Spring Blooms and Post-Employment Restrictions: Court Rules Seasonal Employee not Bound by Non-Competition Clause

Many employers fear that a departing employee will set up a competing business. Often employers try to protect themselves with non-competition and non-solicitation agreements with employees. In See Thru Window Cleaners Inc. v. Mahood (PDF) , the B.C. Supreme Court explored a novel issue – whether a non-competition clause is enforceable against a seasonal employee. 

The Facts

See Thru Window Cleaners Inc. was in the business of window cleaning, gutter cleaning, and pressure cleaning. Its business was seasonal. It employed most workers in the spring, summer and autumn months and then laid them off for the winter. One of those seasonal workers was the defendant, Mr. Mahood.

Mahood was hired in 2001 or 2002 as an entry-level window cleaner. He worked for See Thru on and off for 15 years. He was laid off each winter, only to be re-hired the following year. At times, Mr. Mahood would find other work while laid off.  At other times he would collect employment insurance benefits. 

This pattern was repeated throughout most of Mr. Mahood's employment.

In October 2008, Mahood became the crew foreman. He was then required to enter into a non-competition agreement. 

In February 2009, Mahood left See Thru, but returned to their employ one year later. At that point, in early 2010, he signed another non-competition agreement. In it he agreed not to establish his own competing business within the City of Kamloops, for a period of three years after leaving his employment with See Thru. 

After signing this second agreement, Mr. Mahood worked for See Thru on a seasonal basis until November 2015, as follows:

• February 18, 2010 to November 22, 2010;
• February 21, 2011 to November 11, 2011;
• April 30, 2012 to August 13, 2012;
• April 4, 2013 to December 12, 2013;
• March 24, 2014 to November 28, 2014; and
• March 9, 2015 to November 14, 2015.

On January 14, 2016, Mr. Mahood resigned. He started a business named Adam & Eaves Window and Gutter Cleaning. It competed directly against See Thru. 

See Thru sought an injunction against Mr. Mahood that would prohibit him from competing against it for a period of three years from the end of his employment on January 14, 2016.

Click here to read more on the decision.....

Article Spotted By : Louise

Article Written By: Matthew Larson

Article Published on : June 14, 2017 Faskin Martineau