Introduction
Did you know that, in Québec, a single Court of Appeal judge can summarily annul a Superior Court judgment? In certain circumstances, yes.
Privative clauses and supporting clauses are little-known tools in the administrative arsenal that make it possible to summarily annul, on appeal, a judgment on judicial review. Despite being historically ignored, these clauses are becoming increasingly common. Indeed, since the 1979 legislative amendment[1], there have been only 12 appellate judgments on annulment. However, a full third of those decisions were rendered in the last five years alone[2].
In the recent case of Autorité des marchés publics c. Valosphère Environnement inc.[3], the Honourable Suzanne Gagné, JCA, dismissed the application to annul a stay of a decision of the Autorité des marchés publics (“AMP”) (the “Administrative Decision”). In her reasons for judgment, Justice Gagné considered the mechanism for privative and supporting clauses in sections 76 and 77 of the Act respecting the Autorité des marchés publics (the “AAMP”).
The following two lessons can be drawn from Justice Gagné’s decision:
- privative clauses play no role in determining the standard of review applicable to an administrative decision; and
- an appellate court judge will more often be inclined to set aside an interlocutory decision if it has the effect of staying or delaying the pending administrative process.
Summary of Relevant Facts
The respondent Valosphère Environnement Inc. (“Valosphère”) specializes in soil transportation and construction material recovery. Since March 31, 2017, it had held an authorization to contract or subcontract with a public body issued by the AMP under the Act respecting contracting by public bodies (the “ACPB”).
On June 22, 2023, the AMP commenced an integrity audit aimed at Valosphère.
On December 12, 2024, after discussions with Valosphère, the AMP issued its Administrative Decision, which found that Valosphère did not, in its opinion, meet the applicable integrity requirements.
Valosphère quickly sought a judicial review of this Administrative Decision and asked the Superior Court for an immediate stay of its effect.
On December 23, 2024, the Superior Court granted the stay of the Administrative Decision, as well as all of its findings.
On January 17, 2025, relying on the AAMP’s privative and supporting clauses, the AMP asked a single Court of Appeal judge to summarily annul the Superior Court’s decision.
On February 20, 2025, Justice Gagné dismissed the AMP’s application for annulment.
Key Takeaways
Privative clauses are statutory provisions intended to limit or exclude judicial review of administrative decisions. Supporting clauses, on the other hand, seek to increase the deterrent effect of the privative clause[4]. They reinforce the authority of administrative decisions by further restricting the possibility of legal remedies.
In this regard, sections 76 and 77 of the AAMP read as follows:
| 76. Sauf sur une question de compétence, aucun pourvoi en contrôle judiciaire prévu au Code de procédure civile (chapitre C-25.01) ne peut être exercé ni aucune injonction accordée contre l’Autorité, le président-directeur général, un vice président, un membre du personnel de l’Autorité ou un mandataire visé à l’article 27 dans l’exercice de ses fonctions. 77. Un juge de la Cour d’appel peut, sur demande, annuler sommairement toute procédure entreprise, toute décision rendue et toute ordonnance ou injonction prononcée à l’encontre des articles 75 et 76. |
76. Except on a question of jurisdiction, no application for judicial review under the Code of Civil Procedure (chapter C-25.01) may be presented or injunction granted against the Authority, the president and chief executive officer or a vice-president of the Authority, a member of the Authority’s staff or a mandatary referred to in section 27 in the exercise of its or his or her functions. 77. A judge of the Court of Appeal may, on an application, summarily annul any proceeding instituted, decision rendered or order or injunction made or granted contrary to sections 75 and 76. |
Judges are unanimous in emphasizing the unusual and exceptional nature of annulment proceedings. On the one hand, a supporting clause derogates from the rule of collegiality by granting a single appellate court judge the power to overturn a Superior Court decision. On the other hand, this summary process is expeditious. It is well established in the case law that judges hearing such applications should therefore exercise restraint.
1. Privative Clauses Play No Role in Determining the Standard of Review Applicable to an Administrative Decision
In her judgment, Justice Gagné noted that the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov conclusively[5] closed the door on “the application of a contextual analysis to determine the applicable standard” for an administrative decision and instead adopted a presumptive application of the reasonableness standard of review[6]. Indeed, it is no longer necessary “to conduct a preliminary assessment regarding whether a particular interpretation raises a ‘truly’ or ‘narrowly’ jurisdictional issue.[7]”
The privative clause therefore plays no role in identifying the applicable standard of review[8] and therefore does not operate to limit the scope of judicial review[9].
2. An Appeal Court Judge Will More Often Be Inclined to Set Aside an Interlocutory Decision if It Has the Effect of Staying or Delaying the Pending Proceeding
Citing from the decision of the Honourable Peter Kalichman, JCA, in Héma-Québec c. Syndicat des techniciens(nes) de laboratoire de Héma-Québec–CSN (“Héma-Québec”), Justice Gagné noted that:
[13] [OUR TRANSLATION] (...) [J]udges are less reluctant to use their power to annul a judgment when the judgment at issue is not rendered on the merits after a full review of the evidence. Indeed, there are several examples where judges of the Court [of Appeal] have annulled a decision ordering a stay such as the one in this case[10].
As the Honourable André Rochon, JCA, pointed out in Fédération des producteurs de bovins du Québec c. Ferme John Houley & Fils ltée (« Fédération des producteurs bovins »), regarding an application to annul a stay:
[24] [OUR TRANSLATION] First, unlike in Régie des permis d'alcool and Dodd, the judgment under review does not decide the merits of the dispute after fully considering the evidence. This is a temporary order made by the Superior Court. The trial judge made a determination on the application for a stay after examination of the record, following submissions by counsel. There is no appeal as of right of the trial judge’s interlocutory judgment ordering the stay. The purpose of a supporting clause is to increase the dissuasive force of the privative clause[11]. [Emphasis added.]
What distinguishes the Valosphère case from the recent Héma-Québec, Commission municipale du Québec c. Legault[12] and Régie de l'assurance maladie du Québec c. Pharmaprix[13] cases, however, is that the stays ordered in these three cases had the effect of blocking the administrative process until the application for judicial review was heard on the merits.
The Valosphère judgment is significant in that it clarifies the interaction between privative clauses, supporting clauses and the Superior Court’s power to intervene in administrative processes. The decision underscores that, despite the growing popularity of these clauses aimed at limiting judicial intervention, the Superior Court still has some discretion to annul an administrative decision when both the traditional criteria for a stay are met and the administrative process is not interrupted. This decision is important because it highlights the balance between respecting the autonomy of administrative tribunals and protecting the rights of the public.
