Executive Summary: Key Legal and Evidentiary Issues

• Scope and interaction of articles 23 (industrial secret/confidential commercial information) and 41.1 (environmental/health exception) of Québec’s access to information statute in relation to wastewater treatment data.
• Characterization of inspection results and non-conformity information about Bionest’s systems as potential “secret industriel” preventing disclosure without the company’s consent.
• Procedural question whether the Superior Court judicial review should be suspended pending a new, broader access request and related proceeding before the Commission d’accès à l’information (CAI).
• Risk of contradictory decisions between the Superior Court and CAI on the application of article 23, and the proper analytical order between the restriction (art. 23) and the exception (art. 41.1).
• Proportionality and efficient administration of justice in a six-year-old file, including whether a fresh access request can justify delaying an already-ready judicial review.
• Allocation of costs following the dismissal of the motion to suspend, with an order against Premier Tech but no specified monetary amount in the judgment.

Factual background

Premier Tech Eau et Environnement and Technologies Bionest Inc. both operate in the field of wastewater treatment. Premier Tech sought detailed technical and compliance-related information concerning Bionest’s systems held by the Bureau de normalisation du Québec (BNQ), a unit of Investissement Québec. BNQ, acting as a standard-setting and certification body, possessed contracts, inspection reports, communications about system changes, test results, and non-conformity notices relating to Bionest’s certified wastewater treatment systems.
On 15 May 2020, Premier Tech submitted an access to information request to Investissement Québec under Québec’s Loi sur l’accès aux documents des organismes publics et sur la protection des renseignements personnels. The request was divided into several “rubriques” (categories), including contracts, modification requests, inspection visit reports, communications about changes to system components, requests for additional tests, sample results collected during inspections, communications regarding effluent non-conformity, and annotated quality checklists.
On 21 July 2020, Investissement Québec refused access to the requested documents, invoking several provisions of the access law, including articles 21, 22, 23, 24, 27, 37 and 54. Article 23, central to the later dispute, prohibits disclosure of a third party’s industrial secret or confidential industrial, financial, commercial, scientific, technical or union information supplied by a third party and usually treated as confidential, without that third party’s consent. Premier Tech sought review of this refusal by the Commission d’accès à l’information.

Proceedings before the Commission d’accès à l’information

On 20 August 2020, Premier Tech asked the CAI to review Investissement Québec’s refusal. A hearing was held in September 2022, and on 30 November 2022 the CAI (administrative judge Marc-Aurèle Racicot) partially granted the review. It took note of the disclosure of certain contracts and guides and ordered access to two additional guides. It also ordered Investissement Québec to process and decide on 39 documents that fell under rubriques 3 and 8, reserving to Premier Tech the right to seek further review of that later decision. The CAI rejected the balance of the review request.
Significantly, the CAI refused access to the documents under rubriques 6 and 7 on the basis that the information they contained represented Bionest’s industrial secret. Because article 23 bars disclosure of such information without the third party’s consent, the CAI concluded those documents could not be communicated to Premier Tech.

Appeal to the Cour du Québec and related files

Premier Tech appealed the CAI’s ruling on 31 December 2022 to the Cour du Québec, but only as regards the refusal to grant access under rubriques 6 and 7. A separate file was opened for rubriques 3 and 8 once Investissement Québec later determined those documents should not be communicated; Premier Tech sought CAI review in that separate matter and obtained a suspension pending a final merits decision from the Cour du Québec in the rubriques 6 and 7 matter.
The hearing in the Cour du Québec took place on 14 January 2025 before Judge Christian Boutin. On 10 July 2025, Judge Boutin dismissed Premier Tech’s appeal. He found that the appeal did not raise a question of law but sought essentially a new factual assessment. Deciding de bene esse (in case he was mistaken on jurisdictional limits), he also rejected Premier Tech’s substantive arguments and upheld the CAI’s conclusions concerning the protection afforded by article 23 to Bionest’s information.
Premier Tech then sought judicial review in the Superior Court on 2 September 2025. In its modified application, it asked the Superior Court to quash the Cour du Québec judgment, set aside certain conclusions of the CAI’s 2022 decision, and order Investissement Québec to disclose the documents covered by rubriques 6 and 7. By 9 October 2025, the judicial review was procedurally ready to proceed to a hearing.

