2011 QCCQ 10456, 2011 QCCQ 10456

S.J. c. Tribunal administratif du Québec 2011 QCCQ 10456 COURT OF QUEBEC « Administrative and Appeals Division » CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-80-015884-100 DATE: September 12, 2011 ______________________________________________________________________ BY THE HONOURABLE JULIE VEILLEUX, J.C.Q. ______________________________________________________________________ S... J... Appellant v.

TRIBUNAL ADMINISTRATIF DU QUÉBEC (TAQ) Respondent - and - COMMISSION D’ACCÈS À L’INFORMATION DU QUÉBEC Mise en cause ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Appellant lodged an appeal of the decision rendered on February 1 st , 2010 (the decision) by Me Jean Chartier of the Commission d’accès à l’information du Québec ( CAI ).

In his application for appeal, Appellant referred to the chronology which led to the decision as it regards a hearing which took place before the Tribunal Administratif du Québec ( TAQ ) on May 27, 2008. [ 2 ] The conclusions of the application for appeal read as follows: GRANT the present action: CONDEMN the court of first instance (CAI) for not provide reasonable accommodation to plaintiff.

CONDEMN the court of first instance, for not provide to the plaintiff the information regarding his right to appeal the first decision of (CAI) and not provide 30 days for appeal the first decision of (CAI) dated September 22, 2009. GRANT the request of plaintiff and sent the case to first instance court, to complete the file by testimony of witnesses, so that additional proof relating to the case to be made. ORDER the first instance court (CAI), to hear the plaintiff orally, with help of interpreter of Farsi to English, because of hand and language disability.

CONDEMN defendant to pay plaintiff the sum of fifty thousand as punitive charge and expenses and pain and suffering and time. CONDEMN defendant to pay according to under

section 158

an Act respecting access to documents by public bodies. CONDEMN defendant to sent to plaintiff the complete CD of back-up of hearing to closing the discussion between plaintiff and Me Yvan Le Moyne, and his oral verdict.

THE WHOLE with costs including experts fees for reports as well as the additional fees incurred by the preparation of the experts for trial as well as for their present and testimony ( if any fees ) before the court. (sic) [ 3 ] Respondent filed a Notice of disclosure of preliminary and declinatory exceptions according to sections 159, 163 and 165 of the Code of Civil Procedure ( C.C.P. ) which was translated and sent to Appellant several weeks prior to the hearing. [ 4 ] On the date set for the hearing, the Court heard Respondent’s preliminary and declinatory exceptions, which are summarized below.

Appellant then informed the Court that he had a medical treatment scheduled for the same day at 12:00 and that he wanted to

postpone the presentation of his arguments to a later date. [ 5 ] The Court granted Appellant’s request for postponement and the parties agreed that Appellant would make his representations regarding the preliminary and declinatory exceptions on August 31, 2011. –

Summary of the decision [ 6 ] The decision, rendered in accordance with

section 135 of the Access Act , summarized the request sent by Applicant S...

J... to the TAQ with respect to the recording of a hearing held before the TAQ on May 27, 2008. [ 7 ] The decision reviewed the correspondence exchanged between Mr J... and the TAQ following said request and the proof offered by the TAQ (an affidavit from an employee, Mrs Sylvie Michaud), regarding documents/information provided to Mr J... further to his request. [ 8 ] The decision also referred to Mr J...’s contention that the recording of the May 27, 2008 hearing was incomplete and/or was censored or falsified. [ 9 ] The analysis referred to the appreciation of the proof offered before the CAI , namely: - Mr J... received a copy of the CD recording of the May 27, 2008 hearing; - the CD contained the recording of the entire hearing, as there was no other recording of the hearing; - Mr J... made a request to obtain the video recording of the surveillance cameras for May 27, 2008 at the TAQ ; - TAQ no longer holds the video recording of May 27, 2008. [ 10 ] In view of said analysis and considering the application of sections 1 and 83 of the Access Act , Mr J...’s application for review was dismissed. – Application for appeal [ 11 ] In his application, Appellant referred to a long chronology of events which ultimately led to a hearing before the TAQ on May 27, 2008.

