Executive Summary: Key Legal and Evidentiary Issues

• Scope and validity of non-competition and non-solicitation clauses under article 2089 C.c.Q., particularly whether the “activities” covered are drafted too broadly to protect only Gallagher’s legitimate interests.
• Extent of former employees’ post-employment duty of loyalty under article 2088 C.c.Q., including whether coordinated departures and client movements amount to unfair competition.
• Use and alleged misappropriation of Gallagher’s confidential information and client lists, including Fortier’s transfer and later deletion of files and the inferences that can be drawn from this conduct.
• Evidentiary sufficiency at the provisional stage to show a serious issue to be tried and a risk of serious or irreparable harm from loss of clientele, despite incomplete proof of actual solicitation.
• Propriety and safeguards surrounding mirror imaging of personal electronic devices and accounts to preserve potential evidence while respecting privacy and future judicial control over access.
• Balance of convenience between allowing vigorous competition and protecting Gallagher from unfair competition, leading to a narrowly tailored safeguard order instead of full enforcement of the restrictive covenants.

Background and parties

Arthur J. Gallagher Canada limitée (Gallagher) is the Canadian subsidiary of a U.S. insurance and surety brokerage group operating in the commercial insurance (I.A.R.D. – fire, accidents, miscellaneous risks) and construction bonding markets, notably following a merger with GPL under which GPL’s employees moved to Gallagher. Albert and Mouchighian were originally employed by GPL and continued at Gallagher; Fortier also worked within Gallagher’s construction surety department.
Albert held a senior role as Senior Vice-President responsible for the construction surety department and was a chartered professional accountant and commercial damage insurance broker. Mouchighian was a Director of Accounts in surety under Albert’s supervision and also a commercial insurance broker, while Fortier served as Assistant Director, Client Solutions in the surety department, also reporting to Albert. Their functions related closely to Gallagher’s surety clientele, with some overlap into insurance, although the exact split of responsibilities is contested and not decided at this provisional stage.
In 2025, Gallagher changed certain working conditions, which displeased a number of employees, including the three defendants. During the summer of 2025, Mouchighian began exploring employment with Synex, a competitor in insurance and construction bonding. Independently, Fortier also started similar job-search steps from September 2025. Early in 2026, Albert learned of these efforts, shared their dissatisfaction with Gallagher’s new conditions, and himself began discussions with Synex. Synex negotiated separately with each of the three and indicated it would have hired any of them even in the absence of the others. During these negotiations, Synex became aware of the non-competition and non-solicitation agreements signed by Albert and Mouchighian.

Restrictive covenants and contractual framework

Upon joining GPL on 26 August 2010, Albert signed a non-competition and non-solicitation agreement. For 18 months after employment, he undertook not to compete, directly or indirectly, in respect of all “activities” pursued by GPL within the territory (the province of Québec) and not to solicit or do business with GPL’s clients and potential clients, interfere with their relationships, or solicit GPL employees. “Activities” were defined expansively to include all activities pursued by GPL at signature and upon termination, as well as those GPL would be developing at termination, including I.A.R.D. brokerage in Québec.
When she joined GPL on 16 October 2023, Mouchighian signed a similar but not identical agreement, with a 15-month non-competition and non-solicitation period. She agreed, in functions identical or similar to her role, not to serve or do business with GPL’s clients or potential clients in the province of Québec and not to solicit employees, clients, potential clients, or suppliers, nor to harm GPL’s relationships with them. Again, “Territory” was defined as Québec, and “Activities” were tied to GPL’s brokerage in I.A.R.D. damages insurance.
The contracts also contained broad definitions for “clients” and “potential clients,” extending protection beyond existing accounts to prospects. Fortier, for her part, never signed any non-competition or non-solicitation undertaking. This distinction becomes critical: only Albert and Mouchighian are bound by clauses governed by article 2089 C.c.Q., while Fortier is subject only to the general duty of loyalty in article 2088 C.c.Q.

Resignations and immediate fallout

All three defendants resigned on 16 March 2026 to join Synex. That morning, Mouchighian emailed Albert formal notice of resignations, which he forwarded to his own superior along with his own resignation. Each offered to work out a two-week notice period. Gallagher reacted instantly: it withdrew their network access, demanded the return of company property, requested that Albert and Mouchighian leave the premises, and escorted them out. Fortier, not at work that morning, was quickly informed of these measures.
The defendants interpreted Gallagher’s actions as an immediate end to their employment and a waiver of the notice period. They began working for Synex the same day, and Albert and Mouchighian updated their LinkedIn profiles accordingly. As of the next day, surety clients began notifying Gallagher that they were transferring their business to Synex, and this pattern continued in the following days and weeks. After an interim provisional injunction was granted on 31 March 2026 by consent, further transfers stopped.
Gallagher asserted that the loss of 17 surety clients in such a short period could only be explained by the use of its confidential information, such as client lists and contact details. The defendants countered that, in this industry, business is highly personal and conducted intuitu personae, so they were easily able to contact clients with whom they already had close relationships, without using any formal list.

