Restrictive covenants are frequently included in contracts that govern business practices and relationships. They are intended to protect the legitimate interests of the parties, such as goodwill, confidential information, team stability and—more broadly—the value of a business.  That said, more often than not, restrictive covenants that apply to health care professionals  need to be modified. A so-called “professional-patient” relationship differs from an ordinary business relationship, as a clientele consisting of patients has its own distinct characteristics. Indeed, the Court of Appeal of Quebec has repeatedly reiterated that restrictive covenants—namely non-compete and/or non-solicitation clauses—cannot, directly or indirectly, compromise the continuity of care or restrict a patient’s free choice. Therefore, the analysis must extend beyond financial protection alone to include public order considerations relating to access to care and continuity of care.  The challenge thus lies in drafting clauses that are both useful and enforceable. This requires a focus on what actually needs to be protected, while avoiding restrictions that would dissuade a health care professional from continuing treatment or prevent patients from receiving care from their physician of choice.  The most common restrictive covenants  The purpose of a non-compete clause is to prevent individuals from engaging in competing activities after a contractual relationship has ended. With regard to employment, article 2089 of the Civil Code of Québec1 requires that the clause be limited as to time, place and type of employment, to what is necessary for the protection of the legitimate interests of the party in whose favour the “protection” is established.2   A non-solicitation clause does not necessarily target the practice of the profession as such, but rather actions intended to actively attract individuals or entities associated with the business, including patients, referrals or employees. Although it is often presented as less intrusive, it can nonetheless have effects comparable to those of a non-compete clause if it is worded so broadly that it effectively prevents a professional from seeing patients who wish to be under their care.  Unique characteristics of the health care sector: patients, continuity of care and public order  One particular restriction applies in the health care sector: a non-compete clause must neither treat patients as a commercial asset nor place the professional in a position of having to choose between: (i) complying with the clause; or (ii) ensuring the continuity of care required by a patient’s medical condition. Patients are not parties to the contract between the employer, the clinic or the purchaser and the health care professional, and are not considered objects in commerce.3 It is therefore risky to attempt to govern their conduct by way of a contract, as if they were parties to the agreement.4  It should be noted that this premise is considered when covenants are assessed.5 The law and various codes of ethics generally require professionals, in particular, not to “abandon” a patient, to ensure a secure transfer of records, and to uphold—within the limits of the regulatory framework—the patient’s freedom to choose their service provider.6 The contract, therefore, cannot be drafted as though the protection of goodwill alone justified restrictions that compromise continuity of care.  Jurisprudential insights from the Court of Appeal of Quebec  Where a health care professional practises at a clinic, a non-compete clause between the clinic and the professional must not prevent a patient from continuing to receive care from the professional of their choice should the patient-professional relationship be terminated. A clause that violates this rule is especially vulnerable to being deemed invalid if it directly or indirectly prohibits practitioners from treating or taking on patients connected to a clinic—particularly where it makes no exceptions for emergency care or the continuation of treatment.7 Thus, a clause that prohibits treating former patients of a clinic or accepting patients “originating” from it, with no exceptions—particularly regarding ongoing care—may exceed what is required to protect goodwill and may conflict with the continuity of care. Similarly, a non-solicitation clause that treats the mere act of responding to a patient’s request as solicitation may, in practice, turn a prohibition on solicitation into a prohibition on providing treatment,8 which should be avoided.  