What is an Employees Duty of Confidentiality After Employment Ends?
Employers have a right to protect confidential information especially when that information holds real value to their business and competitors. While many employees understand they are bound by confidentiality obligations during their employment, fewer realize that the duty of confidentiality continues even after employment ends. In fact, courts in Ontario have consistently upheld this post-employment obligation, particularly when an employee is found to have accessed, used, or shared sensitive business information without authorization.
This blog explores the legal concept of breach of confidentiality after termination, with a focus on a recent Ontario decision that illustrates just how seriously courts take violations of this duty. If you’re an employer concerned about protecting business information after employment, or an employee unsure of your continuing responsibilities, read on.
What is an employee’s confidentiality obligations in Canada?
Generally, employees have an implied duty of good faith not to disclose confidential information. Courts have found that it is reasonable for employers to protect valuable and sensitive business information that is not known to the public.
Importantly, protecting business information and the duty of confidentiality continues to apply even after the employment relationship ends. Courts have provided guidance as to some factors to be considered when determining if information is to be treated as confidential:
- The extent to which the information is known outside the business
- The extent to which the information is known by employees and others within the business
- The extent of protective measures taken by the owner
- The value of the information to the business and its competitors
- The financial investment made by the business to develop the information sought to be protected
- The degree of difficulty or lack thereof for others in acquiring this information by legitimate independent means
The above is not an exhaustive list and other factors may be considered.
What happens when the duty of confidentiality is breached after employment ends?
The Ontario Superior Court of Justice recently dealt with a case surrounding whether an employee had breached their duty of confidentiality after the employment relationship had ended.
In Bougiotis v. Manji, 2025 ONSC 2365 the employer, CleanMark Inc. (“CleanMark”) sought interlocutory relief against a former employer, to return and prevent him from using CleanMark’s confidential information and proprietary trade secrets.
The defendant was employed by the cleaning services company from October 2021 to April 2024, where he managed two major clients. During his employment he had access to confidential information.
The defendant’s employment agreement explicitly prohibited him from disclosing confidential information both during and after his employment. The employee was terminated and he began contacting former CleanMark employees on an ongoing basis to the point where he was asked to stop. The situation escalated to the point that the police were contacted. Soon after CleanMark discovered that the defendant had downloaded his entire computer drive, including the staff directory and confidential client information with financial details.
During court proceedings, the defendant admitted to downloading the confidential information. The court found that his conduct was serious and had the potential to cause real damage to the employer’s business at paragraph 57:
In this case [the employer] risks significant further damage to its reputation and the potential loss of its two major clients. There is a real risk that [the employer’s] business could fail if it loses either or both of these clients.
The court granted the injunction, and the defendant was required to return and delete all confidential information and was ordered to pay costs of $34,570.15 due to the ongoing campaign of harassment.
While an extreme case, this case highlights the duty of confidentiality after employment ends and the risk of breaching confidentiality obligations after employment, something the court takes seriously.
If you have questions about confidentiality obligations, please contact us online or by phone at (416) 640-2667.
Author – Sophie Teversham