Executive Summary: Key Legal and Evidentiary Issues

• Scope and application of public interest / cabinet privilege under article 283 C.p.c. to a Conseil du trésor decision (CT 220019) in an expropriation indemnity dispute.
• Determination of the proper standard of judicial review (reasonableness vs correctness) for an administrative tribunal’s ruling on cabinet privilege.
• Assessment of whether the hotel established the factual and legal relevance and necessity of CT 220019 to its claim for additional insonorisation costs.
• Evaluation of the sufficiency and validity of the sworn declaration by the Secretary of the Conseil du trésor as proof that CT 220019 is covered by cabinet privilege.
• Review of whether the Tribunal administratif du Québec correctly balanced competing public interests: confidentiality of cabinet deliberations versus the fair administration of justice.
• Consequences of a tribunal misapplying article 283 C.p.c. by focusing on the importance of the case and the “best evidence” rule instead of first establishing strict relevance of the privileged document.

Facts of the expropriation and hotel renovation dispute
The dispute arises from a major public infrastructure project at the Dorval interchange, near Montréal–Trudeau International Airport, in which the Ministère des Transports et de la Mobilité durable (MTMD) expropriated part of the land owned by 167465 Canada inc., which operates a hotel (the “Hôtel”). The Tribunal administratif du Québec (TAQ), specifically its real estate section, was seized of determining the final expropriation indemnity payable to the Hôtel. The Hôtel is linked, through its representative Theodore (Ted) Quint, to another nearby hotel, the Marriott Fairfield Inn & Suites Montréal Aéroport. The Marriott, unlike the Hôtel, is situated directly adjacent to railway tracks and, under a 2012 agreement, the MTMD was obliged to inform the Marriott if the railway tracks were to be moved closer. Quint, acting in both hotel structures, therefore knew that any track realignment remained hypothetical and would be confirmed by MTMD only if and when a final governmental decision was made. In 2017 the Hôtel rebranded from Best Western to DoubleTree and undertook extensive renovations and expansion works, including moving the façade and main entrance and carrying out significant window and room insonorisation works. The Hôtel’s position is that these costly soundproofing measures were undertaken partly in anticipation of the potential relocation of the railway tracks, which it considered a real risk at the time. The Hôtel later claimed these insonorisation costs as damages flowing both from the expropriation and from its rebranding and renovation project, arguing that the works were ultimately “useless” because the tracks were never moved. On the other hand, the Procureur général du Québec (PGQ), acting for the MTMD, argued that the Hôtel decided unilaterally to soundproof in 2017 despite knowing, through its common representative Quint, that the track relocation was not guaranteed and would only proceed upon a clear governmental decision, and that the Hôtel never sought confirmation from the MTMD before incurring these expenses. The PGQ further pointed out that the Hôtel’s initial application for provisional indemnity did not mention any insonorisation costs, and that this claim surfaced only in January 2022, shortly before the TAQ hearing on the final indemnity.

The Conseil du trésor decision and the contested disclosure request
In 2018, after the Hôtel’s 2017 insonorisation works had already been carried out and paid, the Conseil du trésor adopted decision CT 220019, dated 21 August 2018, which confirmed that the proposed railway track relocation would not proceed. During the TAQ hearings in September 2022, MTMD representative Denis Jodoin testified that the decision not to move the tracks was indeed taken in 2018, and that the Hôtel was informed only in 2020, i.e. after the insonorisation works. Following this testimony, the Hôtel requested communication of CT 220019, seeking to obtain the full text of the Conseil du trésor decision. The Hôtel’s stated reasons were to corroborate or challenge Jodoin’s testimony, to understand the decision-making process that led to abandonment of the track relocation, and to situate in time the governmental process in relation to its own decision to carry out insonorisation works. The PGQ objected, invoking public interest / cabinet privilege under article 283 of the Code de procédure civile (C.p.c.), and filed a sworn declaration by the Secretary of the Conseil du trésor, Éric Ducharme, explaining why disclosure of CT 220019 would be contrary to the public interest. Relying on article 133 of the Loi sur la justice administrative, the PGQ maintained that this privilege applied fully before the TAQ. The TAQ obtained access to CT 220019 in camera and confirmed its date (21 August 2018) in its interlocutory ruling. However, the TAQ ultimately ordered disclosure of the content of CT 220019 (excluding notes and annexes) to the Hôtel, taking the view that the hotel needed the document to prove that its insonorisation expenditures were justified at the time incurred.

Nature of CT 220019 and cabinet privilege considerations
Before the Superior Court, the judge examined CT 220019 directly. The document is three pages long. The third page stands as a self-contained record of the Conseil du trésor’s formal decision, dated and signed, while the first two pages consist of a detailed, confidential briefing from senior officials, marked “CONFIDENTIEL,” summarising contextual elements, policy considerations, options and the reasoning that led to the recommendation and ultimate decision. The court found that this synthesis reveals the internal analytical work and selection of factors considered relevant by high-level public servants and decision-makers, including references to other governmental announcements, negotiations, hypothetical scenarios and alternative outcomes. It is precisely the kind of internal policy and deliberative material that cabinet and cabinet-equivalent privilege seeks to protect, to preserve frank discussion and the effective functioning of executive decision-making in a democratic system. Applying the jurisprudence on public interest privilege and cabinet confidentiality, the court reiterated that the role of article 283 C.p.c. is to codify, not create, the Superior Court’s inherent jurisdiction to scrutinise claims of privilege and to balance the public interest in confidentiality of executive deliberations against the public interest in the fair administration of justice. The PGQ’s declaration, coming from the Secretary of the Conseil du trésor as custodian of the relevant records, was held to be an appropriate and sufficient vehicle to assert the privilege. The court rejected the Hôtel’s argument that the declaration was defective because it was not made by the minister or deputy minister of MTMD, emphasising that what matters is the declarant’s knowledge and custodial role with respect to the document, not a formalistic reading of article 283 C.p.c.

