A Non-Compete Written So Wide It Could Not Actually Stop Him

The situation

Baruch had already signed the offer letter for a respiratory therapy position at a private clinic in Belleville when the recruiter, going through onboarding paperwork, asked an offhand question that stopped him cold: did his previous employer have any restrictions on where he could work next. Baruch had signed something like that years earlier, he thought, but had never read it closely, and had no idea whether it applied to the job he was about to start.

Baruch had spent the previous several years working for a private clinic group in a different part of the province, a role he had left on reasonably good terms when his family relocated. His employment agreement there, drafted by the clinic's owner Jordan, who had spent years as a millwright in a manufacturing plant before leaving industrial work to build the clinic group from a single location, included a non-compete clause restricting him from working for any competing respiratory or allied health service provider within a defined geographic radius for two years after leaving. Baruch had signed it years earlier, before the province's rules on this kind of clause changed, without close review, as many employees do, assuming it was standard boilerplate.

The clause turned out to be anything but standard. Read closely, it did not limit itself to a sensible radius around the clinic where Baruch had actually worked. It defined the restricted territory by reference to anywhere the clinic group operated or planned to operate, a definition broad enough to cover most of the province, including Belleville, a city Baruch had never worked in and that the clinic group had, as far as anyone could tell, no actual presence in. It also defined competing employers expansively enough to potentially capture the new clinic Baruch was about to join, even though the two businesses served overlapping but not identical patient populations.

The timing made everything worse. At almost the same moment Baruch discovered the breadth of the clause, a separate dispute surfaced: his former employer's clinic group was in the middle of a falling-out with Kayla, a former administrator, over an unrelated dispute involving unpaid vacation pay and a disputed expense reimbursement, a fight Baruch had been copied on emails about simply because he had once supervised part of Kayla's onboarding. The two issues had nothing to do with each other, but they were about to be handled by the same overstretched former employer at the same time, and Baruch worried the non-compete question would get tangled up in whatever tension already existed between the clinic group and Kayla.

The complication

A non-compete clause restricting a former employee's ability to work is enforceable in Ontario only in narrow circumstances, and courts scrutinize these clauses closely because they restrict a person's ability to earn a living. To be enforceable, a restriction generally needs to be reasonable in scope, reasonable in geographic reach, and reasonable in duration, tailored to protecting a genuine business interest rather than simply preventing competition in general. A clause that reaches further than necessary to protect that interest risks being found unenforceable entirely, not merely narrowed down to a reasonable version of itself.

Ontario's rules changed further in 2021, when the province's employment standards legislation began prohibiting employers from including non-compete clauses in new employment agreements at all, aside from a narrow exception for senior executives and another for the sale of a business. Baruch's clause predated that change, so it did not fall to be struck down automatically under the newer statute, and instead had to be assessed the older way, under the common law test for reasonableness described above. But the same legislative shift was part of the backdrop: it reflected a clear policy direction against exactly this kind of restriction, one that made courts, if anything, even less inclined to stretch to find an overbroad clause enforceable.

Baruch's clause had several of the features that make a non-compete vulnerable to exactly that outcome. Its geographic scope was tied not to where Baruch had actually worked or where the clinic group had a real competitive presence, but to anywhere the group operated or might someday operate, a formulation that could sweep in an entire province regardless of whether the former employer had any actual business interest to protect in a given city. Its definition of a competing employer was broad enough to potentially capture clinics offering only partially overlapping services, again reaching well beyond what would be needed to protect the clinic group's genuine client relationships and training investment in Baruch.

The complication was that Baruch could not simply ignore the clause and hope for the best. Accepting the Belleville position while a facially applicable non-compete existed created real risk, even if the clause were ultimately unenforceable, because his former employer could still send a demand letter to the new clinic, threaten litigation, or otherwise create enough uncertainty that the new employer got cold feet before Baruch ever proved the clause was overbroad. That kind of dispute, even if Baruch would likely have won it eventually, could easily have cost him the new job before it started.

