Décision

[1]           The Régie de l’assurance maladie du Québec (the Board) has filed a motion to annul a stay issued by the Superior Court, District of Montreal, (the Honourable Madam Justice Chantal Corriveau), on May 1, 2014. The stay suspended the force and effect of subpoenas duces tecum addressed to respondents Dominic Pilla, Jeff Leger and Martin Fournier, corporate executives in the employ, respectively, of Shoppers Drug Mart Inc., Sanis Health Inc., and Sandoz Canada Inc.[1] The subpoenas ordered the named respondents to attend at the Board’s Montreal office and produce certain documents requested pursuant to an investigation undertaken by the Board. The investigation, which is on-going, bears on possible benefits granted to pharmacists operating under the Pharmaprix inc. banner, or to wholesalers doing business with those pharmacists, by accredited drug manufacturers and drug wholesalers.

[2]           The respondent companies, along with their named representatives, have applied for judicial review before the Superior Court in which they seek an order to quash the subpoenas addressed to them by the Board. In advance of the hearing on the merits of their application for judicial review, they asked the Superior Court to issue various orders, including a stay pursuant to article 834.1 C.C.P.

[3]           As noted, the judge granted the stay. The relevant conclusions of the judgment of the Superior Court read as follows:

[68] ORDONNE aux parties de produire sous pli confidentiel toute documentation déjà transmise dans le cadre de l'enquête de la Régie de l'assurance maladie du Québec qui n'est pas déjà dans le domaine public et qu'elles choisissent de produire au dossier de la Cour, et ce, jusqu'à toute nouvelle ordonnance;

[69] RÉSERVE aux requérants la possibilité de communiquer au Tribunal uniquement, en tout ou en partie, la documentation contestée aux fins de permettre d'en décider des modalités de communication, le cas échéant, à la Régie et ses représentants;

[70] PRONONCE le sursis du subpoena adressé à M. Martin Fournier lui ordonnant de communiquer en date du 10 avril 2014 les documents contestés jusqu'à toute nouvelle ordonnance du Tribunal;

[71] PRONONCE le sursis des subpoenas adressés à M. Jeff Leger et M. Domenic Pilla ordonnant de communiquer les documents contestés en date du 28 avril 2014 jusqu'à toute nouvelle ordonnance du Tribunal;

[72] LE TOUT, frais à suivre.

[4]           The Board asks me, as judge in chambers, to annul the stay ordered in paragraphs [70] and [71]. At the hearing, the Board amended its motion and asked that paragraph [69] also be annulled, as a precautionary measure, even if it only bears on a reserve.

[5]            My authority to annul the stay rests on s. 19 of the Act respecting the Régie de l’assurance maladie du Québec (the Act).[2] Section 19 is a statutory provision, sometimes called a “clause de renfort” in French, that reinforces the privative clause set in s. 18 of the Act. The privative clause and the reinforcement clause provide as follows:

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I           Context

1.1       The Parties

[6]           The following are the applicants in the principal motion to institute proceedings for judicial review and respondents before me on appeal:

- Pharmaprix inc. is the franchisor of the pharmacists operating under the Pharmaprix banner who are subject to the investigation;

- Shoppers Drug Mart Inc. is a legal person having its head office in Ontario. It is a “drug wholesaler” accredited by the Quebec Minister of Health and Social Services pursuant to s. 2 of the Regulation respecting the conditions governing the accreditation of manufacturers and wholesalers of medications.[3] Drug wholesalers are also the object of the investigation. Dominic Pilla is an executive with Shoppers Drug Mart.

- Sanis Health Inc. and Sandoz Canada Inc. are legal persons, respectively having head offices in Ontario and Quebec, who are “drug manufacturers” accredited by the Quebec Minister of Health and Social Services pursuant to s. 1 of the same Regulation. Drug manufacturers are also the object of the investigation. Jeff Leger is an executive with Sanis. Martin Fournier is an executive with Sandoz.

- Teva Canada Ltd. is also a legal person having its head office in Quebec who is a “drug manufacturer” under the Regulation. It obtained intervener status in first instance.

