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.
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.
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.