The powers of a Court of Appeal judge sitting alone

By Rizwan A. K. Gondal

In the case of Pharmaprix inc. c. Régie de l'assurance maladie du Québec (Sandoz Canada inc. c. Régie de l'assurance maladie du Québec), 2014 QCCA 1288, the Hon. Justice Morissette of the Court of Appeal was presented with a motion whereby he was asked to revise and reconsider a judgment rendered by another justice of that Court. The judgment subject to review (Régie de l'assurance maladie du Québec v. Pharmaprix inc., 2014 QCCA 1184 ) was that of Justice Kasirer, J.C.A. who, sitting alone, had annulled the stay granted earlier by a Superior Court Justice (Pharmaprix inc. c. Régie de l'assurance maladie du Québec, 2014 QCCS 2143) of the execution of subpoenas duces tecum issued against the executives of Shoppers Drug Mart, Inc., Sanis Health Inc., and Sandoz Canada Inc. (the “Petitioners” in the case at bar). Justice Morissette had to therefore decide if he had the jurisdiction to grant what was being asked of him by the Petitioners.

Context

The subpoenas in question required the attendance of the Petitioners and production of certain documents in their possession for the purpose of an investigation being conducted by the Régie de l’assurance maladie du Québec (the “Régie”). The stay itself was an interlocutory order and it was granted because the Petitioners had brought a motion for judicial review at the Superior Court to quash said subpoenas. When analyzing the criteria that must be met by a party asking for a stay, the Superior Court Justice held that, inter alia, the balance of inconvenience favoured the Petitioners and that, in the absence of a stay, they may suffer an irreparable harm because the documents they were asked to produce contained disputed information.

Following this, the Régie brought a motion to annul that stay in front of Justice Kasirer of the Court of Appeal.  The Régie relied upon the authority specified in s. 19 of the Act Respecting the Régie de l’assurance maladie du Québec, CQLR, c R-5 (the “Act”) which allows a Court of Appeal judge, upon motion, to annul, inter alia, an order rendered in violation of s. 18 of said Act which prohibits the granting of an extraordinary recourse, like a stay (s. 834.1 C.P.C.) in the present case, against the Régie or its members acting in their official capacity. Such an authority is commonly referred to as a ‘clause de renfort’ because it reinforces the privative clause in s. 18 of said Act that confers greater deference to the administrative decision-maker, such as the Régie in this case, and limits the power of the Superior Court to intervene via a motion for judicial review.  

In his judgment, Justice Kasirer noted that he was being asked to rule upon an interlocutory order which differed from an order issued by the Superior Court on the merits and that “there is no appeal of right of the interlocutory judgment ordering the stay” (para. 30). Justice Kasirer further noted that:

“[31] In addition, the judge in chambers deciding whether to annul a stay should not confuse “prudence” with “deference”. Beyond the ordinary matters in respect of which deference is owed on appeal, a judge need not “defer”, in the administrative law sense, to the decision in the Superior Court. To defer unduly to the judgment below could result in inappropriately vacating the power conferred by the reinforcement clause and doing a disservice to an unequivocal directive by the legislature to “strengthen” the privative clause. Deference may be owed by the Superior Court to the decision of the Board when the standard of reasonableness obtains, but this same standard does not apply to the judge in chambers in regard to the decision of the Superior Court.”

In deciding to annul the stay of execution of the subpoenas, Justice Kasirer agreed with the Régie and found that the Petitioners’ failed to meet the burden of showing irreparable harm that would justify the stay (para. 57).  He also noted that, in terms of the balance of inconvenience, the Superior Court Justice did not properly take into account the fact that the Régie has the duty to protect the public interest with respect to the pricing of drugs that fall under the provincial health insurance plan (para. 60).

In turn, Justice Morissette of the Court of Appeal was faced with the only issue as to whether or not he had the jurisdiction to review and suspend the judgment rendered by Justice Kasirer. In delivering his judgment, Justice Morissette recognized the fact that there is no prior case or “authority directly on point” (para. 6) with respect to the case at hand. He further stated that the jurisdiction of a Judge of the Court of Appeal sitting alone is limited by legislation and that “it cannot be allowed to drift and grow through mere “interpretation”” (para. 7). He noted that article 46 C.C.P. “does not empower a judge alone to issue a safeguard order for the duration of the proceedings in the Court of Appeal” (para. 8), and that the only way an individual judge of the Court of Appeal could possibly order a suspension of the execution of a judgement rendered by an individual judge of the same Court would be if the moving party could establish, in accordance with s. 522.1 C.C.P., the intention to apply for leave to appeal from this judgment to the Supreme Court of Canada:

“[9]           As far as the specific matter of a stay of execution is concerned, the Code of Civil Procedure speaks in plain and unambiguous language:

[…]

522.1 The Court of Appeal or one of its judges may, subject to the conditions the Court or the judge deems appropriate, order suspens­ion of the execution of a judgment of the Court, on a motion of a party who establishes his intention to apply for leave to appeal to the Supreme Court of Canada. (Emphasis added)

Although the issue is not explicitly addressed by the provision, it might be possible to argue that, pursuant to article 522.1, a judge of the Court may suspend the execution of a judgment rendered by another judge sitting alone when a party establishes his intention to apply to the Supreme Court of Canada for leave to appeal from this judgment. This reading of the article does not seem to overextend its reach. After all, if one judge of the Court may suspend the execution of “a judgment of the Court” (a phrase that is usually understood to mean a judgment of a panel of the Court), it would seem consistent with the policy underlying the provision that, under similar circumstances, a single judge of the Court will have authority to stay the execution of a judgment rendered by a judge alone. But I do not see how the provision could be stretched further so as to enable me to stay Justice Kasirer’s judgment under the circumstances of this case. No attempt was made here to establish that the Petitioners intend to apply for leave to appeal to the Supreme Court of Canada. Needless to say, whether the Supreme Court of Canada would grant leave is altogether another matter.

[10]        In my view, on that ground alone, the Petitioners’ motions for a stay must      fail.”

In dismissing the motion for the review and suspension of the execution of Justice Kasirer’s judgment, Justice Morissette declined to take jurisdiction over the subject matter and noted the absence of the establishment of an intention by the Petitioners to apply for leave to appeal to the Supreme Court of Canada.

Commentary

In the absence of any specific statutory provision granting overreaching jurisdiction to a judge of the Court of Appeal sitting alone over another individual judge of the same Court, it appears as though the Petitioners in the case at hand were relying upon the inherent power of the Court to achieve their purpose. With respect to motions seeking the revocation of a judgment rendered by a judge sitting alone, although articles 483 and 509 C.C.P do exist for such a purpose where the judgments of a Court can be challenged, as noted by Justice Morissette, the grounds specified in these articles are extremely “narrow and at no time must the process be confused with an appeal” (para. 21). Such grounds were neither presented nor argued in the case at hand.

Finally, it could be argued that if one judge sitting alone in a Court could easily overturn the judgement of another judge sitting alone in the same court, this could lead to what some may describe as ‘judicial anarchy’.

To read this decision in its entirety, click here.