as much as they can get and not what they need," says McHardy. "This has been the source of many decisions where restrictive covenants have not been enforced." Reeve hopes to see people beginning to draft more carefully. "If the restric- tive covenant is not carefully drafted, an employer will have zero chance of an injunction or damages. Basically, it is all or nothing. If the covenant is too broad, an employer is not entitled to a remedy for its breach." Toronto 416.408.3221 I London 519.433.7270 I filion.on.ca www.CANADIAN Lawyermag.com N O VEMBER / D ECEMBER 2011 49 lion_CL_Feb_09.indd 1 1/20/09 3:48:02 PM