Earlier this year, the Honourable Mr. Justice W.A. Tilleman of
the Court of Queen's Bench of Alberta was called upon to
determine whether an injunction was appropriate due to an alleged
breach of restrictive covenants, non-competition and
non-solicitation clauses, in an employment agreement. In his
decision in Specialized Property Evaluation Control Services
Ltd. v. Les Evaluations Marc Bourret Appraisals Inc., 2016 ABQB
85, Justice Tilleman provides a helpful overview of the general
principles to be applied when an employer seeks the enforcement of
such clauses and reminds us that a restrictive covenant must be
assessed on its own merits in the particular context of the case at
As a preliminary step, the Court will determine whether the
restrictive covenant is clear. If the covenant is ambiguous, it
will be struck down.
If the restrictive covenant is unambiguous, the Court will
determine whether the clause is reasonable. Only a reasonable
restrictive covenant will be enforced. Assessment of what is
reasonable requires a contextual analysis and the Court will
(a) the interests of the parties
involved in the matter, with the onus of proof being on the
employer to establish the reasonableness of the covenant as between
the parties, considering the nature of the business and
nature/character of the employment, by proving to the Court
(i) the employer has a proprietary
interest entitled to protection;
(ii) the scope of the covenant, in
terms of time and space, is not too broad; and
(b) the interests of the public,
with the onus of proof being on the employee to establish that the
covenant is contrary to the public interest.
Due to the detailed analysis that the Court will undertake when
an employer seeks to enforce restrictive covenants in an employment
agreement, employers must take care when drafting such clauses.
Employers are wise to craft each restrictive covenant to fit the
facts of the particular employment relationship with the particular
employee. When a clear and reasonable clause has been crafted to
meet the particular circumstances of the unique employment
relationship, this will provide an employer with an increased
chance of enforceability, should the employer require the
Court's assistance in ensuring that the employee complies with
his or her contractual obligations.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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