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THE QUESTION

I had been working as a cleaner for seven months as a subcontractor. I recently quit and the company sent me an e-mail saying that I was not allowed to talk to any employee, subcontractor or clients I cleaned for, and that I couldn’t say anything negative about the company. Otherwise, they would start legal proceedings against me. I never signed anything to agree to this. I don’t plan on taking any of their clients. But I’m friends with the other cleaners. I did not have a positive experience with this company, so if someone asked about it, I want to be honest. What should I do?

THE FIRST ANSWER

Tong Jun (Roger) Zhang, principal and managing Lawyer, TZ Law, Calgary

The company’s demands are unlikely to be enforceable in the absence of a signed agreement containing restrictive covenants such as non-disclosure, non-solicitation or non-disparagement clauses. As an independent contractor, your obligations are governed by the terms of your contract and no implied restrictions apply to your communications after the engagement ends.

You are free to communicate and maintain personal relationships with your former colleagues. With respect to sharing your experience, there are no legal restrictions on your ability to express truthful opinions. The burden of proof for defamation lies with the company; defamation law in most Canadian jurisdictions requires the company to prove that any statements you make are false and harmful to succeed in a claim, as truth serves as a complete defence. The best practice is to ensure your comments are factual and to avoid exaggeration or malicious intent.

The company’s threats of legal action lack a substantive basis without a signed agreement. However, to mitigate risk, I recommend retaining all relevant correspondence in your records, including the email in question. If the company pursues further action, consulting a lawyer in your province would be prudent to address any jurisdictional nuances.

THE SECOND ANSWER

Tareq Shahwan, associate lawyer, Randy Ai Law Office, Toronto

Without a written and enforceable agreement establishing restrictions in regards to your post-employment, such as non-solicitation and/or non-disparagement clauses, the company’s demands carry little to no legal weight. As a subcontractor, you were not an employee and owe no continuing duty of loyalty or confidentiality beyond what was expressly agreed at the outset of your business relationship. That said, subcontractors are expected to perform their work in good faith while the contract is in force.

In Ontario, restrictive covenants – like prohibitions on contacting employees or clients – must be reasonable in scope and tied to a legitimate business interest to be enforceable. No such clause was signed here. You are legally permitted to maintain personal or professional relationships with former colleagues and clients, provided you are not misusing confidential information or actively soliciting business in breach of contract, which, again, you never agreed to.

As for speaking about your experience, Canadian defamation law protects truthful statements and fair comment based on fact. You are entitled to express dissatisfaction, provided your statements are accurate and not malicious. The company’s attempt to silence criticism without a contractual basis is not enforceable and may amount to an attempt to chill your lawful expression.

While the threat of legal proceedings may be intimidating, the absence of any contractual restraint or defamatory conduct on your part means their position is unlikely to succeed in court. If further threats are made, you can seek legal advice from a licensed lawyer in the province where you live.

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