Executive Summary: Key Legal and Evidentiary Issues

• Constitutionality of a 30-day delay in patient access to their own laboratory and medical imaging results through Carnet santé Québec, under article 5.2.1 al. 2 sous-al. 2 of the Politique sur les modalités d’accès et de la rectification au Dossier Santé Québec.
• Alleged infringement of the rights to liberty and security of the person protected by section 7 of the Canadian Charter and section 1 of the Québec Charter, due to delayed access affecting medical decision-making autonomy.
• Evidentiary debate over whether the 30-day delay causes irreparable harm, including stress, anxiety, impaired ability to prepare for appointments and verify accuracy of medical information, versus mere “inconvenience.”
• Public interest assessment balancing patient autonomy and rapid access to information against the State’s objective of avoiding traumatic, uncontextualized disclosure of serious diagnoses via an online portal.
• Application of the three-part test for interlocutory suspension of legislative or policy measures (serious issue, irreparable harm, balance of convenience) in light of the presumption of constitutional validity of government action.
• Weight given to expert and institutional evidence from the Ministry of Health and RAMQ about clinical, psychological and technical risks and constraints associated with immediate release of all test results to patients.

Background and factual context

Michaël Fortier instituted a judicial review proceeding and related application for a stay (sursis) before the Superior Court of Québec, challenging a specific access-to-information rule embedded in the province’s digital health infrastructure. At the core of the dispute is the Dossier Santé Québec (DSQ), an information asset established by the Loi sur le partage de certains renseignements de santé. The statute’s purpose is to create shared health information assets to improve the quality, safety and accessibility of health and social services by enabling timely sharing of essential health data among frontline providers. The DSQ aggregates information from designated clinical “domains,” including medication, laboratory and medical imaging, into centralized banks that can be consulted by authorized professionals. In parallel, at the request of the Ministère de la Santé et des Services sociaux (MSSS), the Régie de l’assurance maladie du Québec (RAMQ) implemented Carnet santé Québec, an online portal that allows citizens to access certain DSQ data related to their own health records. Access by patients through Carnet santé is not coextensive with the full medical record; the legislation instead empowers the Minister of Health to adopt a policy specifying the modalities and scope of access by requesters to the health information to which they are entitled. Pursuant to that authority, the Minister adopted in 2018 the Politique sur les modalités d’accès et de la rectification au Dossier Santé Québec, which governs how citizens can access DSQ data via the Carnet santé interface.

The policy terms and the contested 30-day delay

Under the 2018 Politique, a person using Carnet santé may access information from the medication, laboratory and medical imaging domains contained in the DSQ, as listed in article 5.2.1 of the Policy. However, article 5.2.1 al. 2 sous-al. 2 introduces an important restriction: for information in the laboratory and medical imaging domains, the data become accessible in Carnet santé only 30 days after the results are transmitted to the physician; by contrast, medication-domain data are accessible in real time. This design creates an intentional 30-day “buffer” during which a treating professional will ordinarily have received, reviewed and, ideally, discussed significant test results with the patient before the same information appears in the patient’s online account. Fortier’s challenge and stay application focus squarely on this 30-day delay for laboratory and imaging results. He alleges that the rule prevents patients from using Carnet santé to view critical health information in a timely manner, even though the DSQ and the technical infrastructure already hold the data and make them available to clinicians.

Charter grounds and claimed impact on patient autonomy

In his judicial review, Fortier argues that the 30-day restriction violates section 7 of the Canadian Charter of Rights and Freedoms, which protects the rights to life, liberty and security of the person in accordance with the principles of fundamental justice, and that the infringement cannot be justified under section 1 of the Charter. He also invokes section 1 of the Québec Charter of human rights and freedoms, asserting a violation of the rights to security, integrity and freedom of the person, not saved by section 9.1 of that Charter. The essence of his argument is that the delay in access interferes with patients’ autonomy and informed medical decision-making. According to Fortier, not having prompt online access to laboratory and imaging results means that a patient cannot fully exercise their liberty interest in making medical decisions, because they cannot promptly obtain and review the information on which those decisions rest. He further claims that the delay impairs their security of the person by depriving them of rapid access to their records, limiting their ability to correct inaccuracies early, and potentially slowing down their efforts to secure appropriate treatment.

