Non-compete clauses are common in BC employment contracts — but courts strike them down far more often than employers expect. Here's what makes a non-compete enforceable in BC, what your rights are as an employee, and when to get legal advice.
Non-compete and non-solicitation clauses are among the most litigated employment issues in BC. Employers want to protect their business interests when an employee leaves. Employees want the freedom to work in their field. BC courts have to balance both — and they often side with employees when the restrictions are too broad.
What Is a Non-Compete Clause?
A non-compete clause is a contractual term that restricts a former employee from working for a competitor or starting a competing business for a specified period of time in a specified geographic area after leaving their job.
For example: "For 12 months after leaving, you will not work for any business that provides family law services within 50 km of New Westminster."
Are Non-Compete Clauses Enforceable in BC?
BC courts apply a strict test before enforcing a non-compete clause. The restriction must be reasonable in scope, duration, and geographic area — and it must go no further than is necessary to protect a legitimate business interest.
Courts consider:
Duration: 6–12 months is more likely to be upheld. Clauses of 2 years or more are struck down.
Geographic area: Must match the employee's actual territory. A clause covering "all of Canada" for a salesperson who only worked in the Lower Mainland will likely fail.
Scope of activity: Must be narrowly tailored. "You cannot work in the legal industry" is too broad; "You cannot provide family law mediation services" is more defensible.
Seniority and access to confidential information: Courts are more likely to enforce non-competes for senior employees with genuine access to trade secrets or client relationships.
If any of these factors is unreasonable, BC courts will typically strike the entire clause rather than rewrite it to make it enforceable. This is called the "blue pencil" rule — and BC courts use it sparingly.
Non-Solicitation Clauses vs. Non-Compete Clauses
A non-solicitation clause is narrower than a non-compete — it prohibits a departing employee from poaching the company's clients or staff, but does not restrict where or for whom they can work.
Courts are significantly more willing to enforce non-solicitation clauses because they protect a genuine business interest (client relationships and staff) without preventing the employee from earning a living. If you have both clauses in your contract, a court that strikes the non-compete may still enforce the non-solicitation.
What Happens When a Non-Compete Is Breached?
If a former employee breaches a valid non-compete clause, the employer can seek an injunction (a court order requiring the employee to stop competing) and damages for any loss caused by the breach. Injunctions in employment matters are difficult to obtain — the employer must show irreparable harm that cannot be compensated by damages alone.
In practice, many non-compete disputes settle before trial. An employee who receives a cease-and-desist letter from their former employer's lawyer should get their own legal advice immediately — the clause may not be enforceable.
New BC Amendments — What Changed in 2024
BC's Employment Standards Act was amended in 2023 to require that non-compete clauses be disclosed to employees before they accept a job offer — not buried in documents presented on the first day of work. A non-compete added after an employee has already started work, without new consideration (something of value given in exchange), may be unenforceable.
For Employers: How to Draft an Enforceable Non-Compete
Use the narrowest restriction that genuinely protects your business — courts punish overbreadth.
Tailor the clause to the specific employee's role, territory, and access to confidential information.
Provide the clause before the employee accepts the offer, not after.
Consider a non-solicitation clause instead — it is easier to enforce and less likely to be struck down entirely.
Have a BC employment lawyer draft or review the clause before using it.
For Employees: What To Do If You Have a Non-Compete
Read the clause carefully — many are unenforceable as written.
Do not assume the clause is valid just because you signed it.
If you receive a legal threat from a former employer, get advice before responding.
Keep copies of your employment contract and any amendments.
Non-compete clauses are enforceable in BC only if they are reasonable in duration, geographic scope, and activity restrictions, and go no further than necessary to protect a legitimate business interest. BC courts frequently strike down non-competes that are too broad — if any element is unreasonable, the entire clause is typically voided rather than rewritten.
A non-compete prevents a departing employee from working for a competitor or starting a competing business. A non-solicitation clause only prevents them from poaching the company's clients or staff — they can still work in the same industry. BC courts are much more willing to enforce non-solicitation clauses than non-competes.
A non-compete added after you have already started working may be unenforceable unless the employer provided something of real value in exchange (called 'consideration') — such as a promotion, raise, or signing bonus. Under BC's 2023 Employment Standards Act amendments, non-competes must also be disclosed before a job offer is accepted.
Get legal advice before responding to your former employer or their lawyer. Many non-compete clauses are unenforceable as written, and an experienced BC employment lawyer can quickly assess whether the restriction is valid, negotiate with the former employer, or advise you on whether to continue in your new role.