Executive Summary: Key Legal and Evidentiary Issues

• Judicial review of the Protecteur du citoyen’s final whistleblower investigation report and whether it is subject to Superior Court supervision despite privative clauses.
• Scope and breach of procedural fairness owed to a high-level public office holder during an ombudsman-type investigation, including premature transmission of a draft report and failure to address credibility issues.
• Application of the standard of review: correctness for procedural fairness and reasonableness for the substantive conclusions of the Protecteur du citoyen.
• Adequacy of reasons in the final report, particularly the absence of meaningful analysis of conflicting evidence and the credibility of witnesses with potential personal interests.
• Tension between confidentiality protections for whistleblowers and witnesses in public-sector investigations and the open court principle, including caviardage and sealing versus public access.
• Consequences of the identified procedural and reasoning defects: annulment of the Protecteur du citoyen’s final report while leaving questions of damages and alleged “mobbing” to separate or future proceedings.

Factual background and appointment of the complainant

Tamara Thermitus is a senior Quebec lawyer who practised for nearly 25 years at the federal Department of Justice, primarily in civil liability of the state, administrative law and human rights, and was recognized by the Barreau du Québec with the Mérite du Barreau and the title of avocate émérite (Ad.E.). In 2013 she completed an LL.M. at McGill University on race and its consequences in the justice system. In February 2017, on the recommendation of Premier Philippe Couillard, the National Assembly appointed her president of the Commission des droits de la personne et des droits de la jeunesse (CDPDJ) for a five-year term starting 20 February 2017.
From the outset of her mandate, she identified what she considered serious structural and operational problems within the CDPDJ. She questioned the legitimacy and necessity of certain management positions (including cadre-conseil and some legal management roles), which she thought created unjustified advantages and pay inequities, and she was deeply troubled by systemic delays: it could take between five and ten years just to decide on the admissibility of a human rights complaint, and only a small number of cases reached the Human Rights Tribunal each year despite hundreds of complaints. She also perceived a toxic work climate, a lack of basic tools of modern public administration (accountability rules, ethics framework, performance indicators, corporate memory), problems in access-to-information processing and, ironically for a human rights body, a lack of diversity in the organisation.

Organisational conflict and deterioration of workplace relations

Her early criticisms of certain positions and managers quickly created internal friction. Staff in roles she questioned felt personally targeted; she reported instances of subpar performance, insubordination and perceived lack of loyalty by some managers. Tensions escalated further when she proposed holding a “smudging” ceremony in the CDPDJ offices, which some staff perceived as a religious ceremony, and when social and hiring events were mishandled or misunderstood, contributing to complaints about the workplace climate. Within weeks, her cadre-conseil at the presidency requested a transfer, and at least two other managers went on sick leave, citing difficult working conditions.
Facing these issues, on 6 April 2017 she retained an external consultant, Jean-Pierre Hotte, to conduct an organisational diagnosis. His preliminary report, provided on 1 May 2017 and shared internally, validated several of her observations, including questioning the relevance of the cadre-conseil position. On 8 May 2017, senior CDPDJ managers held a private meeting about the situation and some suggested she misunderstood her role as president. Hotte’s final report was delivered on 24 May 2017, but tensions remained high.

Launch of whistleblower complaints and mandate of the Protecteur du citoyen

In June and early July 2017, the Protecteur du citoyen (PC), Quebec’s ombudsman, received two “divulgations” (whistleblower disclosures) from CDPDJ employees alleging serious misconduct by Ms. Thermitus in her role as president. The disclosures asserted that she engaged in inappropriate, disrespectful and harassing behaviour towards staff, created a dysfunctional and unhealthy work environment, and compromised the CDPDJ’s ability to fulfil its mandate.
The PC acts as an independent ombudsman over Quebec’s public administration, empowered under its constitutive statute to intervene when there are reasonable grounds to believe a public body, its leaders or officials may have caused or risk causing prejudice through action or omission. Since 1 May 2017, the PC also had the mandate to administer the whistleblower regime under the Loi facilitant la divulgation d’actes répréhensibles à l’égard des organismes publics (LFDAROP) and the Loi sur la protection contre les représailles liées à la divulgation d’actes répréhensibles. Under this framework, individuals may confidentially disclose “acts répréhensibles” (wrongdoing), including crimes, serious breaches of ethics, misuse of public funds and serious mismanagement in a public body, and benefit from protection against reprisals.
On 13 July 2017, after screening the disclosures, the PC found them admissible and in the public interest and opened an investigation. The alleged wrongdoing was characterised as (1) a serious breach of ethical and deontological norms and (2) a serious case of mismanagement within a public body, including an abuse of authority, both categories of “actes répréhensibles” under section 4 LFDAROP. This was the first investigation undertaken by the PC under its new whistleblower mandate, and it was assigned to internal investigators.

