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A Princely Estate

By Howard Simmons

Prince died at age 58. He had a net worth when he died of $300 million (US).  Estates of this magnitude usually have sophisticated tax, will, trust and other planning. Prince had none. He even died without a will. Prince had no wife, no children (yet known) and both his parents were dead. He had one sister and five half siblings, so all six of them will share in the estate

Who will administer this large estate, plus all of Prince’s music library and existing future royalties?  The income flowing to Prince’s estate and still continuing will be huge. Expertise in the music business and being trustworthy are essential.

The court in Minnesota will end up making this decision, not Prince.  The amount of tax on his estate will be substantial, as there was no planning. You would think the very rich would plan their affairs well. Sometimes you will be wrong.

There are many other wealthy and famous who did not plan or make any or a proper will. Warren Burger was a Chief Justice of the United States Supreme Court. You would think he would do everything properly. You would be wrong. He wrote his own will in 176 words. When he died, his family paid more than $450,000 in taxes that could have been avoided with proper planning.

Sonny Bono, was a musician (along with Cher). He was a busy man. He was so busy, he never had done a will. He died unexpectedly in an accident while skiing. Although busy, he secretly fathered a child. On his death, this child claimed part of the estate.

We all plan better than people like Prince, Chief Justice Warren Burger and Sonny Bono.

Don’t we?

Howard S. Simmons is a partner at Simmons da Silva LLP.

The lawyers at Simmons da Silva are experienced in assisting clients in drafting Wills.  Should you require any assistance with such drafting, please contact Howard S. Simmons at: T: 905 8612826 or email: howard@sdslawfirm.com

Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice.

By Howard Simmons

Prince died at age 58. He had a net worth when he died of $300 million (US).  Estates of this magnitude usually have sophisticated tax, will, trust and other planning. Prince had none. He even died without a will. Prince had no wife, no children (yet known) and both his parents were dead. He had one sister and five half siblings, so all six of them will share in the estate

Who will administer this large estate, plus all of Prince’s music library and existing future royalties?  The income flowing to Prince’s estate and still continuing will be huge. Expertise in the music business and being trustworthy are essential.

The court in Minnesota will end up making this decision, not Prince.  The amount of tax on his estate will be substantial, as there was no planning. You would think the very rich would plan their affairs well. Sometimes you will be wrong.

There are many other wealthy and famous who did not plan or make any or a proper will. Warren Burger was a Chief Justice of the United States Supreme Court. You would think he would do everything properly. You would be wrong. He wrote his own will in 176 words. When he died, his family paid more than $450,000 in taxes that could have been avoided with proper planning.

Sonny Bono, was a musician (along with Cher). He was a busy man. He was so busy, he never had done a will. He died unexpectedly in an accident while skiing. Although busy, he secretly fathered a child. On his death, this child claimed part of the estate.

We all plan better than people like Prince, Chief Justice Warren Burger and Sonny Bono.

Don’t we?

Howard S. Simmons is a partner at Simmons da Silva LLP.

The lawyers at Simmons da Silva are experienced in assisting clients in drafting Wills.  Should you require any assistance with such drafting, please contact Howard S. Simmons at: T: 905 8612826 or email: howard@sdslawfirm.com

Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice.

‘Technology can’t solve all the problems of a broken relationship’

By Noel da Silva

From someone who does not use social media, a caution about it should be viewed with suspicion.  Despite that, here are some ordinary concerns, in the context of high conflict family law cases.

We all know that emails, texts and postings available to the public can come back to haunt you when they are reproduced and appear in an Affidavit. Yet to my surprise, even after an acrimonious separation, spouses continue to berate each other and in the next breath, complain about the other side’s disrespect, when they have actively engaged in the nastiness. They draw in family and friends as allies and spokespersons, thereby increasing the conflict.

We need to realize that the spouse has met and formed relationships with the other family and friends. Sites intended to be private and purporting to limit public access can still leak out to the other side. Treat private sites with care.

Lawyers and family health professionals normally caution their clients about this, yet the practice is so ingrained that clients have a hard time stopping. Just look at people walking by you on the street. Gaze in wonder when the person with their head down crossing the street while texting survives another crisis at the corner of walk and don’t walk. Worse, look at the drivers you pass doing the same thing at a higher speed. Yes it’s a societal crisis that is serious enough to attract shock TV ads. My point is proven, so I probably did not need to make it.

