Breach of Confidence Lawyers

Confidential information is often among the most valuable assets a business holds. When it is misused, disclosed without authority, or taken by a departing employee or a competing organization, the damage can be immediate and lasting. Our breach of confidentiality lawyers represent both those who need to enforce their rights and those defending against a claim, in Ontario and British Columbia.

What Is Breach of Confidence?

Breach of confidence is a legal cause of action that arises when one party discloses or uses confidential information belonging to another without consent, and in a way that causes harm. It is distinct from breach of contract, though the two often overlap, and it sits within the broader family of business torts. A breach of confidence claim can succeed even where there is no written agreement in place, provided the information had the necessary quality of confidence and the circumstances made clear it was not to be shared freely.

Canadian courts in Ontario and British Columbia recognize three core elements in a breach of confidence claim. First, the information must actually be confidential in nature. Second, it must have been communicated in circumstances that imported an obligation of confidence. Third, there must have been an unauthorized use or disclosure that caused a detriment to the person to whom the duty was owed.

This area of law applies across a wide range of situations: trade secrets taken by a former employee, proprietary processes disclosed to a competitor, business plans shared in the course of a failed negotiation, or client lists misused after a professional relationship ends. A breach of confidentiality lawyer can assess whether the facts support a claim and what remedies are available.

Common Situations We Handle

Departing Employees and Trade Secrets

One of the most frequent breach of confidence situations involves an employee who leaves and takes with them proprietary information: pricing strategies, supplier relationships, client data, formulas, or software. Whether or not there is a confidentiality agreement in place, employees owe implied duties of confidence to their employers in certain circumstances. We advise organizations on how to respond quickly and effectively, including whether injunctive relief is appropriate.

Failed Business Negotiations

Parties often share sensitive financial information, business plans, or operational details during merger discussions, partnership negotiations, or due diligence processes. When those discussions break down and the other party uses what they learned to compete or gain advantage, a breach of confidence claim may lie regardless of whether a non-disclosure agreement was signed.

Misuse of Client or Customer Information

Customer lists, contact details, and purchase histories can carry significant commercial value. When a former employee, contractor, or business partner uses that information to solicit clients or redirect business, the affected organization may have recourse under breach of confidence, and in some cases under privacy legislation as well.

Disclosure of Professional Confidences

Professionals including accountants, consultants, and advisors owe duties of confidentiality to the organizations and individuals they serve. When those duties are breached, the consequences can include reputational harm, lost contracts, and regulatory exposure. We act on both sides of these disputes.

Defending Against a Breach of Confidence Claim

Not every allegation of breach of confidence is well-founded. Information may not have been truly confidential, the circumstances may not have imported a duty, or the alleged disclosure may have been authorized or already public. If your organization has received a demand or been named in a proceeding, we can assess the claim and build your defence.

Speed matters in breach of confidence disputes. Evidence can disappear and harm can compound quickly. Call us to understand your options.

What Makes Information Confidential?

Not all business information qualifies for protection under breach of confidence. Courts look at several factors in deciding whether information had the necessary quality of confidence.

It Must Not Be in the Public Domain

If the information is already publicly available, it cannot be confidential. That said, a combination of individually known elements may still attract protection if the combination itself is not publicly known and carries commercial value.

It Must Have Been Treated as Confidential

How the information was handled matters. Was it kept secure? Was access restricted? Were employees or contractors told it was confidential? A business that treats its own information carelessly may have difficulty arguing in court that others were bound to keep it secret.

The Circumstances Must Have Imposed an Obligation

A formal confidentiality agreement creates an obvious obligation. But courts will also recognize implied obligations, arising from the nature of the relationship, the context in which information was shared, or industry norms. Employment relationships, professional engagements, and business negotiations can all give rise to implied duties of confidence.

There Must Be Actual or Anticipated Harm

The breach must have caused, or be likely to cause, real detriment. That detriment need not always be financial loss. Reputational harm or the loss of a competitive advantage can also qualify depending on the circumstances.

Remedies for Breach of Confidentiality

The appropriate remedy depends on the nature of the breach, the harm caused, and how quickly the matter is addressed. A breach of confidentiality lawyer can advise on which remedies apply to your situation and how best to pursue them.

Injunctions

Where confidential information is being used or is at risk of further disclosure, a court may grant an injunction to stop the conduct immediately. This is often the most urgent remedy sought. To obtain one, you need to move quickly, demonstrate a serious question to be tried, and show that the balance of convenience favours restraining the other party. We regularly advise on whether the circumstances support an injunction application.

