What Counts As Soliciting Clients?

Introduction to what counts as soliciting clients

If you are a senior employee, an executive, or a professional with a book of business, there is a good chance your employment contract includes a non-solicitation clause. When you leave, that clause becomes one of the most consequential pieces of paper in your transition.

The question is not simply whether the clause exists. The question is what it actually prohibits. Non-solicitation clauses are frequently misunderstood, often overstated by former employers, and in some cases unenforceable altogether.

Courts have drawn clear lines between what counts as solicitation and what does not. Understanding those lines can make a significant difference in how you navigate your next move, and whether you end up in litigation.

If you have questions about a non-solicitation clause, the Calgary employment lawyers at Cashion Legal act for both employers and departing executives. Book a case evaluation today.

Your Situation

You have built your career over years, maybe decades. Along the way, you have developed relationships with clients, customers, or referral sources that follow you because of who you are, not just where you work. Those relationships are part of your professional identity.

Now you are leaving, or you have already left. Your former employer is pointing to a non-solicitation clause and telling you those relationships are off-limits. They may be threatening legal action. They may have already sent a cease and desist letter.

This is a situation that plays out regularly for senior employees in Alberta, particularly in industries like financial services, consulting, insurance, engineering, and professional services. The stakes are real. A misstep can expose you to an injunction that prevents you from working your client base, or a damages claim that follows you into your next role.

But former employers also overreach. They send threatening letters about clauses that would never survive a court challenge. They assert rights over client relationships that, on close examination, belong to you, not to them.

The answer to whether your former employer has a legitimate claim starts with understanding what solicitation actually means, and what it does not.

What Is a Non-Solicitation Clause?

A non-solicitation clause is a contractual restriction that prevents a former employee from soliciting the clients, customers, or employees of their former employer for a defined period after employment ends.

These clauses are narrower than non-compete clauses. A non-compete prevents a former employee from working in a competing business at all. A non-solicitation clause does not stop the employee from competing. It only restricts a specific type of conduct: going after the employer’s clients or staff. Learn more about non-compete clauses here.

For example, a non-solicitation clause might read:

“For a period of 12 months following the termination of employment, the employee shall not directly or indirectly solicit any client of the Company with whom the employee had material contact during the 12 months preceding termination.”

Whether a clause like this is enforceable depends on whether it is reasonable in scope, geography, and duration. A clause that goes too far can be struck down entirely.

Courts are more likely to uphold a solicitation clause which is limited to:

• The particular clients or customers that the employee can identify and has actually managed or serviced.
• To those that were still the employer’s clients or customers at the time of termination and at the time of the solicitation.
• To clients that were not pre-existing clients belonging to the employee or independent contractor.
• To active solicitation, rather than mere contact with the client.

Notably, “solicitation” is not governed by the Employment Standards Code. Alberta’s employment standards legislation sets out minimum standards for notice, termination pay, and other workplace entitlements, but it include rules regarding non-solicitation clauses.

Why Non-Solicitation Clauses Are More Likely to Be Enforced Than Non-Competes

Courts in Canada approach non-competition clauses with significant skepticism. They restrict a person’s ability to earn a living entirely, and that level of restriction requires strong justification. You can read more about the enforceability of non-compete clauses here.

Non-solicitation clauses face a lower bar. Because they only prohibit targeting specific clients or employees, rather than prohibiting all competition, they are considered a proportionate way for an employer to protect its client relationships and goodwill.

As a general rule, courts are more likely to uphold a non-solicitation clause when it is limited to:

• Clients the employee actually managed or serviced
• Clients who were active customers of the employer at the time of termination
• Clients that did not belong to the employee or independent contractor before the employment relationship
• Active solicitation, rather than passive contact

The more narrowly the clause is drawn, the more likely it will survive scrutiny. Broadly worded clauses that restrict conduct beyond what is reasonably necessary to protect the employer’s goodwill are at risk of being struck down.

You can read more about the enforceability of non-solicitation clauses here.

What Counts as Solicitation?

At its most basic, solicitation means actively seeking out a person’s business. Courts have generally defined it as taking some positive, overt step to attract a client or induce someone to do business with you or your new employer. As explained in one court decision:

Soliciting involves asking, urging, prevailing on, trying to obtain, trying to sell, trying to obtain benefits (whether goods, services, or money) from another. A feature of soliciting is that it is an attempt to convince another person to provide some benefit that will satisfy or partially satisfy some need or interest of the person soliciting. It involves requesting or urging for the purposes of satisfying some interest or end of the person doing the soliciting.

Effectively, “solicitation” refers to conduct for the purpose of inciting someone to do something, characterized by some pressing request, commercial or otherwise, in nature. Solicitation involves a deliberate and targeted effort to pursue a client. Courts look at the totality of the circumstances.

Conduct courts have treated as active solicitation includes:

• Directly contacting specific clients by phone, email, or in person to offer services through a new employer
• Following up on business opportunities that originated during employment, using client information obtained from the former employer
• Systematically working through a client list to offer competing services
• Using knowledge of a client’s renewal dates, pricing, or preferences to time outreach strategically

The common thread is purposeful, targeted conduct aimed at diverting a client relationship from the former employer.

What Doesn’t Count as Active Solicitation?

Courts have been careful not to extend non-solicitation clauses beyond their intended scope. Several types of conduct have been found not to constitute solicitation:

Responding to a Public Tender

If a former client issues a public request for proposals or a public tender, responding to that tender is not solicitation. The client is reaching out to the market, not the other way around.

General Advertising

Placing a general advertisement announcing the opening of a new business, or a new role at a competing firm, does not constitute solicitation of specific clients.

A Client Reaching Out First

If a former client contacts you unsolicited, that contact is generally not considered solicitation by you. The employee did not initiate it. Courts distinguish between a former employee hunting for clients and a former client choosing where to take their business. For senior professionals whose clients follow them based on personal trust, this distinction matters enormously.

Incidental or Social Contact

Casual or social contact with a former client, without any attempt to solicit business, is unlikely to qualify. The question is whether the contact was designed to pursue a business opportunity. Running into a client at an industry event and having a conversation is not the same as calling them to pitch your new firm.

The key principle is that non-solicitation clauses protect an employer’s active client relationships. They are not meant to give employers a monopoly on a senior employee’s professional network, or to prevent clients from freely choosing where they take their business.

Practical Tips If You’re Subject to a Non-Solicitation Clause

• Review your contract before you give notice. Know what the clause actually says, how long it runs, and which clients it covers. Do not assume you know what it says from memory. Have your employment contract reviewed.
• Do not initiate contact with former clients to offer your new services during the restriction period. Let clients come to you.
• When a former client reaches out to you, document it. Note the date, who initiated contact, and what was discussed. If a dispute arises later, that record could be central to your defence.
• Be careful about how you use information from your former employer. Using confidential client data, pricing information, or contact lists to reach out to clients creates exposure beyond the non-solicitation clause, including potential claims for breach of confidentiality or misuse of confidential information.
• If your clause is broadly worded and potentially unenforceable, do not assume that on your own. Get legal advice before acting on that assumption.
• If you receive a cease and desist letter, take it seriously but do not panic. Many such letters overstate the employer’s legal position. A lawyer can assess whether the clause is enforceable and what your actual obligations are.

If you have questions about a non-solicitation clause, the Calgary employment lawyers at Cashion Legal act for both employers and departing executives. Book a case evaluation today.

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