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.
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.