A Quebec judge has overturned an arbitration decision upholding the firing of a provincial government employee for serving as an opposition party spokesperson, ruling that the arbitrator made legal errors in assessing the employee’s freedom of expression.
In a recent decision, Superior Court Justice Serge Gaudet ruled that an arbitrator made two “fundamental” legal errors when he upheld the dismissal of Stephan Fogaing, an aerospace adviser with Quebec’s Ministry of Economy, Innovation and Energy. The ministry dismissed Fogaing in 2023 after he refused to give up his role as a Parti Québécois (PQ) spokesperson.
“In a liberal democracy such as ours, supporting a political party and becoming one of its spokespersons lies at the very heart of freedom of expression,” Justice Gaudet said.
Fogaing became a sectoral co-spokesperson for the PQ after the 2022 provincial election, a position the ministry said conflicted with his obligation as a public servant to remain politically neutral and exercise restraint.
His government duties included assessing aerospace and defence projects and preparing reports that could reach senior government officials. He also had access to confidential information related to those projects.
The ministry repeatedly told Fogaing to choose between his government job and his political role, but he refused, maintaining that he could perform both without violating his obligations of neutrality and loyalty.
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The ministry imposed increasingly lengthy suspensions before firing him on March 31, 2023. Fogaing’s union then filed five grievances challenging his suspensions, the demand to choose between the two positions, and his dismissal.
On July 15, 2024, arbitrator Guy Roy dismissed all five grievances. The union challenged Roy’s decision in Superior Court, arguing that it was legally flawed.
Judge’s Decision
Justice Gaudet concluded that Roy’s analysis of freedom of expression contained two serious errors that required the Superior Court to intervene.
The judge said Roy’s first “fundamental error” was concluding that Fogaing’s freedom of expression was not restricted because he spoke for a political party instead of expressing his own opinions. The judge said Roy cited no legal authority for that conclusion, adding that political expression is protected under the Canadian Charter of Rights and Freedoms.
Gaudet noted that the Supreme Court of Canada has consistently interpreted freedom of expression broadly, extending protection to any activity or communication designed to convey a message. He cited a Supreme Court decision that described political speech as “the most important and most highly protected form of expression.”
Gaudet concluded that Roy’s failure to recognize the restriction on Fogaing’s freedom of expression was serious enough to invalidate the arbitration decision.
He said the second “fundamental error” was Roy’s use of the wrong legal test to decide whether limiting Fogaing’s freedom of expression was justified.
Roy applied a Supreme Court test used to assess restrictions on Charter rights imposed by laws and regulations. Gaudet said he should instead have used a test designed for decisions involving individual rights.
Under that framework, the judge said Roy should have assessed whether the ministry appropriately balanced Fogaing’s freedom of expression against its interest in maintaining political neutrality in the public service.
The judge also said Roy should have examined the employer’s reasons for its decisions and Fogaing’s particular circumstances. Instead, Roy focused on a section of the Public Service Act requiring public servants to demonstrate political neutrality when performing their duties.
Gaudet concluded that Roy asked the wrong legal questions because he applied the wrong legal framework, while his analysis of whether Fogaing’s suspensions and dismissal were justified “was fundamentally and irreparably flawed.”
Finding freedom of expression was central to the dispute, Gaudet overturned the arbitration decision and found it unnecessary to rule on the union’s other arguments.
The judge ordered a new hearing before a different arbitrator, saying that returning the case to Roy could create an appearance of bias because of the positions he had already taken.
The court did not determine whether Fogaing’s dismissal was justified or order his reinstatement, leaving those questions for a new arbitration hearing.