Handling of confidential information and electronic evidence

In preparation for leaving, Albert and Mouchighian each acquired personal mobile phones, having previously used employer-provided iPhones for both personal and work purposes. Gallagher focused heavily on Fortier’s transfer of various files, including a client list, from the employer’s systems to her personal computer without authorization. Fortier claimed that such transfers were long-standing practice done for work purposes, but the court found it more probable that she no longer needed that client list for her then-current duties and that the transfer was aimed at future use at Synex. Synex’s offer letter envisaged compensation increases based on clients transferred from Gallagher, which supported this inference.
After the demand letters sent on 19 March 2026, which expressly required preservation of evidence, Fortier deleted all Gallagher-related electronic files on her personal computer, on advice of her counsel. The Gallagher-issued phones and computers were returned and the iPhones reset. Despite some contradictions about timing and who performed the resets, the court did not find these discrepancies determinative at this stage. All three individuals swore that Gallagher had lost no data because relevant information remained on Gallagher’s own systems and that the iPhones were reset only to delete their personal data. Gallagher’s pleadings did not directly contradict that assertion. The judge nonetheless viewed the erasure of files from Fortier’s personal computer after a preservation demand as serious enough to justify strong preservation measures.

Legal framework: competition, loyalty, and injunction standards

The court began from the premise that Québec law is grounded in freedom of enterprise and competition, a freedom enjoyed both by businesses and by employees. While all employees owe their employer a duty of loyalty that may extend briefly beyond the end of employment, its intensity depends on factors such as the nature of the work and the level of responsibility: senior executives are held to a higher standard than rank-and-file staff. Employees are allowed to seek alternate employment, prepare their departure, and even engage in sharp but fair competition with their former employer. They may contact former clients, inform them of their new employment, provide business cards and new coordinates, and try to convince them to follow, subject always to the boundaries of loyalty and the prohibition on using confidential information or engaging in defamation or unfair practices.
The critical distinction is between legitimate competition and “concurrence déloyale” (unfair competition). Unfair competition may include using truly confidential business information (e.g., proprietary client lists, internal pricing structures) or spreading false, denigrating statements about the former employer. It is always prohibited to use an employer’s confidential information even after employment ends, though there can be debate about whether particular knowledge is genuinely confidential or instead part of the employee’s own personal know-how and relationships.
For restrictive covenants, article 2089 C.c.Q. allows written non-competition obligations but requires that they be limited in time, territory, and nature of work to what is necessary to protect the employer’s legitimate interests. The employer bears the burden of proving their validity. Courts interpret such clauses strictly, will not rewrite overbroad covenants to save them, and resolve ambiguities in favour of the employee. At the provisional injunction stage, a covenant can be disregarded only if it is manifestly beyond statutory limits.
On the procedural side, the court applied the Québec Court of Appeal’s test for provisional injunctions. Gallagher had to show: (1) urgency; (2) a serious issue to be tried or a sufficient appearance of right; (3) a risk of serious or irreparable harm if the order were not granted; and (4) that the balance of convenience favored the requested measures. Relatedly, when granting a safeguard order (ordonnance de sauvegarde), the court must not use that label to evade these criteria; they apply, with necessary adaptations, to safeguard relief as well. In the context of employee mobility, courts are particularly cautious post-Sahlaoui, recognizing strong employee mobility rights, and they insist on distinguishing “solicitation” in the strict legal sense (active, insistent, repeated efforts to wrest clients away) from simple notification of a job change.

Findings on the non-competition and non-solicitation clauses

The judge held that the non-competition and non-solicitation undertakings given by Albert and Mouchighian were manifestly too broad as to the “genre de travail” (type of work) they purported to restrict. The definition of “Activities” captured all activities pursued or to be pursued by GPL/Gallagher, including those not involving these employees at all, and thus went beyond what was necessary to protect the employer’s legitimate interests.
By contrast, the court found no clear basis at this stage to conclude that the territorial scope (the province of Québec) or the durations (18 months for Albert, 15 months for Mouchighian) were manifestly excessive. The fatal defect lay in the over-inclusive description of covered activities, not in place or time. Because of this overbreadth, the undertakings could not serve as a foundation for the requested injunction; the court refused to narrow them judicially or adopt Gallagher’s more modest reading. The issue is not whether, in practice, Albert and Mouchighian are now doing similar work at Synex, but whether the written clauses themselves respect article 2089 C.c.Q. In the court’s view, they did not.
As a result, Gallagher could not rely on those non-competition and non-solicitation clauses to support its motion. The case therefore turned on the general duty of loyalty under article 2088 C.c.Q. and the broader law of unfair competition and confidential information, both for Albert and Mouchighian and for Fortier, who never signed any restrictive covenant.