[7]           The Board and two of its employees are petitioners before me and respondents in the principal application for review:

- The Board is a legal person, and a mandatary of the crown in right of the province, that is established under the name of Régie de l’assurance maladie du Québec. Section 2 of the Act sets forth the “functions of the Board”, relating principally to the administration and implementation of the provincial health insurance plan established under the Health Insurance Act.[4] The Board has responsibilities, in accordance with the provisions of the Health Insurance Act and subject to the Act respecting prescription drug insurance,[5] in respect of medications furnished by pharmacists on the prescription of a physician and others, including the costs of those medications.

- Julie Tessier and Manon Roy are investigators designated by the Board.

I.2        The Investigation

[8]           In 2013, the Board undertook the investigation that has given rise to the dispute between the parties. The parameters of the investigation were set out as follows by decision of the Board’s president and chief executive officer.

Décision de procéder à une enquête

En vertu des pouvoirs conférés par les articles 2, 20 et 21 de la Loi sur la Régie de l'assurance maladie du Québec, R.L.R.Q., c. R-5, le soussigné, à titre de président-directeur général de la RAMQ, prend la décision de procéder à une enquête concernant :

Tout avantage, sous quelque forme que ce soit, octroyé directement ou indirectement aux pharmaciens opérant sous la bannière Pharmaprix, par tout grossiste ou tout fabricant de médicaments.

Tout avantage, sous quelque forme que ce soit, octroyé directement ou indirectement à tout grossiste faisant affaire avec les pharmaciens opérant sous la bannière Pharmaprix, par tout fabricant de médicaments.

À cette fin, assigner toute personne susceptible de lui fournir des renseignements ou documents sur l'objet de la présente requête.

Le président-directeur général

[9]           It bears noting, as the judge observed at paragraph [47] of her reasons, that all parties recognize the jurisdiction of the Board to conduct the investigation in question. The statutory authority upon which the Board relied rests on ss. 2 (the general statement of the functions of the Board), 20 (general powers of investigation), and 21 (sanctions for obstructing an investigation) of the Act. Section 20 provides:

[10]        The Board has a stake in the outcome of the investigation: section 22 of the Act respecting prescription drug insurance[6] allows the Board to deduct unauthorized benefits granted to pharmacists from amounts claimed for drugs under the public health insurance plan. The Regulation respecting benefits authorized for pharmacists,[7] made pursuant to the Board's home statute defines and limits the amounts of discounts, rebates, premiums, gratuities and goods or services that a pharmacist is allowed to receive as a benefit in this connection.

[11]        As part of the regulatory process by which drug wholesalers, such as respondent Shoppers Drug Mart inc., and drug manufacturers, such as Sandoz, Sanis and Teva, are accredited by the Minister of Health and Social Services, they must make a “commitment / engagement” under the Regulation respecting the conditions governing the accreditation of manufacturers and wholesalers of medications.[8] These commitments include undertakings in respect of pricing and a pledge not to offer certain reductions on the price of drugs. The Regulation also requires manufacturers to disclose information to the Board in respect of rebates, discounts and premiums and other benefits granted to owner pharmacists and provides that both manufacturers and wholesalers must disclose additional information that the Board may require on request.

[12]        Counsel for the Board says that the commitments made by accredited drug manufacturers and wholesalers are a part of the subject-matter of the Board’s investigation announced on October 28, 2013. The Board contends that these commitments are included in the reference to “commitments / engagements” of drug manufacturers and wholesalers in s. 20 of the Act, quoted above, which defines the investigative powers of the Board.

[13]        A final point should be added in respect of the scope of the investigation of the Board. Under paragraph 3 of s. 20 of the Act, the Board enjoys most of the powers and immunities of commissioners appointed under the Act respecting public inquiry commissions.[9] Sections 6 and 9 of that statute set forth the manner in which commissioners conduct their investigations, including the power to order any person to bring before them documents as appear necessary:

[14]        It was in connection with these powers that the subpoenas duces tecum were served upon the respondents’ representatives by the investigators of the Board.