Subsequent access requests and CAI proceedings

While the appellate and judicial review process was unfolding, the legal landscape became more complex due to additional access steps and the invocation of article 41.1 of the access statute. Article 41.1 provides that most of the restrictions to access, including article 23, do not apply to information revealing or confirming an immediate risk to life, health or safety, or serious or irreparable harm to the right to a quality environment, nor to information about the quantity, quality or concentration of contaminants emitted, released or deposited by a source of contamination or the presence of a contaminant in the environment, subject to certain enumerated exceptions.
In April 2024, after Premier Tech raised article 41.1 to support its access position, Investissement Québec changed its approach and notified Bionest that it considered some of the requested documents to fall under this provision. Bionest objected, arguing that Investissement Québec lacked sufficient evidence to decide unilaterally that article 41.1 applied, and asserted that the information remained protected as industrial secret.
On 27 May 2024, Investissement Québec issued a decision indicating it would disclose the documents under rubriques 6 and 7, now relying on article 41.1. Bionest responded by seeking CAI review of that new decision (file 1036885-J), disputing that the environmental/health exception could override the protection of its industrial secrets.
Meanwhile, on 28 February 2025, Premier Tech filed a fresh access request targeting rubriques 6 and 7 again but over a broader time period, which gave rise to another CAI file (1042564-J). In June 2025, Investissement Québec decided, in the context of this new request, to communicate the documents concerned, again invoking article 41.1. Bionest once more sought CAI review of this decision at the end of June 2025, insisting that the documents contained its industrial secret and that article 41.1 was inapplicable.
Owing to the multiplicity of overlapping proceedings and the possibility that decisions in one forum could render others moot or create contradictions, both Bionest and Investissement Québec asked the CAI in late September 2025 to suspend the new CAI matter. They argued it would be preferable for the Superior Court to resolve the judicial review concerning article 23 before the CAI proceeded, thereby avoiding inconsistent rulings on the same set of documents. Premier Tech objected to suspending the CAI file. As of the Superior Court’s hearing on the suspension motion, the CAI had not yet ruled on the requested suspension nor moved that file forward.

The motion to suspend the Superior Court proceedings

Against this backdrop, Premier Tech asked the Superior Court to suspend its judicial review. It argued that because a broad new request (file 1042564-J) was pending before the CAI and involved the same type of documents, it would be more appropriate for the CAI to first decide whether article 41.1 applied to allow disclosure notwithstanding article 23. In Premier Tech’s view, the CAI’s future determination on article 41.1 could significantly influence or even resolve the issues in the judicial review, favoring a stay in the interests of proportionality and judicial economy.
Bionest and Investissement Québec strongly opposed any suspension. They emphasized that the judicial review file had been in the system since 2020 and was now ready for a hearing; allowing a later, parallel CAI process to stall this mature court proceeding would undermine the orderly administration of justice. They underscored the risk of inconsistent decisions if the CAI proceeded first: the CAI would necessarily have to address article 23, a question already squarely before the Superior Court in the judicial review. They also pointed to the history of other related CAI matters being stayed (including at Premier Tech’s own request) pending a definitive Superior Court ruling.
The test applied by the Superior Court for suspending an instance includes factors such as: the existence of a clear connection between two proceedings; whether the outcome of one depends on the other; whether suspension serves proportionality and efficient use of resources; the risk of contradictory judgments; and whether denying suspension would multiply proceedings and costs unnecessarily. The Court must take a global view of these factors rather than treating any one of them as dispositive.