The issue does not lie solely in explicit prohibitions. It can also stem from a mechanism designed to deter professionals from accepting patients in order to avoid penalties. In this regard, a penalty clause triggered by the act of treating a patient may exert economic pressure that could affect the patient’s choice and the continuity of care, even if the provision does not expressly refer to the discontinuation of care.9  Professional context vs. commercial context  From a structuring perspective, one often useful approach is to draw a clear distinction between clinical practice and commercial involvement.10 A prohibition against providing clinical care is the measure that most directly affects the continuity of care, as it prevents the professional from providing care precisely when a patient wishes to continue treatment.11 The stronger the pre-existing therapeutic relationship and the longer the course of treatment, the greater the risk of hindering the patient’s freedom of choice and the continuity of care.12 In other words, discontinuing treatment is generally more problematic in long-term care (e.g., orthodontics, psychiatry) than in one-off procedures (e.g., dental cleanings). Where restrictive covenants result in the disruption of the continuity of care, their consequences are too serious to be left to the vagaries of the market.13   Conversely, certain restrictions relating to the leadership, management, operation or control of a competing business may sometimes be more justifiable where they protect a specific legitimate interest without actually preventing the continuity of care. While this approach does not ensure a clause’s validity, it does reduce the likelihood that the clause will be deemed invalid, provided that the clause is carefully worded in terms of time limit, scope and definition of protected activities, and that it accurately reflects what is actually observed in clinical practice.  Five recurring issues with drafting  Territory  The issue of territory continues to come up frequently as a point of contention. In health care, territory must be defined based on the actual service area and the legitimate interest to be protected, while considering the impact on access to care.14 A territory that is too big could mean less services,15 particularly in specialized fields, whereas a territory that is too small could render the clause commercially ineffective.16 It is also important to note that territorial scope must be assessed on a case-by-case basis. A standard clause provided by a recognized association may even be deemed ineffective if it does not reflect the legitimate interests of the business in question.17  That said, even in the absence of an established territory, a restrictive clause may be valid, provided that the target clientele is clearly defined.18   Time limit  The time limit must be clearly established and reasonable. A clause with no time limit—or one with an ambiguous start date—is particularly problematic.19 Even where the time limit has been clearly established, it must be based on a defensible business rationale and must not exceed what is necessary, especially where the restriction affects clinical practice rather than specific conduct.  Activities The definition of prohibited activities is often crucial. Broadly worded provisions—such as a general prohibition against providing “similar” services—become difficult to enforce without conflicting with clinical requirements.20 In practice, it is generally more prudent to focus on identifiable and verifiable conduct rather than prohibiting a physician from treating a patient who wishes to be under their care. Where treatment is ongoing, it may be necessary to include an explicit provision regarding continuity of care to reduce the likelihood that the clause will be deemed invalid.21  Non-solicitation clause  A non-solicitation clause requires a particularly careful definition of the concept of “solicitation”. A non-solicitation clause that would prevent a professional from earning a living would likely be deemed invalid and unreasonable.22 The recurring point of contention remains the distinction between actively and specifically trying to attract patients, and responding to a patient’s request to seek care from a particular professional. The degree of precision in targeting the clientele is also very important.   Penalty clause   The penalty clause must be handled with caution. In a health care context, the amount of a penalty or the form it will take can dissuade professionals from continuing treatment. Imposing a penalty simply for providing treatment—regardless of whether active solicitation or unfair conduct23 occurred—could be perceived as indirect coercion that infringes the patient’s freedom of choice.24 The penalty is more likely to fulfill its purpose when it targets specific and quantifiable acts, while remaining proportionate to the anticipated commercial prejudice.  It is also important to note that if any one of these analytical criteria is deemed unreasonable, that alone may be sufficient to render the restrictive covenant invalid in its entirety.25   Conclusion  The rulings of the Court of Appeal of Quebec26 underscore a crucial point, namely that the protection of goodwill or an investment, however legitimate it may be, cannot result in a restriction on a patient’s freedom of choice or in an infringement—indirect or otherwise—on the continuity of care. When drafting clauses, the soundest approach is generally to target conduct that is genuinely problematic from a business perspective—such as active solicitation, the use of confidential information and unfair competition—rather than imposing a general prohibition against treating patients.  