Getting clients to not blame the other parent, after an agreed Skype or phone appointment is not honoured, is difficult. Life happens and all sorts of events intervene to derail the schedule. Even when it does occur as scheduled, children with the attention span of an ant say hello, chat for 30 seconds and wander off to do what they really want to do. So having high expectations of social media to enhance a parent-child relationship can be unrealistic. While it can work well we need to be careful to not raise expectations. Technology cannot solve all the problems of a broken relationship.

What about the parent with a somewhat older tech savvy child, who uses the social media contact to undermine the other parent?

What about the non custodial parent who is concerned that their calls and contacts are being monitored or even scripted?

What about the child who routinely contacts the other parent to get a second, more favourable decision on what they want?

Yes, in a mobile society where the estranged spouse has to move away to find a job, “instant” contact can be a godsend.

Clearly clients and their helping professionals need to have a conversation about this whole area and the need for guidelines, scheduling, non confrontational language, sensitivity to the child’s other needs and the need for flexibility. Even bloggers need to beware.

Noel da Silva is a Partner at Simmons da Silva LLP
At Simmons da Silva LLP we have a highly-skilled group of professionals who have the necessary expertise and are committed to offering solutions in separation and divorce cases. Our lawyers are committed to utilizing collaborative law where appropriate in order to reduce the emotional and financial costs that result from separation or divorce. ‎Please contact Noel da Silva or Justin Clark at our office to discuss how we can assist you in resolving your family law matter.

Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice.

By Noel da Silva

From someone who does not use social media, a caution about it should be viewed with suspicion.  Despite that, here are some ordinary concerns, in the context of high conflict family law cases.

We all know that emails, texts and postings available to the public can come back to haunt you when they are reproduced and appear in an Affidavit. Yet to my surprise, even after an acrimonious separation, spouses continue to berate each other and in the next breath, complain about the other side’s disrespect, when they have actively engaged in the nastiness. They draw in family and friends as allies and spokespersons, thereby increasing the conflict.

We need to realize that the spouse has met and formed relationships with the other family and friends. Sites intended to be private and purporting to limit public access can still leak out to the other side. Treat private sites with care.

Lawyers and family health professionals normally caution their clients about this, yet the practice is so ingrained that clients have a hard time stopping. Just look at people walking by you on the street. Gaze in wonder when the person with their head down crossing the street while texting survives another crisis at the corner of walk and don’t walk. Worse, look at the drivers you pass doing the same thing at a higher speed. Yes it’s a societal crisis that is serious enough to attract shock TV ads. My point is proven, so I probably did not need to make it.

Getting clients to not blame the other parent, after an agreed Skype or phone appointment is not honoured, is difficult. Life happens and all sorts of events intervene to derail the schedule. Even when it does occur as scheduled, children with the attention span of an ant say hello, chat for 30 seconds and wander off to do what they really want to do. So having high expectations of social media to enhance a parent-child relationship can be unrealistic. While it can work well we need to be careful to not raise expectations. Technology cannot solve all the problems of a broken relationship.

What about the parent with a somewhat older tech savvy child, who uses the social media contact to undermine the other parent?

What about the non custodial parent who is concerned that their calls and contacts are being monitored or even scripted?

What about the child who routinely contacts the other parent to get a second, more favourable decision on what they want?

Yes, in a mobile society where the estranged spouse has to move away to find a job, “instant” contact can be a godsend.

Clearly clients and their helping professionals need to have a conversation about this whole area and the need for guidelines, scheduling, non confrontational language, sensitivity to the child’s other needs and the need for flexibility. Even bloggers need to beware.

Noel da Silva is a Partner at Simmons da Silva LLP
At Simmons da Silva LLP we have a highly-skilled group of professionals who have the necessary expertise and are committed to offering solutions in separation and divorce cases. Our lawyers are committed to utilizing collaborative law where appropriate in order to reduce the emotional and financial costs that result from separation or divorce. ‎Please contact Noel da Silva or Justin Clark at our office to discuss how we can assist you in resolving your family law matter.

Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice.

The criminal justice system and matrimonial disputes

By Ida Mirzadeh

The outcome of a criminal prosecution will have a significant, but not always determinative, impact on parallel family law proceedings relating to disputes over child custody and the matrimonial home. Below are three relevant factors that are often overlooked by spouses who are faced with a high-conflict separation.

