Employees owe a duty of loyalty towards their employer. This well-known principle of labour and employment law is particularly set out in statutory law, namely in Section 2088 of the Civil Code of Québec which prohibits any act which may impair or infringe upon the legitimate interests of the employer.
An exception to this principle exists when there are overriding considerations that justify the disclosure of confidential information or the performance of certain acts that may normally be construed as disloyal. This exception, commonly referred to as “whistleblowing”, stems from the employee’s freedom of expression, a fundamental right guaranteed by the Québec Charter of Human Rights and Freedoms.
This process of “whistleblowing” is often hard to bear for employees who are placed in such a situation and they often struggle to establish the proper balance between their right to freedom of expression and their duty of loyalty towards their employer.
Québec employees benefit from statutory protection in this area, which is supported by several legal provisions, including the Act Respecting Labour Standards, the Act Respecting Occupational Health and Safety, and the Civil Code of Quebec. However, unlike some other jurisdictions in Canada, Quebec does not have specific whistleblowing legislation.
For example, Section 122 of the Act Respecting Labour Standards prohibits an employer from practising discrimination or taking reprisals against an employee on the ground that an inquiry is being conducted by the Commission des normes du travail (the Commission) in an establishment of the employer or on the ground that an employee has given information to the Commission on the application of labour standards.
Similarly, Section 30 of the Act Respecting Occupational Health and Safety provides that an employer may not take any action against an employee who avails himself of his right to refuse to perform work if he has reasonable grounds to believe that he could be exposed to a hazard to his health, safety, or physical integrity.
Lastly, Section 1472 of the Civil Code of Quebec is aimed more specifically at protecting whistleblowers with regard to the disclosure of a trade secret by proving that considerations of general interest prevail over keeping the secret and, particularly, that its disclosure is justified for reasons of public health or safety.
In conclusion, it should be noted that an employee must, if he wants to legitimately benefit from the abovementioned statutory protections, act in good faith and have serious and objective reasons to blow the whistle. The “whistleblowing” must be done in the public interest with the purpose of correcting an unjust situation, rather than harming the employer.
The author is grateful to Caroline Jodoin, articling student at Montréal’s Norton Rose Fulbright, for her contribution to this post.