No — both are standalone criminal offences under the Competition Act, independent of whether the underlying transaction ever closes, and a plain confidentiality agreement does nothing to stop the second one.
Short answer
Competition Act s.45(1.1) makes it an offence for an employer to conspire, agree or arrange with a non-affiliated employer “to fix, maintain, decrease or control salaries, wages or terms and conditions of employment” or “to not solicit or hire each other’s employees.” Two companies in exclusive talks, or two bidders in the same auction, are not affiliates until shares actually change hands — and the affiliate exception in s.45(6) is textually limited to price-fixing under subsection (1); it does not extend to either paragraph of subsection (1.1), before or after closing.
A no-hire clause copied into an exclusivity letter or NDA is a document, and a document can be narrowed: tying it to named key employees, a short post-termination tail, and a stated purpose can bring it within the s.45(4) ancillary-restraints defence, which excuses conduct “directly related to, and reasonably necessary for giving effect to” a genuine broader agreement — the acquisition negotiation itself. A wage-fixing understanding reached on a call between two bidders is not a document at all. There is nothing to redline, no ancillary agreement between rival bidders for the defence to attach to, and the only fix is to stop the conduct and route any legitimate synergy analysis through an independent clean team with aggregated data only.
The civil and the criminal problems sit on different axes. An ordinary confidentiality agreement restricts use and disclosure of information; it says nothing about hiring the other side’s people, and Canadian courts do not read a non-solicitation promise into an agreement that only ever promised confidentiality. So the absence of a poaching clause in an NDA leaves a walked-away bidder free to hire the target’s key staff soon afterward — while the presence of one, if agreed between two employers rather than between a bidder and a target, is the criminal offence above. Neither gap is closed by the other.
The no-hire clause played out in two regional carriers who signed a no-hire clause before they were affiliated. The wage-fixing version is a wage-benchmarking exchange between two bidders in the same sale process. The confidentiality-agreement gap is the subject of an NDA that protected the numbers, and not the people.
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