3 THINGS TO CONSIDER BEFORE CALLING THE POLICE ON YOUR SPOUSE:

Zero Tolerance Policy:
It is important to understand that our government identifies domestic violence as a serious social concern. Accordingly, the police have been instructed that there be a zero tolerance policy toward domestic violence, such that upon receiving a complaint of domestic violence, the police are to exercise no discretion but to lay the appropriate criminal charge against the other spouse.

There are many situations where the complainant spouse has contacted the police in an effort to have the other spouse simply removed from the home, not expecting that the other spouse would be arrested and charged with a criminal offence.

The “No Contact” Order and Conditions of Bail:
Any conditions imposed by the criminal courts also must be followed in family court. If there is a “no contact” order imposed as a term of your release (“bail”) you must not attempt to contact your ex-spouse under any circumstances.

Specifically, your bail will be subject to conditions which will prohibit you from communicating or associating, directly or indirectly, with your spouse and possibly the children of the relationship. You will also be restrained from physically attending at the family residence where the alleged assault took place.

It is important at this stage for the non-association/communication release clause to include an exception to allow for your contact or communication through, at the very least, a third party or lawyer to arrange access to your children or pursuant to the terms of a Family Court Order or Separation Agreement. It is important to understand that the bail conditions, unless they contain these exceptions, supersede any existing or later family court orders for access or even custody. The bail conditions will remain in effect until likely the first court appearance for the charge, which may not take place until several months from the date of the laying of the charge. Accordingly, the terms of bail provide your spouse with informal custody and exclusive possession of the home while they exist.

Status Quo and the Best Interests of the Child:
Domestic violence will usually have an impact on the court’s determination as to who should be assigned primary care and custody of a child. Although this is only one factor in determining the best interests of the child, it is significant. The seriousness and frequency of the assaults, and the circumstances of the parties and of the child, all must be examined and balanced when considering the best interests of the child.

The first steps taken by the accused are crucial as a status quo may be inadvertently acquired, and this might determine the long term rights and obligations of family members.

Also, it is important to note that the resolution of an allegation of domestic violence in the criminal justice system does not mean that the family courts will not be required to grapple with issues of family violence.

Where a child’s welfare is at issue, courts tend to be cautious and demonstrate a preference for maintaining the status quo where it has proven beneficial to the child. Peace bonds, which include conditions that limit the ability of a parent to develop or maintain a normal relationship with his or her child or children, can also play a significant role in the establishment of a “status quo”.

Ida Mirzadeh is an Associate at Simmons da Silva LLP
At Simmons da Silva LLP we have a highly-skilled group of professionals who have the necessary expertise and are committed to offering solutions in separation and divorce cases. Our lawyers are committed to utilizing collaborative law where appropriate in order to reduce the emotional and financial costs that result from separation or divorce. ‎Please contact our Family Law Practice Group to discuss how we can assist you in resolving your family law matter.

Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice.

By Ida Mirzadeh

The outcome of a criminal prosecution will have a significant, but not always determinative, impact on parallel family law proceedings relating to disputes over child custody and the matrimonial home. Below are three relevant factors that are often overlooked by spouses who are faced with a high-conflict separation.

3 THINGS TO CONSIDER BEFORE CALLING THE POLICE ON YOUR SPOUSE:

Zero Tolerance Policy:
It is important to understand that our government identifies domestic violence as a serious social concern. Accordingly, the police have been instructed that there be a zero tolerance policy toward domestic violence, such that upon receiving a complaint of domestic violence, the police are to exercise no discretion but to lay the appropriate criminal charge against the other spouse.

There are many situations where the complainant spouse has contacted the police in an effort to have the other spouse simply removed from the home, not expecting that the other spouse would be arrested and charged with a criminal offence.

The “No Contact” Order and Conditions of Bail:
Any conditions imposed by the criminal courts also must be followed in family court. If there is a “no contact” order imposed as a term of your release (“bail”) you must not attempt to contact your ex-spouse under any circumstances.

Specifically, your bail will be subject to conditions which will prohibit you from communicating or associating, directly or indirectly, with your spouse and possibly the children of the relationship. You will also be restrained from physically attending at the family residence where the alleged assault took place.

