Executive Summary: Key Legal and Evidentiary Issues

• Scope of the Commission d’accès à l’information’s powers to order disclosure of the BPCD eligibility grid and names of selection committee members under the Loi sur l’accès.
• Interpretation of the mandatory state-security exception in article 28.1 of the Loi sur l’accès and whether the eligibility grid for presidents of discipline councils can be withheld on that basis.
• Characterization of selection committee members’ identities as “renseignements personnels” versus “renseignements à caractère public” under article 57, including the notion of “contrat de services”.
• Proper use of article 57(1)(1°), (2°) and (3°) of the Loi sur l’accès in deciding when the names of committee members must be disclosed.
• Extent and adequacy of the Office des professions’ document search obligations in responding to an access request that covers both its own records and those of the BPCD.
• Appellate control by the Cour du Québec over CAI decisions, limited to questions of law or competence, and its power to return specific disclosure issues to the CAI for reconsideration.

Background and access request

The dispute arises from an access to information request made by Gilles Ouimet to the Office des professions du Québec (the Office) on 7 May 2022. He asked for “documents relatifs au processus de recrutement ou de sélection pour le BPCD depuis le 1er janvier 2015”, that is, all documents relating to the recruitment or selection process for the Bureau des présidents de conseil de discipline (BPCD) from 1 January 2015 onward. The BPCD groups together the presidents of the disciplinary councils of all professional orders in Québec and constitutes an independent administrative tribunal whose members preside over disciplinary proceedings across the 46 professional orders. Although closely connected to the professional system, the BPCD does not fall under the authority of the Office. Initially, by letter dated 13 June 2022, the Office replied to Mr. Ouimet that it did not hold any documents responsive to his request. Dissatisfied with that answer, Mr. Ouimet filed a “demande de révision” (review application) before the Commission d’accès à l’information (CAI) on 11 July 2022, challenging the Office’s refusal and asserting that relevant records existed and should be produced.

Reassessment of the request and partial disclosure

During the autumn of 2023, before the CAI hearing on the review application, the Office revisited its initial position. On 1 December 2023, it issued a revised decision and disclosed a number of documents to Mr. Ouimet, but with redactions. The Office invoked several exceptions under the Loi sur l’accès aux documents des organismes publics et sur la protection des renseignements personnels (Loi sur l’accès) to justify withholding certain information. At a case management session on 12 December 2023, and later during the hearing on 19 January 2024, the Office confirmed and augmented the list of statutory provisions it relied upon. Notably, it invoked article 28.1 (mandatory refusal for information whose disclosure would affect the “sécurité de l’État”) and article 40 (discretionary exception for certain evaluation tests) to refuse full disclosure of the “Grille d’admissibilité président de conseils de discipline” (the eligibility grid), which sets out the criteria for assessing candidates for positions as presidents of disciplinary councils. The Office argued that this grid functioned as an evaluation instrument and that revealing it would undermine both the integrity of the selection process and, by extension, the security of the State.

Positions on personal information and public character of names

A central controversy concerned the names of the members of selection committees established in 2015, 2018 and 2022 under the Règlement sur la procédure de recrutement et de sélection des présidents des conseils de discipline des ordres professionnels. The Office maintained that these names were confidential “renseignements personnels” within the meaning of articles 53, 54 and 59 of the Loi sur l’accès, and that it could not disclose them without the individuals’ express consent. In its view, disclosing the names would reveal participation in selection committees and thus engage personal privacy protections. Mr. Ouimet, for his part, argued that the selection committee members’ identities had a public character. He contended that those committee members who were remunerated by virtue of article 12 of the Règlement effectively stood as parties to a “contrat de services” with a public body, bringing their names within article 57(1)(3) of the Loi sur l’accès, which treats certain contractual information as public. He also argued that committee members who were employees or members of public bodies fell under article 57(1)(1) and (2), which generally render public the name, title, function and certain employment-related information of public servants and officials.

