The Case for Broadening the Ambit of Restraint of Trade and for Focusing on Reasonableness

Abstract

The jurisprudence in the area of restraint of trade reveals inconsistencies concerning what falls within the ambit of a restraint of trade. In addition, the modern employment relationship is of a radically different nature than the employment relationships of the past. This article reviews the historical approach and discusses some recent Canadian jurisprudence on restraint of trade. In light of changes to the employment landscape, this article proposes modifications to the court’s characterization of “restraining” provisions and directs more emphasis towards reasonableness and the interest-balancing process. It concludes with an application of the proposed test for an unreasonable restraint of trade and a defence of the proposed alterations.