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.
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.