Executive Summary: Key Legal and Evidentiary Issues

• Justiciability of prolonged governmental inaction in fixing the date of entry into force of article 118.5 LQE and its susceptibility to judicial review.
• Scope and limits of the executive’s discretionary power under article 310 of the 2017 amending statute to determine when article 118.5 LQE will come into force.
• Application of the Vavilov reasonableness standard to an “absence of decision” (inaction) and the role of legislative text, context and purpose in assessing reasonableness.
• Tension between environmental transparency objectives (creation of an online public register) and practical constraints tied to major technological and administrative implementation.
• Availability and appropriateness of mandamus as a remedy to compel the government to adopt a decree and to impose a specific implementation timetable.
• Characterization of the government’s delay as slow, but ongoing implementation work rather than a categorical refusal to bring article 118.5 LQE into force.

Factual background and parties

The case opposes the Centre québécois du droit de l’environnement (CQDE), an environmental law NGO, to the Procureur général du Québec (PGQ), representing the Quebec government. The dispute arises out of the government’s prolonged failure to bring into force article 118.5 of the Loi sur la qualité de l’environnement (LQE), as amended by the major 2017 reform statute aimed at modernising the environmental authorization regime. Article 118.5 LQE, in its revamped form, is designed to create a public online register on the website of the Ministry of the Environment. Through this register, the public would have access not only to a list of authorizations but to the content of ministerial authorizations and a broad range of related environmental documents and studies. In parallel, article 118.5.3 LQE, already in force since March 2017, confers a public character on a wide array of environmental documents, ensuring they are legally public even before a digital register is operational. To manage the transition, the 2017 statute provides a temporary regime under which these documents are accessible through access-to-information requests until the register comes into force and replaces that transitional mechanism. Article 310 of the 2017 statute fixes the entry into force of most provisions—including article 118.4 LQE—on a specific date (23 March 2017 or 23 March 2018, depending on the provision). However, it treats article 118.5 LQE differently: that article is to come into force on a date to be fixed by the government by decree, with no express deadline. Nearly nine years after the adoption of the 2017 statute, the specific provision establishing the online register—article 118.5 LQE—still has not been proclaimed in force, even though much of the broader reform has been implemented.

The applicant’s claims and requested remedies

The CQDE argues that the government is thwarting the legislator’s will by effectively refusing or indefinitely delaying the implementation of article 118.5 LQE, thereby denying the public timely, efficient and proactive access to environmental information through the promised online register. It characterizes the nine-year delay as an unjustified inaction that undermines the specific legislative objective of enhancing transparency and public access to environmental documentation. On this basis, the CQDE brings a judicial review application and seeks both a declaratory judgment and an extraordinary remedy in the form of mandamus. Substantively, it asks the Superior Court to order the government to adopt, within a fixed period, a decree specifying the date of entry into force of article 118.5 LQE. It further invites the Court to determine that any implementation date later than 23 March 2028 would necessarily be unreasonable, thereby effectively establishing a judicial outer limit of ten years from the 2017 statute’s coming into force. The CQDE relies on legislative debates to show that lawmakers contemplated a relatively rapid implementation of the register (around 12 months), and on access-to-information statistics suggesting that the transitional access regime through requests is slower and more cumbersome than an online public register would be. It positions the case as one of non-compliance with the legislator’s clear intention rather than mere administrative delay.

Legal framework on delayed entry into force and justiciability

The Court begins by situating the case in the broader framework of legislative coming-into-force techniques. Under Quebec’s Loi sur l’interprétation, statutes generally come into force 30 days after royal assent unless otherwise specified. Legislators may, however, postpone the entry into force of specific provisions either by fixing a date directly in the statute or by delegating to the executive the power to set the effective date by proclamation or decree. The latter technique was chosen for article 118.5 LQE. The judgment then addresses the notion of justiciability—the boundary between questions that courts can and should decide, and those that are better left to the political branches. The Court recalls that judicial review is meant to ensure legal compliance with statutes, not to substitute the courts’ judgment for that of the legislature or executive on policy wisdom, prudence or political opportunity. In line with recent Canadian authorities, the Court confirms that even the absence of a formal decision—here, the failure to adopt a decree—is itself a form of “decision” that can, in principle, be subject to judicial review. It notes that Supreme Court jurisprudence after Vavilov has emphasized the broad application of reasonableness review to a wide range of administrative and regulatory acts, including exercises and non-exercises of delegated legislative authority.