Health problems, confidential investigation and media leak

During summer 2017, Ms. Thermitus experienced health problems and was hospitalised. On 24 July 2017, as she was discharged, she was informed by phone that PC had received complaints from CDPDJ employees and that she was under investigation. Between late July and early November 2017, the PC’s investigators met 27 witnesses, all of whom signed confidentiality undertakings. They also held telephone interviews and, through staff and third parties, she learned the nature of the allegations against her.
On 9 August 2017, the PC wrote to her formally confirming that the investigation would be conducted privately and enclosing its investigation procedure. Despite this stated confidentiality, on 30 August 2017 La Presse published an article reporting on the PC’s investigation and describing a crisis at the CDPDJ with the president at the centre.
Her counsel arranged an interview with the investigators for October 2017 and, on 26 September 2017, the PC sent her a preparatory document summarising witness versions. However, due to her health, the meeting was twice postponed. On 24 October 2017, her doctor ordered medical leave, and her lawyer informed the PC the same day that she wished to be heard and expected no decision or recommendation before she had been interviewed and had presented her case. The PC suggested written submissions instead, but she declined.
During this period, there was a factual dispute about her activity while on medical leave. Some witnesses told the PC she remained in frequent contact with subordinates, requested numerous documents and tried to discuss the investigation, while she maintained that she only communicated as strictly necessary for her role and the investigation.

Parallel governmental review and the PC’s first report (Rapport 1)

Separately, on 25 October 2017, the Minister of Justice mandated consultant Lise Verreault to conduct her own organisational review of the CDPDJ, focusing on governance, delays, staff mobilisation and communications. Ms. Thermitus was interviewed on 1 December 2017. Verreault’s preliminary report issued on 15 December 2017 and the final report on 29 April 2018, outside the PC’s investigative record for the purposes of judicial review.
In the PC investigation, before hearing Ms. Thermitus, the investigators drafted a first investigation report dated 29 November 2017 (Rapport 1). It set out the evidence of 16 witnesses and already concluded that she had committed “actes répréhensibles” under section 4 LFDAROP. Contrary to its own procedure, the PC transmitted this Report 1 to the Minister and Deputy Minister of Justice—without informing Ms. Thermitus, without her version, and while describing the investigation as “à toute fin pratique terminée” (“for all practical purposes completed”). A disclaimer in the report indicated that its analysis and conclusions were made subject to any comments she might later provide and were to be read conditionally, but substantively the report took a clear adverse position.
When she learned, by chance, on 8 December 2017 that this preliminary report had been sent to the Minister, she cancelled the interview dates then set and filed a first application for judicial review challenging Rapport 1, alleging a breach of natural justice and bias. The PC responded with a motion to dismiss and an abuse-of-process claim. In March 2018, La Presse published reports about troubling allegations concerning a CDPDJ vice-president, who then resigned. In that context, the parties struck an agreement: she discontinued her initial judicial review and the PC undertook to restart the investigation and hear her version.

Second investigative phase and Rapport 2

The PC then interviewed her over five days in April and May 2018. She provided an extensive defence: oral testimony, detailed chronologies, summaries, tables and voluminous documentary evidence. She systematically responded to each of the 254 paragraphs of Rapport 1, highlighted the personal interests of numerous witnesses who might have seen her governance reforms as threatening their positions and salaries, alleged discriminatory comments and conduct directed at her, and explained why she considered certain allegations false or distorted. She also urged the PC to investigate media leaks, but instead was warned about possible proceedings if she breached confidentiality.
On 9 October 2018, the PC sent her a new preliminary report (Rapport 2), which, notwithstanding the new evidence, reached essentially the same conclusions as Rapport 1: that she had committed a serious case of mismanagement, an abuse of authority and a serious breach of ethics and deontology. On 23 October 2018, she provided a detailed 34-page response to Rapport 2, addressing its 453 paragraphs and again stressing that her testimony and documentary submissions had not been given real effect. She requested to see the draft final report, but the PC refused and also refused to forward her position directly to the Minister of Justice. Altogether, she submitted hundreds of pages: a 117-page chronology with 79 exhibits, a 60-page document on witness self-interest with 62 exhibits and a 152-page response to the draft report with 434 exhibits.