The CAI’s decision and orders

On 7 March 2024, after hearings on 19 and 22 January 2024, the CAI rendered its final decision. It found that the eligibility grid did not fall within the scope of article 28.1: disclosure of the grid would not compromise the security of the State as that concept is understood under the Loi sur l’accès. The CAI further concluded that article 40 could not be used to shield the grid because the Office had raised that provision out of time, after the statutory delay for processing the request had lapsed. As a result, it ordered the Office to disclose the grid in full. With respect to the names of the selection committee members, the CAI accepted that these names were prima facie personal information, since disclosing them would reveal participation in committee work. However, it determined that for those members who were remunerated, their role was tantamount to providing services under a contract with a public body. On that basis, it held that article 57(1)(3) applied and conferred a public character on their identities. It also reasoned that committee members who were employees or members of a public body were acting in the course of their functions, meaning their identities and roles were public under article 57(1)(1) and (2). The CAI accordingly ordered disclosure of the names and first names of the 2015, 2018 and 2022 committee members in the relevant documents. Finally, the CAI criticized the Office’s search efforts as inadequate. It found that the Office had failed to conduct a serious, comprehensive search across all relevant units and repositories, limiting itself essentially to the archives of the former BPCD president. The CAI ordered the Office to carry out a thorough, documented search for all documents responsive to Mr. Ouimet’s request, including those held by the BPCD.

Appeal to the Cour du Québec and issues on review

The Office appealed the CAI’s decision to the Cour du Québec, Division administrative et d’appel, under article 147 of the Loi sur l’accès. That provision confines appeals to questions of law or jurisdiction; factual determinations by the CAI are final and not appealable. The appeal raised five main questions of law, which the Court reformulated. First, whether the CAI had erred in concluding that article 28.1 did not apply to the eligibility grid. Second, whether it had erred in characterizing selection committee members’ identities as public under article 57(1)(3) as parties to a contract for services. Third, whether it had misapplied article 57(1)(1) and (2) to committee members who were employees or members of a public body. Fourth, whether a reference to article 57(1)(4) in paragraph 90 of the CAI’s decision was substantively justified or a clerical mistake. Fifth, whether the CAI erred in law in finding the Office’s document search insufficient. In its analysis, the Court emphasized the distinction between questions of law, fact, and mixed questions, and the narrow circumstances in which a mixed question can still give rise to an appeal if a readily isolable legal error is shown. The Court also reiterated that it reviews legal questions on a correctness standard, and will only intervene where an error of law has affected the outcome.

Interpretation of “sécurité de l’État” and the eligibility grid

On the eligibility grid, the Court accepted that the CAI committed a legal error in how it interpreted “sécurité de l’État” in article 28.1. The CAI had imported, almost wholesale, the federal definition of “menaces envers la sécurité du Canada” from the Loi sur le service canadien du renseignement de sécurité, without undertaking a full contextual and purposive analysis of article 28.1 using the modern approach to statutory interpretation. The Court underscored that the Loi sur l’accès is a quasi-constitutional statute designed to promote transparency and accountability in public administration, and that its exceptions must generally be read restrictively, in light of legislative debates and the law’s objectives. Examining the parliamentary debates surrounding article 28.1, the Court concluded that “sécurité de l’État” in this context extends beyond classic national security threats to include protection of the integrity of state institutions, essential infrastructure and fundamental democratic principles. However, the Court also stressed that article 28.1 sets a relatively high evidentiary threshold: unlike other provisions of the Loi sur l’accès that are triggered when harm is merely “susceptible” or “vraisemblable,” article 28.1 requires that disclosure “aurait pour effet de porter atteinte” to state security. Applying that understanding, the Court held that, although the CAI’s interpretive method was flawed, this error did not change the result. The Office had presented no concrete evidence that revealing the eligibility grid would threaten the integrity of the State, its institutions, or democratic processes. The mere fact that the grid identifies selection criteria for presidents of disciplinary councils, even if considered sensitive to the Office, did not bring it within article 28.1. Consequently, the Court agreed with the CAI that the grid must be disclosed and refused to intervene on this aspect of the decision.

