Introduction
Did you know that, in Québec, a single Court of Appeal judge can summarily annul a Superior Court judgment? In certain circumstances, yes.
Privative clauses and supporting clauses are little-known tools in the administrative arsenal that make it possible to summarily annul, on appeal, a judgment on judicial review. Despite being historically ignored, these clauses are becoming increasingly common. Indeed, since the 1979 legislative amendment1, there have been only 12 appellate judgments on annulment. However, a full third of those decisions were rendered in the last five years alone2.
In the recent case of Autorité des marchés publics c. Valosphère Environnement inc.3, the Honourable Suzanne Gagné, JCA, dismissed the application to annul a stay of a decision of the Autorité des marchés publics ("AMP") (the "Administrative Decision"). In her reasons for judgment, Justice Gagné considered the mechanism for privative and supporting clauses in sections 76 and 77 of the Act respecting the Autorité des marchés publics (the "AAMP").
The following two lessons can be drawn from Justice Gagné's decision:
- privative clauses play no role in determining the standard of review applicable to an administrative decision; and
- an appellate court judge will more often be inclined to set aside an interlocutory decision if it has the effect of staying or delaying the pending administrative process.
Summary of Relevant Facts
The respondent Valosphère Environnement Inc. ("Valosphère") specializes in soil transportation and construction material recovery. Since March 31, 2017, it had held an authorization to contract or subcontract with a public body issued by the AMP under the Act respecting contracting by public bodies (the "ACPB").
On June 22, 2023, the AMP commenced an integrity audit aimed at Valosphère.
On December 12, 2024, after discussions with Valosphère, the AMP issued its Administrative Decision, which found that Valosphère did not, in its opinion, meet the applicable integrity requirements.
Valosphère quickly sought a judicial review of this Administrative Decision and asked the Superior Court for an immediate stay of its effect.
On December 23, 2024, the Superior Court granted the stay of the Administrative Decision, as well as all of its findings.
On January 17, 2025, relying on the AAMP's privative and supporting clauses, the AMP asked a single Court of Appeal judge to summarily annul the Superior Court's decision.
On February 20, 2025, Justice Gagné...