Legal analysis: order of analysis between restriction and exception

The central legal issue raised by the motion concerned the interaction between article 23 and article 41.1 of the access statute, and the proper sequencing of their analysis. Premier Tech framed the pending CAI matter as narrowly focused on article 41.1, arguing that the CAI’s intervention would be “targeted” to that exception and that the Superior Court need not decide article 23 first. It sought to distinguish previous CAI jurisprudence, asserting that this was the first situation where a public body had itself relied on article 41.1 to grant access and a third party objected.
The Superior Court rejected this framing. It held that in both the judicial review and the CAI file, Bionest had squarely invoked article 23, alleging that the documents under rubriques 6 and 7 contained its industrial secret and other confidential commercial information. Thus, even if Premier Tech itself chose not to argue article 23 in the CAI, the CAI would nevertheless have to determine the applicability of article 23 as a threshold question before reaching article 41.1. The Court noted that CAI case law, in a clear majority of decisions dealing with article 41.1, follows a sequence where it first decides whether a restriction to access (such as article 23) applies and only then examines whether article 41.1 can neutralize that restriction.
The Court emphasized that article 41.1 is located within the same statutory section that lists restrictions to access and is framed as rendering certain restrictions “inapplicable.” This structure implies that one must first determine whether a restriction such as article 23 applies at all; if it does, a second step considers whether article 41.1 prevents that restriction from operating. This internal organization of the statute supported the conclusion that restrictions must be analyzed first, followed by any applicable exceptions.

Risk of inconsistent decisions and proportionality

Having clarified the analytical order, the Court concluded that the CAI’s pending file on the broader access request would inevitably engage the same article 23 analysis that lay at the heart of the judicial review. If the CAI were to proceed first, the risk of contradictory decisions between the CAI and the Superior Court on article 23 would be real and substantial. The Court noted that Premier Tech’s argument downplayed the possibility that the CAI could agree, in whole or in part, with Bionest’s position that article 23 protected the documents—a scenario that would clash with any different assessment by the Superior Court on judicial review.
From a proportionality standpoint, the Court also weighed the age and procedural posture of the judicial review. The file had been advancing since 2020 and had reached a stage where it could be set down for hearing in the short term. By contrast, the CAI matter arising from the February 2025 access request was at an early stage and already subject to a suspension request by Bionest and Investissement Québec. Allowing Premier Tech’s new request to effectively stall the long-running judicial review would, in the Court’s view, run counter to a sound administration of justice and to the Code of Civil Procedure’s emphasis on accessible, timely and proportionate procedures.
The Court also observed that historically, including at Premier Tech’s own initiative, related CAI proceedings had been stayed to await a final Superior Court determination on the judicial review. This history underscored the appropriateness of having the higher court clarify the application of article 23 before the CAI engaged in further, potentially costly and expert-heavy, proceedings on article 41.1. If the Superior Court were ultimately to find that the documents in question do not contain an industrial secret within the meaning of article 23, much of the CAI litigation over article 41.1 would become unnecessary.

Outcome and consequences

In light of these considerations, the Superior Court held that the conditions for suspending the judicial review were not met and, if anything, weighed in the opposite direction. The judge concluded that the fate of the CAI proceeding depended on the outcome of the judicial review, not vice versa. It was preferable that the Superior Court first decide whether article 23 applies to the documents under rubriques 6 and 7; only then should the CAI, if necessary, consider whether article 41.1 could override that restriction for environmental or health reasons. The Court also stressed that Premier Tech had waited until after the judicial review was ready for hearing to file its suspension application, which it considered late in the procedural context.
Accordingly, the Superior Court dismissed Premier Tech’s motion to suspend the judicial review and ordered that the proceedings continue. The judgment specifies that the dismissal is “with costs,” placing the burden for legal costs incurred on Premier Tech and confirming Technologies Bionest Inc. and Investissement Québec (including the BNQ) as the successful parties on this procedural motion. However, the decision does not state any specific monetary amount for those costs or any damages award, so the total sum ordered in favor of the successful parties cannot be determined from this judgment alone.