This case involved a Nova Scotia Indian Band which was relying upon the two R v. Marshall decisions (digested herein) in support of an application for an interlocutory injunction to enjoin D.F.O. from taking enforcement measures to prevent its members from participating in a Band regulated lobster fishery.

The two main issues in the case were:

(1)Whether the relief claimed was available on an interlocutory basis; and
(2) Whether the balance of convenience favoured the granting of an injunction.

With respect to the first issue, the court reconciled two somewhat inconsistent authorities to hold that “injunctions which finally determine rights, and therefore amount to a declaration of rights, ought not be made on an interlocutory basis” (para. 44) except in situations where (1) “the rights must be exercised immediately or not at all” or (2) “when the damage caused by the refusal of the injunction will make success at trial nugatory” (para. 51). Since the issue of treaty rights to fish for lobster would likely “stretch a long way into the future (para. 52), the court did not apply any of the exceptions to the general rule. Accordingly the Court ruled that the motion for interlocutory relief be dismissed.

Despite its dismissal of the motion, the court also gave its view on the application of the tripartite test for the availability of an injunction. In reviewing the test for determining the balance of convenience the court applied RJR-MacDonald Inc. v. Canada [1991] 1 S.C.R. 311 to find that in constitutional type cases, one must look at the public interest. Once it is established that the government authority is charged with the duty of promoting the public interest and that the “impugned legislation, regulation, or activity was undertaken pursuant to that responsibility” . . . “the court should in most cases assume that irreparable harm to the public interest would result from the restraint of that action” (para. 65). Since the impugned conduct was the enforcement activities of the Department Fisheries against persons fishing without licences, the court ruled, that “the public interest is against creating a vacuum of authority”. Accordingly the court found that the balance of convenience did not favour granting an injunction.

This case involved a collision between the net of the fishing vessel Savage Fisher (plaintiff) and the fishing vessel “Prosperity” in the 1997 herring seine fishery. This fishery was described by the trial judge as a “high stakes race . . . where from an opening ‘gun’, many vessels – sometimes dozens – would set their nets at speed in very close proximity during a short period of time.” The issues in this case included:

1) The application of Rule 15 (Crossing Situation) of the Collision Regulations;
2) Apportionment of fault;
3) Tonnage of fish caught; and
4) Limitation of Liability.

Rule 15

With respect to the application of Rule 15, the court ruled that this was not a crossing situation because “the Crossing Rule can only apply where what would be a give-way vessel can ascertain the future course of the stand-on vessel from observing her movement and making due allowance for the nature of the locality”. In rejecting the application of the Crossing Rule, the court pointed out that the Crossing Rule must always be read with the Responsibility Rule (Rule 2), which refers to the precaution to be taken by ordinary seam or by the special circumstances of the case.

Apportionment of Fault

With respect to apportionment of fault, the court apportioned 75% of the fault to the plaintiff based primarily upon the “woefully inadequate” look out being kept by the vessel (there was no assistant in the wheel house). In addition, the court found that the master of the plaintiff vessel also failed to exercise the caution that good seamanship dictated because he was being driven by his desire to maximize his catch.

The court also assessed 25% of the fault to the defendant vessel for not taking earlier measures to avoid the collision when it ought to have been apparent that one was going to occur.

Tonnage of Fish Caught

Given the uncertainties in the evidence regarding the amount of fish caught in the damaged net, the court followed the approach taken in two previous cases and made an award based upon the daily average of all of the vessels at the opening.

Limitation of Liability

Although the amount of the award made this issue largely academic, the court reviewed limitation of liability under the pre-1997 amendments to the Canada Shipping Act and found that it would have allowed the vessel to limit. The court advised that it would have done so based upon two previous decisions of the court. However, it questioned the correctness of those earlier decisions by expressing the view that it would not have been prudent for any owner to allow its vessel to partake in such a shotgun style opening.

Editor’s Note: As a result of a change of management approach from an overall quota fishery to an individual (shared) quota type fishery, these types of high intensity shotgun openings no longer occur at same intensity as they used to on the British Columbia coast.

This case involved section 10 of the British Columbia Workers Compensation Act which bars civil actions arising from injuries occurring during the course of employment.