[15]        The respondents argue that the Board has no jurisdiction to compel production of agreements and financial information that relate to activities outside of Quebec. They say that these documents are not related to benefits received in Quebec or claims for payment made under the health insurance plan administered by the Board. This same argument was invoked as the basis for the stay while awaiting the decision to quash the subpoenas on the merits. The motions for judicial review, supported by the appropriate affidavits, make the jurisdictional argument plainest in respect of the agreements:

47.       RAMQ [i.e. the Board] has jurisdiction to inquire only into matters within its competence under its constituting legislation and into matters concerning the related Québec legislation and regulations it administers;

48.       RAMQ does not have the authority to compel production of documents to the extent that they relate to activities wholly outside Québec.

49.       The Act respecting prescription drug insurance (the "ARPDI") does not apply to an Agreement that relates to activities carried out in another province;

50.       Moreover, transactions occurring outside Québec do not need to be produced, given that they are not related in any way to benefits received in Québec or claims for payments under the RAMQ regime;

51.       To date, Plaintiffs have not received any satisfactory explanation as to why these documents are necessary;

II           The Judgment of the Superior Court

[16]        After explaining the context of the dispute, the judge noted that the respondents seek to have the subpoenas declared illegal because the Board has no jurisdiction to investigate commercial activities outside of Quebec and they contend that the seriousness of this argument justifies a stay pending a decision on the merits.

[17]        The respondents also sought an order that the investigation be kept secret and that it be conducted in camera. The judge dismissed both of these conclusions. She nevertheless agreed to make orders to protect the confidentiality of certain documents.

[18]        To decide on the stay, the judge relied on the criteria identified by the Supreme Court of Canada in Manitoba (A.G.) v. Metropolitan Stores.[10] The respondents soliciting the stay had to demonstrate the existence of a serious question in dispute, that irreparable harm would be suffered by them in the absence of a stay, and that the balance of inconvenience favours them and the order of a stay.

[19]        Firstly, the judge concluded that the question concerning the lack of jurisdiction of the Board to compel the production of documents concerning activities occurring outside of Quebec was prima facie serious. On this point, she wrote:

[52] Pour le Tribunal, la question paraît sérieuse. Il est possible qu'aux termes de l'analyse, le Tribunal conclut que les documents contestés ne doivent pas être remis à la Régie dans le cadre de son enquête. Il s'agit d'une question qui n'a pas encore été tranchée par les tribunaux.

[53] C'est sans doute avec beaucoup d'habileté que les requérants soulèvent l'absence de juridiction de la Régie pour leur opposer la communication des documents contractuels et des états financiers qui selon eux concernent les activités hors Québec. Cette formulation permet aux requérants de mettre en échec prima facie la question de la clause privative qui vise les pouvoirs d'enquête de la Régie¹³.

¹³    Précitée, note 2 [Loi sur la Régie de l’assurance maladie du Québec, RLRQ, c R-5], article 18.

[54] Le Tribunal en conclut que la question est suffisamment sérieuse pour répondre au premier critère en matière d'ordonnance de sursis.

[20]        Secondly, the judge held that in the absence of a stay, the respondents would suffer irreparable harm:

[55] Les requérants soutiennent que le préjudice sera irréparable à moins qu'un sursis ne soit prononcé en l'instance.

[56] Ainsi, vu que les subpoenas ordonnent immédiatement la communication des documents contestés, il va sans dire qu'en l'absence d'un sursis, ils devront être communiqués sous peine d'outrage au tribunal.

[57] Pour les requérants, la partie sera alors perdue.

[21]        Finally, she decided that the balance of inconvenience favoured the respondents. After noting the interest that they had in protecting information that is outside the proper bounds of the investigation, the judge explained her view that the harm the stay presented to the Board was not substantial:

[63] À première vue, tel que le soulignent les requérants à l'audience, la Régie peut continuer son analyse des quelque 500 000 pages de documents déjà transmis dans l'attente de la résolution des questions soumises dans le cadre des requêtes en révision judiciaire.

[64] Pour la Régie, son seul préjudice, advenant qu'elle ait raison sur le fond, est de retarder son examen de la documentation contestée.

[65] Le Tribunal est d'avis qu’aux fins de la détermination d'un sursis, les critères sont satisfaits.

[22]        In sum, the respondents satisfied their burden and the judge issued the stay.