It is important at this stage for the non-association/communication release clause to include an exception to allow for your contact or communication through, at the very least, a third party or lawyer to arrange access to your children or pursuant to the terms of a Family Court Order or Separation Agreement. It is important to understand that the bail conditions, unless they contain these exceptions, supersede any existing or later family court orders for access or even custody. The bail conditions will remain in effect until likely the first court appearance for the charge, which may not take place until several months from the date of the laying of the charge. Accordingly, the terms of bail provide your spouse with informal custody and exclusive possession of the home while they exist.

Status Quo and the Best Interests of the Child:
Domestic violence will usually have an impact on the court’s determination as to who should be assigned primary care and custody of a child. Although this is only one factor in determining the best interests of the child, it is significant. The seriousness and frequency of the assaults, and the circumstances of the parties and of the child, all must be examined and balanced when considering the best interests of the child.

The first steps taken by the accused are crucial as a status quo may be inadvertently acquired, and this might determine the long term rights and obligations of family members.

Also, it is important to note that the resolution of an allegation of domestic violence in the criminal justice system does not mean that the family courts will not be required to grapple with issues of family violence.

Where a child’s welfare is at issue, courts tend to be cautious and demonstrate a preference for maintaining the status quo where it has proven beneficial to the child. Peace bonds, which include conditions that limit the ability of a parent to develop or maintain a normal relationship with his or her child or children, can also play a significant role in the establishment of a “status quo”.

Ida Mirzadeh is an Associate at Simmons da Silva LLP
At Simmons da Silva LLP we have a highly-skilled group of professionals who have the necessary expertise and are committed to offering solutions in separation and divorce cases. Our lawyers are committed to utilizing collaborative law where appropriate in order to reduce the emotional and financial costs that result from separation or divorce. ‎Please contact our Family Law Practice Group to discuss how we can assist you in resolving your family law matter.

Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice.

Construction Liens: A Primer

By Amrita Mann

While a lien action may in many ways resemble any other civil action, there are significant differences. Part IV of the Construction Lien Act (the “Act”) contains rules that govern jurisdiction and procedure. Lien actions are commenced pursuant to Section 53 of the Act.

The Threshold
Under the Act, the first threshold to be met is whether the supply of services or materials gives rise to the right to a lien.

Generally, parties entitled to a lien include contractors, subcontractors, labourers, and suppliers of materials, lessors of equipment, engineers, and architects. Once the threshold question of entitlement to a lien has been determined, the lien must be preserved and perfected.

Preserving the Lien
Liens are preserved by registering a Claim for Lien within 45 days after the earliest of either the last day of substantial work by a party on land, or, if the term of the contract continues, publication/posting of a certificate of substantial performance of a contract in publicly accessible daily commercial news.

Subsection 34(5) states that every Claim for Lien shall set out:

(a) Name and address for service of the person claiming the lien, of the owner of the, premise, of the person for whom the services or materials were supplied and the time within which those services or materials were supplied;

(b) Short description of the services or materials that were supplied;

(c) Contract price or subcontract price;

(d) Amount claimed in respect of services or materials that have been supplied; and

(e) Description of the premises

Mistakes may occur when attempting to preserve the lien. Section 6 of the Act is a curative provision which has been interpreted broadly and indicates that no pertinent lien document is invalidated by a failure to strictly comply with enumerated provisions, including the preservation of lien claims.

In determining whether a claim should be invalidated, the determinative issue in the application of Section 6 appears to be whether the opposing party has been prejudiced rather than the number of errors present. For example, failure to state the name of the owner is fatal since the purpose of a lien is to attach an owner’s interest, either freehold or leasehold. Accordingly, failure to give such notice in the claim for lien defeats the lien.

Perfecting the Lien
After a party has preserved a lien claim, the lien must be “perfected”. To perfect a lien, an action must be commenced, and the Certificate of Action registered, within 45 days of a lien having been preserved, in accordance with Subsection 36(2) of the Act.

Setting the Action down for Trial
An action commenced to perfect a lien must be ‘set down’ for trial within two years of the action having being started. If a trial date is not set within that time frame, a lien claim will become unenforceable.

Our team of litigators at Simmons da Silva LLP has in-depth experience in construction lien matters.

Amrita Mann is an Associate at Simmons da Silva LLP.