Where more significant restrictions are being contemplated, distinguishing between clinical practice and commercial involvement may help reduce the likelihood that the clause will be found invalid, provided that it remains reasonable as to duration, territory and scope of activities, and that it is consistent with the clinical imperatives established by case law.  The content of this article is published for general information purposes only and should not be construed as constituting a legal opinion or legal advice. Be sure to contact a member of our team for advice specific to your situation.  CCQ-1991. Payette c. Guay inc., 2013 CSC 45, para. 61. Mirarchi c. Lussier, 2007 QCCA 284, para. 46. Mirarchi c. Lussier, para. 43. Mirarchi c. Lussier, 2007 QCCA 284, para. 27. Mirarchi c. Lussier, 2007 QCCA 284, para. 29-35. Mirarchi c. Lussier, 2007 QCCA 284, para. 50-53. Pitl c. Grégoire, 2018 QCCA 1879. Mirarchi c. Lussier, 2007 QCCA 284, para. 52. Mirarchi c. Lussier, 2007 QCCA 284, para. 35. Mirarchi c. Lussier, 2007 QCCA 284, para. 29. Mirarchi c. Lussier, 2007 QCCA 284, para. 49. Mirarchi c. Lussier, 2007 QCCA 284, para. 51. Gestion Philippe Girard inc. c. Clinique de réhabilitation prosthodontique de Québec inc., 2022 QCCA 1146, para. 103. Gestion Philippe Girard inc. c. Clinique de réhabilitation prosthodontique de Québec inc., 2022 QCCA 1146, para. 104. Pitl c. Grégoire, 2018 QCCA 1879, para. 60. Pitl c. Grégoire, 2018 QCCA 1879, para. 64-69. Services financiers Bertrand Lapointe inc. c. Groupes financiers Claude Grefford inc., 2026 QCCA 98, para. 9.; Payette c. Guay inc., 2013 CSC 45. Pitl c. Grégoire, 2018 QCCA 1879, para. 79. Gestion Philippe Girard inc. c. Clinique de réhabilitation prosthodontique de Québec inc., 2022 QCCA 1146, para. 102 and 104. Théberge c. Lévesque, 2007 QCCA 898, para. 52. Pitl c. Grégoire, 2018 QCCA 1879, para. 43. Théberge c. Lévesque, 2007 QCCA 898, para. 59. Théberge c. Lévesque, 2007 QCCA 898, para. 54. Pitl c. Grégoire, 2018 QCCA 1879, para. 70-71. and the Supreme Court of Canada

The fight against climate change calls for a major energy transition, but the undertaking is made even more complex by a growing demand for electricity driven by the proliferation of artificial intelligence and other new technologies. However, the urgency of the problem alone does not make a project to fix it bankable. As we mentioned in our previous article in this series,1 a project is financed on a risk-by-risk basis, based on demonstrable revenue streams and coherently allocated contractual risks. Similarly, environmental criteria must be identified, measured and allocated so that they can be incorporated into feasible projects. This article examines the issue in two parts. First, it outlines the conditions a green project must meet to be bankable. These are the same as for any infrastructure project, but in an environment that now requires a common language, verifiable indicators and guarding against greenwashing. Second, it provides concrete examples of how these stringent standards are put into practice. Making a green project bankable: the same principles, but with greater discipline The fundamentals of bankability do not change simply because a project carries a green label. The principles set out in our previous article—risk allocation, revenue certainty, commercial viability and regulatory stability—apply in exactly the same way. What is added is the need for a framework to assess environmental performance using common, precise and measurable language. This terminology is currently being defined in Canada. The Taxonomy and Transition Council, established by the Business Future Pathways consortium in collaboration with the Canadian Climate Institute, is developing a national sustainable finance taxonomy. In its draft methodology report, open for public consultation until August 13, 2026,2 three categories of activities are proposed: green, transition and abatement. Furthermore, the Council is expected to issue guidelines for six priority sectors by the end of 2027. In Quebec, the White Paper on Sustainable Real Estate, published in April 2026 by Décarbone+ with the support of Hydro-Québec, the CDPQ, the National Bank, Montoni, Lavery and the Pôle IDEOS at HEC Montréal, pursues the same objective in the real estate sector: to provide a collective benchmark based on concrete data and demonstrate that building decarbonization is not only possible, it is profitable.3 In a financing context, a proper taxonomy can facilitate due diligence, broaden the investor base by providing clarity and predictability, and, through the certainty it brings, reduce the rates at which funds are made available. However, a standardized taxonomy is not sufficient on its own, and any environmental claim must be verifiable. According to TD Securities, global sustainable debt issuances stood at just under USD 1.6 trillion in 2025, down 7% from 2024, while sustainability-linked loans fell from 530 to 418 billion.4This decline could be attributed to a tightening of standards, with lenders looking beyond advertised “greenness” to analyze the underlying substance of a project. Since 2017, Québec’s green bond program has yielded nine issuances