The final report and consequences for Ms. Thermitus

On 13 November 2018, the PC issued its final report (Rapport final). It concluded that she had committed three types of wrongdoing under section 4 LFDAROP: (1) a “cas grave de mauvaise gestion” (serious mismanagement), (2) “un abus d’autorité” (abuse of authority), and (3) “un manquement grave aux normes d’éthique et de déontologie” (serious breach of ethics and deontology). The PC recommended that the Minister of Justice take appropriate measures against her to avoid repetition of such acts, and that the Quebec Charter of Human Rights and Freedoms be amended to add a specific procedure for serious misconduct—actual or alleged—by CDPDJ commissioners, including the president and vice-presidents.
She was informed that the report would imminently be tabled at the National Assembly and that her dismissal by the Assembly was expected. To avoid a public removal, she resigned on 29 November 2018 as president of the CDPDJ.
That same day, at the PC’s annual report news conference, the Protectrice du citoyen publicly confirmed the existence and findings of the investigation, describing it as rigorous, conducted in full respect of procedural fairness and identifying “manquements graves” (serious breaches) of the law by Ms. Thermitus, including serious ethical breaches and a serious case of mismanagement including abuse of authority. These public statements, combined with the report and her resignation, severely damaged her reputation and, she maintains, effectively ended her prospects of comparable employment.

Judicial review proceeding and related litigation

On 13 December 2018, she commenced the present application for judicial review, seeking annulment of the PC’s final report, and coupled it with a claim in damages and abuse of process against the PC. That combined action was later procedurally divided so that the court would first decide the judicial review of the report and, only afterwards, the damages/abuse aspects.
Over the ensuing years, there was extensive interlocutory litigation, including challenges to the admissibility of various documents, motions for confidentiality orders, and appeals on document production and privilege. The Superior Court rejected an initial attempt by the PC to dismiss her judicial review for lack of legal foundation and rejected an abuse-of-process claim. It also issued interim confidentiality orders concerning parts of the investigative record and addressed her right to speak publicly about her own experience, subject to safeguarding the anonymity of whistleblowers and witnesses.
Separately, in May 2022, she filed a substantial claim (nearly two million dollars) in damages against the Government of Quebec for lost salary, pension loss, punitive damages and extra-judicial fees, but that action was stayed pending the outcome of the judicial review.

Issues on judicial review and applicable standards

On judicial review, the core issues were:

• Whether the PC’s investigation and final report could be reviewed by the Superior Court despite immunity and privative clauses in the Loi sur le protecteur du citoyen and the LFDAROP.
• Whether the application was brought within a reasonable time.
• Whether the PC respected its duty of procedural fairness and natural justice, with particular focus on the premature transmission of Rapport 1 to the Minister of Justice and the handling of evidence and credibility.
• Whether the final report’s conclusions and reasoning were reasonable, in light of the applicable standard of review.
• How to balance statutory confidentiality obligations in whistleblower investigations with the open court principle and media access.
  The court, applying the Supreme Court’s framework in Vavilov and subsequent cases, held that procedural fairness issues are assessed on a correctness standard—or, in functional terms, without deference—while the substantive conclusions of the PC are reviewed for reasonableness.

Findings on jurisdiction, timing and reviewability of the report

The court held that the final report was reviewable despite privative clauses, because the Superior Court’s supervisory jurisdiction is constitutionally protected and cannot be ousted completely. While the report itself did not impose penalties or legal liabilities directly, it had very serious consequences for her career and reputation and was the necessary foundation for any ministerial or legislative decision about her removal. That was sufficient to make it subject to judicial review. The application was filed within a reasonable time—roughly a month after the final report—so there was no delay bar.
The court also noted that, although participation in the investigation can sometimes amount to a waiver of objections to bias, allegations of “institutional partiality” could properly be raised upon reading the report itself, as that was when potential bias in the result could first be appreciated.

Procedural fairness and the handling of the evidence

The judge found two decisive breaches of procedural fairness. First, the PC had committed a serious violation of its own procedure and of general fairness by sending Rapport 1 to the Minister and Deputy Minister of Justice before hearing from Ms. Thermitus, while describing the investigation as essentially complete. The PC’s own internal procedures required that the person under investigation be given an opportunity to present their version, and that only at the end of the investigation should a report be sent to the ultimate decision-maker. By bypassing that sequence and providing a one-sided, adverse report to the authority capable of initiating her removal, the PC “viciated” the process. The judge emphasised that there was no urgency, prescription or pressing operational need justifying such haste.
Second, in Rapport 2 and the final report, the PC failed to meaningfully grapple with her evidence, particularly her detailed explanations about the personal interests and potential bias of many witnesses whose positions and salaries could have been affected by her reforms. The final report reproduced her version at various points but gave no real reasons for rejecting it. There was virtually no explicit analysis of witness credibility, nor was there any explanation of why the PC preferred the accounts of employees over those of a long-serving, respected lawyer with a strong professional record. In circumstances where the evidence was profoundly contradictory and the allegations highly damaging, the PC owed a duty to address credibility and explain why her version was not accepted. The complete absence of such reasoning was held to be a breach of procedural fairness.
By contrast, her complaint that the investigators refused to re-interview a particular witness (the “témoin 12”) was not, in itself, found to be a procedural fairness violation. The court accepted that re-interviews fall within investigative discretion, and given the structure of the final report, a second interview of that witness would likely not have altered the conclusions.