Damages

You may be entitled to compensation for the financial loss caused by the breach. Calculating damages in breach of confidence cases requires careful analysis: courts look at what position you would have been in had the breach not occurred, and may also consider whether the breaching party gained a profit from the misuse of your information.

Account of Profits

In some cases, rather than proving your own loss, you may elect to claim an account of the profits made by the party that misused your information. This can be a more effective remedy where your losses are difficult to quantify but the other party's gains are traceable.

Delivery Up or Destruction

Courts can order the return or destruction of confidential materials and any copies derived from them. This is particularly important where ongoing possession of the information poses a continuing risk.

The right remedy depends on the facts. We can assess your situation and advise on the most effective path forward.

Breach of Confidentiality and Non-Disclosure Agreements

A non-disclosure agreement, or NDA, is often the starting point when confidential information changes hands. When an NDA is breached, the dispute may proceed as a breach of contract claim, a breach of confidence claim, or both. The distinction matters because the remedies and the applicable legal tests differ.

A breach of contract claim requires proving the terms of the agreement, the breach, and the resulting loss. A breach of confidence claim can succeed on somewhat different grounds and may support remedies, including injunctions, that are assessed differently. Having both available gives you more options and more leverage.

We advise organizations on how to structure their NDA claims effectively, what additional causes of action may apply, and how to position the matter for the strongest outcome at mediation or trial.

Breach of Confidence in Ontario and British Columbia

The law of breach of confidence applies in both Ontario and British Columbia, though there are procedural and contextual differences that affect how a claim is best pursued in each province.

Ontario

Ontario's Superior Court of Justice handles breach of confidence matters, including urgent injunction applications. Mandatory mediation applies to most civil proceedings in Toronto, Ottawa, and Windsor. The two-year basic limitation period under the Limitations Act, 2002 generally applies, running from the date the breach was discovered or ought to have been discovered.

British Columbia

In BC, breach of confidence claims proceed in the Supreme Court of British Columbia. The Limitation Act sets out a two-year discovery-based limitation period. Privacy legislation in BC, including the Personal Information Protection Act, may also be relevant where the confidential information involves personal data.

We practice in both provinces and can advise on the appropriate forum, applicable rules, and how the law in each jurisdiction affects your strategy.

Breach of Confidence: Frequently Asked Questions

Do I need a written confidentiality agreement to have a breach of confidence claim?

No. Breach of confidence is an equitable doctrine that can apply even without a written agreement, provided the information was genuinely confidential and the circumstances made clear that a duty of confidence existed. That said, a written NDA strengthens your position considerably and makes the claim easier to establish.

What is the difference between breach of confidence and breach of confidentiality?

The terms are often used interchangeably. Technically, breach of confidence refers to the equitable cause of action recognized by courts, while breach of confidentiality more commonly describes the breach of a contractual obligation to keep information secret. In practice, a dispute may involve both, and we assess which framing best serves your position.

Can I get an injunction to stop the other party from using my confidential information?

Possibly, and often this is the most urgent step. To succeed on an injunction application, you need to move quickly, show there is a serious issue to be tried, and demonstrate that the harm from continued disclosure outweighs the inconvenience to the other party. Time is critical. The longer you wait, the harder it becomes to argue urgency.

A former employee took our client list. What are our options?

This is a common and serious situation. Depending on what was taken, how it was taken, and what the employee has done with it, you may have claims in breach of confidence, breach of contract, breach of fiduciary duty, and potentially under privacy legislation. The first step is to secure your evidence and get legal advice before contacting the former employee directly.

How long do I have to bring a breach of confidence claim?

In both Ontario and British Columbia, the basic limitation period is two years from the date you discovered, or ought to have discovered, the breach. Because breaches of confidence are often discovered some time after they occur, pinning down when the clock started running is an important part of the early legal analysis.

We shared business plans during a negotiation that fell apart. Is that protected?

Information shared in the course of genuine business negotiations can carry a duty of confidence, even without a signed NDA, if the circumstances made clear the information was disclosed for a limited purpose and was not to be used otherwise. Whether that applies in your case depends on what was shared, how it was shared, and what the other party has done with it.

We have been accused of breach of confidence. What should we do?

Do not ignore the claim and do not respond without legal advice. The strength of a breach of confidence claim depends heavily on whether the information was truly confidential, whether the circumstances created a duty, and whether what your organization did actually constituted unauthorized use. Many claims do not survive scrutiny. We can assess the allegations and advise on your defence.

Speak With a Breach of Confidentiality Lawyer

Tell us about your situation. We will follow up promptly to discuss your options. You can also reach us directly at 1-800-771-7882.