Reasonableness standard applied to governmental inaction

On the standard of review, the Court holds that the presumption of reasonableness review from Vavilov applies. The question is therefore not whether the Court would itself have fixed a date earlier, but whether the government’s ongoing failure to proclaim article 118.5 LQE is unreasonable having regard to the statutory text, context and purpose. The Court emphasizes that when a statute uses broad or open-ended wording and confers significant discretion, this signals an intent to give the executive a wide margin of manoeuvre. Conversely, specific and narrow wording implies tighter constraints. Interpreting article 310 of the 2017 statute, the Court notes that virtually all other LQE provisions had predetermined coming-into-force dates (either 2017 or 2018), but article 118.5 LQE alone was expressly left to be brought into force by decree at a date chosen by the government. The Court infers that when the legislator wanted to bind the government to a precise implementation timeframe, it did so explicitly. The absence of any such temporal limit for article 118.5 LQE, coupled with the distinct treatment of this provision, indicates a deliberate legislative choice to grant the government broad discretion as to timing. The Court underscores that its role is not to redo the interpretive exercise de novo but to ask whether the executive’s approach falls within a range of reasonable interpretations of the enabling statute and respects the legislator’s intent.

Context of the 2017 environmental reform and objectives of article 118.5 LQE

The 2017 statute was a major overhaul of the LQE, primarily aimed at modernizing the authorization regime to better address environmental and climate challenges. Improving access to environmental information was one among several objectives of this comprehensive reform. The specific goal of article 118.5 LQE was to establish an online register that would both give public status to key environmental documents and make them directly accessible on the Ministry’s website. The Court notes that the public character of many documents has already been achieved through article 118.5.3 LQE and transitional provisions, which render these documents public and accessible upon request. Although this transitional regime is less user-friendly than a searchable online register, it nonetheless partially fulfills the transparency objective. The Court also refers to parliamentary debates where legislators expressed a desire to implement the register as quickly as possible, while simultaneously acknowledging the significant technological and organisational hurdles involved. Statements by the minister and officials recognized the government’s chequered experience with major IT projects and the need for substantial infrastructure before the register could go live, which explains the choice to leave the coming-into-force date to a future decree.

Evidentiary record on implementation efforts and delays

On the evidentiary front, sworn evidence from government representatives shows that important preliminary steps toward digitalization and the eventual register have in fact taken place. A new online service was put in place for filing declarations of conformity (since June 2021) and for filing ministerial authorization applications (since January 2022). An official mandate statement for developing the register was approved in April 2024, and further planning work, particularly the preparation of a “business case” detailing the steps and resources required for the full register, is scheduled. Internal correspondence from March 2023 candidly acknowledges substantial challenges: limited IT resources, competing digital priorities, and the sheer scale of digitizing existing paper files. Officials warn that setting a firm public timeline would be “dangerous” given the many variables that can delay major government IT projects. The CQDE points to a 2022 report from the Commission d’accès à l’information, highlighting high access-to-information demand at the Ministry of the Environment, to argue that the current system is insufficient and that the register is urgently needed. However, the Court notes that the Ministry processes around 12,000 access requests per year—more than any other public body—and still manages to respond within 20 days in the majority of cases, despite evident strain. For the Court, these statistics do not conclusively show systemic failure or a categorical refusal to provide access; rather, they confirm heavy demand and the practical stakes of implementing a better system.

Assessment of governmental discretion and alleged refusal

The CQDE attempts to distinguish between a supposedly “bound” duty to adopt a decree (to bring article 118.5 LQE into force) and a merely discretionary choice of the exact date. The Court rejects this dichotomy, holding that there is only one power conferred by article 310: the discretionary authority to determine when it is appropriate to bring article 118.5 LQE into force by decree. Nonetheless, the Court stresses that this discretion is not unlimited. If the government were to clearly decide never to implement article 118.5 LQE, that would be contrary to the legislator’s will and susceptible to judicial sanction. The evidence, however, does not support such a conclusion. The record shows ongoing, albeit slow, work towards the digital infrastructure required for the register. There is no allegation of bad faith or improper purpose, nor proof that the government has decided to abandon the register project. The Court also refuses to engage in abstract speculation about how many years of delay (10, 15, 20) would transform procrastination into a de facto refusal. That question is left open for another case where the evidentiary record might establish a genuine intention never to implement a legislated measure.

