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Non-Solicitation Clauses in BC: What Makes Them Enforceable and How to Draft Them Correctly
Non-solicitation clauses are among the most useful tools available to BC employers for protecting client relationships and key staff after an employee departs. Unlike Ontario, BC has no statutory ban on non-competition agreements but BC courts still treat any restraint on trade as presumptively unenforceable. A non-solicitation clause that is too broad, too vague, or not tied to a legitimate business interest will be struck down entirely rather than narrowed. Understanding what courts require and what the leading BC cases actually say is essential before placing any weight on these provisions.
The fundamental principle is that any post-employment restraint on trade is presumptively unenforceable in BC. The employer must justify it by demonstrating a legitimate proprietary interest worth protecting and a clause that is reasonable in scope, duration, and the categories of people it covers. A clause that fails on any of these grounds will be struck down BC courts will not rewrite it for you.
Are your BC employment contracts using non-solicitation clauses drafted before the leading cases from Shafron, Rhebergen, and IRIS?
Template or outdated clauses are among the most common enforcement failures in BC. A clause that appears protective may be entirely unenforceable when you need it most. Get your contracts reviewed before a departure makes that discovery costly.
Call: 1-800-771-7882 Get Your Contracts ReviewedWhat BC courts require to enforce a non-solicitation clause
A legitimate proprietary interest
The clause must protect something the employer has a genuine interest in preserving a specific client base the employee had direct access to, confidential customer information, a referral network the employer developed, or goodwill that was paid for in a business acquisition. Simply wanting to prevent competition or keep former employees out of the market is not a legitimate basis for a post-employment restraint in BC.
Narrow and specific scope
The clause must be limited to the categories of people and relationships that actually require protection. A valid client non-solicitation clause typically covers clients the employee had direct dealings with during a defined period such as the last 12 months of employment not every client the company has ever had. An employee non-solicitation clause should cover key staff or those the employee actually supervised, not the entire workforce.
Reasonable duration
Duration must be proportionate to the role and the legitimate interest being protected. In most employment contexts, a period of 6 to 24 months may be defensible depending on the industry, the sales cycle, and the seniority of the role. Longer periods face greater scrutiny particularly for non-executive employees and should be specifically justified by the business circumstances rather than included as a default.
Unambiguous language
Ambiguity is fatal in BC. If the clause uses undefined terms, vague geographic descriptions, or language that could reasonably be read in more than one way, courts will strike it down rather than adopt the interpretation most favourable to the employer. Every defined term must mean exactly what the employer intends and those definitions must be stated expressly in the agreement.
What the leading BC cases say
Ambiguity is fatal courts will not fix a vague clause
The Supreme Court of Canada struck down a restrictive covenant because the geographic territory "the Metropolitan City of Vancouver" was not a recognized legal or geographic term and was therefore ambiguous. The Court confirmed that in an employment context, courts will not rewrite or read down an ambiguous restrictive covenant to save it. The clause fails entirely. Every term in a non-solicitation clause must be precisely defined.
Commercial context permits more employment context demands more precision
The BC Court of Appeal upheld a clause requiring a veterinarian to pay escalating damages if she established a competing practice within a defined radius after leaving the clinic. The Court distinguished between commercial and employment contexts in a business sale where both parties are sophisticated, courts are more permissive. In a pure employment relationship, the power imbalance and the impact on an individual's livelihood require stricter scrutiny of post-employment restrictions.
Injunctions require clear evidence of active solicitation
The BC Court of Appeal refused to grant an interlocutory injunction against a former advisor because the evidence of actual solicitation was insufficient. Suspicion that a former employee is contacting clients, or the fact that clients have followed them, is not enough for injunctive relief. You need specific evidence of active outreach messages, calls, or other direct contact initiated by the former employee before a court will grant urgent interim relief.
How to enforce a non-solicitation clause in BC
Gather specific evidence of active solicitation
The basis for enforcement is evidence that the former employee actively initiated contact with your clients or staff not just that clients have left or that the employee is now working for a competitor. Collect emails, LinkedIn messages, texts, call records, and CRM notes. Document reports from clients or employees about being approached. Vague suspicion will not support a cease-and-desist demand or an injunction application.