Standard of review: reasonableness or correctness?
Both parties argued that the TAQ’s interlocutory ruling on disclosure should be reviewed on the standard of reasonableness under the framework of Canada (Minister of Citizenship and Immigration) v. Vavilov. The Superior Court, while ultimately agreeing that the TAQ’s decision would fail even on a reasonableness review, carried out its own analysis of the appropriate standard. The judge concluded that issues arising under article 283 C.p.c. about cabinet privilege constitute questions of law of central importance to the legal system as a whole, akin to professional secrecy and parliamentary privilege. Because they directly engage the separation of powers, the integrity of executive decision-making, and the codified right to an immediate appeal in penal matters under article 292 of the Code de procédure pénale (which lists article 283 C.p.c. alongside article 9 of the Charter of human rights and freedoms on professional secrecy), the court held that the correct standard is “correctness,” not “reasonableness.” In other words, when an administrative tribunal determines whether cabinet privilege should yield to the public interest in disclosure, the Superior Court must ensure not only that the result is within a range of reasonable outcomes, but that the tribunal’s approach and conclusion are substantively correct in law.

Errors in the TAQ’s approach to relevance and balancing of interests
Turning to the TAQ’s interlocutory decision, the Superior Court found that the TAQ had misapplied the governing test under article 283 C.p.c. The proper method requires a two-step analysis. First, the party seeking disclosure must establish that the specific document is relevant to the issues in dispute in the proceeding. Second, if relevance is shown, the decision-maker must balance the competing public interests: preservation of cabinet confidentiality versus the need for disclosure in the proper administration of justice. The court held that the Hôtel never established true relevance of CT 220019. The hotel already knew, and the TAQ accepted, that (i) the Conseil du trésor decided in 2018 not to relocate the tracks; (ii) the Hôtel only learned of this decision in 2020; and (iii) the insonorisation works were undertaken and paid in 2017, before the Conseil du trésor ruling. The material fact in dispute for indemnity purposes was whether the Hôtel’s decision to soundproof in 2017 was reasonable given the information available at that time, not what happened later inside the Conseil du trésor deliberations. The date of the decision, to the extent relevant, could be and was already confirmed without disclosing the full internal analysis. No factual allegation of misconduct, bad faith, breach of natural justice or manipulation of the process by the government was raised by the Hôtel that might have made the internal decision-making process itself directly relevant. The Superior Court stressed that curiosity about how or why an executive decision was reached is not sufficient to override cabinet privilege; there must be pleaded facts that plausibly engage governmental wrongdoing or make the process itself an element in issue. Instead of applying this two-step framework, the TAQ shifted to other factors drawn from prior case law (interest of the requesting party, importance of the case, and availability of other evidence) and to the “best evidence” rule. It emphasised that the expropriated party’s claim was large, that its property rights were at stake, and that the document was “capital” for the Hôtel. It also stressed that only Jodoin’s testimony supported the date of the Conseil du trésor decision. For the Superior Court, this reasoning was flawed: importance of the case and the litigant’s interest cannot substitute for, or circumvent, the initial requirement that the document be strictly relevant, nor can the “best evidence” rule be invoked to compel production of privileged cabinet documents when lesser, non-privileged proof (such as the date on the decision page alone) suffices. Consequently, the TAQ failed to properly weigh the significant public interest in maintaining confidentiality of cabinet deliberations against what was, at most, marginal evidentiary value for the Hôtel’s claim.

Outcome of the judicial review and costs
Applying first the reasonableness standard and then, more stringently, the correctness standard, the Superior Court concluded that the TAQ’s interlocutory decision was both unreasonable and legally incorrect. The PGQ had met its burden under article 283 C.p.c. through the Ducharme declaration and by producing CT 220019 for in camera judicial inspection, thereby proving that the document falls within cabinet privilege. The Hôtel, by contrast, failed to demonstrate that disclosure of the full contents of CT 220019 was relevant or necessary to the fair adjudication of its expropriation indemnity and insonorisation claim. Proper balancing of the competing public interests therefore favoured upholding the privilege and refusing disclosure. As a result, the Superior Court allowed the PGQ’s application for judicial review, annulled the TAQ’s order compelling disclosure of CT 220019, and maintained the confidentiality of the Conseil du trésor decision. On the question of costs, the court applied the general rule in article 340 C.p.c. that the unsuccessful party bears the judicial costs and found no basis to depart from this default. It therefore ordered 167465 Canada inc. to pay the court costs (frais de justice) of the PGQ. The judgment does not fix or quantify these costs, nor does it determine the expropriation indemnity or any damages arising from the insonorisation works; those monetary issues remain for determination in the underlying TAQ proceedings, and the total monetary amount ultimately payable in favour of the successful party in this judicial review (the PGQ) cannot be determined from this decision.