Download PDF - Stewart McKelvey

______________________________________________________________________________Stewart McKelveyDoing Business in Atlantic Canada• questions about health, illness, mental disorders, medical history, workers’ compensation claims,or accommodation of disability-related needs.Certain questions that invite information otherwise discriminatory in nature, may be asked in the posthiringstage where the employer has a legitimate need for the information (e.g. insurance, benefits plansor taxation) or if an assessment on accommodation must be made.Mandatory retirement policies may be considered invalid and unenforceable under Atlantic Canada'sprovincial human rights law unless the policy falls under an exception in the legislation. For example,mandatory retirement may be allowed if age could be established to constitute a bona fide occupationalrequirement for employees, or if there is a bona fide pension plan that is adopted in good faith by anemployer and not for the purpose of avoiding human rights protections.Labour Relations Legislation – Restrictions on InformationEach province has labour relations legislation that makes it illegal for an employer to refuse to “employ”,or “to discriminate against any person” because of that person’s trade union status.Unfair Competition / Covenants Not to CompeteTrade SecretsUnder the common law, employees must not divulge confidential information or trade secrets that theyacquire during their employment. This does not prevent employees from bringing general knowledge andskills they learned from their previous employer to a new employer. But generally, “confidential”information (defined as information that, if disclosed, could negatively impact the employer’s business thatis not in the public realm) must not be divulged to a new employer. Confidential information may include:marketing strategy; personnel information; standard business practices of the employer; trade secrets(such as manufacturing processes); sales information; commercial contracts; computerized data; andsupplier and customer lists.However, trivial or self-evident matters, or information otherwise available in the public domain isgenerally not confidential information.Covenants Not to CompeteDepending on the particular employment relationship, an employer may restrict former employees frombecoming engaged in competitive employment. Whether a court will uphold a restrictive covenantpreventing competition will be based on an analysis of whether the employee owes a fiduciary duty to theemployer (i.e. has an obligation to act in the employer’s best interests).Fiduciary duties are not generally imposed on employees through implication of the employment contract.However, in some instances employees may be in a fiduciary relationship due to the specific nature of theemployment. Fiduciary employees typically are employees occupying “key” positions or who have accessto sensitive information about the employer’s business that might allow them to compete unfairly with theiremployer following employment. In such cases, an employer may be successful in obtaining injunctiverelief and a new employer will find itself prevented from using this employee’s knowledge as a resource.Non-Solicitation of Employees and CustomersContracts containing non-solicitation clauses are more readily enforceable in Canada than noncompetitionclauses, as they are less restrictive in nature. Such clauses may be subject to a“reasonableness” analysis by a court.Page 59