Email: amrita@sdslawform.com

Telephone: 905-861-2816

Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice

By Amrita Mann

While a lien action may in many ways resemble any other civil action, there are significant differences. Part IV of the Construction Lien Act (the “Act”) contains rules that govern jurisdiction and procedure. Lien actions are commenced pursuant to Section 53 of the Act.

The Threshold
Under the Act, the first threshold to be met is whether the supply of services or materials gives rise to the right to a lien.

Generally, parties entitled to a lien include contractors, subcontractors, labourers, and suppliers of materials, lessors of equipment, engineers, and architects. Once the threshold question of entitlement to a lien has been determined, the lien must be preserved and perfected.

Preserving the Lien
Liens are preserved by registering a Claim for Lien within 45 days after the earliest of either the last day of substantial work by a party on land, or, if the term of the contract continues, publication/posting of a certificate of substantial performance of a contract in publicly accessible daily commercial news.

Subsection 34(5) states that every Claim for Lien shall set out:

(a) Name and address for service of the person claiming the lien, of the owner of the, premise, of the person for whom the services or materials were supplied and the time within which those services or materials were supplied;

(b) Short description of the services or materials that were supplied;

(c) Contract price or subcontract price;

(d) Amount claimed in respect of services or materials that have been supplied; and

(e) Description of the premises

Mistakes may occur when attempting to preserve the lien. Section 6 of the Act is a curative provision which has been interpreted broadly and indicates that no pertinent lien document is invalidated by a failure to strictly comply with enumerated provisions, including the preservation of lien claims.

In determining whether a claim should be invalidated, the determinative issue in the application of Section 6 appears to be whether the opposing party has been prejudiced rather than the number of errors present. For example, failure to state the name of the owner is fatal since the purpose of a lien is to attach an owner’s interest, either freehold or leasehold. Accordingly, failure to give such notice in the claim for lien defeats the lien.

Perfecting the Lien
After a party has preserved a lien claim, the lien must be “perfected”. To perfect a lien, an action must be commenced, and the Certificate of Action registered, within 45 days of a lien having been preserved, in accordance with Subsection 36(2) of the Act.

Setting the Action down for Trial
An action commenced to perfect a lien must be ‘set down’ for trial within two years of the action having being started. If a trial date is not set within that time frame, a lien claim will become unenforceable.

Our team of litigators at Simmons da Silva LLP has in-depth experience in construction lien matters.

Amrita Mann is an Associate at Simmons da Silva LLP.

Email: amrita@sdslawform.com

Telephone: 905-861-2816

Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice

Complications of dealing with a mentally challenged teenager

Who among us, when in a social setting has not been asked for free advice in the areas of our expertise? The question put to me was, what can you do about a child who is hurting themselves? Another person there said you cannot force a teenager (which may be the demographic within which this problem often happens) into therapy without their consent.

The answer to this interesting question is that part 6 of the Child and Family Services Act comes to your rescue. You may not like the details of the answer. Yes, a parent can apply to the court to have their child “committed to a secure treatment. But here are some of the problems. You have to apply to a court. The treatment centre administrator must consent in writing. This I presume means there is room at the centre. It has to have a treatment program and that program has to be effective to treat the particular child.

Since admission is only by way of a court order this brings one to the next area of complexity. The court must be persuaded by trustworthy evidence, the child needs to have legal representation, the court has to have a hearing and oral evidence may be called. The child has a right to be present. The court may order an assessment. It also wants evidence of mental disorder. This likely involves a medical report. The child has to have caused or attempted serious bodily harm within the last 45 days. The court wants to know there is no other less restrictive form of treatment that would be effective.

There are other sections of the act that are relevant. When you think about these requirements you will ask all sorts of other questions. One practical issue is the cost of such an application to court and how the average family could afford this procedure. This clearly is something you do for very serious cases, when voluntary consensual solutions are not possible. There is a moral to the story. It is that we as parents need to protect our children better. There is much, much more to learn for everyone of us about this question.


At Simmons da Silva LLP we have a highly-skilled group of professionals who have the necessary expertise and are committed to offering solutions in separation and divorce cases. Our lawyers are committed to utilizing collaborative law where appropriate in order to reduce the emotional and financial costs that result from separation or divorce. Please contact Noel da Silva or Justin Clark at our office to discuss how we can assist you in resolving your family law matter.


Noel da Silva is a Partner at Simmons da Silva LLP


Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice.

