Injunction granted for Non-disclosure of Confidential Information, refused for Non-competition and “Non-solicitation

On a pre-trial application for an injunction, the B.C. Supreme Court refused to grant preliminary injunction to enforce “non-competition” and “non-solicitation” provisions in employment contracts of two key employees. Court ruled that the provision prohibiting defendants from soliciting people with whom they have had no prior dealings and who they would not necessarily have any way of identifying as customers of the plaintiffs was unclear and lacking in certainty.
The plaintiffs were in the business of sale of prescriptions and other medical supplies. The Court stated that a duty of fidelity, including a duty not to use or disclose the employer’s confidential information, is generally implied in employment contracts and survives the termination of those contracts. The Court granted an injunction restraining and enjoining the defendants from: a) directly or indirectly soliciting or enticing any employee of the plaintiffs to leave their employment with the plaintiffs for a period of one year; b ) using or disclosing confidential information, including customer lists and contact information, and information concerning packaging, marketing and distribution of the plaintiffs’ products.

6180 Fraser Holdings Inc. v Ali, 2012 BCSC 247 (CanLII)

What Is “Confidential Commercial Information”?

Confidential Commercial Information means information that:

1. relates or pertains to matters of finance, commerce, science or technical matters as those terms are commonly understood;
2. need not have an inherent value, such as a client list might have, however, the value of information is dependent upon the use that may be made of it, and its market value will depend upon the market place, who may want it, and for what purposes, a value that may fluctuate widely over time; and
3. administrative details such as page and volume numbering, dates and location of information within the records are not scientific, technical, financial or commercial information.

Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3.