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Injunctions, and an employee’s duty of loyalty


Labor and employment law, Civil and commercial litigation

Given the confidential information exchanged in the employer/employee context, the law provides that employees have a duty of loyalty towards their former employer.

The Extent of a Duty of Loyalty

However, it should be noted that this duty of loyalty has a limited scope and obtaining an injunction or injunctive relief, whether provisional or interlocutory (a temporary court order granting some sort of relief whether for a short period or until the trial) on that basis alone is generally rather difficult. In fact, the party invoking the duty of loyalty of a former employee has the burden or onus of establishing the specific importance of the employee within the company and the possession of confidential information by that same employee.

A frequent example of this sort of thing occurs when a former employer seeks a Court order against an ex-employee, in order to stop, what is qualified by the applicant (the former employer in this case), as unfair competition through the use of seemingly confidential information.

In such a case, a Court may choose to grant the motion and issue a temporary injunction but only after the applicant demonstrates urgency, and the intensity of the duty of loyalty (that is, the role and importance of the employee in question within the company) and the possession of confidential information by that same employee. If the applicant fails to discharge himself of his burden in this regard, its request for a temporary injunction will generally be rejected:

Harry Karavitis, Attorney-at-Law
Alepin Gauthier Avocats inc.

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