totalling approximately $5.7 billion,5 and the $1.85 billion issuance for the REM is among the largest in Canada.6According to the Ministère des Finances, “green bonds do not represent an additional source of financing for Quebec. They are simply another means of financing borrowings that would otherwise have been financed through conventional bonds.”7 The innovative aspect of green bonds lies in the allocation, tracking and reporting frameworks built into them, which unlocks access to pools of investors bound by mandates restricting capital to green initiatives alone. If the project company promises a specific level of environmental performance to a public authority, such as a building’s energy consumption, carbon intensity or a proportion of recycled materials, it must be able to secure the same standard from the contractor, operator and suppliers. Definitions, measurement periods, audit rights and remedies must be consistent across all contracts; otherwise, the project company will face a payment reduction with no recourse against the party responsible for the shortfall, exactly as applies to an improperly allocated construction risk. The risk of greenwashing follows the same logic. An unsubstantiated environmental claim is no longer merely a reputational risk. Since June 2024, such a claim can be sanctioned under the Competition Act, with a fine of up to 3% of annual worldwide gross revenues. Furthermore, since June 20, 2025, the Act has also introduced a private right of action, making third parties entitled to bring proceedings before the Competition Tribunal under certain conditions.8In cases of project financing, an unsubstantiated claim represents an unallocated risk trapped within the structure that could jeopardize the project’s bankability. A well-defined scope and verifiable indicators are necessary to effectively analyze and mitigate this risk. From principles to practice Deep Sky: revenue certainty takes precedence over environmental benefits Although direct air capture is becoming increasingly essential to achieving carbon reduction targets, the bankability of these projects remains grounded in revenue certainty, rigorous contracting and the quality of the financial model. The Deep Sky Alpha facility in Innisfail, Alberta, combines several direct air capture technologies with permanent geological storage.9 Its financing was made possible in particular by carbon removal credit purchase agreements concluded with companies such as Lufthansa and ENGIE, with the latter having committed to purchasing up to 15,000 credits.10 These contracts serve the same purpose as power purchase agreements in wind farm projects, for example, by providing the project with the revenue certainty needed to attract financing. However, as with any offtake agreement, the parameters must be clearly defined: price, volume, delivery schedule, removal certification, permanence of storage, replacement of undelivered credits and buyer creditworthiness. Deep Sky also secured an $11-million credit facility from Finalta Capital backed by refundable clean economy tax credits,11 a structure in which the federal tax credit acts as financing leverage. These examples illustrate the principle that a technology is not bankable simply because it is green—it becomes so when its revenues are as predictable as those of a conventional project. Énergir: financing the transition in a shifting regulatory environment Strict standards do not dictate that only assets that are already “perfectly green” can be financed. The Canadian taxonomy recognizes the “transition” and “abatement” categories, reflecting the reality of an economy in which many sectors can only gradually reduce their carbon intensity rather than shifting it overnight. To finance transition and abatement projects, regulatory predictability is absolutely necessary. Énergir’s trajectory is a clear case in point, as are the uncertainties inherent to its environment. Its regulatory obligation to supply gas from renewable sources rose to 5% in 2025–2026 and was set to reach 10% in 2030–2031.12 To achieve this, Énergir launched a dual-energy program combining electricity and natural gas in April 202613 and set up a subsidiary dedicated to residential geothermal energy in December 2025.14However, in July 2026, the Québec government announced its intention to review the regulatory trajectory for gas from renewable sources, requested an opinion from the Régie de l’énergie (slated for fall 2026), and formed an expert committee whose recommendations are expected in early 2027.15 Clearly, if the regulatory targets underpinning a transition project are subject to midstream changes, the project’s financial model is weakened, its revenue assumptions open to challenge and its appeal to lenders diminished. Because the markets and revenue streams of entities such as Énergir are governed by planning approved by the Régie de l’énergie du Québec, projects led by regulated utilities generally benefit from an unusually high degree of predictability. They are largely insulated from occasional shifts in government policy. Furthermore, the same technical system can produce different