Lawyer Profile
Simon Gagné
Montréal, Québec
Overview
The right to freedom of expression is not absolute. It does not permit employees to comment on political events unrelated to their workplace at all times and an employer can intervene if an employee expresses his opinions at work and on social networks. An employer has the right to request that his employees adopt a neutral position in these matters in the workplace and on the social networks. This principle remains effective even when the employee is a union representative if the positions expressed do not concern a dispute related to working conditions within the organization or when such positions explicitly denigrate or criticize the employer. In July 2018, the Superior Court upheld an arbitration award1 in a case involving Renaud Bray2 and, in doing so, upheld the disciplinary suspension and dismissal of an employee and union representative who asserted that he had the right to wear the red square symbol at work. The employee also made defamatory statements about the employer on the internet. In the opinion of the Court, the importance of freedom of expression must be recognized, but so must the right of the employer to remain neutral in situations in which it is not involved. Context The employee wore a red square, a symbol of support for students in their dispute with the government over tuition fees at the time while he worked at a Renaud Bray bookstore. The employer also accused him of posting, while he was on paternity leave, comments on social networks that supported a boycott movement with regard to the employer, following a controversy that opposed the principal shareholder of the bookstore and an author.He was contesting two disciplinary measures (a three-day suspension and a dismissal), which had been imposed after he published comments that criticized and denigrated the employer on Facebook and on his blog. In particular, the employee encouraged citizens, customers, former employees, and artists to criticize Renaud Bray and file complaints because the company banned its employees from wearing red squares. The employer also filed two management grievances demanding compensation for the damage suffered as a result of these negative posts. Freedom of expression or neutrality? The Court recognized that freedom of expression is an essential component of labour relations, and that it is often as a result of this freedom of expression that vulnerable workers are able to gain public support in their pursuit of better working conditions. The judge noted, however, that the red square movement did not relate to the working conditions at Renaud Bray, and the bookstore could validly maintain neutrality on this issue and require its employees to respect such neutrality. In this context, the right of freedom of expression is not absolute. Immunity that can apply to a union representative does not allow the employee to evade penalties: By posting such texts on his blog and his personal Facebook page, the employee was not acting as a union representative, but rather as an individual; He signed his articles and made requests to the readers in his own name; Moreover, some of the comments were made while he was on paternity leave and not working; His most recent posts were not about subjects that related to working conditions at Renaud Bray, but rather about a dispute between Renaud Bray and an author. Since some of the comments were false, the employee was also at fault with regard to his employer, and the employer was therefore entitled to compensation. According to the arbitrator and the Court, it was abundantly clear that the trust between employer and employee had been broken and that the dismissal was justified: how could the employer trust an employee who encouraged the readers of his Facebook page to demonstrate in front of the store and even boycott it? What employers should aim to do Given that an employer can legitimately maintain its neutrality in current debates and require that its employees respect such neutrality in the workplace, it is important to ensure that management is consistent and fair: for example, the employer could, in the workplace, prohibit the expression of political or other opinions in front of customers in general and refuse to tolerate messages on some matters. Given that the right to freedom of expression is not absolute, the employees’ duty of loyalty means that employees should not denigrate their employer, but instead should show restraint in their comments about the employer. In addition, the immunity from which union officials benefit is not unlimited; it does not protect an employee who clearly breaches said duty of loyalty. An interesting element in this case was that the employer became aware of the employee’s comments through an automated alert system used to find media articles and publications, regardless of the author. The arbitrator concluded that this was not illegal surveillance on the part of the employer, and this conclusion was not challenged before the Superior Court. Syndicat des employées et employés professionnels-les et de bureau, section locale 574 (SEPB-CTC-FTQ) et Librairie Renaud-Bray inc. (Julien Beauregard, griefs patronaux et syndicaux), 2017 QCTA 26. Syndicat des employées et employés professionnels-les et de bureau, section locale 574 (SEPB-CTC-FTQ) c. Sylvestre, 2018 QCCS 2987 (discontinuance filed in September 2018 in regard to the application for leave to appeal).