IV         Analysis

IV.1     The scope of the privative clause and the reinforcement clause

[23]        Several preliminary remarks are in order concerning the privative clause and the reinforcement clause in ss. 18 and 19 of the Act.

[24]        Firstly, s. 18 is a plainly-worded privative clause that enumerates the extraordinary recourses that cannot be granted against the Board, including a stay in article 834.1 C.C.P.[11] Notwithstanding this clear expression of legislative intent that protects, inter alia, the investigative authority of the Board, the Superior Court’s power to intervene on review is not completely excluded. However, as Bastarache and LeBel JJ. observed in Dunsmuir,[12] the existence of a privative clause gives rise to a strong indication that the proper standard for judicial review is one of reasonableness: the clause is evidence of the “legislature’s intent that the administrative decision-maker be given greater deference and that interference by reviewing courts be minimized”. In addition, deference will usually result where the administrative decision-maker is interpreting its home statute, as in the present case (see para. [54] of Dunsmuir).

[25]        It is nevertheless the case that administrative bodies like the Board must be correct in their determination of what the Supreme Court styled as true questions of jurisdiction or vires. Again in Dunsmuir, it is explained that “‘[j]urisdiction’ is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry”. Bastarache and LeBel JJ. called for caution by the reviewing judge here: true questions of jurisdiction are few and far between and he or she “must not brand as jurisdictional issues that are doubtfully so” (para. [59]).

[26]        The privative clause in the Act is “reinforced” by s. 19.[13] The statutory reinforcement clause provides a judge of this Court, sitting alone, authority to annul an improper use of the review power of the Superior Court. The privative and reinforcement clauses should always be read together, both by the judge of the Superior Court seized with the application for judicial review and by the appellate judge considering a motion to annul. For the Superior Court, the presence of a reinforcement clause serves as a reminder of legislative intent to create a strong protection for the administrative decision-maker.

[27]        It is often said that the power of a judge in chambers under a reinforcement clause should be used with caution, and for good reason. Not only are such clauses unusual, but the case is heard summarily on appeal, as against what are generally more robust proceedings in Superior Court. Moreover, the motion to annul can be pursued as an alternative to a full-fledged appeal of a judgment on judicial review, where, if leave is granted, the parties have the benefit of an ordinary hearing on appeal before the Court. A judge exercises the power to annul alone, in the absence of an underlying appeal, and as a result he or she should do so prudently.[14]

[28]        I recognize that I must, therefore, proceed with caution and that I should only annul the stay if this is a plain case in which the power of judicial review has been deployed contrary to legislative intent expressed in the privative clause.

[29]        Two points may be added in respect of the application of the reinforcement clause in this case.

[30]        First, the setting here is an interlocutory one. As my colleague Rochon J.A. noted in Fédération des producteurs de bovins du Québec v. Ferme John Houley & fils ltée,[15] this is a different context from one in which a judge in chambers is called upon to annul a writ, order or injunction issued or granted by the Superior Court on the merits.[16] Moreover, there is no appeal of right of the interlocutory judgment ordering the stay.[17] These considerations should be borne in mind when weighing the degree of caution that is urged by the respondents here, insofar as some of their arguments turn on reinforcement clauses deployed in different contexts.[18]

[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.[19] 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.

IV.2     Requirements for a stay

[32]        The Board argues that the judge was mistaken in her analysis of all three criteria that must be made out by the party asking for a stay. It is of the view that she erred in not applying the proper standard of review and that she misconstrued the question of the relevance of the contested documents as raising a serious question of jurisdiction. The Board says the judge was wrong to characterize the risk of contempt as irreparable harm and equally wrong not to consider the public interest that militates in favour of the production of the contested documents in connection with the balance of inconvenience.

[33]        The respondents see no reviewable error in the court below. They urge me to exercise the restraint counselled by judges deciding motions under reinforcement clauses. On that basis, they ask me to dismiss the motion to annul the stay even if the judge might have been more fulsome in the reasons given for its issuance.

[34]        I am most respectfully of the view that the stay should be annulled.

