Executive Summary: Key Legal and Evidentiary Issues

• Scope of appellate review confined to questions of law or competence, excluding pure factual reassessment of the Commission d’accès à l’information’s (CAI) findings.
• Characterisation of several documents as covered by solicitor–client privilege and professional secrecy, including emails and legal opinions exchanged between Ville de Terrebonne and its counsel.
• Parallel application of litigation privilege to documents prepared principally in the context of a real or reasonably apprehended dispute over a multimillion-dollar public contract.
• Reliance on section 28(1)(2) of the Loi sur l’accès aux documents des organismes publics to refuse access to materials held in collaboration with investigative bodies, where disclosure was deemed likely to hinder ongoing or potential investigations.
• Treatment of partial disclosure to third parties (e.g., Régie du bâtiment, UPAC and other agencies) and whether such limited transmission amounts to a waiver of privilege.
• Evaluation of whether Terrebonne met its evidentiary burden to justify refusals under privilege and access-to-information exceptions, including the sufficiency of testimonial and documentary evidence before the CAI and in appeal.

Factual background

The dispute arises from a major public procurement process launched by the Ville de Terrebonne for the construction of a new activated-sludge wastewater treatment plant under call for tenders SA21-3018. Magil-Tisseur inc submitted a bid which it maintains was the lowest compliant tender, but Terrebonne ultimately awarded the contract to a competitor, CRT Construction inc, for approximately 103,794,475.85$. Magil-Tisseur challenged this outcome on the basis that its bid ought to have been accepted and that there were irregularities or possible malfeasance in the tendering process. Following the contract award, Magil-Tisseur sought urgent relief in the Superior Court through a provisional injunction aimed at blocking the contract. That request was dismissed on 4 October 2021, and a later application for leave to appeal was also rejected by the Court of Appeal. Parallel to these court steps, Magil-Tisseur and its lawyers filed complaints with several oversight and investigative bodies mandated to look into corruption and irregularities in public contracting, including the Unité permanente anticorruption (UPAC), the Autorité des marchés publics (AMP), and the Commissaire à l’intégrité municipale et aux enquêtes (CIME). In November 2022, Magil-Tisseur amended its Superior Court action to claim 7,000,000$ in damages from Terrebonne in civil proceedings, which remain pending and are distinct from the access-to-information issues decided in this judgment.

Access-to-information requests and proceedings before the CAI

Alongside the tender and civil litigation, Tisseur inc and Magil-Tisseur inc (together, the appellants) submitted several formal access-to-information requests to Terrebonne in early 2022, identified as files 1028782-J, 1028783-J, 1028859-J and 1029464-J. The requests targeted a wide range of documents related to the call for tenders, the award of the contract to CRT, and subsequent steps taken by Terrebonne, including exchanges with professionals and investigative bodies. Dissatisfied with Terrebonne’s partial disclosure and refusals, the appellants filed applications for review before the Commission d’accès à l’information. The four review matters were joined and heard over four days before the CAI; one of them (1029464-J) was settled during the hearing, leaving three active files. On 28 January 2025, the CAI rendered a detailed 41-page decision. It granted the review in part in files 1028782-J and 1028783-J by ordering disclosure of certain documents, while dismissing the review in file 1028859-J. The CAI also held that some records had become part of Terrebonne’s archives and were therefore subject to access. No party challenged the CAI’s conclusions in favour of disclosure; the subsequent appeal concerned only those documents for which access remained refused.

Privileged documents and professional secrecy

The central legal issue was the CAI’s determination that a group of eight documents could be withheld on the basis of solicitor–client privilege attaching to Terrebonne’s communications with its lawyers. These included legal opinions, internal exchanges between Terrebonne’s counsel, and communications between Terrebonne’s lawyers and the Régie du bâtiment du Québec, some of which had already been partially disclosed (such as attachments like licensing information) while the rest had been withheld. The CAI relied on testimony—given both publicly and ex parte—by Terrebonne’s in-house counsel, who explained the legal advisory role and the confidentiality of the exchanges, and on its own in camera review of the documents. Applying the classic three-part test for lawyer–client privilege (communication between lawyer and client, for the purpose of obtaining or giving legal advice, intended to be confidential), the CAI concluded that all criteria were met for each of the eight documents. On appeal, the appellants argued that the CAI had misapplied or “distorted” the legal test, especially where communications had been shared with a third party such as the Régie du bâtiment, and that professional secrecy should not extend to such exchanges. The Cour du Québec rejected this argument. It held that the CAI had correctly recited and applied the governing principles of professional secrecy, highlighting that a limited, contextual transmission to a third party does not automatically constitute a general waiver of privilege. The Court also stressed that the appellants had effectively left uncontested the CAI’s factual findings as to seven of the eight documents; their criticisms were directed mainly at the document involving the Régie du bâtiment. Since those findings were factual or at most involved mixed questions of fact and law, and no isolated error of law had been shown, they fell outside the narrow appellate review permitted under the access legislation.