The overlap with Kayla's unrelated dispute added a second layer of risk. If the clinic group's response to Kayla's claim over unpaid vacation pay was already adversarial, there was a real chance the group would respond to any inquiry about Baruch's non-compete in the same defensive posture, treating a routine clarification request as one more front in a fight it was already fighting, rather than engaging with the merits of whether the clause could actually be enforced against him.

What we did

1. Confirmed when Baruch's agreement was signed and checked it against the 2021 statutory ban on new non-compete clauses, establishing that the agreement predated the ban and so had to be assessed under the older common law test rather than struck down automatically, before reviewing the geographic definition, the scope of restricted competitors, and the two-year duration together to assess realistically whether a court would enforce the clause as written.
2. Identified the specific drafting flaws that made the clause vulnerable, focusing on the open-ended geographic reach tied to potential future expansion rather than actual operations, and the overly broad definition of a competing employer, both features that Ontario courts have historically treated as grounds to strike a restriction down entirely rather than simply narrow it to something reasonable, which meant the whole clause, not just its outer edges, was genuinely at risk.
3. Assessed the new Belleville role against the clause's actual, defensible interest, confirming through public corporate records and Jordan's own clinic group website that the former employer had no genuine business presence or client relationships in Belleville, which meant even a narrowed, reasonable version of the clause likely would not have reached this particular job in this particular city, a fact worth confirming independently rather than taking on Baruch's word alone.
4. Reviewed the unrelated dispute involving Kayla to understand the former employer's current posture, confirming that the vacation pay and expense reimbursement dispute was factually and legally distinct from Baruch's situation, and preparing language to make that distinction clear immediately if the former employer's response tried to conflate the two matters or use one to pressure the other, since letting that happen unchallenged could have complicated a straightforward question unnecessarily.
5. Drafted a clear, factual letter to Jordan and the clinic group setting out the legal basis for treating the clause as unenforceable in these circumstances, rather than either ignoring the clause and hoping for the best or waiting passively for a dispute to develop after Baruch had already started the new role, giving Jordan's clinic group a clear and specific opportunity to respond before anything else moved forward.
6. Advised the new Belleville clinic's own counsel directly on the analysis, sharing the reasoning behind the enforceability assessment in writing so the new employer had confidence proceeding with the hire rather than being left to weigh an unquantified legal risk on its own before finalizing Baruch's start date, which mattered because a nervous new employer can rescind an offer long before any court ever gets involved.
7. Confirmed no response indicating an intent to enforce the clause was received within a reasonable window, following up once directly with Jordan's clinic group to close the loop formally, and documented that outcome clearly in Baruch's file so a record existed of the notice having been given and left unanswered, in case the question ever needed to be revisited years down the line.

The outcome

The former clinic group did not pursue the non-compete clause against Baruch. Faced with a clear, well-supported explanation of why the clause was unlikely to hold up, and with no genuine business interest in Belleville to justify defending it, the group let the matter drop rather than engage in a dispute it stood a poor chance of winning. Baruch started the new role on schedule, with no gap in employment and no litigation ever filed.

Because the issue was resolved before it became a dispute, there was no court decision, no settlement, and no cost beyond the legal work of assessing the clause and communicating the position clearly. That is, in a real sense, the best outcome this kind of problem can produce: the risk was identified and addressed while it was still a question on paper, rather than after a demand letter arrived at Baruch's new employer or after an offer was quietly withdrawn.

Kayla's unrelated dispute with the same clinic group proceeded on its own separate track and never became entangled with Baruch's situation, which validated the decision to address the non-compete question directly and promptly rather than waiting to see how that other conflict played out. Had the two matters gotten tangled up, with the clinic group treating a routine clarification about an old employment clause as one more front in a fight it was already fighting with a former administrator, the outcome could easily have looked very different, with the group digging in defensively on both fronts rather than conceding either one.

Baruch kept a copy of the correspondence in his own records, a precaution that cost him nothing and would have mattered a great deal had the former employer changed its position at any point during his first two years in the new role, since a signed acknowledgment that no objection had been raised is far stronger evidence than a memory of a conversation. The new clinic's own counsel likewise kept the written analysis on file, giving the business a documented basis for having proceeded with the hire in case the question ever resurfaced, such as a new owner taking over the old clinic group with a more aggressive view of its rights.

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