Apparent right, serious issue, and harm

Although the court deemed the contractual restrictive covenants unenforceable for present purposes, it held that Gallagher had nonetheless met its burden of showing at least a serious issue to be tried based on the duty of loyalty and potential unfair competition. Gallagher’s theory was that the three employees engaged in a concerted plan: coordinating their departures, transferring Gallagher’s confidential information (through Fortier’s file transfers), and actively soliciting Gallagher’s surety clients in a manner amounting to undue solicitation and unfair competition once at Synex.
The judge acknowledged that full proof of such a concerted scheme was not yet made. However, at the provisional stage, Gallagher only had to demonstrate, on a balance of probabilities, an appearance of right or a serious question, not the full case. The coordinated timing of the resignations, Fortier’s unexplained need for, and later deletion of, a client list, and the rapid, concentrated loss of seventeen surety clients shortly after the trio’s arrival at Synex provided sufficient basis for an arguable claim of unfair competition and breach of loyalty.
The court accepted that the risk of losing clientele constitutes serious and irreparable harm justifying injunctive protection. If clients are definitively lost to a competitor through unfair means, it is difficult to quantify and repair that loss strictly in damages, especially where client relationships and goodwill are at stake. This helped satisfy the third limb of the provisional injunction test.

Balance of convenience and duration of the loyalty-based restraint

The judge concluded that, at this juncture, the balance of convenience favored Gallagher. The defendants remained free to work for Synex and to compete as such, but subject to a limited, temporary constraint designed to prevent unfair competition and protect confidential information. The judge emphasized that the duty of loyalty’s restrictive effects—limits on competition and solicitation—can only persist for a few months after employment ends. Without deciding the precise end date, the court held that they certainly extended at least two months from termination, enough to justify an order lasting until 28 April 2026.
The relief was therefore structured as a safeguard order that did not revive or enforce the impugned contractual covenants, but instead rested on statutory loyalty obligations and general unfair competition principles, with a tightly bounded temporal horizon and carefully drawn behavioural requirements.

Preservation of electronic evidence (mirror imaging)

Separate from the core competition issues, Gallagher sought strong preservation measures, notably mirror imaging of the defendants’ personal devices and electronic accounts by Gallagher’s expert, Groupe Sirco inc., with no one having access to the data absent court authorization. The defendants opposed, invoking privacy concerns and analogizing the request to an Anton Piller order, which requires very stringent safeguards and is typically obtained ex parte.
The judge rejected the analogy. Unlike an Anton Piller order, which is ex parte and aimed at putting the seizing party in possession of evidence, this request was adversarial and limited to preservation. Importantly, the context included the admitted deletion by Fortier of Gallagher-related files from her personal computer despite a prior demand to preserve evidence. The court instead relied on principles from Mag Energy Solutions inc. c. Falconer Cloutier, emphasizing the duty of good faith and procedural rules that oblige parties, from the time of a demand letter, to protect and preserve any evidence that may legally be required.
Expert reports from SIRCO convinced the court of the urgency: deleted data may be recoverable only if a prompt forensic copy is made. The judge concluded there was no present violation of privacy rights because no one would be allowed to review the mirrored data without a further court order, at which time privacy objections could be fully addressed. Accordingly, the court ordered Albert, Mouchighian, and Fortier to provide access to all their personal devices and relevant accounts so SIRCO could make mirror images within a 72-hour window at Synex’s offices. Gallagher and SIRCO were ordered to preserve those copies in their current state, confidentially, and seek either the court’s or the defendants’ authorization before any further use or access. The defendants and their legal counsel and experts were expressly allowed to be present during the imaging. Gallagher was to bear the costs of these operations initially, while reserving its right to seek recovery of those costs as legal expenses if it ultimately prevails on the merits.

Content of the safeguard order

The court partially granted Gallagher’s motion and, for the period up to 28 April 2026, issued a detailed safeguard order. It required the individual defendants and the Synex corporate defendant to cease and refrain from using, copying, transferring, disclosing, or otherwise exploiting any of Gallagher’s confidential information in any form and to refrain from destroying, concealing, or disposing of such information or related communications concerning Gallagher, their resignations, and their hiring by Synex during the specified period.
In terms of competition conduct, the order prohibited Albert, Mouchighian, and Fortier, directly or indirectly, from actively, insistently, and repeatedly inciting Gallagher clients to move their business to Synex in a manner amounting to the strict, legally defined notion of undue solicitation. It also barred them from accepting to do business with, transact with, or serve Gallagher clients in competition with Gallagher’s insurance or surety activities. The court further forbade them from making false or knowingly misleading statements that would denigrate Gallagher. Synex, as corporate defendant, was ordered not to collaborate in any violation of the judgment by the individual defendants.
Procedurally, the court authorized flexible methods of service of the judgment, including outside regular hours and even on holidays, and dispensed Gallagher from providing security. Court costs were reserved to follow the outcome on the merits.

Outcome and monetary consequences

In this decision, the successful party at this interlocutory stage is Arthur J. Gallagher Canada limitée, but only in part, because the court refused to support the relief on the basis of the non-competition and non-solicitation clauses while nonetheless granting a time-limited safeguard order rooted in the statutory duty of loyalty and the need to preserve evidence and prevent unfair competition. No damages or final monetary award is granted in this judgment, and legal costs are expressly left “to follow” the outcome on the merits; even the forensic imaging expenses, though initially payable by Gallagher, are only potentially recoverable later as costs. Accordingly, while Gallagher is procedurally successful in obtaining interim protection and evidence-preservation orders, there is no determinable total monetary amount ordered or awarded in its favour at this stage.