A subcontractor quit their cleaning job after seven months and was prohibited by their former employer from contacting clients, colleagues, or speaking negatively about the company. They did not sign an agreement with these restrictions.
Two lawyers provided opinions stating that the company's demands are likely unenforceable without a signed agreement with restrictive covenants such as non-disclosure, non-solicitation, or non-disparagement clauses. As an independent contractor, the former employee's obligations are governed by the terms of their contract, with no implied restrictions on communication after the engagement ends.
The lawyers emphasize that restrictive covenants, like prohibitions on contacting employees or clients, must be reasonable and tied to legitimate business interests to be enforceable in jurisdictions like Ontario. No such clause existed in this case. The former employee is legally permitted to maintain relationships with former colleagues and clients, provided they don't misuse confidential information or solicit business in breach of contract (which was not agreed upon).
Expressing dissatisfaction is permissible if statements are accurate and not malicious. The company's attempt to silence criticism is unenforceable and may be an attempt to chill lawful expression. If further threats are made, seeking legal advice is recommended.
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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?
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.
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.
Have a question for our experts? Send an e-mail to NineToFive@globeandmail.com with ‘Nine to Five’ in the subject line. Emails without the correct subject line may not be answered.
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