Executive Summary: Key Legal and Evidentiary Issues

• Enforceability and scope of a non-solicitation and non-communication clause in an employment contract for residential cleaning services
• Insufficient proof that the former employee actively and persistently solicited the employer’s clients or disparaged the employer so as to breach contractual and statutory loyalty obligations
• Failure of the employer to call former clients as witnesses, relying instead on hypotheses about why contracts were terminated, which did not meet the standard of proof on a balance of probabilities
• Treatment of written client declarations filed with the defence and their impact on rebutting allegations of prohibited solicitation
• Interpretation of the contractual requirement for 10 working days’ notice of resignation and assessment of resulting inconvenience and loss when the employee quits abruptly
• Measurement of damages: rejection of a substantial claim for loss of clientele and goodwill, but limited compensation awarded for the missed cleaning service on the day of resignation

Facts of the case

9157-3725 Québec inc. operates a residential housekeeping franchise under the name Adèle Mathieu Carrière. Its sole shareholder and administrator is Mathieu Carrière, who oversees the provision of cleaning services to a recurring residential clientele. On 4 November 2021, the defendant, Hélène Choquette, entered into a written employment contract with 9157-3725 Québec inc. in the residential cleaning sector. The contract included several restrictive and loyalty-related provisions: a non-solicitation clause prohibiting her, both during and after employment, from soliciting any client of the franchise directly or indirectly; a “non-communication” commitment under which she was not to contact clients without prior authorization from the employer; and a requirement to give a minimum of 10 working days’ notice before terminating the employment relationship. These clauses were presented as protecting the employer’s exclusive relationship with its clients and the value of its clientele.
On 11 January 2022, without giving advance notice, Ms. Choquette informed Mr. Carrière that she was ending her employment and left the cleaning equipment at the door of the client whose home she was scheduled to clean that day. Shortly before and after this resignation, three clients of 9157-3725 Québec inc. – identified as Julie Chiasson, Julie Gallagher and Toula Yanakis – terminated their service contracts with the company. One client also sent an email to Mr. Carrière on 14 January 2022 stating that Ms. Choquette was speaking very poorly of the company, which raised concern that the former employee was disparaging the business and attempting to divert its clientele.
On 21 January 2022, through a lawyer’s demand letter, the employer formally required Ms. Choquette to cease any “disloyal solicitation” of its clients, to refrain from contacting them to offer competing services, and to stop servicing any of its clients she had allegedly approached in an improper manner. The employer maintained that, despite this formal notice, the former employee continued to engage in disloyal conduct by taking on former franchise clients. On 16 April 2022, 9157-3725 Québec inc. sold its clientele to another franchisee, later claiming that the defendant’s actions had diminished the value of the business. The employer brought a small-claims action on 2 December 2022 seeking damages for loss of revenue, loss of value of its clientele and moral damages tied to the alleged breaches of loyalty, non-solicitation and non-communication obligations, as well as for the abrupt termination of employment without the contractually agreed 10 days’ notice.

Contractual clauses and legal framework

The contractual provisions at the heart of the dispute were the non-solicitation and non-communication undertakings. In the text of the employment contract, the employee expressly recognized that the clients she served for “Adèle Ste-Julie St-Bruno” (the franchise identity of the plaintiff) were the exclusive property of the franchise. She agreed to respect the employer’s relationship with each client and to act, during and after employment, in a manner that would not diminish or alter those relationships. She further undertook never to solicit, directly or indirectly, any client to suggest that they deal with her personally or with a third party and pledged never to contact any client without first obtaining authorization from her employer or an authorized representative. The contract also contained a remedial clause in which she acknowledged that, in the event of breach, the franchise would have all rights to take measures or proceedings deemed necessary, including recovery of legal costs incurred to enforce its rights.
In assessing these provisions, the court placed them within the broader framework of the Civil Code of Québec. Article 2088 C.c.Q. codifies the employee’s obligation of loyalty, including the duty not to misuse confidential information obtained in the course of employment and clarifies that such obligations survive the end of the contract for a reasonable time, particularly where reputation and privacy are involved. Article 2089 C.c.Q. then allows parties to stipulate by written, express clause that the employee will not compete with the employer after the end of the contract, provided that such restrictions are limited as to time, place and type of work, and are no broader than necessary to protect the employer’s legitimate interests. The court also drew on case law and doctrine to reiterate that a non-solicitation clause, while easier to uphold than a full non-competition clause, still cannot be interpreted to bar an employee from serving former clients who, of their own initiative, choose to follow the employee; there must be proof of active, pressuring solicitation for the clause to be breached.

