Case information

Human rights — Legal rights — Administrative law — Boards and tribunals — Judicial independence — Security of tenure — Régie de l’énergie — Disciplinary process — Whether Régie de l’énergie is tribunal pursuant to ss. 23 and 56 of Charter of human rights and freedoms, CQLR, c. C-12 — Whether Régie de l’énergie commissioners hold role in body that requires that its members exercising adjudicative functions are secure against and appear secure against any interference by executive — Whether rights of Régie de l’énergie commissioners in disciplinary process set out in ss. 37 to 42 of REPCP are sufficient to ensure their independence and their appearance of independence vis-à-vis executive given that they are made subject to control of executive by s. 3.0.1 of Act respecting the Ministère du Conseil exécutif, CQLR, c. M-30, as written — Whether refusal to pay legal fees incurred by applicant is infringement of one pillar of judicial independence

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The applicant, a Régie de l’énergie (“Régie”) commissioner, was the subject of a professional conduct complaint in connection with the exercise of her functions. The complaint was rejected. Despite that favourable decision, the applicant applied for a declaratory judgment and for judicial review, relying on s. 23 of the Charter of human rights and freedoms, CQLR, c. C-12 (“Quebec Charter”). She claimed that the Régie’s commissioners exercise adjudicative functions and should therefore benefit from a high degree of judicial independence allowing them to ensure that their functions are exercised independently of the state’s executive branch. According to the applicant, the provisions of the Regulation respecting the ethics and professional conduct of public office holders, CQLR, c. M-30, r. 1 (“REPCP”) dealing with the disciplinary process applicable to commissioners as public office holders do not provide this guarantee of independence.

The Quebec Superior Court rendered a judgment in which it (1) allowed in part the applicant’s application for a declaratory judgment and for judicial review; (2) declared ss. 37 to 42 of the REPCP constitutionally inoperable against the applicant and any other member of the Régie exercising adjudicative functions, because they infringe their judicial independence; and (3) quashed an inquiry report produced in the context of a disciplinary process arising under the REPCP. The Court of Appeal unanimously allowed the respondent’s appeal, set aside the trial judgment and dismissed the applicant’s incidental appeal. It found that even if the trial judge had been correct in concluding that the Régie exercises quasi-judicial functions, that the guarantee of independence in s. 23 of the Quebec Charter applies and that the Régie leans more toward the middle of the spectrum or, at least, toward a level higher than the lower level—which was not accepted—her finding on the constitutional inoperability of ss. 37 to 42 of the REPCP against the applicant and the other commissioners of the Régie was erroneous.