Evidence on harm, stress and alternatives for obtaining information

In support of the stay, Fortier filed affidavits, including his own and those of other individuals, explaining the concrete consequences of the 30-day delay. They described how inability to see available results in Carnet santé hinders optimal health management, prevents adequate preparation for upcoming medical appointments, and delays verification of the accuracy of information used to guide treatment. The evidence also underlined the psychological burden: knowing that important test results have been generated and are already in the medical system, but not being able to consult them personally for 30 days, generates stress and anxiety. While the government emphasized that patients can, in theory, obtain the same information by contacting their health professionals or the facilities that performed the tests, the affidavits painted these “alternative” routes as complex, time-consuming and uncertain. In contrast, Carnet santé was portrayed as a simple, reliable path to one’s own results, subject only to the contested time-lock for specific domains. Notably, the government did not dispute that the 30-day rule limits patient access to their medical information; rather, it contested whether that limitation rises to the level of irreparable harm.

The legal framework for a stay of application of a policy

The Superior Court examined the request for a sursis under the established Canadian framework applicable to interlocutory injunctions and suspensions of legislation or policy instruments. As recalled by the Québec Court of Appeal in previous cases, including Procureur général du Québec c. Gaspé Énergies inc., the applicant must satisfy three criteria: (1) there must be at least a serious question to be tried, especially in constitutional litigation; (2) the applicant must face irreparable harm if the stay is refused; and (3) the balance of convenience, or preponderance of inconvenience, must favour granting the stay. In constitutional or public-law matters, courts also apply a strong presumption of constitutional validity and public interest: laws and policies are presumed to pursue valid public objectives and to serve the public interest unless and until a full hearing on the merits shows otherwise. Consequently, suspending the application of a duly adopted legislative or policy measure before a full constitutional hearing is an exceptional remedy, reserved for cases where the alleged unconstitutionality appears evident, where irreparable harm is clear and severe, or where the ongoing effects of the measure would create a nearly irreversible situation.

Assessment of serious issue and irreparable harm

On the first criterion, the Attorney General and the other public defendants conceded that Fortier’s claim raises a serious issue to be tried. The Court agreed: the constitutional and Québec Charter challenges to the 30-day access rule are neither frivolous nor vexatious, and the matter warrants a full hearing on the merits. The Attorney General attempted to argue that, because Fortier was allegedly seeking a “mandatory” form of interlocutory relief that would effectively require the Minister to act, he should be held to a higher standard of showing a strong prima facie case. The Court rejected that characterization. It distinguished the situation from cases where an injunction compels a party to take specific steps (for example, to remove information already published), and held that suspending the challenged policy clause would not itself require the Minister to perform any positive act beyond applying the existing legislative and regulatory scheme without the 30-day restriction. The Court thus applied the standard serious-issue threshold. On irreparable harm, the Court accepted that withholding access to medical information for 30 days causes more than mere inconvenience. It emphasized that patients have a fundamental interest in the information contained in their medical files because it relates directly to their personal integrity and autonomy. The jurisprudence recognizes that patient autonomy in medical decision-making, including the ability to dictate the course of treatment, depends on access to adequate information. The Court found that, on a prima facie basis, the 30-day delay deprives Fortier and similarly situated members of the public of full, timely exercise of their autonomy regarding health decisions, creating a type of harm not easily compensable in money. While in some contexts damages can be awarded for governmental violations of rights, monetary compensation is generally not an adequate remedy for the ongoing effects of an unconstitutional law. Accordingly, the Court held that Fortier had demonstrated, at this preliminary stage, a risk of irreparable harm flowing from the continued application of the 30-day rule.

Public interest considerations and evidence from the health authorities

The decisive question was the third criterion: whether, in light of all circumstances, the preponderance of inconvenience and the public interest favoured suspending the 30-day rule pending judgment on the merits. In advancing his position, Fortier framed the interest public as aligning with immediate or near-immediate access by patients to their laboratory and imaging results, arguing that sustaining the delay perpetuates patient dependence and vulnerability in their relationships with health professionals and the health system. He further asserted that other Canadian provinces, as well as some U.S. and European jurisdictions, have either eliminated or significantly curtailed delays in digital patient portals for comparable results, suggesting Québec was an outlier. The Court cautioned against equating Fortier’s perspective and the experience of his supporting declarants with the entirety of the public interest. It underscored that the 30-day restriction was not arbitrary; instead, it is grounded in concern for how patients first receive potentially devastating information, such as a cancer diagnosis or the discovery of a serious disease. Evidence from the MSSS, including an affidavit from the Deputy Minister (a practising physician for more than three decades), highlighted the psychological and clinical risks when patients learn of grave diagnoses alone, online, without the explanatory and supportive presence of a health professional. The evidence described first-time disclosure of serious results as a traumatising event that can trigger intense emotional reactions and potentially harm mental health and the therapeutic relationship if not managed within a clinical context.

