Confidentiality — Ontario Employment Law
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About Confidentiality
In Ontario employment law, the duty of confidentiality is a fundamental obligation that requires an employee to protect their employer's sensitive information. This duty isn't just for spies or high-tech workers; it applies to nearly every employee in some form. It prevents you from disclosing or misusing private business information, both during your employment and after you leave. This obligation can arise in two ways: through an express clause in your employment contract or as an implied duty under common law. An express clause will specifically define what the company considers confidential and outline the consequences of a breach. However, even without a written contract, every employee has a basic, implied duty not to harm their employer by sharing confidential information like client lists, financial records, secret formulas, or strategic business plans. It's crucial to distinguish between an employer's confidential information and the general skills and knowledge you acquire on the job. The law allows you to take your skills, experience, and general industry knowledge to your next role. What you cannot take is proprietary information that belongs exclusively to your former employer. For senior employees, managers, or those in a position of special trust (known as 'fiduciaries'), this duty of confidentiality is much stricter. These individuals have a higher obligation to act in the company's best interests, which includes a more rigorous duty to protect its secrets. A breach of confidentiality can have serious consequences, including a lawsuit for damages or an injunction to stop you from using the information. Because the line between general skill and confidential information can be blurry, understanding your specific obligations is a complex, fact-dependent exercise, often requiring a careful review of your role and any agreements you signed.
Frequently Asked Questions
What is considered 'confidential information' in an Ontario workplace?
Confidential information typically includes non-public data that gives a business a competitive edge. This can include customer lists, pricing structures, financial data, marketing strategies, software code, or manufacturing processes. Information that is already public knowledge is generally not considered confidential.
Do I still have a duty of confidentiality if I never signed an employment contract?
Yes. Under Ontario's common law, all employees have an implied duty of good faith and fidelity to their employer, which includes an obligation to not disclose or misuse confidential information. This duty exists even without a written agreement.
How long does my duty of confidentiality last after I leave my job?
Your duty to protect your former employer's confidential information and trade secrets lasts indefinitely, even long after your employment has ended. This common law obligation continues forever unless the information becomes publicly known through other means.
How is a confidentiality clause different from a non-solicitation clause?
A confidentiality clause prevents you from disclosing protected information. A non-solicitation clause prevents you from actively pursuing your former employer's clients or employees for a specific period. While related, they restrict different activities.
What is the time limit for an employer to sue me for breach of confidentiality?
In Ontario, the general limitation period for a civil claim is two years from the date the employer discovered (or ought to have discovered) the breach, as set out in the Limitations Act, 2002. However, they may act much faster to seek an injunction to stop the misuse of information.
Can I get in trouble for taking a client list I memorized?
Yes. The protection applies to the information itself, not the format it's in. Whether the client list is on a piece of paper, a USB drive, or simply in your memory, using it for a competitor's benefit would likely be considered a breach of your duty of confidentiality.
When should I consult an employment lawyer about confidentiality?
You should seek legal advice if you are leaving a senior role, plan to start a competing business, or have been accused by your employer of taking or misusing company information. A lawyer can help clarify your specific obligations and potential risks.
Common Scenarios
- A marketing manager leaves their job and, in an interview with a direct competitor, shares details of their former employer's unreleased Q4 marketing campaign.
- Upon resigning, a financial analyst emails a spreadsheet containing detailed client investment portfolios to their personal email address to use in their new role.
- A chef at a well-known restaurant quits to open their own place and uses the exact, secret recipe for the former restaurant's signature dish.
- A former sales executive is sued after their new employer successfully lands a major client by undercutting a bid, using pricing information the executive brought with them.
- An administrative assistant is terminated and later discusses sensitive details about the company's pending merger, which they had access to, with a friend in the same industry.
What You Should Know
- Never forward company documents, client lists, or data to your personal email or copy them to a personal device, especially when you are planning to leave your job.
- Before you resign, carefully re-read your employment agreement to identify any specific confidentiality clauses that outline what your employer considers protected information.
- If you are accused of a breach, do not destroy any data. Instead, document the accusation and seek legal advice immediately to understand your position.
- Be aware that your duty of confidentiality continues even after your employment ends, and a breach can lead to legal action for damages or an injunction against you.