Reasonableness of the final report’s conclusions and reasons

On the separate but related question of substantive reasonableness, the court stressed that reasonableness review focuses on the coherence and justification of the reasons, not whether the reviewing judge would have reached the same conclusions. However, the judge found that the same omissions that constituted procedural unfairness also rendered the report substantively unreasonable. The PC’s failure to address central arguments—especially the alleged self-interest of many witnesses and the corroborating effect of the Hotte organisational report—left the reader unable to understand why the PC considered the case proven on a balance of probabilities. The report amounted largely to assertions rather than a transparent demonstration of why particular findings were preferred.
The court underlined that, particularly where an ombudsman’s report can effectively end a person’s high-profile public career, a higher level of reasoning and explanation is required. While perfection is not the standard, the reasons must still grapple with the key issues, including credibility and conflicting evidence, and show why one version prevails. The PC’s reports did not meet that standard.

Confidentiality, whistleblower protection and open court

A significant portion of the judgment is devoted to reconciling the confidentiality requirements in the PC’s governing statutes and whistleblower regime with the constitutional principle that court proceedings are public. The PC argued for a broad, almost “generic” privilege shielding its investigative work, similar to litigation or police informer privilege, and sought extensive sealing, caviardage and non-publication orders, including for entire documents.
The court rejected the idea of a new, judge-made generic privilege for the PC’s investigative materials, noting that new generic privileges are for the legislature to create. Instead, it applied the established Dagenais/Mentuck/Sierra Club/Sherman line of cases: a party seeking to limit publicity must show (1) a serious risk to an important public interest (here, whistleblower protection and the integrity of the ombudsman process), (2) that the proposed order is necessary because no reasonable alternative will adequately protect that interest, and (3) that the benefits outweigh the harms to openness and freedom of expression.
The judge accepted that protecting the identity and safety of whistleblowers and witnesses is an important public interest and that anonymity is essential to sustaining a functioning disclosure regime. As such, caviardage and targeted confidentiality orders were appropriate to prevent identification of those individuals. However, the court refused blanket sealing of entire documents or pleadings; instead, it insisted on a tailored approach: the narrative of the facts, the existence and content of alleged wrongdoing, and the court’s own analysis could and should be public, while names, positions and identifying details of disclosers and witnesses could be redacted.
The court also revisited an earlier interim order that had partially restricted Ms. Thermitus’s ability to speak publicly about her own experience. In light of the full record, the judge adjusted that order, holding that she may now publicly describe her own version of the facts and her perception of the PC’s investigation, provided she continues to protect the anonymity of witnesses and avoid disclosing their specific accounts in a way that would allow them to be identified.

Final outcome, relief granted and absence of quantified monetary award

In its conclusion, the Superior Court recognised that the arrival of Ms. Thermitus as CDPDJ president triggered deep organisational resistance and that serious institutional problems may well have existed at the CDPDJ. The court expressly declined to determine whether she was the victim of “mobbing” by CDPDJ staff or whether she committed the misconduct alleged; that merits question was outside the court’s role on judicial review. Instead, the court focused on whether the PC’s process and reasoning met the legal standards of procedural fairness and reasonableness.
Finding that the PC had breached procedural fairness by prematurely transmitting a one-sided report to the Minister and by failing to explain why it rejected her evidence, and further that the final report’s reasoning was substantively unreasonable, the court annulled the final report of 13 November 2018. The application for judicial review was therefore allowed in part. The court did not determine any issues of damages, salary loss, pension loss or punitive compensation; those claims remain in the separate damages action, which was stayed pending this result.
Accordingly, the successful party in this judgment is Ms. Tamara Thermitus, whose judicial review was granted in part and who obtained an order declaring the Protecteur du citoyen’s final report null, together with an award of legal costs in her favour. However, the court did not fix any specific dollar amount for those costs, and no monetary damages were awarded in this decision; the total amount ordered in her favour therefore cannot be determined from this judgment alone.