Non-Competition Clauses in Canadian Employment Law and the Doctrine of Inequality of Bargaining Power
Bibliographic record
Abstract
In 2021, the Ontario government legislatively prohibited most noncompetition clauses, the first Canadian government to take this step. The move was unexpected because the political party in power (the Progressive Conservative Party, or PCP) has not traditionally been a strong supporter of workers’ rights. However, the PCP wanted to demonstrate a new commitment to the working class, and it knew that banning non-competition clauses would attract little backlash from its business constituency since the common law renders almost all noncompetes illegal in Canada anyway. The common law approach to the enforceability of non-competition clauses is similar in Canada and the United States. Courts in both countries are suspicious of these clauses because they restrict the right of workers to accept jobs within their field. However, Canadian courts are far less likely to enforce non-competition clauses than their American counterparts. This divergence can partly be explained by fundamental differences in employment law architecture, including the fact that a doctrine of inequality of bargaining power guides Canadian courts. This doctrine, developed primarily by the Supreme Court of Canada over the past half-century, is comprised of both a descriptive and a normative element. Descriptively, the doctrine recognizes (1) that work has a psychological component and is integral to human dignity, personal identity, and self-worth in Canadian society; and (2) that the employment relationship is frequently characterized by inequality of bargaining power. Normatively, the doctrine of inequality of bargaining power posits that, due to the importance of work and the reality of inequality of bargaining power, the common law should develop in a manner that considers the vulnerability of employees. Relying on the doctrine of inequality of bargaining power, Canadian courts have refused to sever or rectify unreasonable and over-broad noncompetition clauses. This refusal marks a substantial divergence from courts in the United States, where courts routinely intervene on behalf of employers to read down unreasonable non-competition clauses to make them enforceable. This Article examines the treatment of noncompetition clauses in employment contracts through a comparative lens, explaining how Canadian courts (and now legislators) have demonstrated much less tolerance for contractual restrictions on the right to work.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.003 | 0.008 |
| Meta-epidemiology (narrow) | 0.000 | 0.001 |
| Meta-epidemiology (broad) | 0.000 | 0.001 |
| Bibliometrics | 0.002 | 0.002 |
| Science and technology studies | 0.018 | 0.022 |
| Scholarly communication | 0.008 | 0.003 |
| Open science | 0.002 | 0.003 |
| Research integrity | 0.005 | 0.006 |
| Insufficient payload (model declined to judge) | 0.006 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".