IV.2.1  Serious Question

[35]        To secure the stay, respondents had to show, prima facie, a serious question to be tried on the merits of the application for judicial review notwithstanding the reinforced privative clause. The burden is sometimes said not to be a heavy one, although as noted above, the privative clause - which includes article 834.1 C.C.P. in its direction that extraordinary recourses cannot be exercised against the Board - and the reinforcement clause significantly limit the legal basis upon which judicial review may be granted.

[36]        The Board argues that the judge erred in holding that the respondents had raised a serious question that it has no jurisdiction to issue the subpoenas. It contends that the judge failed to take into account the Board’s powers in connection with the investigation and, importantly, that she did not analyze the Board’s decision according to the reasonableness test set forth by the Supreme Court in Dunsmuir v. New Brunswick.[20]

[37]        The respondents answer that the judge was correct in deciding that there was a prima facie serious question as to whether the Board had jurisdiction to issue subpoenas dealing with business transactions outside Quebec.

[38]        Is the jurisdictional question prima facie serious?

[39]        In light of the privative clause, only a “true question of jurisdiction or vires” presents a possible basis for the order to quash the subpoenas sought on the merits in this case. 

[40]        In deciding to subpoena representatives of drug manufacturers and wholesalers recognized by the Minister, the Board necessarily undertook an interpretation of the Act - its home statute - and, in particular, of s. 20 thereof. It also decided it could subpoena the agreements and financial statements on the strength of ss. 6 and 9 of the Act respecting public inquiry commissions, referred to in the Act.

[41]        Respectfully stated, in paragraph [53] of the reasons of the Superior Court quoted above, the judge did not explain how she arrived at the conclusion that the respondents had established that a serious question as to an “absence de jurisdiction” of the Board. She alluded to the respondents’ argument that the subpoenas called for contractual documents and financial statements concerning the activities outside Quebec but did not explain how this raises a true question of jurisdiction.

[42]        The judge made no reference to the applicable standard for judicial review for this kind of decision made by an administrative agency. She did not explain why the reasonableness standard in Dunsmuir did not apply where the Board undertook to interpret its home statute nor did she explain exactly how the fact that the contested documents contained information relating to business conducted outside Quebec deprived the Board of jurisdiction. In fairness to the judge, the motions presented before her by the respondents fail to explain how, on the applicable standard for review, a true question of jurisdiction was raised when the Board decided to proceed as it did.

[43]        As Moldaver J. wrote in a recent case, “[i]n Dunsmuir v. New Brunswick, and in cases that have followed, this Court has repeatedly underscored that ‘[d]eference will usually result where a tribunal is interpreting its home statute or statutes closely connected to its function, with which it will have particular familiarity’ (para. 54).”[21] This deference was not shown in the analysis of the Superior Court.

[44]        In Alberta (Information and Privacy Commission) v. Alberta Teachers’ Association,[22] Rothstein J. recalled that exceptions to the reasonableness standard include true questions of jurisdiction or vires. He added a strong warning, however, against inappropriately branding a matter as jurisdictional that is plainly not so according to the Dunsmuir norm. Experience, he wrote, has shown that the category of true questions of jurisdiction is narrow indeed. Rothstein J. explained that where the administrative tribunal interpreted its home statute, the standard of review is presumed to be the reasonableness standard within the meaning of Dunsmuir:

[39]      What I propose is, I believe, a natural extension of the approach to simplification set out in Dunsmuir and follows directly from Alliance (para. 26). True questions of jurisdiction are narrow and will be exceptional. When considering a decision of an administrative tribunal interpreting or applying its home statute, it should be presumed that the appropriate standard of review is reasonableness. As long as the true question of jurisdiction category remains, the party seeking to invoke it must be required to demonstrate why the court should not review a tribunal’s interpretation of its home statute on the deferential standard of reasonableness.

[45]        In the recent case of Canadian National Railway Co. v. Canada (Attorney General),[23] the Supreme Court observed that the Dunsmuir principles are not limited to judicial review of tribunal decisions but the analysis applies, as well, to administrative bodies exercising statutory powers, such as the Board in our case. The Court reiterated, at paragraph [55], the presumption of deferential review where such a body is interpreting its home statute or statutes with which it has particular familiarity.