Who among us, when in a social setting has not been asked for free advice in the areas of our expertise? The question put to me was, what can you do about a child who is hurting themselves? Another person there said you cannot force a teenager (which may be the demographic within which this problem often happens) into therapy without their consent.

The answer to this interesting question is that part 6 of the Child and Family Services Act comes to your rescue. You may not like the details of the answer. Yes, a parent can apply to the court to have their child “committed to a secure treatment. But here are some of the problems. You have to apply to a court. The treatment centre administrator must consent in writing. This I presume means there is room at the centre. It has to have a treatment program and that program has to be effective to treat the particular child.

Since admission is only by way of a court order this brings one to the next area of complexity. The court must be persuaded by trustworthy evidence, the child needs to have legal representation, the court has to have a hearing and oral evidence may be called. The child has a right to be present. The court may order an assessment. It also wants evidence of mental disorder. This likely involves a medical report. The child has to have caused or attempted serious bodily harm within the last 45 days. The court wants to know there is no other less restrictive form of treatment that would be effective.

There are other sections of the act that are relevant. When you think about these requirements you will ask all sorts of other questions. One practical issue is the cost of such an application to court and how the average family could afford this procedure. This clearly is something you do for very serious cases, when voluntary consensual solutions are not possible. There is a moral to the story. It is that we as parents need to protect our children better. There is much, much more to learn for everyone of us about this question.


At Simmons da Silva LLP we have a highly-skilled group of professionals who have the necessary expertise and are committed to offering solutions in separation and divorce cases. Our lawyers are committed to utilizing collaborative law where appropriate in order to reduce the emotional and financial costs that result from separation or divorce. Please contact Noel da Silva or Justin Clark at our office to discuss how we can assist you in resolving your family law matter.


Noel da Silva is a Partner at Simmons da Silva LLP


Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice.

Enforcing Non-Solicitation and Non-Competition Clauses

By Amrita Mann

Non-Compete versus Non-Solicit Clauses

While a non-competition provision restricts a former employee from competing against the former employer’s business, a non-solicitation provision is a less restrictive covenant and is narrowly aimed at preventing a former employee from soliciting his or her former employer’s (past, present and sometimes even potential) clients and sometimes employees.

Restraint of Trade

The law has been generally hostile towards non-competition clauses. Although both non-competition and non-solicitation clauses are considered by Courts to be a restraint of trade, Court are more inclined to declare non-competition clauses to be void on public policy grounds unless they can be justified as reasonable both in the interests of the public and in the interests of the parties.

Non-solicitation clauses are more likely to be enforceable, as long as they are clear, unambiguous, and reasonable in light of the employee’s position, knowledge and responsibilities.

Geographical Scope

While a non-competition clause must be geographically limited, a non-solicitation  clause not need to be geographically limited to be valid. Due to new technological developments and social media, customers are no longer limited geographically, and the Supreme Court of Canada has concluded that geographical limitations in non-solicitation agreements have generally become obsolete.[1]

There is no rule of thumb as to what a reasonable geographical scope/ limit for a non-competition clause will be and will depend on a number of factors, including the scope of competition and industry practice. If your business is in Brampton and you service clients only within the Province of Ontario then a Court will likely not enforce a non-competition clause that restricts competition “anywhere within Canada.”

Temporal Scope

It would not be reasonable to prevent a former employee from competing indefinitely. Each situation will be different, but generally the shorter the restriction period, the more likely it will be to resist the Court’s scrutiny. A six month restriction on competition will seem more reasonable than a five year restriction.

It may be reasonable to impose a longer time limit on a former employee from soliciting  the employer’s employees and/or clients. However, to do so the clause must be carefully drafted to reasonably protect the employer’s interest without unduly impacting the employee’s ability to earn a living. A good example of an enforceable non-solicitation clause can be found in the case of Edward Jones v Mirminachi, 2011 BCCA 493.[2]

Don’t use a Non-Compete when a Non-Solicit will do

As a general rule, Court will not enforce non-competition provisions in situations where it determines that a non-solicitation provision would have sufficed to protect the employer’s interests, as the former has been described by the Courts as the “more drastic weapon in the employer’s arsenal.”[3]

[1] Payette v. Guay Inc., 2013 SCC 45 at para 73.