Litigation privilege and the context of ongoing disputes

In addition to solicitor–client privilege, Terrebonne had invoked litigation privilege over a broader set of documents, arguing that they were prepared principally for the purposes of existing or reasonably foreseeable litigation with Magil-Tisseur. The CAI accepted this position for several documents, including the same eight that were protected by solicitor–client privilege, finding that they had been created in a highly contentious context where a dispute was already real or clearly anticipated. It relied on the chronology: by late September 2021, a dispute was foreseeable; by early October 2021, a Superior Court proceeding had been commenced to block the contract; and in January and February 2022, demands and complaints were sent to Terrebonne and multiple investigative agencies. At the time the access requests were submitted in January and February 2022, a civil dispute over the tender and contract award was already under way, and related investigations by public bodies were progressing. The CAI thus concluded that the primary purpose of the impugned documents was preparation for, or conduct of, litigation involving Terrebonne, the appellants and CRT Construction. On appeal, the appellants contended that the CAI had broadened the test by focusing on a general “litigious context” and by describing documents as merely “linked” to the dispute, rather than having litigation as their main object. The Cour du Québec disagreed, finding that the CAI had correctly articulated the two-part test for litigation privilege—that the document’s dominant purpose is preparation for real or apprehended litigation, and that such litigation exists or is reasonably foreseeable—and had simply applied it to the evidence before it. The Court emphasised that determining whether a given document’s object was principally litigation-related is a factual assessment, and that the CAI’s reasons showed a document-by-document analysis rather than an automatic extension of privilege to everything created during a dispute. Since no true question of law or distortion of the legal standard was demonstrated, there was no basis to intervene.

Protection of investigative collaboration under section 28 LAI

A third set of disputed documents related to Terrebonne’s cooperation with public bodies tasked by law with preventing, detecting or repressing crime or statutory offences, including UPAC, AMP, and other investigative authorities. Terrebonne refused access to certain records on the basis of section 28(1)(2) of the Loi sur l’accès aux documents des organismes publics et sur la protection des renseignements personnels, which obliges a public body to refuse to confirm or disclose information contained in documents it holds in the exercise of such investigative functions, or in cooperation with an investigative body, where disclosure would be likely to hinder an investigation that is forthcoming, ongoing or capable of being reopened. Before the CAI, Terrebonne bore the burden of proving that the statutory conditions were met. It led testimony from its counsel familiar with the investigations and produced documentary evidence, including detailed notes from an investigator and a chronology showing that multiple investigations opened in December 2021 and continued through to at least 6 September 2022. The CAI concluded that the documents were indeed held in collaboration with investigative bodies and that premature disclosure could reasonably be expected to interfere with the various ongoing inquiries. On appeal, the appellants criticised the sufficiency of this proof, arguing that Terrebonne relied mainly on its own representative’s testimony, that no investigators from the agencies themselves testified, and that part of the evidence was hearsay. They further contended that the CAI had introduced a “new criterion” by focusing on whether it was “reasonable” for Terrebonne’s access officer to regard disclosure as potentially obstructive. The Cour du Québec held that these criticisms went to the weight and sufficiency of evidence, which are factual questions that are not appealable under the statute. It found that the CAI had correctly identified the two statutory conditions in section 28(1)(2), namely that the documents be held in the exercise of investigative functions or in cooperation with investigative bodies, and that disclosure be likely to hinder current or potential investigations. The Court read the reasons as a whole and concluded that the CAI had not invented any additional subjective test but had, instead, assessed the evidence and determined that a real risk of interference existed at the time of the access decisions. Because the access regime fixes the assessment date at the time of the decision, the later end of the investigations in September 2022 was not determinative, and in any event, the appellants had not filed fresh access requests after that point.

Appeal framework, standard of review and outcome

The appeal from the CAI’s decision is governed by the access statute, which limits appeals to questions of law or jurisdiction; findings of fact by the CAI are final and not subject to review. The Cour du Québec, guided by the Supreme Court’s jurisprudence on appellate standards, reiterated that pure questions of law are reviewed for correctness, while mixed questions of fact and law only open the door to appellate intervention if a discrete legal error can be isolated from the factual matrix. This framework creates a narrow corridor for interference with the CAI’s decisions. In this case, the appellants did not allege any jurisdictional error and initially framed their arguments as disagreements with how the CAI applied settled legal tests on professional secrecy, litigation privilege, and section 28 LAI to a dense factual record developed over four hearing days, including ex parte evidence. The Court observed that, in their written brief, the appellants largely accepted the correctness of the legal tests as stated by the CAI and offered only sparse legal argument, focusing primarily on the conclusion reached in relation to specific documents. At the hearing, they reframed their position and asserted that the CAI had subtly “distorted” the criteria for privilege and section 28, but the Cour du Québec, reading the CAI’s reasons as a whole, found no such distortion. It held that the CAI had accurately cited the governing legal principles, had not broadened them, and had made factual determinations on a document-by-document basis about whether the tests were satisfied. Even if one were to assume, for argument’s sake, that there had been an error regarding solicitor–client privilege over communications with the Régie du bâtiment, the Court noted that those same documents were independently protected by litigation privilege, so any such error would not have been determinative of the outcome. Ultimately, the Cour du Québec concluded that no reviewable error of law or jurisdiction had been established in the CAI’s handling of solicitor–client privilege, litigation privilege, or the investigative-collaboration exception under section 28 LAI. As a result, it dismissed the appeal, confirmed the CAI’s 28 January 2025 decision in files 1028782-J, 1028783-J and 1028859-J, and awarded the usual judicial costs (“frais de justice”) against the appellants in favour of the successful party, the Ville de Terrebonne. The judgment does not quantify these costs or award any specific damages or monetary compensation, and the total amount ordered in Terrebonne’s favour cannot be determined from the decision.