The original case that motivated the concept of trade restriction was in England in the 1890s. Arms manufacturer Thorsten Nordenfelt had sold his business, and both parties had agreed that the seller “would not manufacture weapons or ammunition anywhere in the world and would not compete with Maxim for 25 years.” The case was decided by the House of Lords, which held that: in order to obtain an injunction, the employer must ask a serious question that must be brought to justice (i.e., a court probably finds that deference is reasonably necessary to protect the legitimate business interests of the employer) and that the balance of comfort favours the injunction granted. In the recent case of Andrews Advertising Pty Ltd/Andrews [2014] NSWSC 318, for example, the Tribunal found that a restriction of the trade clause prevented an officer from working for another advertising agency in Australia for a period of six months. In applying the explanatory statement, “the courts generally have to take into account the facts of the transaction to which the restriction is applied; his condition before and after the detention the nature of the restraint and its actual or likely effect. In addition, the Tribunal must assess “that the history of deference, of presumed harm, of the reason for accepting the particular agreement, of the object or objective, must be assessed.” In other words, the courts have a thorough investigation of the merits, which attempts to understand the reason for the existence of the non-appeal agreement and its impact on competition. Cases where such a legitimate interest is disputed underline the fact that an employer does not own the staff, as if the employees are akin to a stock trading. This is self-evident, but an employer also does not have customers that are not comparable to trade; however, a link with customers is undoubtedly accessible to the protection of the Confederation. In Mars Canada Inc. v. Bemco Cash – Carry Inc., 2016 ONSC 7201 (November 18, 2016), the Ontario Supreme Court issued a summary judgment in Mars Canada Inc., “Mars”).

Mars, a well-known manufacturer of candy bars, among others, requested that the defendants object to their transaction agreement not to import grey products on the market.