Limits on judicial remedies and separation of powers

Turning to remedies, the Court highlights the general reluctance of Canadian courts to order positive legislative or regulatory action by the executive, even when they find that inaction is illegal. In prior cases, courts have typically confined themselves either to declaring that a provision is without effect in the absence of necessary regulations, or to declaring the inaction illegal, without compelling the government to adopt regulations or proclaim provisions in force. In this case, the CQDE asks the Court not only to declare that the government must fix an entry-into-force date for article 118.5 LQE, but also to set strict temporal parameters: the decree must be adopted within six months of judgment and the implementation date cannot be later than 23 March 2028. The Court finds no authority supporting such an intrusive remedy. To grant it would be to substitute judicial judgment for legislative choices made in article 310, where the legislator deliberately omitted any deadline for article 118.5 LQE, in contrast with the precise dates imposed for all other provisions. The Court notes that in certain other Canadian jurisdictions and at the federal level, special “statute repeal” regimes exist, under which provisions that are not brought into force within a fixed period are automatically repealed. Even if such a scheme existed in Quebec (it does not), the consequence would be repeal of the dormant provision, not a judicially imposed deadline compelling the executive to act. For the Court, setting a timeline where the legislator chose not to do so would amount to a judicial incursion into the legislative sphere that is incompatible with the separation of powers.

Mandamus as an extraordinary remedy

Regarding the specific remedy of mandamus, the Court recalls that mandamus compels a public authority to perform a legal duty; it cannot direct how a discretionary power should be exercised or dictate a particular outcome. Applying the classic eight criteria from the Apotex line of cases, the Court concludes that mandamus is ill-suited to the situation. The power at issue—choosing when to bring article 118.5 LQE into force—is discretionary, and although not wholly unfettered, it is broad and has not been exercised in a way that is abusive, oppressive or in bad faith. Moreover, the CQDE effectively seeks to steer the discretion in a particular direction by requiring that the decree be adopted by a fixed deadline and that the effective date fall before a judicially set outer limit. That type of direction is incompatible with the nature of mandamus, which cannot be used to predetermine the content or timing of a discretionary decision. The Court also notes that similar requests to compel the executive to adopt legislative or regulatory measures have previously been declined in Canadian jurisprudence, reinforcing the principle that courts should not command the legislative timetable of the executive branch.

Outcome, responsibilities and costs

In its global assessment, the Court holds that the government’s conduct amounts to slow, complex administrative implementation of a technologically demanding reform, not to an unreasonable or unlawful refusal to give effect to article 118.5 LQE. The discretion conferred by article 310 of the 2017 statute is broad, and the government’s incremental steps toward digitization and register development fall within a range of reasonable responses to that mandate. Accordingly, the Court finds that the inaction is justiciable but not unreasonable, and that neither the declaratory relief nor the mandamus sought by the CQDE is warranted. The judicial review application and the request for a declaratory judgment are therefore dismissed. The Court is careful to emphasize that this dismissal does not absolve the government of all responsibility for delays in implementing the environmental information register. Rather, it characterizes that responsibility as primarily parliamentary and political: if the public or stakeholders are dissatisfied with the pace of implementation, recourse lies more appropriately in the political process (including elections) or potentially in damages actions in appropriate circumstances, rather than in judicially imposed implementation deadlines. In light of the public-interest nature of the case, the Court exercises its discretion on costs and orders that the proceedings be dismissed “without costs,” meaning the applicant CQDE is not condemned to pay the PGQ’s legal costs. As a result, the successful party is the Procureur général du Québec, but no monetary award, damages, or costs are granted in its favour; the total ordered amount is effectively zero, and no specific sum can be determined for any monetary relief because none is awarded.