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Non-Solicitation Clauses in Ontario: What Employers Must Know After the Non-Compete Ban
Ontario's Employment Standards Act, 2000 now generally prohibits non-competition agreements for most employees which means non-solicitation clauses have become the primary contractual tool for protecting client relationships, donor bases, and key staff when an employee departs. Used properly, a well-drafted non-solicitation clause can protect the goodwill your organization has built, reduce the risk of clients or donors leaving with a departing employee, and provide a realistic enforceable restraint that courts are meaningfully more willing to uphold than a non-compete. Getting the drafting right is essential Ontario courts will not fix an overbroad or vague clause. They strike it down entirely.
The ESA ban on non-competes came into force in October 2021 and applies to most employees hired or whose agreements were entered into after that date. Executives and those who sell a business they own are the main exceptions. For everyone else, the non-solicitation clause paired with strong confidentiality provisions is the tool that must be relied on. Courts increasingly expect employers to use these targeted restraints rather than broader prohibitions.
Are your Ontario employment agreements still using non-compete language, or non-solicitation clauses drafted before the ESA ban came into force?
Employment agreements that predate October 2021 may contain void non-compete provisions and non-solicitation clauses that have not been updated to reflect the current legal standard. Get your contracts reviewed before a key departure tests them.
Call: 1-800-771-7882 Get Your Contracts ReviewedWhat courts in Ontario require to enforce a non-solicitation clause
A legitimate proprietary interest
The clause must protect something the employer has a genuine business interest in preserving client, customer, or donor relationships the employee had direct access to, confidential information, or goodwill built over time. Courts are particularly sympathetic where the employee was the primary relationship holder with key clients, donors, or partners. Simply wanting to prevent competition, or to limit where a former employee can work, is not a legitimate basis for a post-employment restraint.
Clear and specific language
The clause must be drafted so that the employee and a judge can understand exactly what is prohibited. Vague phrases like "having any dealings with" or "doing business with" without defining what "solicit" means, or overbroad terms like "any actual or potential client" without any limiting criteria, will cause the clause to fail. Ontario courts apply the same principle established in Shafron v. KRG Insurance Brokers (Western) Inc. ambiguity is fatal and courts will not rewrite the clause to save it.
Proportionate scope and duration
The restriction must go no further than necessary to protect the legitimate interest. The clause should target clients, customers, or donors the employee actually dealt with during a defined recent period such as the last 12 to 24 months of employment not every relationship the organization has ever had. Duration of 6 to 18 months is common in Ontario employment cases, with longer periods requiring specific justification tied to the role, industry, and relationship cycle.
Active solicitation not passive receipt
A valid non-solicitation clause restricts active outreach the former employee initiating contact with your clients or staff. It cannot prevent a client who independently chooses to follow a former employee from doing so. Ontario courts have carefully examined whether social media posts, general announcements, and LinkedIn updates constitute "solicitation" distinguishing between a general notice to a network and targeted outreach to specific clients or donors.
The two types of non-solicitation clauses Ontario employers use
Client, customer, and donor non-solicitation
Prevents a former employee from approaching the people and organizations they dealt with on your behalf for the purpose of moving their business, donations, or membership to a competitor or the employee's own venture.
For non-profits and charities, this extends to donors, sponsors, members, and program partners. The clause should be limited to relationships the employee would not have had but for their role in your organization not the entire donor community or sector.
Key cases: Elsley v. J.G. Collins Insurance Agencies Ltd. (SCC), H.L. Staebler Co. v. Allan (ONCA 2008), and MD Physician Services Inc. v. Wisniewski all affirm that client-focused non-solicitation clauses are enforceable where they are narrow, targeted, and tied to relationships the employee actually managed.
Employee and contractor non-solicitation
Prevents a departing employee from encouraging your staff, contractors, or volunteers to leave and join them or a competitor. Courts look more favourably on these clauses where they are limited to people the employee actually supervised or worked closely with not the entire workforce.
Poaching key operational staff or specialized contractors who are difficult to replace is one of the most damaging things a departing employee can do. A well-drafted employee non-solicitation clause targeted to the employee's actual sphere of influence provides meaningful protection without overreaching.
