Case information

Administrative law — Judicial review — Investigative body — Doctrine of deliberative secrecy — Disclosure of documents related to the preparation of reports on investigation — Does the doctrine of deliberative secrecy apply to administrative bodies who do not perform traditional adjudicative functions but whose decisions can adversely impact the rights of the individuals involved? — What is the appropriate threshold for lifting deliberative secrecy, especially in cases where the powers and functions of the administrative decision-makers involved cannot be characterized as falling squarely within the meaning of an administrative tribunal or an adjudicative body as set out in Tremblay v. Québec (Commission des affaires sociales), [1992] 1 S.C.R. 952 and in Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval, [2016] 1 S.C.R. 29? — Public Protector Act, CQLR c P-32, s. 24, 25, 34 — Act respecting public inquiry commissions, CQLR c C-37, s. 16

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The applicant, Ms. Thermitus, served as President of the Commission des droits de la personne et des droits de la jeunesse from 2017 to 2018. The applicant was the subject of two disclosures filed with the respondent, the Public Protector, pursuant to the Act to facilitate the disclosure of wrongdoings relating to public bodies, regarding the management and performance of the applicant’s duties. An investigation was entrusted to two investigating members of the Public Integrity Investigations Directorate, which reports to the Deputy Protector, Institutional Affairs and Prevention. Three reports were prepared in the course of this particular investigation process: two preliminary reports and a final report. The applicant filed a first application for judicial review after the first report was released in November 2017 and after she learned that the report had been communicated to the Minister of Justice before her own comments were provided. Eventually, as a result of an agreement between the parties, the applicant withdrew her application for judicial review. A second investigation report, which was a modified version of the first report, was prepared after the applicant was interviewed and she had an opportunity to comment. In November 2018, the final report was completed and provided. That report recommended, among other things, that the Minister of Justice take appropriate measures against the applicant with regard to the wrongdoing found. Following the production of the final report, the applicant submitted her resignation and commenced a second application for judicial review. Ultimately, after various amendments to the pleadings, the applicant sought a declaration that the final report was null, while challenging the entire process leading up to the preparation of the final report. The ground invoked in support of that application for judicial review was that the Public Protector had exceeded his jurisdiction in the performance of his duties. In January 2023, on the basis of claims of institutional bias, the applicant obtained authorization from a Superior Court judge to examine one of the investigators on discovery, but solely with respect to the context surrounding the conduct of the inquiry and the role of the various players working for the respondent. The examination for discovery of the Deputy Protector was also authorized, but solely for the purpose of shedding light on the structural organization. That decision was not challenged on appeal. Following the examinations for discovery, in February 2023, the Superior Court dismissed the objections of the Public Protector’s lawyer to three questions concerning whether revisions had been obtained for each of the three reports. In May 2023, the applicant filed a motion for disclosure of documents in order to obtain all comments and revisions relating to all the reports. The Superior Court dismissed that motion, and the Court of Appeal dismissed the appeal.