Analysis of non-solicitation, loyalty and communications

The court first examined whether 9157-3725 Québec inc. proved, on a balance of probabilities, that its non-solicitation clause was valid and that Ms. Choquette engaged in prohibited solicitation or other disloyal acts. The judge adopted definitions of “solicitation” from prior jurisprudence, emphasizing that an element of insistence or pressure is required. Mere communication with former clients, even to inform them that the employee has left and is available to work independently, is generally not enough to constitute prohibited solicitation. A non-solicitation clause is infringed when the former employee actively, and in a persistent or pressing way, seeks to induce clients to cease dealing with the former employer and to follow her to a new business or competing service.
The evidence adduced by the employer fell short of this standard. At trial, Mr. Carrière identified three clients – Ms. Chiasson, Ms. Gallagher and Ms. Yanakis – whose service contracts ended within days of the defendant’s resignation. He inferred, based solely on the timing, that they must have been improperly solicited. However, none of these clients was called to testify, and there was no direct evidence of phone calls, messages or conversations in which Ms. Choquette pressured them to cancel their contracts with the franchise. The court noted that mere hypotheses about causation, even if plausible, do not amount to preponderant proof.
On the other side, the defendant produced two written declarations from clients saying that she had not solicited them; instead, they had asked her to work for them after learning she had left 9157-3725 Québec inc., because they were very satisfied with her personal work and less satisfied with services provided by other employees. One of these declarations was signed by the husband of client Julie Gallagher. While these statements were not introduced under the special affidavit rule of article 555 of the Code of Civil Procedure, they had been in the court file since the filing of the defence and the employer had ample opportunity to prepare a rebuttal. At the hearing, Mr. Carrière disagreed with some comments about service quality in the Gallagher declaration but could not contradict the description of how the engagement of Ms. Choquette by those clients came about.
The court underscored that even if the evidence had shown that the defendant contacted former clients simply to mention the end of her employment and her availability, such contact would not automatically amount to prohibited solicitation without signs of active pressure or insistence. Nor did the employer establish, through admissible and convincing evidence, that the defendant had maliciously disparaged the company or made false representations. A brief email from a client complaining that the employee was speaking ill of the business was considered too concise and vague to prove denigration or deceitful conduct by the former employee. In addition, the judge rejected the notion that a “non-communication” clause could be interpreted as an absolute ban on any communication with former clients. In context, the only communications that mattered legally were those undertaken for the purpose of prohibited solicitation. Since solicitation itself was not proven, a standalone breach of non-communication obligations could not be sustained.

Burden of proof and small-claims evidentiary standards

In reviewing the overall evidentiary record, the court reiterated the basic civil rule that the party bearing the burden of proof must demonstrate, by a preponderance of evidence, that the facts supporting its claim are more probable than not. This does not require absolute certainty but does require concrete, coherent facts rather than suppositions or inferences unsupported by direct or corroborating testimony. Within the small-claims division, while procedure is simplified, the substantive law of evidence and the standard of proof remain the same. Thus, a plaintiff alleging contractual breach and claiming damages must bring forward factual elements that are both pertinent in law and persuasive in weight.
Applying this standard, the judge found that 9157-3725 Québec inc. had not established that Ms. Choquette either actively solicited its clients in a prohibited manner or committed disloyal acts such as denigration, fraud, or misuse of confidential information. The timing of client cancellations, combined with an unparticularized client email, were insufficient to satisfy the court that illicit solicitation or disloyal competition had occurred. The claim for damages tied to breach of the non-solicitation and non-communication clauses, including the alleged loss of revenues and drop in the value of the clientele upon sale of the franchise, therefore failed for lack of proof.

Resignation without contractual notice and resulting damages

The second major issue concerned the abrupt termination of the employment contract on 11 January 2022, without the 10 working days’ notice specified in the contract. The court accepted the testimony that, on the morning of that date, the defendant left the cleaning materials at the door of the client whose home she was scheduled to clean and informed the employer that she was quitting immediately. This behaviour was inconsistent with the express notice requirement in the contract, and the defendant did not dispute those facts. The judge therefore concluded that the defendant breached the contract by failing to give the agreed contractual notice.
In assessing damages flowing from that breach, the court distinguished between the immediate, concrete loss on the day of resignation and the broader business impacts alleged by the employer. Mr. Carrière described the inconvenience caused, noting that 9157-3725 Québec inc. could not perform the scheduled cleaning for that day and that he had to reorganize his teams for the following week. The company sought $2,000 for the troubles and inconvenience associated specifically with the lack of notice. However, the court took into account that Québec inc. had already lost two of the three contested client contracts around the same time: Ms. Chiasson’s contract ended on 5 January 2022 and Ms. Yanakis’s on 13 January 2022. In light of those terminations, it was probable that the company had enough staff capacity to adjust to the absence of the defendant in the days following the resignation.
Given this context, the judge considered the $2,000 claim for inconveniences excessive and unsupported by detailed proof of quantifiable loss. Exercising judicial discretion, the court limited the award to a modest sum corresponding essentially to the lost service on 11 January 2022. This amount was fixed at $200. The more substantial claims for damages arising from alleged solicitation, including the amount of $6,648 claimed for loss of revenues and loss of value of the clientele at the time of the April 2022 sale, were rejected outright in the absence of probative evidence linking those losses to wrongful conduct by the defendant.

Outcome and overall significance

The court ultimately allowed the action of 9157-3725 Québec inc. only in part. It dismissed the bulk of the claim relating to alleged breaches of non-solicitation, non-communication and loyalty obligations for want of proof, and it found no basis to award damages for loss of clientele or reputational harm. However, it held the defendant contractually liable for failing to provide the agreed 10 working days’ notice before resigning, recognizing that this abrupt departure caused concrete, if limited, inconvenience and loss. For that breach, the court ordered the defendant to pay the plaintiff $200, together with legal interest and the additional indemnity provided by article 1619 of the Civil Code of Québec from 21 January 2022, and directed that each party bear its own costs. In practical terms, 9157-3725 Québec inc. emerged as the formally successful party, but with only a very modest monetary recovery of $200 reflecting the narrow violation the court was prepared to recognize.