Comparative practices and ongoing policy review

The Court also took notice of evidence that, since 2024, the MSSS had commenced a systematic review of the continued relevance of the 30-day restriction, including comparative analyses of delay rules in other Canadian jurisdictions with systems analogous to the DSQ. That review indicated that, even elsewhere, delays between the availability of certain sensitive types of results for professionals and their release to patients are common, particularly for cytology, pathology and imaging reports. As part of its policy reassessment, the MSSS canvassed a range of medical associations and professional bodies, which offered divergent and sometimes sharply conflicting recommendations on whether delays should be maintained, shortened, or applied selectively by type of test or diagnosis. This diversity of expert opinion underlined for the Court that there is no single, clearly dominant public-interest view about how quickly such results should be shared directly with patients online. Fortier also argued that the restriction conflicted with the very purpose of the enabling statute, which is to implement information assets to facilitate sharing of essential health data. The Court rejected that position at the interlocutory stage. It observed that the Politique, including its 30-day clause, was adopted under the express statutory authority to regulate modalities of patient access, and nothing in the Act appears to prohibit a measured modulation of that access. Importantly, the Court noted that the restriction was a delay, not an absolute denial of access, and that patients remain able, even during the 30 days, to seek the same information by contacting health professionals or institutions directly. Although those alternatives were not, in the Court’s earlier analysis, sufficient to negate irreparable harm, they gained weight in the public-interest balancing exercise as mechanisms that still allow motivated patients to obtain information outside the digital portal.

Analysis of patient control over portal use and technical constraints

Fortier contended that a stay would have limited impact on others because Carnet santé does not send automatic notifications of new results. Users must actively log in using multifactor authentication to see whether new data have appeared. On this basis, he argued that those who do not wish to see certain results could simply refrain from logging in, whereas those who want prompt access would benefit from the removal of the 30-day barrier. The Court was unpersuaded. Evidence from government witnesses showed that Carnet santé does not differentiate between types of examinations or flag which specific results carry potentially serious or life-altering diagnoses. Thus, a user might log in for relatively routine reasons and inadvertently encounter highly distressing information about a serious disease or cancer without any advance warning or professional support. From a systemic and technological standpoint, the MSSS also asserted that reducing or eliminating the delays for certain categories of information would require complex reconfiguration of the DSQ and Carnet santé systems. According to the Ministry’s evidence, it was not clear that such adjustments could be implemented simply or quickly with existing technical architecture, nor what financial, human and technological resources would be required. These operational uncertainties further weighed against granting an interlocutory remedy that might in practice be difficult to implement in the short term.

Outcome of the stay application and procedural directions

On a global view of the three-part test, the Superior Court concluded that only two criteria were met: there is a serious constitutional question to be tried, and there is a risk of irreparable harm to Fortier and other patients if the 30-day rule continues to apply. However, the Court held that the balance of convenience and the public interest favour maintaining the presumption of validity of the policy until a full hearing on the merits. The Court found that the public interest in careful, contextual disclosure of serious medical results, the diversity of expert views, the incomplete nature of the ongoing policy review, the existence of alternative (if imperfect) avenues for access, and the technical challenges associated with immediate implementation of a different regime collectively outweighed the benefits of interim relief. As a result, the Court dismissed Fortier’s application for a stay of article 5.2.1 al. 2 sous-al. 2 of the Politique, leaving the 30-day delay for laboratory and imaging results in place pending adjudication of the underlying constitutional challenge. The Court directed the parties to file, within ten days, a timetable including a date for the filing of a joint declaration of complete record, in line with procedural directives that give priority to such judicial review matters. In the disposition, the Court rejected the stay “avec frais de justice contre le demandeur,” meaning that costs are awarded against Fortier in favour of the Procureur général du Québec and the Ministère de la Santé et des Services sociaux. The judgment does not, however, specify any quantified monetary amount for costs or damages, and no other monetary award is made; the successful parties are therefore the public authorities, but the exact total sum of costs to be ultimately taxed or assessed cannot be determined from this decision alone.