Common drafting mistakes that cause Ontario non-solicitation clauses to fail
Enforcing a non-solicitation clause in Ontario
Gather specific evidence of active solicitation
You need documented evidence that the former employee actively initiated contact with your clients, donors, or staff not just that those relationships have moved. Collect emails, messages, call logs, social media activity, and any reports from clients or employees about being approached. The distinction between active solicitation and a client's independent decision to follow the former employee is a central question in any enforcement proceeding.
Have the clause assessed before you act
Before sending a cease-and-desist letter or commencing proceedings, have the clause reviewed against current Ontario case law. A clause that is overbroad, ambiguous, or structured as a de facto non-compete will not support injunctive relief and a failed enforcement attempt can be costly and publicly visible. Know whether the clause will hold before you rely on it.
Issue a cease-and-desist letter promptly
A well-drafted cease-and-desist letter puts the former employee and any new employer on notice, creates a formal record of your objection, and often resolves the situation without litigation. It also establishes the timeline you will need for any subsequent injunction application courts assess whether your response to the breach was timely and proportionate.
Consider injunctive relief or damages depending on the harm
Where active solicitation is ongoing and clearly documented, an injunction application may be appropriate to stop the harm while the matter is resolved. Where the solicitation has already occurred and the damage is done, a damages claim for lost revenue or harm to goodwill may be the more appropriate remedy. Both options require the clause to be clearly enforceable the strength of your drafting determines what relief is available.
Are your Ontario employment agreements using non-solicitation clauses that will hold up when you need them?
With non-competes now generally banned under the ESA, non-solicitation clauses carry more weight than ever. Our team advises employers on employment agreements and restrictive covenant drafting across Ontario. Get your contracts reviewed now.
Get Your Contracts Reviewed Or call us: 1-800-771-7882Frequently asked questions about non-solicitation clauses in Ontario
Are non-competition agreements still allowed in Ontario?
Generally no Ontario's Employment Standards Act, 2000 prohibits non-competition agreements for most employees entered into on or after October 25, 2021. The main exceptions are executives and employees who sell a business they own as part of the transaction. For most employees, non-solicitation clauses combined with strong confidentiality provisions are now the primary post-employment restraint available to employers. Agreements that contain non-compete language for employees outside the exceptions are void to that extent.
Are non-solicitation clauses enforceable in Ontario?
Yes where they are clear, reasonable in scope and duration, and tied to a legitimate proprietary interest. Ontario courts treat non-solicitation clauses as restraints of trade and scrutinize them but consistently find them more acceptable and easier to justify than non-competes, particularly in employment settings. The key cases confirming enforceability include Elsley v. J.G. Collins Insurance Agencies Ltd. (SCC) and H.L. Staebler Co. v. Allan (ONCA 2008). A clause that is overbroad, ambiguous, or functions as a de facto non-compete will be struck down entirely.
Can Ontario courts rewrite a non-solicitation clause that is too broad?
No. Ontario courts will not read down or rewrite an overbroad or ambiguous non-solicitation clause. Where the clause fails the reasonableness test because it is too broad, uses undefined terms, covers relationships the employee had no connection to, or functions as a de facto non-compete the clause is struck down entirely and the employer has no protection at all. This is why precise drafting matters far more than simply having a clause in the agreement.
Does a LinkedIn post or general announcement count as solicitation in Ontario?
Not automatically. Ontario courts have examined this question carefully and distinguish between a general announcement to a professional network which courts have generally not treated as solicitation and targeted outreach to specific clients, donors, or staff. A mass LinkedIn post announcing a new role is different from a direct message to a client the employee managed, asking them to move their business. The factual distinction matters and you need specific evidence of targeted outreach to support an enforcement claim.
How should non-profits and charities draft non-solicitation clauses in Ontario?
Non-profits and charities should apply the same enforceability principles as for-profit employers and be especially careful about scope. The clause should target donors, sponsors, members, or program partners that the employee actually cultivated on behalf of the organization, not the entire donor community or sector. A clause that would effectively prevent the employee from working anywhere in the charitable or non-profit space is more likely to be struck down. Clearly defining who counts as a "donor" or "partner" for the purposes of the clause is essential.
Questions about non-solicitation clauses or employment agreements in Ontario?
Our team advises employers across Ontario on employment agreements including restrictive covenant drafting, review, and enforcement under the current post-ESA-ban standard. 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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