Executive Summary: Key Legal and Evidentiary Issues

• Plaintiffs sought judicial review of an Autorité des marchés publics ("AMP") decision refusing to renew their authorization to contract with public bodies.
   
• Procedural fairness arguments centered on the AMP's refusal to disclose its full investigation file and supporting documentation.
   
• Timeliness concerns arose from a roughly one-year gap between the expiry of the prior authorization and the AMP's final decision.
   
• Reasonableness of the AMP's finding that Déneigement NA-SA was a continuation of a previously RENA-listed business, Excavation Anjou, formed a central issue.
   
• Interpretation of the AMP's discretion under section 21.48.4 LCOP to decline corrective measures was also disputed.
   
• Questions about the legality of statements gathered from company representatives and third parties during the AMP's examination were raised but rejected.
   

Facts of the case

Déneigement NA-SA, along with its principals Nancy Desjardins and Samuel Dubé, applied for judicial review of a July 24, 2024 decision by the AMP refusing to renew the company's authorization to contract or subcontract with public bodies. The AMP found that Déneigement NA-SA did not meet the integrity requirements expected of parties to public contracts because it was, in substance, a continuation of Excavation Anjou, a business listed on the Register of Enterprises Ineligible for Public Contracts ("RENA") since January 2018 due to collusive conduct in public tenders. Nancy Desjardins and Samuel Dubé are the wife and son of Yvan Dubé, the former director of Excavation Anjou, and they incorporated Déneigement NA-SA shortly after Excavation Anjou's RENA listing. The AMP's investigation found that the two companies shared equipment, personnel, and machinery, and leased equipment and premises to one another, obtained similar contracts, and maintained close family and financial ties, including an initial loan from Yvan Dubé's mother to fund the new company.

The AMP's process began with a notice of examination in August 2023, followed by document requests to which the plaintiffs responded. In February 2024, the AMP issued a detailed preliminary notice proposing non-renewal, to which the plaintiffs replied with written submissions, sworn statements, and proposed corrective measures. On July 24, 2024, the AMP issued its final decision refusing renewal and declining to impose any corrective measures, concluding that the company's founding circumstances undermined its integrity beyond remedy.

Policy and legislative provisions at issue

The case turned on several provisions of the Act respecting contracting by public bodies ("LCOP"). Section 21.1 LCOP sets the high integrity standard expected of businesses contracting with public bodies, while section 21.28 lists non-exhaustive factors the AMP may consider in assessing integrity, including circumstances suggesting a business is continuing the operations of an ineligible predecessor. Section 21.48.4 LCOP addresses the AMP's obligation to consider corrective measures where a business fails to meet integrity standards, stating the AMP "must" impose measures it considers capable of remedying the situation, "if any such measure exists." Sections 21.48.2 and 21.48.3 LCOP, together with section 5 of the Act respecting administrative justice, govern the AMP's disclosure and consultation obligations during its examination process.

Reasoning and analysis

The court applied the reasonableness standard to the substantive integrity findings and, even applying the more exacting correctness standard to the procedural fairness complaints, found no breach. Drawing on the Baker factors, the court held that the AMP's administrative (non-adjudicative) function did not require disclosure of its entire investigation file, and that the plaintiffs had been given adequate notice of the case against them and a genuine opportunity to respond through detailed preliminary notices and multiple rounds of submissions.

On timeliness, the court found the roughly one-year period between the end of the prior authorization and the final decision was not excessive, particularly since the plaintiffs suffered no prejudice during that time, as their authorization remained valid. The court also rejected the argument that the AMP's evidence-gathering, including statements from company representatives and third parties, was unlawful, noting the plaintiffs had opportunities to dispute or correct those statements in their own submissions.

On the substantive question of business continuity, the court emphasized the AMP's broad discretion and specialized expertise in assessing integrity, finding that the shared history, personnel, equipment, and family ties between Déneigement NA-SA and Excavation Anjou reasonably supported the AMP's conclusion that the former was created to circumvent the consequences of the latter's RENA listing. Regarding corrective measures, the court rejected the plaintiffs' reading of section 21.48.4 LCOP as creating a near-mandatory obligation to impose such measures, holding instead that the AMP retains discretion to conclude no corrective measure could restore integrity where, as here, the company's very foundation was compromised.

Ruling and overall outcome

The court dismissed the application for judicial review in its entirety, finding that the AMP's decision-making process respected procedural fairness and that its conclusion refusing to renew Déneigement NA-SA's authorization was reasonable. Costs were awarded against the plaintiffs, with the judgment not specifying a monetary amount for those costs.