The database contains 4 case summaries relating to Variation Orders. The summaries are sorted in reverse date order with 20 summaries per page. If there are more than 20 summaries, use the navigation links at the bottom of the page.
This case involved charges under the Federal Fisheries Act of fishing during a closed season. The main defence in the case involved a challenge of the authority of the Regional Director to make a variation order that purported to close the waters in question to fishing on the grounds that it had been improperly subdelegated by the Regional Director-General.
The relevant legislation was s. 6(1) of the Fisheries Act which provided that: "Where a close time, fishing quota or limit on the size of weight of fish is fixed in respect of an area . . ., the Regional Director-General, may, by order vary that close time, fishing quota or limit in respect of that area or any portion."
After extending the test set out R. v. Corcoran (1999), 181 Nfld. & P.E.I.R. 31, the court held the subdelegation to be invalid on the following basis:
"I find that in order for a public official such as the Regional Director- General to subdelegate his statutory authority the following questions must be determined:
[i] Is the act in question legislative or administrative?
[ii] However characterized, can the public official subdelegate the act in question?
[iii] If so, is the subdelegate a person to whom the power can legitimately be subdelegated?
[iv] If so, is the nature and scope of the subdelegation otherwise permissible?
31 In this case, I have concluded that the Regional Director-General may subdelegate to the Regional Director the power to make a variation order. However, the subdelegation must be for a brief and defined period of time and must be necessary from a practical standpoint. Additionally, the Regional Director should provide guidelines on how to exercise the subdelegation.
32 Because in this case, the subdelegation was of an indefinite duration, I find that the order of September 12, 2014 that both defendants are alleged to have breached to have been invalid."
R v. Corcoran , 1999 CanLII 19147
This case involved a charge against an inshore cod fisherman for fishing during a closed time (see digest of earlier decision from this case in 1997). This case is a summary conviction appeal on the grounds that the Regional Director General improperly delegated his authority to sign a variation order closing the fishery.
After reviewing the authorities, and concluding that the closing of the fishery was a legislative act, the court upheld the validity of the delegation and denied the appeal. In doing so, the court referred to section 4 of the Atlantic Fishery Regulations and said as follows:
In my respectful view, in looking at the issue of delegation of the powers granted under the Act, a proper interpretation of its real purpose and object requires a reading into Section 4 of the Regulations after the words “a Regional Director-General” the words “or any person authorized by him or her” in the absence of a clear statutory intention to the contrary, which I do not find in the Act.
R v. Gorman , 1998 CanLII 3545
This was a summary conviction appeal of an order of a Provincial Court acquitting an accused fisher of an offence on the grounds that a Variation order had not been published in the Canada Gazette. The appeal court set aside the acquittal on the grounds that sections 15(1) and 7(1) j of the Statutory Instruments Act had not been brought to the trial judges attention. These provisions provide as follows:
15(1) The classes of regulations that are exempt from registration are hereby exempt from publication. S. 7(j) of the Regulation exempts from the registration requirements: (j) orders made by a person engaged or employed in the administration or enforcement of the Fisheries Act whereby a close time, fishing quota, or limit on the size or weight of fish that has been fixed in respect of an area under regulations made under that Act, is varied in respect of that area or any portion of that area.
Counsel for the Crown/Appellant: Michael Seaborn
Counsel for the Respondent : Did not appear
R v. Corcoran , N.J. No. 180 (Nfld. S.C.)
This case involved a variation order which declared that fishing was prohibited in a local area "beginning on January 1 and ending on December 31". The trial judge ruled that the variation order was vague and that it failed to properly prohibit fishing during a "specified period" as within the meaning of the Act.
The appeal was allowed and the case remitted to trial court for continuation of trial. Parliament intended to entrust those responsible for the control and harvesting of groundfish with sufficient flexibility and power to respond quickly to fishery issues as they arose. It was not reasonable to require that the Regulations be redrafted with respect to each fishery closure. The court reviewed an number of authorities supporting the proposition that the Regulations had to be given a fair and liberal construction and interpretation. In the circumstances, the variation order was properly issued and consistent with the Regulations which were designed to apply from year to year. The variation order was not vague and it should have been clear to all fishermen that the areas in question were closed for fishing as of July 10 and thereafter until a subsequent variation order was issued by the proper authorities.