[2] At para 5, “[Y]ou agree for a period of one year following the termination of your employment, that you will not solicit by mail, phone, electronic communication, personal meeting, or any other means, either directly or indirectly, business from any customer of Edward Jones who you served or whose name became known to you during your employment with Edward Jones.  Your agreement not to solicit means that you will not, during your employment in any capacity, and for a period of one year thereafter, initiate any contact or communication, of any kind whatsoever, for the purpose of inviting, encouraging or requesting any Edward Jones customer to transfer from Edward Jones to you or to your new employer, to open a new account with you or with your new employer, or to otherwise discontinue its patronage and business relationship with Edward Jones.”

[3] Lyons v Multari, 200o CanLII 16851 (ON CA) at para 31.

Our team of experienced lawyers at Simmons da Silva LLP have drafted, interpreted, defended and challenged countless non-compete and non-solicitation clauses.

Amrita Mann is an Associate at Simmons da Silva LLP. Email: amrita@sdslawform.com Telephone: 905-861-2816

Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice.

By Amrita Mann

Non-Compete versus Non-Solicit Clauses

While a non-competition provision restricts a former employee from competing against the former employer’s business, a non-solicitation provision is a less restrictive covenant and is narrowly aimed at preventing a former employee from soliciting his or her former employer’s (past, present and sometimes even potential) clients and sometimes employees.

Restraint of Trade

The law has been generally hostile towards non-competition clauses. Although both non-competition and non-solicitation clauses are considered by Courts to be a restraint of trade, Court are more inclined to declare non-competition clauses to be void on public policy grounds unless they can be justified as reasonable both in the interests of the public and in the interests of the parties.

Non-solicitation clauses are more likely to be enforceable, as long as they are clear, unambiguous, and reasonable in light of the employee’s position, knowledge and responsibilities.

Geographical Scope

While a non-competition clause must be geographically limited, a non-solicitation  clause not need to be geographically limited to be valid. Due to new technological developments and social media, customers are no longer limited geographically, and the Supreme Court of Canada has concluded that geographical limitations in non-solicitation agreements have generally become obsolete.[1]

There is no rule of thumb as to what a reasonable geographical scope/ limit for a non-competition clause will be and will depend on a number of factors, including the scope of competition and industry practice. If your business is in Brampton and you service clients only within the Province of Ontario then a Court will likely not enforce a non-competition clause that restricts competition “anywhere within Canada.”

Temporal Scope

It would not be reasonable to prevent a former employee from competing indefinitely. Each situation will be different, but generally the shorter the restriction period, the more likely it will be to resist the Court’s scrutiny. A six month restriction on competition will seem more reasonable than a five year restriction.

It may be reasonable to impose a longer time limit on a former employee from soliciting  the employer’s employees and/or clients. However, to do so the clause must be carefully drafted to reasonably protect the employer’s interest without unduly impacting the employee’s ability to earn a living. A good example of an enforceable non-solicitation clause can be found in the case of Edward Jones v Mirminachi, 2011 BCCA 493.[2]

Don’t use a Non-Compete when a Non-Solicit will do

As a general rule, Court will not enforce non-competition provisions in situations where it determines that a non-solicitation provision would have sufficed to protect the employer’s interests, as the former has been described by the Courts as the “more drastic weapon in the employer’s arsenal.”[3]

[1] Payette v. Guay Inc., 2013 SCC 45 at para 73.

[2] At para 5, “[Y]ou agree for a period of one year following the termination of your employment, that you will not solicit by mail, phone, electronic communication, personal meeting, or any other means, either directly or indirectly, business from any customer of Edward Jones who you served or whose name became known to you during your employment with Edward Jones.  Your agreement not to solicit means that you will not, during your employment in any capacity, and for a period of one year thereafter, initiate any contact or communication, of any kind whatsoever, for the purpose of inviting, encouraging or requesting any Edward Jones customer to transfer from Edward Jones to you or to your new employer, to open a new account with you or with your new employer, or to otherwise discontinue its patronage and business relationship with Edward Jones.”

[3] Lyons v Multari, 200o CanLII 16851 (ON CA) at para 31.

Our team of experienced lawyers at Simmons da Silva LLP have drafted, interpreted, defended and challenged countless non-compete and non-solicitation clauses.

Amrita Mann is an Associate at Simmons da Silva LLP. Email: amrita@sdslawform.com Telephone: 905-861-2816

Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice.