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Howard Levitt: How to Avoid Getting Sued for Breach of Confidentiality by your Former Employer

posted 2 years ago

There you are at your shiny new job. You just scored a new, better paying position with a competitor of your former employer. Life couldn’t be better. What’s this? Registered mail for you? Wait, it contains something called a Statement of Claim. Your former employer is suing you and worse, your new employer. Furthermore, your old company is seeking something called an interlocutory injunction, which would prevent you from working at your new job. It is also demanding that you hand in your computer and cell phone to be examined. This does not sound good!

Unfortunately, this happens with great frequency. One of the most common legal actions is where a company sues a former employee who has moved over to a competitor.

Confidential information must be imparted under an obligation of confidence. There must be a breach of the obligation and actual damages must result.

The important part of this is that the information must be “confidential” in the first place. Let’s face it, very few things in life are truly “confidential.” Current client lists or current price lists might be confidential or then again, maybe not. We recently defeated an injunction by demonstrating that an ostensibly “confidential” price list was in fact emailed to anyone who requested it. It was hard for the former employer to argue to a judge that a price list was confidential when we showed up in court waving the exact same price list that had been emailed to us.

If you want to have the best chance of not being a defendant in a lawsuit, or at least being successful, if you are, keep your business and personal affairs separate and don’t take any information from your former employer without its express written consent. If all of the above fails and you get sued nevertheless, you had better quickly call a lawyer.

BY HOWARD LEVITT AND PETER CAREY

Howard Levitt is senior partner of LSCS Law, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books, including the Law of Dismissal in Canada. Peter Carey is an associate at LSCS Law.

THIS ARTICLE ORIGINALLY APPEARED HERE: https://financialpost.com/fp-work/howard-levitt-how-to-avoid-getting-sued-for-breach-of-confidentiality-by-your-former-employer?video_autoplay=true

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