Following said hearing, Appellant filed a request before the CAI to obtain the recording of the hearing and the “back-up tape”. [ 12 ] Appellant’s goals in the present appeal are stated in his conclusions, which are reproduced in paragraph [2] hereinabove. – The preliminary and declinatory exceptions [ 13 ] It is Respondent’s contention that

section 147 of the Access Act indicates the parameters of the Court’s jurisdiction. According to Respondent, the application for appeal does not raise any question of law or jurisdiction and therefore, the Court should not adjudicate on the merit of the appeal. Respondent referred to the case Hydro-Québec [1] to support its argument. [ 14 ] In addition, Respondent pleaded that the appeal is academic and/or theoretical considering that the decision of the CAI relates to the appreciation of proof from a question of fact.

According to Respondent, it is not up to this Court to appreciate the proof offered before the CAI and to draw its own conclusions. In this respect, respondent cited the case Beaconsfield [2] . [ 15 ] Furthermore, Respondent argued that the conclusions set out in the application for appeal are "foreign to the appeal process" described in

section 147 of the Access Act as they refer to the condemnation of the TAQ and seek orders against the CAI and the TAQ. It is Respondent’s contention that this Court cannot allow the conclusions enumerated in Appellant’s application and that the appeal should be dismissed. [ 16 ] Finally, Respondent argued that the appeal is abusive as per

section 54.1 C.C.P. [ 17 ] At the hearing held on August 31, 2011, Appellant contested the preliminary and declinatory exceptions on the following grounds. [ 18 ] According to Appellant, he has a right to appeal in consideration of several sections of the Access Act , Civil code of Quebec and Code of Civil Procedure , together with the Code of Ethics of Advocates and Code of Professions . Appellant also cited the MacDonald case [3] . From Appellant’s standpoint, his appeal regards a question of law and the conclusions contained in his application are within the Cour du Québec’s jurisdiction.

Appellant explained that he joined two other cases to the present appeal in order for the Court to decide all matters, once and for all. Respondent explained that his appeal is not meaningless as he has the right to appeal the CAI’s decision. He ended his contestation in stating that his appeal incurred him important costs such as transportation, translation, etc.

ANALYSIS [ 19 ] Although several arguments were put forward by the TAQ in the notice of disclosure of preliminary and declinatory exceptions, the Court finds that it is most appropriate to first decide if the question raised by Appellant is a question of law or jurisdiction as per

section 147 of the Access Act . [ 20 ] In that respect, the Court must rely on the wording of sections 146 and 147 which read as follows: 146. Every decision of the Commission on a question of fact within its competence is final.

A person directly interested may bring an appeal from the final decision of the Commission before a judge of the Court of Québec on a question of law or jurisdiction, including an order of the Commission issued following an investigation, or, with leave of a judge of that Court, from an interlocutory decision that will not be remedied by the final decision. [ 21 ] In the case Ville de Montréal [4] , the Court of Appeal reiterated that sections 146 and 147 of the Access Act draw the parameters of the Cour du Québec’s jurisdiction: [34] […] Le droit d'appel à la Cour du Québec est donc limité aux questions de droit et de compétence, toute décision découlant des faits relevant de la compétence exclusive de la C.A.I., et étant finale et sans appel. [ 22 ] It is the Court’s opinion that there is no question of law or jurisdiction raised by Appellant regarding the decision rendered by the CAI on February 1, 2010 .

Said decision is a review and appreciation of the proof offered with respect to Appellant’s request and the information provided by the TAQ following said request. The CAI decided a question of fact within its competence and said decision is final as per

section 146 of the Access Act cited above. [ 23 ] Considering the above, this Court has no jurisdiction to hear the merit of the appeal and said appeal must be dismissed. [ 24 ] Given the specifics of the present case, the appeal is dismissed without costs. FOR THESE REASONS, THE COURT: DISMISSES Mr S... J...’s appeal; THE WHOLE , without costs. __________________________________ JULIE VEILLEUX, J.C.Q. S... J... (Personally) Assisted by Court interpreter Mr Anader Benyamin-Seeyar Me Nicholas Frenette-Béland Baril et Avocats Attorneys for Respondent Bernier and Associates Attorneys for Mise en cause (Absent) Dates of hearing: June 21, 2011 and August 31, 2011