results depending on the power grid, the climate or the baseline it replaces. The economic viability of different projects using the same system must therefore be assessed jurisdiction by jurisdiction. Measuring Beyond: measuring what is promised Verifying that environmental promises are kept requires a standard of measurement that goes far beyond simply including covenants into contract documentation. The Measuring Beyond Initiative, launched by HEC Montréal in partnership with the University of Oxford’s Saïd Business School, was designed with this objective in mind: to measure ESG performance with sufficient rigour to allow the findings to be built into financial models, not simply relegated to annual reports.16 The initiative is accompanied by the creation of a Chair in Sustainable Finance, a sign that measuring non-financial performance is now a professional discipline in its own right. HEC Montréal’s Sustainable Transition Office, co-led by Dominique Anglade, is also helping train decision-makers to understand and articulate transition challenges. Climate literacy is, in itself, a prerequisite for sound governance. Decision-makers must be able to understand the environmental assumptions they build into a project before they become contractual covenants. For their part, lenders must verify the consistency of the information throughout the project lifecycle, from the tender stage, through construction and operating contracts, to the financing documentation. Ultimately, sound governance is precisely what turns an environmental metric from an aspirational target into verifiable data that financiers can truly rely on. Conclusion To paraphrase Romain Rolland, rising to the challenge of the energy transition requires combining the pessimism of the intellect—which cuts through every illusion—with the optimism of the will. Optimism is needed to devise ambitious projects, while realism (in lieu of pessimism) provides the discipline required to make them bankable. Without such discipline, an environmental label can turn into greenwashing, undermining the very financing it was intended to support. With it, however, the verified sustainability of a project broadens access to capital markets and makes climate-related revenues genuinely bankable. The same logic applies to so-called “smart” infrastructure. Its data and performance indicators must likewise be reliable, verifiable and subject to contractual requirements. This will be the subject of the next article in this series. D. Tournier and J. Menard, 2026. “Our infrastructure contracts: from the ideal project to the bankable project.” Lavery, de Billy. https://www.lavery.ca/en/publications/our-publications/6468-our-infrastructure-contracts-from-the-ideal-project-to-the-bankable-project.html Business Future Pathways, 2026. Canadian Sustainable Finance Taxonomy: Methodology Report. https://www.businessfuturepathways.ca/public-comment-period-begins-on-canadas-sustainable-finance-taxonomy/ Décarbone+, 2026. “White Paper, Sustainable Real Estate.” https://decarboneplus.org/initiatives/atelier-1-immobilier-durable/ TD Securities, 2026. “Sustainable Finance 2025 in Review and 2026 Outlook.” https://www.tdsecurities.com/ca/en/sustainable-finance-2025-in-review-and-2026-outlook Ministère des Finances du Québec, 2025. Green Bond Newsletter. https://www.finances.gouv.qc.ca/documents/Autres/en/AUTEN_MFQ_OblVertes_Bulletin_Nov2025.pdf CDPQ Infra, 2026. “REM successfully raises $1.85 billion through its first green bond issuance.” https://cdpqinfra.com/en/news/pressreleases/rem-successfully-raises-185-billion-through-its-first-green-bond-issuance Ministère des Finances du Québec, n.d. “Additional information.” https://www.finances.gouv.qc.ca/department/financing/green_bonds/additional_information.asp Competition Bureau Canada, 2025. “Environmental claims and the Competition Act.”https://competition-bureau.canada.ca/en/how-we-foster-competition/education-and-outreach/environmental-claims-and-greenwashing Deep Sky, 2025. “Deep Sky Alpha Begins Operations with North America’s First CO2 Storage via Direct Air Capture.” https://www.deepskyclimate.com/blog/history-made-deep-sky-alpha-begins-operations-with-north-americas-first-co2-storage-via-direct-air-capture-2 Deep Sky, 2026. “Deep Sky and Lufthansa Group Enter Carbon Removal Credit Agreement.” https://www.deepskyclimate.com/blog/deep-sky-and-lufthansa-group-enter-carbon-removal-credit-agreement; Deep Sky, 2026. “Deep Sky Announces Partnership to Advance Direct Air Capture with ENGIE.” https://www.deepskyclimate.com/blog/deep-sky-announces-partnership-to-advance-direct-air-capture-with-engie Deep Sky, 2025. “Deep Sky Secures First-of-its-Kind Financing with Finalta Capital to Advance Carbon Removal in Canada.” https://www.deepskyclimate.com/blog/deep-sky-secures-first-of-its-kind-financing-with-finalta-capital-to-advance-carbon-removal-in-canada Énergir, 2026. “Renewable Natural Gas, Your Energy Transition Ally.” https://energir.com/en/residential/renewable-natural-gas Énergir, 2026. Dual-Energy Electricity and Natural Gas Program. https://energir.com/files/energir_common/import/Fichiers/Subvention_bienergie/Guide-Participation_bienergie_EN.pdf