[46]        To my mind, nothing before the judge would have allowed her to consider that, even prima facie, the respondents had raised a basis for an exception to deference here. The Board interpreted its home statute and concluded that the documents demanded fell within the scope of the investigation mandated under ss. 2, 20 and 21 of the Act. Nothing in the respondents’ motion suggests that the decision of the Board was not a reasonable one, much less one that raised a true question of jurisdiction. On the contrary, as the judge herself observed, the investigation targeted benefits made to pharmacists under the Pharmaprix banner - a Quebec franchisor - and the subpoenas were addressed to representatives of drug manufacturers and wholesalers accredited in Quebec by the Minister of Health. Section 20 of the Act specifically authorized the Board to inquire into the commitments made by drug manufacturers and wholesalers. Finally, s. 9 of the Act respecting public inquiry commissions specifically authorizes the Board representatives to compel production of documents “as appear necessary for arriving at the truth / qu’ils jugement nécessaires pour découvrir la vérité.”

[47]        By arguing that the call for production of documents containing information on activities outside of Quebec is enough to impugn the jurisdiction of the Board in the conduct of its administrative investigation, the respondents appear to have conflated a concern for relevancy (la pertinence) with a question of jurisdiction (la compétence). The objections raised by the respondents are grounded in a disagreement as to the relevancy of documents to the investigation conducted by the Board, but they have showed nothing that would suggest that this disagreement raises a true question of jurisdiction or vires. The Board enjoys substantial administrative expertise in the area of benefits paid to pharmacists. The investigation bears directly on that as it regards Quebec players in the market. The Board is interpreting its home statute in deciding who and what should be subject to a subpoena in this investigation. The information obtained through the subpoenas may prove to be irrelevant once examined, but nothing suggests that the Board cannot ask to examine them.

[48]        In my respectful view, the respondents’ motions for judicial review do not raise a serious question as to absence of jurisdiction. At least on the basis of the materials before the Superior Court, deference was owed to the Board’s decision, even if the contested documents contained information on business conducted outside of Quebec.

[49]        Mindful of the prudence with which a judge in chambers should decide these matters, I will examine the other criteria under Metropolitan Stores.

IV.2.2  Irreparable Harm

[50]        The respondents had the burden of establishing before the judge that they would suffer irreparable harm if the stay were not issued.

[51]        The judge states that in the absence of a stay, the respondents would be required to produce the documents under pain of contempt of court, and that this constituted the irreparable harm required by the test in Metropolitan Stores.

[52]        Yet surely the anticipated harm associated with a charge of contempt for non-compliance with a subpoena to produce documents is, theoretically at least, a threat in all cases in which a party seeks to stay an order of this kind. There appears to be to be a measure of circularity in the position defended by the respondents: if the threat of contempt for non-compliance constitutes irreparable harm in all cases, a stay might never be denied. In my view, this is not an answer to the question Beetz J. stated in Metropolitan Stores under the irreparable harm branch of the test.

[53]        It would seem to me that the proper question here is the following: in the absence of a stay, what harm would the respondents suffer by reason of the forced production of the documents and would that harm be irreparable? Respectfully stated, the judge did not answer this question. Beyond the reference to contempt, she made no mention of harm that would be suffered by the respondents if the documents were disclosed.

[54]        In their motions presented before the judge, the respondents did allude to harm they foresaw if they were obliged to disclose “highly confidential information”. Specifically, they contended that the contested information could give the Board “a competitive advantage in their future price list negotiations” with the respondents, noting that the respondents have a “potentially adversarial relationship with the [Board] which has a financial interest in any claim it may bring as a result of the investigation.”

[55]        In my view this does not represent irreparable harm. The respondents already accept to make disclosures to their “adversary” by choosing to do business in a highly regulated setting, and their expectation of privacy vis-à-vis the Board is accordingly diminished. It should be noted, in particular, that they have subscribed to commitments under the regulations to make information available to the Board connected to benefits granted to pharmacists.[24] I find unconvincing, given the commitments to disclose such documents in Schedule I and II of the Regulation respecting the conditions governing the accreditation of manufacturers and wholesalers of medications,[25] that irreparable harm would be suffered in respect of the disclosure of the comparable documents they are called on to produce by subpoena merely because they contain information regarding business transacted outside Quebec.

