In Canada, trade secrets are generally considered to include information set out, contained or embodied in, but not limited to, a formula, pattern, plan, compilation, computer program, method, technique, process, product, device or mechanism; it may be information of any sort; an idea of a scientific nature, or of a literary nature, as long as they grant an economical advantage to the business and improve its value.
[2] Trade secrets are a type of intellectual property that consists of certain information, expertise or knowhow that has been developed or acquired by firms.
With one exception in the field of employer-employee relations, there is no recognized distinction in Canada between the rights and remedies afforded to trade secrets as opposed to mere confidential information.
In the field of employer-employee relationships, the British case Faccenda Chicken Ltd. v. Fowler, which has been cited with approval by several Canadian courts, has drawn a distinction between the two.
[24] In Cadbury Schweppes Inc. v. FBI Foods Ltd. Justice Binnie concluded that the form of relief for breach of confidence was “dictated by the facts of the case rather than strict jurisdictional or doctrinal considerations”.
[25] He also stated that “whether a breach of contract in a particular case has a contractual, tortuous, proprietary or trust flavour goes to the appropriateness of particular equitable remedy but does not limit the court’s jurisdiction to grant it”.
[25] In R. v. Stewart,[26] the Supreme Court of Canada held that the taking of confidential information cannot form the basis of a charge of theft[27] under the Criminal Code, but it could in certain circumstances form one for fraud:[28] Parliament has since amended the Security of Information Act to provide that it is an offence to: for the benefit of a foreign economic entity, and to the detriment of Canada's economic interests, international relations or national defence or national security.