Introduction
The Supreme Court of Canada succinctly has answered the question that has plagued transaction lawyers and their clients for some time: can restrictive covenants in the context of a sale transaction be broader than in an employment agreement context?
Summary
In the well-reasoned judgment of Yannick Payette et al. and
Guay inc.i the Supreme Court
of Canada stated as follows:
1. Different rules are applied to restrictive covenants relating
to employment when the covenants are linked to a sale of a business
as opposed to a contract of employment. This is largely due to the
nature of the relationship and the assumption that the parties
negotiating a sale transaction are on a more equal playing field,
whereas employees do not have the same freedom to contract.
2. It is necessary to determine the reason for the restrictive
covenant. A non-competition covenant will be found to be reasonable
and lawful when limited as to term and territory, if required to
protect the interests of the seller of the business.
3. For a non-solicitation covenant to be upheld, if it is
reasonable, it need not have a territorial limitation to be lawful,
if the seller's customers can be identified.
Facts
a. Yannick Payette ("Payette") and his partner
controlled a number of companies in the province of Quebec in the
crane rental business. Guay inc. ("Guay") is a crane
rental company. In October 2004, Guay purchased, for 26 million
dollars, the assets of the companies controlled by Payette and his
partner.
b. In the agreement of sale (the "October Agreement")
Payette and his partner agreed to consult full time for the
purchaser for six (6) months. The October Agreement also provided
for a subsequent employment agreement contract for Payette and his
partner.
c. The October Agreement contained both a non-competition
provision as well as a non-solicitation clause. The non-competition
provision essentially stated that "in consideration of the
sale"...Payette "covenants and agrees for a period of
five (5) years from the Closing date" or in the case of
Payette and his partner, "for a period of five (5) years from
the date" on which he ceases to be employed, not to be
involved in the crane rental industry in the province of
Quebec.
d. The non-solicitation clause was for a similar time period.
However it referred to solicitation of customers of the crane
rental business, in any place whatsoever and to non-solicitation of
employees of the business, save for those who resigned or were
dismissed.
e. At the end of the six (6) month consultation period, Payette
and Guay signed a separate employment contract which was to
terminate on August 31, 2008, but which was renewed thereafter for
an unspecified term. In August 2009 Payette was terminated without
cause.
f. In March 2010 Payette commenced work with a competitor of Guay.
The same month seven (7) employees went to this competitor.
Lower Court Decision
In April 2010, Guay filed for an interlocutory injunction in Quebec Superior Court asking the court to enforce the provisions of the October Agreement. The injunction was granted and renewed until the action was heard and dismissed. The Superior Court relied on an employment provision in the Quebec Civil Code and determined that Guay could not rely on the non-competition and non-solicitation clauses as it had dismissed Payette without cause. In addition, the non-competition clause was unlawful because it was too broad; the non-solicitation provision was unlawful because it did not limit the territory or activities.
Court of Appeal Decision
The majority of the Quebec Court of Appeal set aside the decision of the lower court and ordered a permanent injunction, requiring Payette to comply with both the non-competition provision and the non-solicitation provision of the October Agreement. Most notably, the majority determined that the restrictive covenants were not part of the employment contract, since their purpose was to protect the investment made by Guay when it purchased the assets under the October Agreement. As well, the Court of Appeal found that the two provisions were reasonable and lawful.
Supreme Court of Canada Analysis
1. As noted, the rules are different when considering
restrictive covenants in contracts for the sale of a business as
opposed to contracts of employment. Generally the rationale is the
difference in bargaining power of the parties. Preventing a seller
from competing with the purchaser enables the purchaser to protect
its investment in the business it has purchased. The provision of
the Quebec Civil Code relied upon by the lower court is only
applicable if the clause is linked to a contract of employment. To
determine the linking of the covenant, it is necessary to analyze
the nature of the obligations and determine their purpose. In this
instance, the restrictive covenants could not be disassociated from
the sale of the assets. The initial language of the covenants
refers to "in consideration of the sale."
2. When determining whether a non-competition covenant is
reasonable and lawful, it needs to be limited as to its term and to
the territory and activities to which it applies, in the context of
what is necessary to protect the interests of the party in whose
favour it is made. There are many factors to be considered,
including the price, the activities, the parties' experience
and expertise and whether they are represented by counsel. In
respect of term, the restriction must be limited in time or it will
be contrary to public order. The SCC determined that each case must
be assessed; in this situation, the highly specialized nature of
the business merited the five (5) year period.
3. In respect of geographic or territorial scope, a
non-competition clause should be limited to that in which the
business was carried on as of the date of the transaction. A
non-competition clause that applies outside the territory in which
the business operates, generally, is contrary to public order.
Since the crane rental business is mobile and goes where the
construction sites are located, and since Payette stated that not
all the activities of his business were in Montreal, the territory
of Quebec was not broader than necessary to protect the business
interests of Guay.
4. The SCC determined that the non-solicitation covenant was
reasonable and not unlawful even though it did not contain a
territorial limitation. The object of a non-solicitation clause is
narrower than the object of a non-competition clause. Generally the
obligations are also less strict. "In the context of the
modern economy, and in particular of new technologies, customers
are no longer limited geographically, which means that territorial
limitations in non-solicitation clauses have generally become
obsolete."
Conclusion
Restrictive covenants in sale transactions will be afforded a more generous interpretation than those in employment contracts. The circumstances of the parties to the commercial transaction are to be considered when determining restrictive covenants in agreements of sale in contrast to those in employment contracts. It would therefore be prudent to ensure that these covenants be placed in the commercial agreement and not left to an employment or consulting agreement with the seller or its principal.
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