An NDA is a non-disclosure agreement. It is a restriction on a person’s ability to share, post or use certain information or documents. The subject matter of an NDA is usually set out in writing, but there are some implicit, common law restrictions on disclosing another individual’s or entity’s confidential or proprietary information and documents.
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 recent years, Canada has significantly expanded its multilateral and unilateral trade control measures. Broader scope and increased enforcement in the areas of economic sanctions, export and technology transfer controls, and defence trade controls have raised the stakes for Canadians engaged in cross-border activities. Enforcement and reputational risk is higher than ever and it is critical for any Canadian company doing business abroad to ensure it has internal controls in place to mitigate the growing risk exposure.