Executive Summary: Key Legal and Evidentiary Issues

• Quebec's Court of Appeal considered whether a Superior Court judge correctly overturned an Administrative Tribunal of Quebec (ATQ) order requiring disclosure of a Treasury Board decision in an expropriation dispute.
   
• Central to the case was the scope and application of public-interest privilege under article 283 of the Code of Civil Procedure, which allows public servants to withhold information obtained in the course of their duties.
   
• Determining the correct standard of review proved contentious, with the Court ultimately finding it unnecessary to resolve whether correctness or reasonableness applied.
   
• Relevance of the withheld decision to the underlying expropriation claim was a recurring point of dispute among the ATQ, the Superior Court, and the Court of Appeal.
   
• Factors drawn from the Supreme Court's decision in Carey v. Ontario — including the level of government at which the decision was made, its subject matter, and the passage of time — guided the ultimate balancing of interests.
   
• Notably, the appeal originated from a separate procedural decision in which leave to appeal was first granted following a hearing in late 2025.
   

Facts of the case

The appellant, 167465 Canada inc., operates a hotel near Montréal-Trudeau International Airport. In 2009, the Ministry of Transport and Sustainable Mobility (MTMD) expropriated several parcels of land belonging to the appellant and to a related company, as part of a project to redevelop the airport's vehicle access routes. One parcel was expropriated to allow relocation of nearby CN and CP railway lines closer to the appellant's hotel. The parties have disputed the scope and value of the resulting expropriation indemnity before the ATQ for several years. The appellant contends the indemnity should cover soundproofing work it carried out in 2017 to address anticipated noise from the relocated railway.

The Attorney General of Quebec (AGQ) opposes reimbursement, arguing the appellant knew at the time the relocation was uncertain, citing a 2012 agreement between the MTMD and a related company that allegedly acknowledged this uncertainty. A Ministry representative testified that the Treasury Board abandoned the relocation project by decision dated August 21, 2018 (referred to as decision CT 220019). The appellant sought disclosure of this decision to establish when and how the relocation was actually abandoned, arguing this timing bears on whether its 2017 soundproofing expenditure was reasonable given the information available to it at the time.

The AGQ resisted disclosure, invoking public-interest privilege under article 283 C.C.P. and filing a sworn declaration from the Treasury Board's Secretary explaining the confidentiality rationale. The ATQ sided with the appellant and ordered disclosure of the CT 220019 decision itself, though not the accompanying information note or appendices. The AGQ challenged this order by way of judicial review, and the Superior Court (Justice Daniel Urbas) quashed the ATQ's order on August 27, 2025. The appellant then sought leave to appeal that judgment, which the Court of Appeal granted on November 27, 2025, before the substantive appeal proceeded to a full hearing in May 2026.

Policy and legislative provisions at issue

The case turned principally on article 283 of the Code of Civil Procedure, which provides that public servants called as witnesses cannot be compelled, due to their duty of discretion, to disclose information obtained in the exercise of their functions where disclosure would be contrary to the public interest. The article further requires that the public-interest reasons be set out in a sworn declaration from the relevant minister or deputy minister for the court's consideration. This provision was found to apply to ATQ hearings by virtue of section 133(2) of the Act respecting administrative justice.

The Court also drew on the Supreme Court's framework in Carey v. Ontario, which identifies several factors relevant to weighing public-interest immunity against disclosure: the level of government at which a decision was made, the nature of the policy involved, the precise content of the documents, the timing of disclosure relative to the decision-making process, and the importance of the documents to the fair administration of justice. The Superior Court judge had also relied on the Supreme Court's more recent decision in Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), addressing Cabinet confidentiality, and on the framework for reviewing administrative decisions established in Canada (Minister of Citizenship and Immigration) v. Vavilov.

Reasoning and analysis

At first instance, the Superior Court judge held that public-interest privilege is not absolute and requires a threshold relevance determination before any balancing of interests occurs. He found the ATQ had failed to properly assess relevance, relying instead on considerations such as open-court principles and the best evidence rule rather than analyzing the article 283 factors directly. On this basis, the judge concluded the ATQ decision was unreasonable regardless of whether correctness or reasonableness applied, and he quashed the disclosure order.

The Court of Appeal took a different view. It found it unnecessary to resolve which standard of review governed, since the ATQ's decision failed to meet even the reasonableness standard on the judge's own reasoning — meaning the judge's quashing of that decision could still be revisited on appeal without needing to settle the broader standard-of-review question. Examining the ATQ's findings, the Court of Appeal concluded that decision CT 220019 was indeed relevant to the dispute: the appellant sought it not merely to confirm its date, but to understand the broader decision-making process behind the railway relocation's abandonment, which bore directly on whether its 2017 soundproofing expenditure was reasonable at the time. The Court found the ATQ's sixteen days of hearings and review of over 200 exhibits supported this understanding of relevance, even though the ATQ's own reasons could have been more explicit on the point.

Applying the Carey factors, the Court of Appeal weighed the AGQ's general confidentiality concerns against the specific circumstances: the decision concerned railway routing within a larger infrastructure project rather than a politically sensitive matter, the AGQ presented no specific argument connecting the confidentiality declaration's stated concerns to the actual disclosed document, and roughly eight years had passed since the decision was made. The Court also noted that requiring the appellant to prove in advance how an unseen, confidential document would help its case placed an unfair burden on it, echoing concerns raised in Carey itself. Balancing these considerations, the Court found the public interest favoured disclosure.

Ruling and overall outcome

The Court of Appeal allowed the appeal brought by 167465 Canada inc., with legal costs awarded against the Attorney General of Quebec both for the appeal and the Superior Court proceedings. The Court ordered the AGQ to disclose to the appellant the content of Treasury Board decision CT 220019, dated August 21, 2018, without its accompanying note and appendices, within 60 days of the judgment. The Court further ordered that copies of the decision remain under seal until that 60-day period expires. No monetary damages were addressed in this proceeding, as the appeal concerned only the disclosure dispute; the underlying expropriation indemnity claim remains to be resolved by the ATQ.