Validating a Claim
In order for a claim to be assessed as valid the following criteria need to be met:
- the information must be confidential to the claimant;
- the claimant must have taken measures that are reasonable under the circumstances to maintain the confidentiality of the information; and,
- the information must have actual or potential economic value to the claimant or to the claimant's competitors because it is confidential and the disclosure of the information would result in a material financial loss to the claimant or a material financial gain to the claimant's competitors.
A fourth criteria may also be used to support claim validity regarding investments in research and development. These include expenditures and other business resources employed by the claimant to develop the product.
A profit-oriented financial estimate approach or a net figure must be used to report economic value (e.g. gross profit, contribution margin, operating income, net income etc.). An estimate of the a percentage of the sales that would be lost if the information were disclosed on the (material) safety data sheet ((M)SDS) is typically used to report loss.
When submitting a claim for exemption, claimants should ensure that the information listed below is available as you may be requested to provide it at a later date:
- the number of employees, officers or directors who have knowledge of or access to the information;
- the number of persons inside or outside Canada, other than persons referred to in the previous bullet, who have knowledge of or access to the information, and the reasons why;
- the details of the measures implemented in order to restrict knowledge of or access to the information, including the measures relating to site security, document security and computer security which have been implemented for that purpose;
- whether or not each person who has knowledge of or access to the information has signed a confidentiality agreement in respect of that information;
- if it is claimed that the research and development expenses incurred in developing the controlled product were substantial, a statement indicating the amount of money spent or other business resources used to develop the information; and,
- the reasons why that amount or those resources are considered to be substantial under the circumstances.
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