There is no specific legislation in Canada governing trade secrets or confidential information, although there are a number of statutes that deal with trade secrets in specific contexts (e.g., access to information, criminal law). Trade secrets and confidential information may also be protected by private parties at common law through mechanisms such as breach of confidence, breach of fiduciary duty, and breach of contract.

– Paris Convention for the Protection of Industrial Property, Stockholm Act.
– WTO’s TRIPS Agreement, since January 1, 1995.

Definition: specific definition differs based on context. Generally, a trade secret is information that is: (1) secret (e.g., known by relatively few people); (2) the subject of efforts to maintain its secrecy; (3) capable of industrial or commercial application; and (4) an interest worthy of legal protection (e.g., an economic interest). More broadly, confidential information is generally characterized as information that is: (1) identifiable; (2) has the necessary quality of confidence; and (3) the subject of efforts to maintain its confidentiality.

Criteria for enforcement: under breach of confidence, must show that the information (i.e., trade secret) conveyed was: (1) confidential; (2) communicated in confidence; and (3) misused by the party receiving it. Criminal law protecting trade secrets is not yet fully established but appears to apply to unauthorized/fraudulent conveyance of any trade secret, as defined therein.

Assignment - licensing: possible.

Remedies for misappropriation: common law remedies for breach of confidence, e.g., financial compensation, permanent injunction. Criminal law sanctions may result in imprisonment of up to fourteen years.

Comments: criminal law provisions protecting trade secrets are relatively new and untested. Contact your Canadian attorney for current information.