This post drills into the court’s exercise of remedial flexibility for breach of confidence and trade secret claims. It analyzes the GasTOPS Ltd. v. Forsyth and Equustek Solutions Inc. v Jack cases to examine the interplay between pre-trial injunctions obtained in the wake of discovering misappropriating activity and the final relief available at trial. The Equustek decision is notable in that it opens a window to obtaining both ongoing injunctive relief and an enforceable monetary judgment, at least where defendants fail to comply with pre-trial injunction orders.
Granting an injunction remedy that orders someone to do or refrain from doing a specific act is a hallmark of a property right, including in intellectual property. Yet for trade secrets and confidential information, Canadian courts take a “flexible and imaginative approach” to selecting the legal remedy – meaning that trade secrets may or may not be treated like intellectual property in this sense. This post explores why, in practice, the courts tend to be reluctant to grant an injunction prohibiting misappropriating behaviour after too much time has passed. As a result, asserting proprietary rights to a trade secret typically requires seeking a pre-trial injunction shortly after detecting the wrongdoing.
Many enterprises and organizations need to be able to demonstrate Intellectual Property rights over trade secrets or proprietary data. Yet since trade secrecy or confidentiality rights are, in Canada, based in the common law, how can you go about making them? This post discusses what systems can be put into place to reasonably ensure real-world access control over privately held information, and how implementing such a system leads to establishing enforceable rights.
Modern labour markets are highly mobile. Employees and contractors regularly circulate, either moving between organizations or starting their own. This post examines how the presence of employer records is closely associated with the courts finding the unlawful misuse of trade secrets or confidential information, as opposed to the lawful exercise of an individual’s personal skill and knowledge. It recommends steps to take when departing a workplace, and discusses how useful information and records may be more safely re-created post-departure.
This post discusses some of the action steps and tactical considerations in the wake of discovering a serious wrongdoing by an employee. For more severe wrongs, I suggest that it becomes more rather than less important to preserve an employee’s ongoing legal obligations of good faith by maintaining their employment while conducting a procedurally fair investigation. This can be carried out in tandem with various forms of damage control. Finally, this post sketches some of the potential end games after discovering a suspected wrongdoing.
Confidential information and trade secrets are legally protectable. This triggers liability for illicit use or disclosure, and backstops the rights holder’s ability to act as the gatekeeper or “owner” controlling the terms for lawful access. We explore how Canadian law assesses what information may support such legally enforceable rights.
One of the more interesting points to come out of the law and economics perspective to trade secrecy is that an obligation restricting the further use or disclosure of information operates as a kind of legal substitute for literal secrecy. The law of confidentiality acts as a gate, not a wall, and the types of relationships it enables stands at the beating heart of a modern economy. We explore why this is so by comparing the costly alternative to enforceable confidentiality obligations with the types of relationships that it enables.
Ontario’s Bill 27 came into force on October 25, 2021, and from this time on attempting to insert non-compete clauses into employment agreements is prohibited. This removes a simple and effective, yet too often abused, tool used to legally protect intangible assets. This post examines what this amendment to the Employment Standards Act does and does not do, and explores the different means of protecting intangible assets and how this intersects with trade secrecy and confidentiality obligations.
Confidentiality and trade secrecy claims often run aground on legal procedure issues relating to the scope of the claim and the exchange of evidence. If left too wide, speculative claims may lead to impossible discovery battles or unjustly chill departing employees and competitors. If made too narrow, a plaintiff be unable to fairly test the merits of their case. The British Columbian Court of Appeal reasoning in Steelhead LNG Limited Partnership v. Arc Resources Ltd., 2022 BCCA 128, provides a rare appellate level analysis of how this balance is to be struck.