In this case, at the time of the injury, the plaintiffs were going home from Prince Rupert (a fishing port on the north coast of British Columbia) on a regularly scheduled bus which they paid for themselves. The Appeal Division of the Workers Compensation Board ruled that if they had been traveling to a remote location or if the employer had paid for the transportation they might have been considered to have been injured in the course of employment. However, they were not prepared to make such a finding in this case. Accordingly there was no bar to civil proceedings.

Upon appeal, the British Columbia Court of Appeal upheld the decision on the grounds that it was not patently unreasonable.

Leave for appeal to the Supreme Court of Canada was denied on March 15, 2001 (Doc. 28097).

Editor’s Note: See also Decision No. 96-0527 of the Appeal Division of the British Columbia W.C.B. where it was found that a deckhand was acting in the course of employment when he was off duty having a cigarette on deck while the fishing vessel was anchored for the night during a voyage to port to deliver its catch of fish.

This was a motion for an order that an in rem statement of claim and warrant of arrest be struck. Amongst other things, the applicant argued that the following provision from the statement of claim be struck:

[T]he provision of the fishing licence to the Defendant ship, a fishing ship, is the supply of a necessary, or in the alternative, is the supply of goods, materials or services to the Defendant ship.

Without giving any reasons, the court accepted the applicant’s argument and struck the above described portion of the statement of claim. It also followed Bornstein Seafoods Canada Ltd. v. Hutcheon (1997), 140 F.T.R. 241 (digested herein) to hold that the court did not have any jurisdiction over the claim pursuant to section 22(1).

Editor’s note: It is unfortunate that the court did not give any explanation for striking the portion of the statement of claim set out above. While a fishing licence does not fit neatly into any of the categories set out in section 22(2)(m) of the Federal Court Act, a fishing licence is clearly necessary for the operation of a fishing vessel.

This case involved a dispute over the entitlement to ground fish quota which was lost when a ground fish licence with a history of large landings was "swapped" with a licence from another vessel (with smaller landings) in order to facilitate the purchase of a salmon licence. In dismissing an application by the Defendant for summary judgement on the basis of a time bar, the court ruled that the Plaintiff should not be penalized for exhausting its right to apply for a hearing before the Licence Appeal Board, before bringing its application for judicial review. Given the nature of the dispute, the court also ruled that the matter was not suitable for disposition by way of affidavit evidence at a summary trial.

This case involves a claim by a fishing processor that the two defendants to the action conspired to transfer ground fish quota from one defendant to another, when the defendants knew the quota had been previously purchased by the plaintiff. When the action was commenced, the plaintiff arrested one of the defendant's vessels (upon which the quota had allegedly been fished) and obtained an ex parte injunction which enjoined the defendants from transferring or otherwise dealing with the ground fish quota. One of the defendants, brought on an application to set aside both the injunction and the arrest.

With respect to the injunction, the court applied the law as set out in RJR MacDonald Inc. v. Canada (A.G.) [1994] 1 S.C.R. 311. With respect to the issue of irreparable harm, the court found that since the plaintiffs operations would only be "disrupted" and since tracing would not be "impossible", there was no irreparable harm. Regarding the issue of balance of convenience, the court ruled that since the continuation of the injunction would cause the defendant to "become insolvent in the near future", the balance of convenience did not favour a continuation of the injunction. Consequently, the injunction was set aside.

With respect to the warrant of arrest, the plaintiffs argued that their claim amounted to a maritime tort which formed part of Canadian Maritime Law by virtue of section 22(2)(d) of the Federal Court Act. The court rejected the plaintiff's argument and concluded that the court had no in rem jurisdiction. Consequently it set aside the arrest of the vessel.

This case also contains some interesting comments regarding the role of the court in attempting to salvage warrants of arrests, when possible.

Counsel for the applicant: David F. McEwen

Counsel for the plaintiff: Gary Wharton

This was a taxation of a Deputy Marshal's account incurred in connection with the sale of a fishing vessel. It is of interest from a fisheries perspective, because it makes reference to the order of sale which specifically included the sale to the vessel's category "A" fishing licence.