Énergir, 2025. “Énergir Geothermal Solution: A New Subsidiary Dedicated to Deploying Residential Geothermal Systems in Québec.” https://energir.com/en/about/media/news/energir-geothermal-solution-new-subsidiary-dedicated-deploying-residential-geothermal-systems-quebec Government of Québec, 2026. “Québec veut renforcer sa sécurité énergétique et réduire la facture pour les consommateurs de gaz naturel.” Press release dated July 16, 2026. https://www.quebec.ca/nouvelles/actualites/details/quebec-veut-renforcer-sa-securite-energetique-et-reduire-la-facture-pour-les-consommateurs-de-gaz-naturel-71977 [in French only] HEC Montréal, 2023. “Measuring Beyond Initiative.” https://www.hec.ca/en/sustainable-and-responsible-management/measuring-beyond-initiative/index.html

On October 28, 2025, the government passed An Act to improve certain labour laws,1 also referred to as Bill 101. The reform has the stated objective of improving efficiency in grievance arbitration, in particular by reducing processing times, implementing a more structured case management system, and ensuring more thorough case preparation. The explanatory notes expressly state the intention to “determin[e] the rules relating to the communication of evidence before the hearing of the grievance.”2 In this context, the Labour Code3 was amended to introduce, among other things, section 100.3.1, which now requires parties to disclose in advance the evidence they intend to present, as well as the list of witnesses:  100.3.1. The party that intends to produce an exhibit or other evidence at the hearing must provide a copy of it to the other parties and the arbitrator within the time agreed upon at the pre-hearing conference or at least 30 days before the beginning of the hearing, except in an urgent situation or unless otherwise decided to ensure the proper administration of justice.  The party must, in the same manner, provide a list of the witnesses it intends to call and a list of those whose testimony it intends to present in the form of affidavits, unless there is valid cause not to disclose their identities.  The party must also file with the arbitrator proof that the copy has been provided to the other parties.  This change has significant practical implications. For decades, the issue of advance disclosure of evidence in grievance arbitration has given rise to conflicting jurisprudence. A majority view held that the arbitrator could not require a full exchange of evidence outside the hearing, while a minority view recognized a broader scope for intervention in the interest of fairness and the proper administration of justice.4 Several authors have criticized the role of surprise in arbitration. They found that a lack of advance disclosure leads to unnecessary debates, causes delays and adjournments, and contributes to making the process more cumbersome. Author and arbitrator Marc Mancini aptly summarizes the issue. He points out that the fact that rules governing the advance disclosure of evidence in grievance arbitration are virtually nonexistent can, in certain cases, encourage games of hide-and-seek between the parties.5  Section 100.3.1 is therefore triggering a cultural shift. Advance disclosure is no longer merely a cooperative practice that takes place only when the parties consent to it. It is a legislative obligation, subject to only two exemptions: an urgent situation or when a decision is otherwise rendered to ensure the proper administration of justice.  Under this new framework, an initial interlocutory judgment—eagerly awaited by legal practitioners—has clarified the scope of the obligation and, above all, how strictly the exemption for the proper administration of justice is enforced. It was rendered by arbitrator Isabelle Leblanc on June 22, 2026, in Syndicat des professeures et professeurs du Cégep Marie-Victorin and Cégep Marie-Victorin.7  Background on the ruling  The dispute arose in the context of workplace disciplinary measures that included a dismissal. The employer requested an exemption from the requirement to disclose certain documents in advance—primarily messages exchanged on social media and via text—which it preferred to disclose either during or after the complainant’s testimony. The union opposed the exemption, citing the very rationale behind the reform.  In her ruling, the arbitrator first notes that advance disclosure is now the rule and that parties can no longer treat it as a matter of procedural discretion. Advance disclosure, she states, is a strict procedural duty that may be waived only in urgent situations or for the proper administration of justice.  She frames the duty within Bill 101, stating that the reform aims to reduce processing times, enable the parties to better prepare their cases, and promote the resolution of disputes based on evidence known to both sides.  A ruling that’s open to interpretation, yet still sends a clear message  This ruling should be interpreted carefully. The arbitrator herself highlights the unique aspects of the case, in particular that the complainant was either the sender or the recipient of the messages the employer sought to use. The complainant was therefore already aware of the messages, even though he claimed to have deleted them and no longer to have them in his physical possession prior to his testimony.  