Assess the enforceability of your clause before acting
Before sending a cease-and-desist or commencing proceedings, have the clause assessed by legal counsel against the current BC standard. A clause that fails on ambiguity, scope, or duration will not support injunctive relief and a failed enforcement attempt can expose you to costs and damage your relationship with clients who are watching how you handle the dispute. Know whether the clause will hold before you rely on it.
Issue a cease-and-desist letter as a first step
A well-drafted cease-and-desist letter puts the former employee on notice, creates a record of your objection, and often resolves the issue without litigation. Where the former employee has access to legal advice and the clause is clearly enforceable, many situations resolve at this stage. Where they do not, the letter establishes the timeline you will need for any subsequent injunction application.
Act promptly injunctive relief is time-sensitive
Injunctive relief is discretionary and requires urgency. Delay in seeking an injunction signals to the court that the harm was not truly urgent and weakens your application. If you have solid evidence of active solicitation and a clearly enforceable clause, move quickly. The longer you wait after becoming aware of the breach, the harder it becomes to obtain interim relief.
When to review and update your non-solicitation clauses
Are your BC non-solicitation clauses drafted to withstand scrutiny under current BC case law?
Template clauses and outdated agreements are among the most common enforcement failures in BC. Our team advises employers on employment agreements and restrictive covenant drafting across BC. Get your contracts reviewed before a departure tests them.
Get Your Contracts Reviewed Or call us: 1-800-771-7882Frequently asked questions about non-solicitation clauses in BC
What is the difference between a non-solicitation clause and a non-competition clause in BC?
A non-solicitation clause prohibits a former employee from actively approaching your clients or staff it does not prevent them from working for a competitor or from serving clients who independently choose to follow them. A non-competition clause prohibits competing with the employer in a defined area for a defined period. BC courts are significantly more willing to enforce non-solicitation clauses than non-competition clauses because they are narrower in scope and less restrictive of the employee's ability to earn a living. In most BC employment contexts, a well-drafted non-solicitation clause provides sufficient protection without the greater enforcement risk of a non-compete.
Can a BC court rewrite a non-solicitation clause that is too broad?
No. This is one of the most important principles in BC restrictive covenant law and the core lesson from Shafron. Where a non-solicitation clause is ambiguous, overbroad, or cannot be given a clear meaning, BC courts strike it down entirely rather than reading it down to a narrower, enforceable version. The employer gets no protection at all. This is why precise drafting is not just good practice it is the difference between having an enforceable clause and having no clause.
How long should a non-solicitation clause last in BC?
Duration must be proportionate to the legitimate interest being protected and the nature of the role. In most employment contexts, 6 to 24 months is the range within which BC courts have found duration clauses defensible but there is no fixed rule. A 12-month clause for a junior account manager and a 24-month clause for a senior business development executive require different justifications. Longer periods face greater scrutiny and require specific factual justification tied to the business's sales cycle and relationship-building period.
Can a former employee serve clients who followed them voluntarily without any solicitation?
Generally yes. A non-solicitation clause can only prohibit the former employee from actively initiating contact with your clients it cannot prevent clients from independently choosing to follow them. The distinction between solicitation and passive acceptance is a factual question. Where a client moves their business without any outreach from the former employee, the clause typically cannot be used to prevent that client from being served. A clause attempting to capture passive departures as well as active solicitation is more likely to be struck down as overbroad.
Is it harder to enforce a non-solicitation clause in BC than in Ontario?
The legal frameworks are similar in principle both jurisdictions treat post-employment restraints as presumptively unenforceable and require the employer to justify them. One notable difference is that Ontario's Employment Standards Act, 2000 contains a statutory provision limiting non-competition clauses to specific circumstances, while BC has no equivalent statutory restriction. However, BC courts apply rigorous common law scrutiny to all restrictive covenants in an employment context including non-solicitation clauses and the Shafron, Rhebergen, and IRIS decisions set a demanding standard for enforceability. Clauses must be drafted specifically for BC and reviewed against current BC case law.
Questions about non-solicitation clauses or employment agreements in BC?
Our team advises employers across BC on employment agreements including restrictive covenant drafting, review, and enforcement. Contact us for a confidential consultation before relying on an existing clause or onboarding new client-facing staff.
Call us at 1-800-771-7882 or fill out the form below and we will be in touch.
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