[56]        As regards third parties, the judge issued orders concerning confidentiality. Assuming the investigation is not wrongly frustrated, other such orders might be made but that matter is not mine to decide.

[57]        One is hard pressed to see any meaningful harm faced by the respondents in the materials advanced by the respondents that suggests the stay should be refused. I respectfully disagree with the judge’s view that they have met the burden of showing irreparable harm that would justify the stay.

IV.2.3  The balance of inconvenience

[58]        At this stage, the Superior Court was required to determine which of the parties will suffer a greater inconvenience as a result of the granting or the refusal of the stay.

[59]        The judge considered the measure of inconvenience the stay would produce for the Board. She noted that, at present, the Board had some 500,000 pages of documents to review while awaiting a decision on the applications for judicial review on the merits. She concluded that the Board’s only prejudice, assuming it would win out at the end of the day, would be to delay its examination of the contested documents.

[60]        With respect, the judge neglected to consider the fact that the Board is charged with the protection of the public interest in respect of the proper pricing of drugs covered by the provincial health insurance plan.

[61]        In order to fulfil its mandate, the Board has the power to conduct investigations to ensure that - in the instant case - pharmacists, drug manufacturers and drug wholesalers are not engaged in unfair pricing or improper business practices prohibited by the applicable regulations. 

[62]        I find most helpful the analysis recently undertaken in comparable circumstances by the Superior Court in Girard v. Régie de l’assurance maladie du Québec.[26] In the course of his decision to refuse a stay, Guibault J. specifically identified at paragraph [16] of his reasons the public interest associated with an on-going investigation by the Board of certain pharmacists to ensure that they respect the Act and the regulations. He found this public interest compelling in his consideration of the test in Metropolitan Stores:

[18]   Quant au préjudice irréparable et à la balance des inconvénients, le Tribunal détermine qu’aucun préjudice à proprement parler ne sera causé aux requérants, autre que celui de se rendre disponible aux interrogatoires et aux recherches qu’ils devront effectuer pour répondre de façon adéquate aux demandes de production de documents. Ce préjudice n’est en rien comparable au préjudice que subirait la Régie si une ordonnance de sursis devait être prononcée. Toute son enquête risquerait d’être compromise!

[19]   Quant à l’urgence, les requérants n’ont pu démontrer qu’il y avait grande urgence pour le Tribunal d’intervenir pour mettre fin à une enquête qui a débuté en 2009, et s’il y a urgence, cette urgence milite à n’en pas douter en faveur de la Régie pour qu’elle termine le plus rapidement possible l’enquête entreprise et pour qu’elle détermine si la législation et la réglementation applicables ont été effectivement respectées par les pharmaciens.

[63]        With respect, the failure to identify the Board’s interest in having the whole investigation continue with due dispatch meant the balance of inconvenience test was misapplied. If a stay were ordered, the public interest in fair pricing of drugs could be comprised by reason of the delay in the investigation. In my view, the public interest in the on-going pursuit of the investigation, including the contested documents, outweighs whatever modest inconvenience caused to the respondents in the short term by the production of the contested documents.

[64]        In summary, I am of the view that the stay should be annulled pursuant to s. 19 of the Act. The question raised by the respondents has not been shown to be serious, even on a prima facie basis, in order to justify a stay. They have failed to demonstrate that producing the documents would cause them irreparable harm. The balance of inconvenience favours the Board and the consequential annulment of the stay.

[65]        I do not, however, find it necessary to annul the reserve in paragraph [69] of the judgment - assuming without deciding that I have the power to do so - which reserve should not meaningfully compromise the exercise of the Board’s power here. I hasten to say that this request did not form part of the Board’s original motion, and counsel for the Board only asked for an amendment in response to questions from the bench.

[66]        FOR THE AFOREMENTIONED REASONS, the undersigned:

[67]        GRANTS the motion in part;

[68]        ANNULS the stay ordered in paragraph [70] of the judgment of the Superior Court in respect of subpoenas addressed to respondents Jeff Leger and Dominic Pilla;

[69]        ANNULS the stay ordered in paragraph [71] of the judgment of the Superior Court in respect of subpoenas addressed to respondent Martin Fournier;

[70]        The whole, with costs.