On May 22, 2025, in its decision Gaspé Énergies,1 the Court of Appeal of Québec outlined the circumstances in which it has the power to review a leave to appeal of a judgment rendered in the course of a proceeding. It also quashed the stay orderof the Act ending exploration for petroleum and underground reservoirs and production of petroleum and brine2 (the "AE").
The Court of Appeal reiterated the criteria applicable to a motion for a stay order of legislation pending judgment, including the fact that it is inappropriate to require the State to demonstrate actual harm in applying the balance of inconvenience criterion. Rather, courts must assume that staying the impugned provisions would cause irreparable harm to the public interest, unless the plaintiff proves otherwise with preponderant evidence.
Overview of the Gaspé Énergies Case
As of June 2011, a number of legislative texts were adopted to strengthen and modernize the regulatory framework for petroleum exploration and development in Québec.3 In particular, in September 2018, the Petroleum Resources Act4 (the "PRA") came into force and established a licensing and authorization regime applicable to the exploration, production and storage of petroleum.
The Québec government went on to adopt the AE in 2022, which aims at putting an end to petroleum exploration and production and preventing brine production in Québec. Among other things, the AE requires holders of revoked licences to close wells and restore affected sites.
As a result, several companies, claiming to hold 101 exploration and production licences and ownership of 53 drilled wells, sought legal recourse. They are, among other things, seeking a declaration that the relevant provisions of the AEare unconstitutional on the grounds that they infringe their right to the peaceful enjoyment and free disposition of their property, guaranteed by section 6 of the Charter of Human Rights and Freedoms5 (the "Québec Charter").
The plaintiff companies also requested a stay of certain provisions of the AEin the course of the proceedings.
Judgment of the Superior Court and Leave to Appeal
On January 25, 2024, the Superior Court granted the motions for a stay order on the grounds that the three applicable criteria6 were met.
With regard to the first criterion, the Superior Court concluded that the plaintiff companies had demonstrated the existence of a serious question to be tried.7 Regarding the second criterion, the Superior Court found that theywould suffer serious or irreparable harm without a stay, since the provisions of the AE require well closures site restorations, as well as the disclosure of potentially confidential information to the Minister of Economy, Innovation and Energy (the "Minister").8
Finally, with respect to the third and final criterion, the Superior Court found that the balance of inconvenience favoured the plaintiff companies. The judge was of the view that the inconvenience to the government was less than the inconvenience to the plaintiff companies of complying with the AE during the proceedings. In support of this conclusion, the judge noted that "[translation] keeping wells open, when there is no evidence that they pose a risk to the environment or public safety, does not constitute a significant inconvenience."9
The Québec government subsequently obtained leave to appeal this judgment, arguing that the judge had erred in law in assessing the balance of inconvenience.
In response to this leave, the plaintiff companies argued that the Superior Court judgment did not cause irremediable injury to the State, contrary to paragraph 2 of article 31 of the Code of Civil Procedure10(the "CCP"). This article allows leave to appeal to be granted when a judgment rendered in the course of a proceeding causes irremediable injury to a party. On appeal, the plaintiff companies therefore argued that the granting of leave raised a preliminary issue of jurisdiction, as a leave erroneously granted would be ultra vires the jurisdiction of the Court of Appeal.11
In addition to the analysis of the criteria applicable to a motion for a stay order, Gaspé Énergies thus raises the more general issue of the power of the Court of Appeal to review a judgment rendered on an application for leave to appeal governed by paragraph 2 of article 31 of the CCP.
Court of Appeal Judgment
Regarding this last issue, the Court of Appeal departed from the majority opinion in Elitis Pharma inc. c. RX Job inc.12 and held that paragraph 2 of article 31 of the CCP does not raise a preliminary issue of jurisdiction.13 The Court of Appeal therefore concluded that, where a judge considers, perhaps erroneously, that leave should be granted, then the appeal is properly instituted and this assessment cannot be reviewed by a panel of the Court, except in three situations, namely (1) where there is no right of appeal; (2) where the judge has no jurisdiction to grant leave; or (3) where the judge refuses a de bene esse application for leave to appeal when the appeal is as of right.14
On the merits of the appeal, and more specifically with regard to the balance of inconvenience criterion, the Court of Appeal reaffirmed that there is a presumption that the impugned legislation was enacted for the public good and that it pursues a valid public purpose.15 The Court of Appeal therefore stressed that courts should not ask themselves whether the law actually has this effect, nor require evidence of its effect to the public good. Rather, they must presume that this is the case, and assume that the public interest requires the continued application of the law.16 Ruling that the stay, even temporary, of the sections of the AE in question would result in a significant delay of well closures and, hence, a significant inconvenience for the State and the public interest objective it pursues (in this case, addressing or fighting against climate change), the Court of Appeal concluded that the Superior Court judge had not adequately considered the public interest at the balance of inconvenience stage, and had thereby reviewed the wisdom of the law17, contrary to his judicial role.
The Court of Appeal ultimately granted the appeal of the stay order of the impugned provisions of the AE, except for paragraph 1 of section 67 of this Act which relates to the public nature of documents and information held by the Minister.18
Takeaways and Remarks
In addition to giving significant weight to the screening role conferred by law on the single judge ruling on an application for leave to appeal, this decision illustrates the high — but not insurmountable — burden of proof that litigants face when requesting that legislative provisions be stayed during proceedings.
As the government does not have a monopoly on the public interest,19 the party applying for the stay of a law may satisfy this burden by demonstrating that the order sought would itself be for the benefit of the public.20 To do so, however, it is necessary to convince the court that public interest benefits will result from granting the relief sought with evidence, which in this case was not achieved by the plaintiff companies.21
We invite litigants and lawyers involved in constitutional challenges to follow this matter closely. On the merits of the case, the Superior Court will be called upon to determine whether the AE infringes section 6 of the Québec Charter despite the exception provided therein. Section 6 states that "[e]very person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law."
Footnotes
1 Procureur général du Québec c. Gaspé Énergies inc., 2025 QCCA 629 ("Gaspé Énergies").
2 CQLR c. R-1.01.
3 Gaspé Énergies, supra note 1 at para 9.
4 CQLR c. H-4.2. This law is now entitled Act respecting natural gas storage and natural gas and oil pipelines, CQLR c. S-34.1.
5 CQLR c. C-12.
6 The criteria applicable to an application for a stay are (1) a strong prima facie case or the existence of a serious question to be tried, (2) serious or irreparable harm in the absence of a stay and (3) the balance of inconvenience.
7 Gaspé Énergies, supra note 1 at para 27
8 Ibid at para 28.
9 Ibid at paras 29-30.
10 CQLR c. C-25.01.
11 Gaspé Énergies, supra note 1 at para 31.
12 2012 QCCA 1348.
13 Gaspé Énergies, supra note 1 at para 59.
14 Ibid at para 60.
15 Ibid at para 117.
16 Ibid.
17 Ibid at paras 129 and 135.
18 Ibid at para 141.
19 Ibid at para 119; RJR – MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311 ("RJR") at 343; Procureur général du Québec c. Quebec English School Board Association, 2020 QCCA 1171 at para 59.
20 Gaspé Énergies, supra note 3 at para 119. The concept of the public interest includes "both the concerns of society generally and the particular interests of identifiable groups." See: RJR at 344
21 Gaspé Énergies, supra note 1 at para 120.
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