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.