- If you are unsure whether information is confidential or general knowledge, it is safest to err on the side of caution and not disclose it outside the company.
Featured Cases
Tar Heel Investments Inc. v. H.L. Staebler Company Limited et al
2025 ONSC 240 (CanLII) · 2025-01-10Constructive Dismissal Case: Arseneau Not Constructively Dismissed
A constructive dismissal case where the court determined that the defendant Arseneau was not constructively dismissed despite substantial changes to his employment terms. The case also addressed issues of fiduciary duties, confidentiality, and unlawful conduct.
Salina Chagpar Professional Corporation v Jin
2023 ONSC 3153 (CanLII) · 2023-05-26Employment Contract: Injunction Granted for Non-Solicitation and Confidentiality
A court granted injunctive relief to prevent a former employee from soliciting clients and disclosing confidential information, upholding non-solicitation and confidentiality clauses in the employment contract. The court also awarded partial indemnity costs to the plaintiff.
Camino Modular Systems Inc. v. Kranidis
2019 ONSC 7437 (CanLII) · 2019-12-16Restrictive Covenants: Enforceability and Injunctions in Employment Agreements
A court case examining the enforceability of restrictive covenants in an employment agreement. The court ruled that the non-competition, non-solicitation, and confidentiality clauses were overly broad and unenforceable, and excluded an affidavit as prejudicial. The case also considered the test for interlocutory injunctions based on the misuse of confidential information.
Loreto v. Little et al
2010 ONSC 755 (CanLII) · 2010-02-22Constructive Dismissal: Lawyers Claim Intolerable Workplace Environment
A constructive dismissal case involving four lawyers who alleged that the employer's abusive behavior during a meeting created an intolerable work environment, justifying their departure. The court found that the employer's conduct rendered the workplace intolerable, establishing constructive dismissal for two of the lawyers. The case also addressed issues of fiduciary duties and confidentiality related to the lawyers' departure.
Brown v. First Contact Software Consultants Incorporated
2009 CanLII 48504 (ON SC) · 2009-09-14Employment Contract Dispute: Non-Solicitation and Confidentiality Agreements Unenforceable
An employment dispute involving former employees and contractors alleged to have breached non-solicitation and confidentiality agreements. The employer sought an interlocutory injunction to restrain competition and solicitation, but the court found the restrictive covenants unreasonable and unenforceable. The court also denied the employer's request to image hard drives due to insufficient evidence of wrongdoing.
HUB Financial Inc. v. Molinaro
2002 CanLII 49621 (ON SC) · 2002-06-21Insurance Brokers Termination Case: Independent Contractor Status and Contract Repudiation
A termination dispute involving registered insurance brokers who were classified as independent contractors. The court considered whether the brokers were entitled to solicit clients and use client information post-termination, and whether the plaintiff’s unilateral change to the commission-sharing agreement constituted a repudiation of the contract.
Gertz v. Meda Ltd.
2002 CanLII 49608 (ON SC) · 2002-01-03Wrongful Dismissal Case: Damages Quantification and Fiduciary Duty Analysis
A wrongful dismissal case where the plaintiff was terminated without notice, and the defendant conceded no just cause for dismissal. The court considered whether the plaintiff was entitled to damages and how to quantify them based on salary, benefits, and bonus. The case also examined issues of fiduciary duty, confidentiality, and mitigation of damages.
Tubbessing v. Bell Canada
1995 CanLII 7175 (ON SC) · 1995-03-21Constructive Dismissal: Disclosure of Sexual Harassment Investigation Documents Granted
A constructive dismissal case where the plaintiff sought disclosure of documents from the employer's investigation into sexual harassment allegations. The court ruled that the documents were not protected by litigation privilege, confidentiality, or solicitor-client privilege, and granted the motion for disclosure.
Re University of Guelph and Canadian Association of University Teachers et al.
1980 CanLII 1839 (ON SC) · 1980-05-15University Faculty Arbitration: Confidentiality of Peer Evaluations Upheld
A university faculty member sought access to confidential peer evaluations and committee proceedings during a promotion and tenure arbitration. The arbitrator ruled the faculty member entitled to access such materials, but the confidentiality of peer evaluations was upheld over disclosure. The case also addressed whether the arbitrator misconducted himself under the Arbitrations Act and the jurisdiction of the High Court in consensual arbitration cases.