Restrictive Covenants - Detailed Analysis

Last Updated: October 2022

(a) Declaratory Relief Prior to a Breach

Occasionally, a party may seek a declaration as to the enforceability of a restrictive covenant to which it is currently subject.  The decision whether to entertain such an application is at the court’s discretion.  In a Nova Scotia decision, the court was prepared to determine the application for declaratory relief where there was an alleged factual foundation for the declaration sought, there had been difficulties in the relationship between the parties for some time, one of the parties had considered termination as a possible resolution to the impasse between them and dealing with the application would resolve the issue of who held the balance of power between them.1

  1. Wm. Tapper Ltd. v. Valero Energy Inc., 2017 CanLII 16210 (NL SCTD), at paras. 58-60.