An employee you trained, promoted, and paid well for over a decade quits — and a few weeks later, they’re running a competing business. Maybe they’ve taken a client. Maybe a coworker followed them out the door. You have an employment agreement with a non-compete or non-solicitation clause. Surely that means you can shut it down?
Not necessarily, and not quickly. In Somatic HVAC Solutions Ltd. v. Hamilton, 2026 BCSC 1583, the BC Supreme Court refused to grant an interlocutory injunction against a former team leader who left a Vancouver HVAC company and started his own competing business. The decision shows exactly what a court expects before it will step in and how often employers assume they have a stronger case than the evidence supports.
If you’re dealing with a departing employee, a new competitor who used to work for you, or a restrictive covenant you’re not sure is enforceable, here’s what BC law requires.
The Legal Test for an Interlocutory Injunction
An interlocutory injunction is a court order made before trial that stops a party from doing something — in this context, competing with the former employer while the underlying lawsuit is still ongoing. To get one, the applicant must satisfy the three-part test set out by the Supreme Court of Canada in RJR MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311:
1. There is a serious question to be tried;
2. The applicant will suffer irreparable harm if the injunction is not granted, meaning harm that money can’t adequately fix.
3. The balance of convenience favours granting the injunction.
In British Columbia, courts often apply a related two-part formulation from British Columbia (Attorney General) v. Wale, treating irreparable harm as part of the balance of convenience analysis rather than a separate step.
There is an important wrinkle specific to restrictive covenant cases. Courts raise the bar where an injunction would restrict someone’s ability to earn a living or effectively decide the whole case. This can happen with short-term covenants, where a 12-month clause may expire before the matter reaches trial. Instead of merely a “serious question”, the employer must show a strong prima facie case. This higher threshold, discussed in cases like Ipsos S.A. v. Angus Reid, 2005 BCSC 1114, and Alpine Building Maintenance Inc. v. Mollard, 2015 BCSC 609, made a real difference in how this case turned out.
What Happened in the Case
A commercial HVAC company sued a former team leader after he resigned and started a competing business with another former employee. The employer alleged the former employee had:
- Taken confidential screenshots of company data before leaving.
- Deleted two years’ worth of company emails and records.
- Solicited the company’s customers.
- Recruited its employees to join the new company.
The employer’s non-solicitation clause ran for 12 months and was set to expire in February 2027, well before a trial would likely be heard. The employer asked the court for an interlocutory injunction restraining the former employee and his new company from doing business with its clients for the balance of that period.
The court refused almost all of it, granting only a narrow order requiring the former employee to return the confidential screenshots he admitted to keeping.
Why the Employer's Case Fell Short
- Suspicion isn’t proof of data theft or deletion. The employer’s IT witness confirmed that files were missing from the former employee’s computer, but couldn’t say who deleted them, when, or how. No one addressed the fact that both sides already knew about a security breach on that same email account the year before. Courts won’t infer wrongdoing from a missing document alone; they need evidence tying the loss to a specific, deliberate act by the person being accused.
- Employees leaving for a competitor isn’t the same as solicitation. Two employees joined the new company after the manager left. Both gave sworn evidence that they had already decided to leave for their own reasons, and that they approached the new company first. Timing alone did not establish solicitation.
- Competing for the same clients isn’t automatically unlawful, particularly in a bid-based industry. The clients in question awarded work through open, competitive bidding, with several companies, including the original employer, submitting bids. Against that backdrop, the court found it difficult to conclude that a contract would otherwise have gone to the employer, since the new company had won a single contract worth roughly $50,000 (most of which went to the equipment costs) against five other bidders.
- Irreparable harm requires more than a general claim of loss. The employer argued the harm it faced couldn’t be fixed with damages. The court disagreed: service contracts have a calculable dollar value, and the employer hadn’t shown any client had cancelled a contract or diverted work because of the new company. Notably, the evidence also touched on the employer’s own conduct towards clients, including a call from the company principal that required a later apology, which the court weighed in assessing where the balance of convenience actually sat.
What This Means If You're an Employer Facing This Situation
If you suspect a former employee is competing unfairly, don’t assume your restrictive covenant will be enforced just because it’s in writing. Before you go to court:
- Document everything specifically. Vague claims that “information is missing” or that the “client seems unhappy” won’t carry an application. You need to identify exactly what was taken or destroyed, when, and how you know.
- Get direct evidence, not inferences. If you’re alleging solicitation of staff or clients, you need evidence of actual contact initiated by the former employee, not just the fact that someone left and now works elsewhere.
- Be realistic about your industry. If your clients seek competitive bids or aren’t contractually exclusive to you, expect the court to require proof of a specific, provable loss rather than general competitive harm.
- Expect the higher threshold to apply. If your covenant is short or the injunction would effectively end the litigation, be prepared to meet the strong prima facie case standard, not just the lower ‘serious question’ threshold.
None of this means restrictive covenants are worthless or that a well-drafted non-solicitation clause, backed by real evidence of a breach, can still be enforced, and an employer can still recover damages at trial even where an injunction is refused. But this decision is a reminder that speed and suspicion are not a substitute for evidence that meets the applicable legal test.
Frequently Asked Questions
Can I stop a former employee from working for or with my clients?
It depends on whether you have an enforceable non-solicitation or non-compete clause, and whether you can show that the former employee solicited those clients rather than the clients approaching them independently. Courts also assess whether the clause is reasonable in scope and duration.
What counts as solicitation versus normal competition?
Solicitation generally means directly and intentionally reaching out to a client or employee to draw them away. If a client or employee approaches the former employee first, and all business is done through an open competitive bidding process, That’s harder to characterize as solicitation.
Do I need to prove my former employee stole information to get an injunction?
You need more than suspicion. Court require Specific evidence identifying what was taken or destroyed and tying it to the former employee’s actions, not an inference drawn from missing files alone.
What if I can't get an injunction — do I still have a case?
Possibly. Even where a court won’t grant an interlocutory injunction, you may still be able to pursue damages at trial if you can prove a breach of the agreement and a resulting financial loss.
What is a "strong prima facie case," and why does it matter?
It is a higher evidentiary standard than the usual “serious question” to be tried threshold. Courts apply it where an injunction would restrict someone’s ability to earn a living, or where granting the order would effectively decide the whole case before trial, both common features of restrictive covenant disputes.
Date Modified:
- August 25, 2026
Kawal Atwal
Business Litigation Expertise You Can Trust
Kawal S. Atwal is the founder of Legalbird and a British Columbia civil litigation lawyer whose practice focuses on complex commercial disputes, real estate litigation, construction disputes, foreclosure, contractual claims, trial advocacy, and appellate litigation.
He represents individuals, businesses, lenders, developers, and property owners before the Supreme Court of British Columbia and the British Columbia Court of Appeal, providing strategic and results-focused advocacy in high-stakes civil and commercial disputes.
Through Legalbird, Kawal serves clients across Vancouver, Surrey, Delta, Abbotsford, Burnaby, Richmond, and throughout British Columbia.
