Non-disclosure agreements in Canada: what makes an NDA enforceable

What an NDA actually does

An NDA defines what counts as confidential information, what the receiving party must do to protect it (and what they must not do), how long the obligations last, and what happens if they breach. It doesn't create secrecy out of thin air — it creates a contractual obligation around information that is genuinely non-public and valuable.

Get the definition right and the rest of the agreement has something to stand on. Get it wrong — 'all information disclosed' with no boundaries — and a court may find there's nothing specific to protect.

One-way vs. mutual NDAs

A one-way (unilateral) NDA protects one side's information — typical when you're pitching investors or briefing a contractor. A mutual NDA protects both sides — typical in partnerships, joint ventures, or merger talks where information flows both ways.

Use mutual when disclosure goes both directions; using a one-way NDA in a two-way relationship leaves your own disclosures unprotected. For employment, confidentiality clauses are often built into the employment contract itself rather than a standalone NDA.

What Canadian courts look for

Courts assess NDAs like other restraint-type clauses — reasonableness is everything:

• A clear, specific definition of confidential information — marked documents, defined categories, not 'everything'.
• Reasonable scope and duration — 2 to 5 years is typical; perpetual obligations on ordinary business info invite skepticism.
• Consideration — the agreement needs something of value exchanged. In employment, a raise, bonus, or new role at signing helps; springing an NDA on an existing employee with nothing new can be fatal to enforceability.
• Carve-outs — information that becomes public, was already known, or is independently developed should be excluded; their absence makes the NDA look overbroad.

What an NDA can't do

An NDA cannot gag someone from reporting a crime, cooperating with regulators, or disclosing in legal proceedings — clauses purporting to do so are unenforceable. It can't protect information that's already public, and it can't be used to hide wrongdoing.

In employment, remember that overly broad non-competes are now banned for most Ontario employees (since December 2021) — a separate issue from NDAs, but the two often appear together, and courts read the package as a whole.

Quebec: the French-language wrinkle

Quebec's Charter of the French Language requires contracts of adhesion (take-it-or-leave-it contracts, which many employment NDAs are) to be drawn up in French first, with the other language version available on request. An English-only adhesion NDA presented to a Quebec employee or contractor carries real enforceability risk.

If your NDA touches Quebec parties, prepare a French version from the start rather than translating after a dispute begins.