Non-Solicitation Clauses in British Columbia Employment Contracts Explained
In British Columbia, employers increasingly rely on non-solicitation clauses in employment agreements to protect client relationships, confidential information, and key staff.
Unlike Ontario, BC does not have a statutory ban on non-competition agreements. But BC courts are very cautious about any clause that restricts a former employee’s ability to earn a living. Properly drafted non-solicitation clauses are usually easier to enforce than non-compete clauses, and in many cases, they’re all you need.
This article explains how non-solicitation clauses work in BC, what courts look for, and how employers can use them effectively and lawfully.
What Is a Non-Solicitation Clause?
A non-solicitation clause is a contract term that prevents a former employee from:
- Actively approaching your clients, customers, or patients,
- Trying to poach your employees, or
- Interfering with your existing business relationships
for a defined period after their employment ends.
💡 The key point:
A non-solicitation clause restricts soliciting, not simply working for a competitor.
Because it is narrower than a non-competition clause, BC courts are more willing to enforce it if it is reasonably drafted and necessary to protect a legitimate business interest.
The Legal Framework in British Columbia
In BC, enforceability of non-solicitation and non-competition clauses is governed by common law, not the Employment Standards Act. The BC Employment Standards Act sets minimum standards (wages, hours, termination, etc.), but does not deal with post-employment restraints.
Courts treat any restraint on trade as presumptively unenforceable, unless the employer proves:
- The clause protects a legitimate proprietary interest (e.g., customer relationships, confidential information); and
- The clause is reasonable in scope, including:
- Length of time
- Geographic area (if any)
- Types of contacts or people covered
- Nature of the employee’s former role
Leading Supreme Court of Canada and BC Court of Appeal decisions such as Shafron v. KRG Insurance Brokers (Western) Inc., Rhebergen v. Creston Veterinary Clinic Ltd., and IRIS The Visual Group Western Canada Inc. v. Park set out the modern approach to restrictive covenants in BC.
How BC Courts Approach Restrictive Covenants
(a) Ambiguity is Fatal
In Shafron, which involved a BC-based employee, the Supreme Court struck down a restrictive covenant because the defined territory (“the Metropolitan City of Vancouver”) was vague and not a recognized legal or geographic term. The Court refused to “fix” or rewrite the clause.
💡 Lesson for employers:
Lesson for employers:
If a non-solicitation clause is unclear or overly broad, a BC court is likely to strike it down entirely rather than narrow it for you.
(b) Commercial vs. Employment Context
BC courts are more forgiving when a restrictive covenant is part of a sale of a business, where both sides are sophisticated and represented by counsel. For example, in Rhebergen, the BC Court of Appeal upheld a clause requiring a veterinarian to pay escalating damages if she set up a competing practice within a certain radius after leaving a clinic.
In a pure employment context, courts apply a stricter test because of the power imbalance and the impact on an individual’s ability to work. That’s why non-solicitation clauses are generally preferred; they protect your client relationships without banning competition outright.
(c) Injunctions Are Not Automatic
Even with a non-solicitation clause, getting an injunction can be difficult. In Edward Jones v. Voldeng, the BC Court of Appeal refused to grant an interlocutory injunction against a former advisor because the evidence of actual solicitation and the need for urgent relief was too weak.
💡 Lesson:
You need clear evidence – not just suspicion – that a former employee is actively soliciting your clients or staff.
What Makes a Non-Solicitation Clause Enforceable in BC?
To maximize enforceability, BC employers should ensure that clauses are:
1. Tied to a Legitimate Business Interest
Courts are more likely to enforce a clause if you can show it protects:
- A defined client base or referral network
- Confidential information or trade secrets
- Goodwill you’ve paid for (especially in a business purchase)
Preventing simple competition or “keeping people out of the market” is not a legitimate basis.
2. Narrow in Scope
A well-drafted non-solicitation clause in BC should:
- Apply to specific categories, e.g., “clients you had direct dealings with in the last 12 months of employment,” not “any client the company has ever had.”
- Limit any employee non-solicitation to key staff or those the employee actually supervised or worked closely with.
- Avoid vague terms like “any person who has done business with the company.”
3. Reasonable in Duration
In many employment cases, a duration of 6 to 24 months may be reasonable, depending on the role, industry, and sales cycle. Longer periods are more likely to be scrutinized, especially for non-executive employees.
4. Clear About What Counts as “Solicitation”
The clause should focus on active outreach, not passive situations.
For example:
- Prohibiting the former employee from initiating contact with your clients or staff
- Not banning them from serving a client who independently chooses to move to them without prompting
Overly broad wording that tries to capture passive business may be struck down.
As Christopher Achkar, employment lawyer and founder of Achkar Law, explains:
“Non-solicitation clauses are a key tool to protect your clients and workforce, but they must be drafted carefully to stand up in BC courts. Employers should speak to a lawyer before relying on these clauses to ensure they are enforceable.”
Drafting Tips for BC Employers
When drafting non-solicitation clauses for employees or senior managers in BC:
- Use plain language; avoid legal jargon and ambiguous geographic terms.
- Define:
- Who is protected (e.g., clients, prospective clients contacted in the last 12 months, specific employees)
- Where (if geography is relevant)
- How long will the restriction last
- Pair the clause with:
- A strong confidentiality provision
- Well-defined ownership of client lists and data
- Tailor the clause to the actual role and industry – avoid one-size-fits-all.
If you operate nationally and have staff in multiple provinces, ensure your BC agreements are adapted to BC case law, not just copied from Ontario or US templates.
Enforcing a Non-Solicitation Clause in BC
If you believe a former employee is breaching a non-solicitation clause:
1. Gather evidence
- Emails, LinkedIn messages, texts, or CRM notes
- Reports from clients or employees about being approached
- Any unusual client or staff movement after departure
2. Act quickly but strategically
- A cease-and-desist letter may resolve some cases
- For serious, ongoing harm, you may consider an injunction application, but you’ll need solid evidence and a clearly enforceable clause.
3. Assess damages
- Lost revenue or profit from specific clients
- Costs of replacing staff or rebuilding business relationships
Because injunctive relief is discretionary and time-sensitive, early legal advice is critical.
When to Review or Update Your Contracts
You should revisit your non-solicitation clauses if:
- Your business has grown or changed significantly
- You’ve expanded into new regions or markets
- You’ve acquired another business (or sold part of yours)
- Your contracts are more than a few years old and predate key cases like Rhebergen and IRIS
Outdated, overly broad, or copied clauses are more likely to fail when you need them most.
How a BC Employment / Litigation Lawyer Can Help
For BC employers, including charities and non-profits, non-solicitation clauses are often the most practical and enforceable way to protect:
- Client and donor relationships
- Confidential information
- Key employees and management teams
A BC-based employment lawyer can:
- Review your current employment agreements and restrictive covenants
- Draft tailored non-solicitation and confidentiality clauses that reflect BC case law
- Advise on risk management when senior employees resign, or competitors start hiring from your team
- Respond quickly if a former employee appears to be soliciting your clients or staff
The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Achkar Law Professional Corporation and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Achkar Law Professional Corporation. ©