Public character of selection committee members’ identities

Regarding article 57(1)(3) and the concept of a “contrat de services”, the Court upheld the CAI’s reasoning. It accepted that committee members who receive honoraria under article 12 of the Règlement are effectively providing services against remuneration to a public body, which fits within the ordinary understanding of a contract of services under article 2098 of the Civil Code of Québec. The Court rejected the Office’s attempt to invoke the Loi sur les contrats des organismes publics (LCOP) to undermine that characterization, noting, among other things, that the LCOP expressly excludes certain contracts with individuals who do not operate a sole proprietorship. The Court found no legal error in the CAI’s application of article 57(1)(3) and confirmed that the identities of those remunerated committee members have a public character and may be disclosed. As to article 57(1)(1) and (2), the Court reached a different procedural and substantive conclusion. It observed that the CAI had decided, at paragraph 91 of its decision, that the identities of committee members who were employees or members of public bodies were also public under these paragraphs, but had done so without giving the parties an opportunity to address that legal basis and without an evidentiary record on precisely how those individuals’ committee work related to their official functions. This omission violated procedural fairness. Substantively, the Court referred to more recent CAI jurisprudence emphasizing that the mere fact someone is employed by a public body is not enough: the appointment to a committee must be linked to that person’s title or function within the public body, rather than simply to the way they choose to carry out their duties. Because both the parties’ right to be heard and the correct interpretive test had not been respected, the Court found a reviewable error of law. It therefore set aside the CAI’s conclusion on this specific point and returned the matter to the CAI to reassess, with the proper legal framework, whether the names of certain committee members in a defined list of documents must be disclosed under article 57(1)(1) and (2).

Clerical error and correction of paragraph 90

The Court also dealt with a reference in paragraph 90 of the CAI’s decision to article 57(1)(4), which concerns the public character of information about individuals benefiting from discretionary economic advantages. All parties, including the CAI, acknowledged that the paragraph 90 reference was a clerical error: the analysis in preceding paragraphs clearly concerned article 57(1)(3) and contracts for services, not discretionary advantages under paragraph (4). Because the decision was already on appeal, the CAI itself could not correct the clerical error. The Court therefore directed that, upon remand, the CAI should also amend paragraph 90 to replace the erroneous reference to article 57(1)(4) with the correct reference to article 57(1)(3), aligning the text with the reasoning actually given.

Adequacy of document search and limits of appellate jurisdiction

On the question of whether the Office had conducted an adequate search for responsive documents, the Court characterized the issue as purely factual. The CAI had found that the Office failed to demonstrate a serious, comprehensive search across the organization and that it had restricted itself to the former BPCD president’s archives, despite the request clearly targeting all documents held by the Office, not just those within the BPCD. Under articles 146 and 147 of the Loi sur l’accès, findings about the thoroughness of a search are factual and therefore not subject to appeal. The Office attempted to reframe the issue as a legal error by suggesting that the CAI had implicitly found its witness not credible, but the Court rejected this as an effort to convert evidentiary assessment into a question of law. Seeing no alteration of the legal standard, merely a disagreement with how facts were weighed, the Court held that it lacked jurisdiction to intervene. The CAI’s order requiring a renewed, exhaustive and documented search by the Office thus remained fully in force.

Outcome of the appeal and monetary consequences

In its dispositive order, the Cour du Québec partially allowed the Office’s appeal. It set aside the CAI’s decision only insofar as it related to the disclosure of the names and first names of selection committee members potentially covered by article 57(1)(1) and (2) of the Loi sur l’accès in a specified list of documents, and it remitted that specific question to the CAI for reconsideration using the correct legal test and after hearing the parties. It also directed the CAI to correct paragraph 90 of its decision to refer to article 57(1)(3) instead of article 57(1)(4). On all other issues—namely, the application of article 28.1 to the eligibility grid, the characterization of committee members’ identities under article 57(1)(3), and the adequacy of the Office’s document search—the Court dismissed the appeal and left the CAI’s remedies intact. The judgment concludes “LE TOUT, avec frais de justice.” This means the Office des professions, as the partially successful appellant, is recognized as the successful party for purposes of costs, but the decision does not specify a precise quantum of court costs or any damages or monetary award. The total amount ordered in favor of the successful party therefore cannot be determined from the judgment and will depend on subsequent taxation or tariff application rather than on a fixed sum set out in the reasons.