If a restrictive covenant in an employment contract is ambiguous, can the court use “reading down” to narrow the scope?
British Columbia, Canada
The following excerpt is from 6180 Fraser Holdings Inc. v Ali, 2012 BCSC 247 (CanLII):
If a restrictive covenant in an employment contract is ambiguous, in the sense that it is not clear what is prohibited, it is not possible to demonstrate that it is reasonable. Where a provision is ambiguous or overly broad, the court will not employ “notional severance” or “reading down” to resolve the ambiguity or narrow its scope. To do so would amount to the court rewriting the contract in order to reflect its own view of what is reasonable or what the parties might have intended. Shafron v. KRG Insurance Brokers (Western) Inc., 2009 SCC 6, [2009] 1 SCR 157 at paras. 43 and 47.
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