A non-solicitation clause is a contractual provision that restricts a former employee from:
- Soliciting clients or customers of their former employer after leaving
- Poaching colleagues — recruiting former coworkers to follow them to a new employer
It is separate from a non-compete clause, which restricts where you can work altogether. Non-solicitation is narrower — it doesn’t stop you from working in your industry, it just limits who you can approach.
Non-Solicitation vs. Non-Compete — What's the Difference?
This distinction matters enormously in Ontario.
Non-compete clauses — As of October 2021, non-compete agreements are void and unenforceable in Ontario for most employees under the Working for Workers Act. With limited exceptions for executives and business sales, your employer cannot stop you from working for a competitor.
Non-solicitation clauses — These are still legal and can be enforceable in Ontario — but only if they meet specific legal requirements. They are treated differently from non-competes precisely because they are narrower in scope.
Are Non-Solicitation Clauses Automatically Enforceable?
No. Courts in Ontario scrutinize these clauses carefully. To be enforceable, a non-solicitation clause generally must be:
Reasonable in scope — It must not be so broad that it effectively functions as a non-compete in disguise. A clause that prevents you from contacting every person connected to your former employer, in any capacity, for any purpose, will likely be struck down.
Reasonable in duration — Courts look at what is reasonable for the specific industry and role. Clauses of 6 to 12 months are more commonly upheld. Clauses of 2 years or more face significant scrutiny.
Reasonable in geography — If the clause covers the entire country — or has no geographic limit at all — it may be considered overbroad and unenforceable.
Supported by consideration — The clause must have been agreed to in exchange for something of value. If it was introduced after you were already employed, without a raise, promotion, or other benefit offered in exchange, it may not be binding.
What Does "Solicitation" Actually Mean?
This is where many disputes arise. Solicitation generally means actively reaching out to former clients or employees to draw them away from your former employer.
What it typically does not mean:
- A former client contacts you first — responding to an inbound inquiry is generally not solicitation
- Passive advertising — posting on LinkedIn or a personal website is not the same as directly targeting former clients
- General networking — attending industry events where former clients are present
The line between solicitation and passive contact is frequently litigated. If you’re unsure whether a specific action crosses the line, get legal advice before taking it.
A Real Example
Consider a financial advisor who leaves a wealth management firm. Her contract contains a 12-month non-solicitation clause covering clients she personally managed. Six months after leaving, a former client calls her at her new firm, having found her through a Google search.
She takes the call and the client transfers their account to her new firm. Has she violated the clause?
Likely not — she did not initiate contact. The client sought her out. Courts have consistently held that responding to unsolicited client contact is not solicitation, even during a restricted period.
Had she proactively emailed or called that client to invite them to move their account, the analysis would be very different.
Can a Non-Solicitation Clause Be Struck Down Entirely?
Yes — and it happens regularly. Courts can strike down a non-solicitation clause entirely if it is:
- Too broad in scope, duration, or geography
- Not supported by proper consideration
- Ambiguous or unclear in its language
- Essentially functioning as an unenforceable non-compete
Ontario courts will not rewrite a bad clause to make it enforceable. If it fails the reasonableness test, it is void — meaning you are free to act as if it never existed.
What If Your Employer Threatens Legal Action?
Employer threats in this area are common — and often more bark than bite. Before responding to a cease-and-desist letter or legal threat from a former employer:
- Do not assume the clause is automatically enforceable
- Do not sign anything in response without legal advice
- Assess whether what you actually did constitutes solicitation under the clause’s specific language
- Remember that your employer must prove both that the clause is valid and that you breached it
For Employers — Drafting a Clause That Actually Holds Up
If you want a non-solicitation clause that will be enforced by a court, it needs to be:
- Specific about what is restricted — which clients, which employees, which activities
- Limited to a reasonable time period for your industry
- Introduced at the start of employment or supported by fresh consideration if added later
- Clearly worded — ambiguity favours the employee in Ontario courts
A broad, template clause copied from another contract is one of the most common reasons these provisions fail when tested.
The bottom line: A non-solicitation clause is not a career death sentence — but it’s also not something to ignore. Whether you’re an employee wondering if yours is enforceable, or an employer trying to protect genuine business relationships, the language, timing, and scope of the clause determine everything. Get it reviewed before you act on it — in either direction.
