Reasonableness of Restrictive Covenants

An interesting case was just released from the Ontario Court of Appeal.

The case is Mason v. Chem-Trend Limited Partnership, 2011 ONCA 344. Mason worked for Chem-Trend for 17 years, then was terminated, allegedly for cause. This case is not about whether or not there was cause; the wrongful dismissal case is a separate proceeding.

This decision deals with an application for a declaration on the enforceability of a restrictive covenant in Mason's contract, which he signed in 1992. The trial judge found that the clause was enforceable, and Mason appealed. The Court of Appeal allowed the appeal and found it unenforceable.

Here's the language of the clause:

3. I agree that if my employment is terminated for any reason by me or by the Company, I will not, for a period of one year following the termination, directly or indirectly, for my own account or as an employee or agent of any business entity, engage in any business or activity in competition with the Company by providing services or products to, or soliciting business from, any business entity which was a customer of the Company during the period in which I was an employee of the Company, or take any action that will cause the termination of the business relationship between the Company and any customer, or solicit for employment any person employed by the Company. [Emphasis added by the Court of Appeal.]

The main guts of Mason's argument is that he doesn't know all the company's customers, and so can't know who he isn't allowed to do business with. He argued that the clause was ambiguous. The trial judge disagreed and found that the language is, in fact, quite clear. The Court of Appeal agreed with that: There's nothing unambiguous about the language. To the extent that he can't know who he isn't allowed to do business with, that's a separate problem.

But it does affect reasonableness. Indeed, that becomes a significant problem: It is a global company which has a very large customer list. In order to avoid doing business with any of its customers in competition, Mason would have to simply not compete at all. Anywhere. For a year.

Even beyond that, there seems something rather unreasonable about saying to a departing employee that a customer from 17 years earlier is off-limits today, in light of the fact that the restrictive covenant was only effective for a year. As well, the scale of activities being limited is beyond what is appropriate in the circumstances (Mason was just a technical sales representative with a limited territory).

There is also an interesting discussion on the doctrine of clean hands. It's out of place: As the Court notes, equitable relief isn't being sought. Still, it's useful to note that the Court, when asked to determine the enforceability of the restrictive covenant, shouldn't hold it against the employee if he is already breaching the restrictive covenant. As Justice Gray put it, "[t]he fact that the applicant is engaging in activities that are arguably contrary to the restrictive covenant is of no moment. If the restrictive covenant is invalid, the applicant is free to engage in those activities. If it is valid, the respondent has remedies."

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