Difference between revisions of "Employment Law Issues (9:V)"

It is an implied term of an unwritten employment contract that the employee will not misuse the employer’s confidential information. A common example of confidential information is the employer’s list of customers. Employees who take a customer list by printing it out or putting it on a USB key and taking it with them, or by emailing it to themselves, would be in breach of this duty. One notable exception is that an employee may use any part of the customer list that they have simply memorized (per ''Valley First Financial Services Ltd v Trach'', 2004 BCCA 312). Additionally, employees such as financial advisors, who have developed ongoing relationships with clients, may be entitled to take a list of  their own clients to inform them that they are departing, and where they will be working in the future (''RBC Dominion Securities Inc v Merrill Lynch Canada Inc et al'', 2007 BCCA 22 at para 81, reversed in part at 2008 SCC 54; ''Edwards Jones v Voldeng'', 2012 BCCA 295). Note however that this may be prevented if the employee is in a fiduciary position, and there may be limits on the permitted contact or other complications if the employee signed a non-solicitation agreement.

Only a small fraction of employees are in a fiduciary position. They may have fiduciary duties if they are directors of the company, or if they are senior officers in a top management position (per ''Canadian Aero Service Ltd v O’Malley'', [1974] SCR 592). A fiduciary position is generally one where the fiduciary (the employee) has some discretion or power  that affects the beneficiary (the employer), and the beneficiary is peculiarly vulnerable to the use of that power (per ''Frame v Smith'', [1987] 2 SCR 99).