Trade secret theft

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What is a trade secret?

Any valuable business information that derives value from its secrecy is a trade secret. Unlike other intellectual property rights, trade secrets are not registerable with the Canadian Intellectual Property Office.

Trade secrets rely on people, systems, processes and contracts to maintain confidentiality. The protection afforded to a trade secret is lost if the information becomes public. However, trade secrets can be protected indefinitely, so long as they remain confidential.

What is trade secret infringement?

There is no unified statutory regime in Canada to regulate the protection and enforcement of a trade secret.

Courts considering whether information is a trade secret, whether an action involves the misuse of a trade secret and how to compensate an owner of a trade secret for its misuse look at factors including the following:

  • the measures taken to maintain secrecy
  • the value of the information
  • the cost in money or time of creating or developing the information
  • the ease with which the information could be acquired or developed by others independently
  • the degree to which the owner regards and treats the information as confidential
  • the degree to which the recipient regards and treats the information as confidential
  • whether the recipient ought to have known that the information was confidential
  • whether misuse of the information resulted in detriment to the owner


In Canada, trade secret law is based on common law.

Depending on the facts, misuse of information communicated in confidence may be enforced on a number of bases, such as breach of contract, misappropriation (theft), breach of fiduciary duty and breach of confidence.

In Quebec, civil law principles enforce torts such as breach of contract and breach of confidence.

There are also relevant dispositions in Canada's Criminal Code for enforcement if trade secrets have been stolen or misappropriated.

Who can sue for trade secret infringement?

In litigation, the trade secret owner can advance an action for trade secret infringement.

What you need

The protection of a trade secret requires the following, at a minimum:

  • that the information has commercial value
  • that the information is secret
  • that the information has been subject to reasonable measures by the business to ensure that it remains secret

If the trade secret is subsequently identified, discovered or disclosed, the right to enforce it may be lost.