Gagné, Cotnam, Cournoyer

Appeals from a judgment of the Superior Court granting an originating application for declaratory judgment and claiming damages for termination of employment. Dismissed. Application for a declaration of abuse of procedure. Granted.

The trial judge found, inter alia, that the respondent had been unlawfully removed from his position as director general of the Sûreté du Québec (SQ). She also ordered the Attorney General of Quebec (AGQ) to reimburse him for certain professional fees and a portion of his salary during his suspension with half pay. Finally, she ordered that the SQ provide him with legal assistance in the appeal from his acquittal by the Court of Québec on charges of fraud, theft, and breach of trust.

The judge was correct to consider that the formalities set out in section 58 of the Police Act (CQLR, c. P-13.1) had not been complied with and that the respondent had thus been unlawfully deprived of his position. Because the requirements of that section were mandatory, the new government could not simply replace the director general at will. Next, despite some confusion in the exchanges between the authorities in question, it is clear from the Décret concernant la rémunération et les conditions relatives à l’exercice des fonctions des officiers de la Sûreté du Québec (Order in Council 323-2008 dated 09-04- 2008, (2008) 140 G.O II 1899) that the role of granting and authorizing legal assistance rests with the SQ, not the AGQ. In this case, not only did the SQ authorize such assistance, but it was clear that the acts alleged against the respondent were committed [translation] “through or in the course of his work”. As a result, the Ministère de la Justice was required to appoint counsel and enter into a contract for legal services. The judge was also correct in finding that the respondent was entitled to his full salary during his provisional suspension, not just half. As for the incidental appeal, the respondent’s demonstration is insufficient for the Court to intervene in the judge’s conclusion refusing to recognize an intentional interference with his fundamental rights and to award punitive damages.

The AGQ’s decision to pursue this appeal after the Court’s judgment upholding the respondent’s acquittal on the criminal charges against him constitutes an abusive or unreasonable use of the appeal process, which justifies the partial reimbursement of the fees incurred by the respondent.

Text of the decision: http://citoyens.soquij.qc.ca