On February 17, 2017, the Québec Court of Appeal1 upheld a decision of the Superior Court of Québec granting an application for authorization of care presented by the Centre intégré de santé et de services sociaux du Bas-Saint-Laurent. In this case, the patient attempted to assert the following grounds of appeal, each of which were unanimously dismissed by the Court of Appeal. First, the patient argued that the judge in first instance could not conclude that there had been a categorical refusal by the patient without first ensuring that he had received all the necessary information to make a free and informed decision. Moreover, the duration of the order obtained had to be as short as possible. Finally, based on the decision in M.M.Centre intégré de santé et de services sociaux du Bas-Saint-Laurent c. M.M.2 the immediate enforcement of the order ought not to have been ordered. In this case, it was admitted that only the treatment that was initially planned had been considered and discussed with the patient, and he had not been provided with any additional explanation with respect to the proposed second and third alternative treatments. However, during the hearing before the Superior Court, the treating psychiatrist provided the Court with explanations regarding the alternative treatments. On this point, the Court of Appeal found that the explanations provided during the hearing met the requirements and that the patient had had the opportunity to request an adjournment of the hearing to obtain additional information, which he had not done. Therefore, while the information discussed with the patient regarding the alternative treatments being considered was incomplete, the Court of Appeal held that the judge in first instance could infer that there had been a categorical refusal by the patient, because it was clear that any discussion with him about medication was doomed to fail. In addition, the Court of Appeal took the opportunity to distinguish an authorization of care which is purely preventative in nature from the presentation of a full plan of care which includes alternative therapies based on the evolution of the patient’s specific situation. The Court noted that there is a real difficulty in determining which medication is more suitable for treating a patient. The difficulty is, in fact, compounded where the patient refuses to grant access to his medical files, therefore resulting in a lack of information on the medicinal trials attempted in the past. Regarding the duration of the care order, the Court noted that the D.A.case3 did not stand for the proposition that the duration of such an order must be as short as possible, but rather, [translation] “[…] the shortest possible duration that is reasonably feasible 4 and, in the case of F.D.5, the Court instead defined the duration as [translation] “a sufficient period to ensure that the treatment produces the beneficial effects that are expected.”6 For these reasons, the Court did not modify the duration of the order set by the Superior Court at three years, particularly in light of the complex and resistant nature of the illness, as well as the patient’s lack of diligence in taking his medication. In closing, the Court of Appeal noted that, in matters involving care orders, immediate enforcement must be explicitly requested, and respect for the dignity of the patient requires that there be proof in each case of a grave and imminent risk to the patient’s health for such an order can be issued. However, in fact, the Court found that this burden had been met because any delay in administering the medication was likely to increase the patient’s resistance to the proposed treatment plan. C.R. c. Centre intégré de santé et de services sociaux du Bas-Saint-Laurent, 2017 QCCA 328. Centre intégré de santé et de services sociaux du Bas-Saint-Laurent c. M.M., 2016 QCCS 5572. D.A. c. Centre intégré de santé et de services sociaux des Laurentides, 2016 QCCA 1734. Ibid., para. 31. F.D. c. Centre universitaire de santé McGill (Hôpital Royal-Victoria), 2015 QCCA 1139. Ibid., para. 54.
Lavery is proud to announce that 42 partners are ranked among the leading practitioners in Canada in their respective practice areas in the 2026 edition of The Canadian Legal Lexpert Directory. The following Lavery partners are listed in the 2026 edition of The Canadian Legal Lexpert Directory: Asset Securitization Brigitte M. Gauthier Banking Étienne Brassard Class Actions Laurence Bich-Carrière Myriam Brixi Marie-Nancy Paquet Construction Law Laurence Bich-Carrière Nicolas Gagnon Marc-André Landry Ouassim Tadlaoui Corporate Commercial Law Étienne Brassard Jean-Sébastien Desroches Christian Dumoulin Alexandre Hébert Édith Jacques Paul Martel André Vautour Corporate Finance & Securities Josianne Beaudry René Branchaud Corporate Mid-Market Étienne Brassard Jean-Sébastien Desroches Alexandre Hébert Édith Jacques André Vautour Employment Law Benoit Brouillette Frédéric Desmarais Simon Gagné Richard Gaudreault Marie-Josée Hétu Guy Lavoie Josiane L’Heureux Zeïneb Mellouli Environment Valérie Belle-Isle Family Law Caroline Harnois Awatif Lakhdar Elisabeth Pinard Infrastructure Law Nicolas Gagnon Insolvency & Financial Restructuring Yanick Vlasak Insolvency Litigation Jean Legault Ouassim Tadlaoui Yanick Vlasak Jonathan Warin Intellectual Property Chantal Desjardins Alain Y. Dussault Isabelle Jomphe Eric Lavallée Labour (Management) Benoit Brouillette Brittany Carson Simon Gagné Richard Gaudreault Marie-Josée Hétu Marie-Hélène Jolicoeur Guy Lavoie Carl Lessard Zeïneb Mellouli Litigation - Commercial Insurance Dominic Boisvert Martin Pichette Litigation - Corporate Commercial Laurence Bich-Carrière Marc-André Landry Litigation - Product Liability Laurence Bich-Carrière Myriam Brixi Medical Negligence Anne Bélanger Mergers & Acquisitions Josianne Beaudry Étienne Brassard Jean-Sébastien Desroches Christian Dumoulin Alexandre Hébert Édith Jacques Mining Josianne Beaudry René Branchaud Occupational Health & Safety Josiane L'Heureux Professional Liability Marie-Nancy Paquet Judith Rochette Technology André Vautour Workers' Compensation Marie-Josée Hétu Josiane L'Heureux Guy Lavoie Carl Lessard
Practice Areas
Bar Information
Called to the bar: 1996 (QC)