In Canada, the probationary period varies by province/territory as follows:
- Manitoba: 29 days
- Alberta, Northwest Territories, Nunavut: 90 days
- Federal, British Columbia, Newfoundland and Labrador, Nova Scotia, Ontario, Quebec: three months
- Saskatchewan: 13 weeks
- New Brunswick, Prince Edward Island, Yukon: six months
Employers own the copyright of works created by their employees—who aren’t contractors—under an employment contract if the works were created in the course of the employment.
Employees who invent something during the course of their employment are presumed to own the intellectual property rights in their invention unless there is an express term to the contrary in their employment contract or they were employed for the purposes of inventing.
Employers should include clauses regarding intellectual property ownership and transfer rights in the employment agreements, including all moral rights in addition to ownership.
Restraint of trade
It’s fairly common in Canada for employers to include employment agreement clauses (1) requiring exclusive service to the employer during the course of employment and/or (2) restricting employees from holding other jobs to exclude a conflict of interest.
The enforceability of these clauses depends on the level of restriction imposed on the employees. Broad clauses restricting employees from holding any other employment regardless of the nature and character of that employment are unlikely to be enforceable, while specific clauses that prohibit working with competitors or holding employment that is likely to result in a conflict of interest are more likely to be enforceable.
Employers can restrict employees’ post-employment activities through restrictive covenants that limit or prohibit competition with the employer’s business or the solicitation of customers, suppliers, employees, or contractors. Restrictive covenants in employment agreements are prima facie unenforceable unless the covenant is reasonable between the parties and in relation to the public interest, and the terms are unambiguous. To be reasonable, a covenant must minimally impair the employee’s ability to earn a living.
Employers can also attempt to limit employees’ post-employment activities through the use of confidentiality clauses. Confidentiality clauses limiting the use and disclosure of non-public, proprietary information about the employer’s business during and following employment are generally enforceable.
There is no obligation for an employer to pay a former employee while they are subject to a post-employment restrictive covenant or confidentiality clause, but a restrictive covenant or confidentiality clause will be valid only if consideration is provided at the time the covenant or clause is imposed. If the covenant is imposed at the point of hire, then the offer of employment is sufficient consideration. However, if the covenant is imposed at a later date, additional payment or benefit to the employee will be required.