In order to best protect the employer's commercial interests
and competitiveness, it is often crucial to include restrictive
covenants in employment contracts. It is of equal importance to
ensure that these covenants respect the limits established in the
case law for them to be enforceable by the courts. Indeed, they may
be deemed null and void if they are proven to be ambiguous or too
The question then becomes: what happens if an employer omits to
include a restrictive covenant in an employment contract? Is it
possible to insert such a provision during the employment
relationship? It appears that case law has not expressly forbidden
such additions, but has determined the conditions under which the
insertion of a restrictive covenant can take place in a current
Since the addition of a non-competition provision appears to
constitute a substantial modification to the employment contract,
such a modification cannot be unilaterally imposed on an employee
(see Jean v. Omegachem inc.). In this
specific case, the Québec Court of Appeal decided that an
employee's refusal to adhere to a non-competition agreement
during his employment cannot be considered a good and sufficient
cause for dismissal. This principle has been reiterated more
recently, again by the Québec Court of Appeal (see Parquets Dubeau ltée v.
It will be necessary to obtain the employee's consent before
an employer can legitimately incorporate a non-competition clause
in an existing employment contract. Such a provision will have to
be reasonable with respect to both its duration and territorial
application. An important factor in analyzing the reasonability of
a restrictive covenant implemented during employment is the
compensation offered by the employer in exchange. Case law has not
yet illustrated what exactly constitutes appropriate compensation,
but acknowledges that renouncing to the freedom to work does not
come for free. Imposing a non-competition covenant without
providing sufficient compensation is considered contrary to public
order. For example, an employer could be tempted to subject a
promotion to a restrictive covenant. However, if he does so, the
employer must ensure that the new position held by the employee
justifies the imposition of a non-competition clause. Otherwise, it
can be considered null and void (see TQS inc. v Pelletier).
Finally, it is important to note that at the employment offer
stage, including a commitment to agree to a future non-competition
clause cannot bind an employee as one cannot legally commit himself
to a restrictive covenant while ignoring the content of its
Written with the assistance of Maude Larochelle-Samson,
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