The first step that employers often take when they are considering enforcing a restraint of trade clause or relying on a common law doctrine against an employee is to issue a letter of demand to the employee. Sometimes, in the post-employment context, the former employer chooses to share this letter of demand with the employee’s new employer.

If an employer believes there is imminent harm to its business from the breach of a restraint of trade, the employer may lodge an application in court seeking an interlocutory injunction, pending a full trial of the matter. To be successful in obtaining an interlocutory injunction against an employee, the employer must show that there are reasonable prospects for success against the employee (that is, that there is a serious question to be tried) and that the balance of convenience favours the granting of an injunction.

If an injunction is granted, the court will schedule the matter for a full trial. At a full trial, the criteria mentioned above will be considered and if the restraint is found to be enforceable the court will assess the damages flowing from any breach of the restraint by an employee.