From a practical standpoint, the arbitrator highlights the risks that inefficiency can entail. She notes that failure to provide advance disclosure may hinder the search for the truth, not because the facts are actually disputed, but because the normal limitations of memory may affect responses. She also notes that failure to provide advance disclosure impacts the efficiency of the hearing due to the time required to review the messages in the hearing room, especially given their volume.  From a legal standpoint, the arbitrator rejects the employer’s argument, one based on having a full and complete defence. She deems the concept inapplicable in arbitration and shifts the focus to the concept of the right to be heard. In her view, withholding evidence in the name of the right to be heard would amount to encouraging a practice that undermines the other party’s right to properly prepare and defend itself.  She specifies that the employer would have to demonstrate a real, concrete, and disproportionate infringement of his rights, constituting a heavy burden of proof that was not met in this case. She suggests that exemptions should not be viewed as merely a way out when advance disclosure is uncomfortable or strategically disadvantageous.  It is important to remember that each case is unique. Section 100.3.1 grants the arbitrator discretion based on the principle of the proper administration of justice, and it is possible that other arbitrators may reach different conclusions depending on the facts.  Rethinking disciplinary investigations and how we gather versions of the facts  A practical lesson emerges clearly from this ruling and is of direct interest to human resources and labour relations managers. The arbitrator points out that the employer already has a forum to assess the employee’s credibility: the investigation conducted prior to imposing the disciplinary measure. She highlights that, while evidence is not generally disclosed during investigations, this is often a deliberate choice rather than a necessity. She adds that the employer is not precluded from challenging the employee’s credibility and that it may do so during the investigation.7  Bill 101 and this ruling therefore call for a more rigorous structure for disciplinary investigations, not only to establish the facts but also to verify the consistency and reliability of the explanations before a decision is made. In many cases, this means the better planning of meetings aimed at gathering the versions of the facts. It is essential to ensure that the relevant questions are asked during the investigation, that the answers are accurately recorded, and that the person in question can clearly explain the allegations against them, especially when the employer intends to rely on this evidence. This way, there is less risk that a late review of evidence will slow down proceedings with delays and interruptions.  In light of these lessons, it appears that the following practices deserve consideration when conducting disciplinary investigations:  Clarifying from the outset what the allegations are and what needs to be verified, and then adjusting the investigation as findings emerge;  Preparing an agenda to gather the parties’ versions of the facts and identify the documents to be discussed;  Documenting responses accurately and completely, including nuances, corrections, and explanations;  Submitting written materials during the investigation, when applicable, to obtain comprehensive and contemporaneous explanations;  Addressing any contradictions or grey areas during the investigation, rather than letting them become more pronounced during the hearing; and  Ensuring that the disciplinary decision reflects the facts known at the time it is made and that the investigation file provides a clear explanation of the decision.  We will closely monitor future rulings under section 100.3.1, as the jurisprudence will clarify, over time, the practical scope of the exemption for the proper administration of justice, as well as its limits in disciplinary matters. In this ever-changing environment, we remain available to assist employers from the investigation stage through to arbitration in order to minimize the risk of contestation and strengthen their case.  SQ 2025, c. 28. Idem., Explanatory Notes. CQLR, c. C-27. Marc Mancini, Frédéric Poirier and Stéphanie Lalande, La preuve et la procédure en arbitrage de griefs, 3rd ed., Wilson & Lafleur, Montréal, 2026, pp. 117–127. Marc Mancini, “Et si la Règle de Browne c. Dunn s’appliquait en arbitrage de griefs au Québec : analyse réflexive sur les enjeux de divulgation de la preuve”, in Sébastien Beauregard et al., 50e anniversaire de la conférence des arbitres du Québec - Un demi-siècle de réflexion et d’évolution, Wilson & Lafleur, Montréal, 2024, pp. 74–83, 93. Syndicat des professeures et professeurs du Cégep Marie-Victorin and Cégep Marie-Victorin, 2026 QCTA 284 (Ms. Isabelle Leblanc). Idem., para. 58.