Bill 2: Court won’t allow FMSQ to appeal decisions

The specialist doctors failed to pass the first stage of an appeal against two decisions by Superior Court Justice Pierre Nollet.

Judge Myriam Lachance of the Court of Appeal refused them permission to appeal, so the province’s highest court will not even hear the arguments of the Quebec Federation of Medical Specialists (FMSQ).

In the first ruling, issued on November 6, Judge Nollet refused the FMSQ’s request to file five sworn affidavits from physicians. These affidavits had been anonymized with extensive redactions to protect the physicians’ identities. According to the FMSQ, the physicians feared that their affidavits—which challenged the validity of Bill 2 introduced by Minister Christian Dubé—would expose them to reprisals under the punitive measures provided for in the law. 

The Attorney General of Quebec (AGQ) as well as several media outlets, including The Canadian Press, had objected to this anonymized filing.

No redaction

Judge Lachance acknowledges that “the FMSQ’s argument that witnesses must be able to challenge the validity of laws without fear of state reprisal is serious, especially since the PGQ refuses to commit to not prosecuting the signatories of the DSS.” Judge Lachance, however, points out that the FMSQ’s request for a stay is supported by several other statements that are neither redacted nor anonymized, and that these statements “would be available to the FMSQ to strengthen its case if it deems it necessary” when the application is heard on its merits.

The second appeal concerns Judge Nollet’s Nov. 11 decision, in which he refused to rule on an interpretation of the law, at the request of both parties. The AGQ had presented, in its arguments, an interpretation of the law that limited the possibility of sanctioning certain actions, indicating that physicians who decided to retire, resign, or relocate would not be subject to sanctions if these were lifestyle choices and not actions intended to compromise the provision of care.

Judge Nollet explained in his decision that even if he issued a declaratory judgment on how Law 2 should be interpreted, his decision could very well be challenged by another legal proceeding.

Not unreasonable 

Judge Lachance points out that “it is recognized that in matters of declaratory judgment appeals, the decision of the trial judge to hear the case or not is discretionary. The Court therefore does not intervene ‘lightly’ and that is why proof of the unreasonable exercise of this discretion is required.” 

However, she clarifies, “the FMSQ does not convince me, prima facie, that the judge exercised his judicial discretion unreasonably.” Regarding the fact that this request was submitted by both parties, she asserts that “it is inaccurate to claim, as the FMSQ attempts to do, that the judge was bound by a joint request from the parties to answer a submitted legal question.”