Marcotte, Schrager, Cournoyer

Appeal from a judgment of the Superior Court dismissing an application for a provisional interlocutory injunction. Allowed.

Due to labour availability issues, the respondent began a process of reflection regarding the reorganization of services at the emergency room of the Centre multiservices de santé et de services sociaux de Rivière-Rouge (the hospital). Following this process, it announced that as of February 1, 2024, the hours of operation of the emergency room would be changed to 8:00 a.m. to 8:00 p.m., rather than the 24 hours a day schedule then in force. Outside of operating hours, users would be asked to consult other emergency services.

After noting the existence of an urgent situation, a prima facie case or a serious issue to be tried, and serious or irreparable prejudice likely to arise from the closure of the emergency room between 8:00 p.m. and 8:00 a.m., the trial judge nevertheless dismissed the appellants’ application on the ground that the balance of inconvenience favoured upholding the respondent’s administrative decision.

The weight of the judge’s assessment of the criteria of prima facie case and irreparable prejudice should have led her to conclude that the balance of inconvenience favoured the appellants rather than the respondent, especially since the inconvenience invoked by the respondent was hypothetical and did not emerge from the evidence in the record. Indeed, the affidavits and the consultation report filed by the respondent merely raise a doubt on the hospital’s capacity to maintain emergency services from 8:00 p.m. to 8:00 a.m. and are based on hearsay and on the risk of a possible closure caused by a staff shortage, although it admitted that it had not identified any interruption of services in its emergency room. In addition, despite the alleged fear of prejudice resulting from an impromptu closure or service interruption, the respondent does not seem to have implemented an emergency plan for such an event, thus suggesting that it considers such closure very unlikely.

In her analysis, the judge gave more importance to the public interest arising from the presumption of validity of the administrative decision than to the public interest invoked on behalf of users. The government does not have a monopoly over the public interest. What is more, contrary to what the judge seems to have concluded, the fact that a court orders the emergency room to remain open between 8:00 p.m. and 8:00 a.m. is not akin to suspending the operation of legislation. It is important to distinguish between the decision made by the hospital director, which, according to the evidence adduced, is likely to cause irreparable prejudice to users, and a ministerial decision made in the context of the application of public order legislation. These two situations cannot benefit from the same level of presumption. Rather, this case concerns the interruption of a statutory public service that is likely to result in concrete consequences for citizens who should be able to benefit from it. Moreover, the prejudice that the appellants would suffer is potentially much greater and irreparable than the institutional prejudice connected to the organization of emergency room staff, which, at this stage, is potential and not real. Last, the case law generally tends to favour the status quo to ensure the effectiveness of a possible remedy and avoid a favourable final judgment that cannot be enforced.

Text of the decision: Riopel et al. c. CISSS des Laurentides et al.