In Canada, the issue of whether an NDA may be an unenforceable restraint of trade has been explored in the employment law context, however, there has been very little discussion as to whether an NDA could be considered a restraint of trade in transactions between two or more businesses. There has also been little discussion in Canada as to the distinction between trade secrets and ordinary confidential information. As such, US case law may provide some guidance.
In Catalyst Capital Group Inc v Moyse, 2016 ONSC 5271 the Ontario Superior Court considered whether the defendant, Brandon Moyse, who deleted his Internet browsing history from his personal computer in the face of a preservation order, had intentionally destroyed relevant evidence, giving rise to spoliation. Spoliation is an evidentiary rule that gives rise to a rebuttable presumption that destroyed evidence would be unfavourable to the party that destroyed it.
The role of the Board of Directors has necessarily adapted to include an increased focus on risk management. In our digital world, cyber-attacks are now a pervasive risk and the perceived lack of board oversight has garnered scrutiny by consumers, regulators, legislators, litigants and the media.
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