Court of Appeal of Quebec

Procureur général du Canada c. De l'Étoile


Rancourt, Gagné, Cotnam

Appeal from a judgment of the Superior Court in judicial review of a decision of the Administrative Labour Tribunal (ALT). Allowed. 

The ALT found that litigation privilege applies in civil matters and in an adversarial proceeding, but not in an administrative law context before a quasi-judicial tribunal with powers of inquiry. It ordered the employer to file the expert report it had obtained following the worker’s medical examination. The ALT sitting in review found that the first administrative judge had erred in law because litigation privilege in fact applies in administrative law, but it also found that this error was not determinative since the privilege may be abrogated under ss. 9 and 10 of the Act to establish the Administrative Labour Tribunal (CQLR, c. T-15.1) (AEALT), as well as ss. 6 and 9 of the Act respecting public inquiry commissions (CQLR, c. C-37). The Superior Court dismissed the employer’s application for judicial review. 

There is no need for the Court to rule on the applicable standard of review. It is unreasonable to conclude that ss. 9 and 10 of the AEALT and ss. 6 and 9 of the Act respecting public inquiry commissions allow for the abrogation of litigation privilege. These provisions seek to confer on the ALT and its members a power of compulsion, particularly with respect to “books, papers, deeds and writings as appear necessary for arriving at the truth”. They do not contain sufficiently clear, explicit and unequivocal language to abrogate litigation privilege. The ALT sitting in review, considering that [translation] “ALT-1 relies on a clear and explicit legislative provision to set this rule aside”, adopted a defective reasoning and rendered a decision that does not fall within the range of possible, acceptable outcomes. The real issue in this case was whether the Act respecting industrial accidents and occupational diseases allows for the abrogation of litigation privilege or for the recognition of a new exception to the application of this rule in cases where reports are obtained following the medical examination of a worker. The ALT did not answer this question, which falls within its area of expertise. The file is referred back to the ALT so that it may make a ruling in this respect.

Interpreted legislation: 

Sections 9 and 10 of the Act to establish the Administrative Labour Tribunal

Sections 6 and 9 of the Act respecting public inquiry commissions 

*Summary by SOQUIJ
Text of the decision: Http://

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