Judicial Review/Crown Liability - Case Summaries
The database contains 84 case summaries relating to Judicial Review/Crown Liability . 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.
Judicial Review/Crown Liability - Negligent Audit - Misfeasance - Taxation - transfer Pricing by Fish Processors
Canus v. Canada Customs, 2005 NSSC 283
This case involved an audit by Canada Customs and Revenue Agency of a Canadian Fish Processor that sold fish to its U.S. parent company. As a result of this audit, the company was re-assessed tax in the amount of $1,031345 for improper transfer pricing. As a result of this re-assessment the Fish Processor was limited in the amount of credit that it could obtain and accordingly had to curtail its business activities. Subsequent to the re-assessment, the Fish Processor was successful in having the re-assessment reversed.
The fish process then commenced an action in Nova Scotia Supreme Court alleging both public misfeasance and negligence.
With respect to misfeasance, after referring to Odhavji Estate v. Woodhouse, 2003 SCC 69,  3 S.C.R., the court refused to find any misfeasance because there was no evidence of an improper purpose, ill will or intent to harm. With respect to negligence, the court distinguished Cooper v. Hobart, 2001 SCC 79,  3 S.C.R. 537 as a case involving a claim for physical harm. It also said the claim could not be established as relational economic loss because it did not fall into an existing category or any analogous category. It also declined to find a new duty of care under the Ann's v Merton London Borough Council principal. In doing so it distinguished Keeping v. Canada 2003 Carswell Nfld. 113 (C.A.) and applied Jones v. Department of Employment,  1 All E.R. 725 (C.A.). In any event, even if there were a duty of care, it would be negated for the policy reason that such a duty would interfere with the Crown's ability to raise revenue. The court also declined to find negligent misrepresentation.
Judicial Review/Crown Liability - Decision of Minister of Fisheries based upon Recommendation of Appeal Board - Standard of Review - Reasonable apprehension of Bias No apprehension of Bias Arising from Department's Employee Acting as Secretary
Fennelly v. Canada (Attorney General), 2005 FC 1291
This case involved judicial review of a decision of the Minister of Fisheries to not re-issue an exploratory snow crab licence. During a previous judicial review application (digested herein), the court had made an order that the the Minister of Fisheries re-consider his decision based upon facts he had neglected to consider at the original appeal. After reconsidering the matter based upon the appropriate facts, the Minister once again decided not to re-issue the exploratory snow crab licence. The applicant then filed a new judicial review application alleging: (1) that the composition of the Licence Appeal Board that had advised the Minister raised a reasonable apprehension of bias because an employee of the Department of Fisheries served as its secretary and (2) the appeal board did not treat the applicant fairly.
With respect to the standard of review, the court applied the reasonableness standard to the appeal board (could the decision stand up to a somewhat probing analysis). With respect to the decision of the Minister, the court t followed Area Twenty Three Snow Crab Fisher's Association et al. v. The A.G. of Canada et al. 2005 F.C. 1190 and said that the patent unreasonableness test applied (the decision must be so clearly wrong that the result must almost border absurd), but never really applied the test as it only really reviewed the recommendation of the appeal board.
In reviewing the decision of the appeal board, the court was not persuaded the applicant was not treated fairly. With respect to the composition of the appeal board, the court followed Jada Fishing Co. v. Canada (Minister of Fisheries and Oceans) (2002), 288 N.R. 237 (F.C.A.) to find that existence of a secretary from the Department of Fisheries who took no part in the deliberations did not raise a reasonable apprehension of bias.
Editor's note: This case is a good example of the difficulty faced by applicants for judicial review when the most common remedy is to simply direct the decision maker to re-consider its earlier decision. As can be seen, notwithstanding directions to consider overlooked facts, it is not uncommon for the the decision maker to re-confirm its earlier decision.
Judicial Review/Crown Liability - Canadian Human Rights Act - Challenge to DFO decision to Issue Snow Crab Licences based upon Place of Residence
Dobbin v. Department of Fisheries and Oceans, Canada, 2005 FC 1020
This case involved a decision by the Department of Fisheries and Oceans to open a new area for the fishing of snow crab to be managed by the Quebec Region with licences issued only to residents of Quebec. Upon challenging the decision under the s. 41(1)(c) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 the Human Rights Commission rejected the claim as being beyond its jurisdiction. In doing so, it categorized the claim as discrimination based upon place of residence and held that this was not a prohibited ground of discrimination. Upon appeal to the Federal Court, the decision of the Human Rights commission was upheld.
Judicial Review/Crown Liability - Challenge to Shrimp Allocation Decision based on failure to give sufficient weight to Land Claims Agreement - Standing of Attorney General of Nunavut - Aboriginal Rights and Defences - Challenge to Shrimp Allocation Decision based on failure to give sufficient weight to Land Claims Agreement
Nunavut Territory (Attorney General) v. Canada , 2005 FC 342
This case involved the challenge of a decision of the Minister of Fisheries involving the allocation of the benefit of a 29 per cent increase in the total allowable catch of shrimp. This 29 per cent increase amounted to 2,127 additional tons of catch. of that 2,127 tons, all but 940 tons were allocated to Nunavut or Nunavut related interests. The remaining 940 tons were allocated to 17 existing licence holders who helped develop the fishery. Of those 17 existing licence holders, 1.5 of the licences were Nunavut interests.
One of two preliminary motions concerned the standing of the Attorney General of Nunavut to bring the judicial review application. Since the A.G. was not directly affected by the decision, the court ruled it had no standing under s. 18.1 of the Federal Court Act. In addition, it did not have public interest standing because there was another reasonable and effective way to bring the issue before the court by way of application by Nunavutr Tunngavik Incorporated. Notwithstanding the lack of standing, in the interest of judicial economy the court decided to exercise its discretion to adjudicate the matter.
The court also rejected a preliminary motion to deny the application on the basis of mootness.
With respect to the main challenge to the decision, the court applied a standard of review of patent unreasonableness and denied the application as follows at paragraphs 69 - 70::
In Nunavut Tunngavik Inc. v. Canada (Minister of Fisheries and Oceans) [footnote deleted], Justice Evans, for the Court, wrote at paragraphs :
appellant's quota in the turbot fishery has increased over the years, both absolutely and relatively, it cannot be said that the Minister had no regard to the adjacency and economic dependency principles.
I am satisfied that precisely the same could be said on the facts on this matter in relation to the Northern shrimp allocation in SFA 1 to Nunavut interests. Further, it is beyond question that the share of Nunavut interests in the 2003 increase of quota allocation was significantly higher than that of other interests in the same fishery. Against the words of Article 15.3.7 of the Agreement, it cannot be said that "special consideration" was not given to the principles of "...adjacency and economic dependence in the Nunavut Settlement Area on marine resources...", particularly when the Minister was required to apply those principles "...in such a way as to promote a fair distribution of [quota] between the residents of the Nunavut Settlement Area and the other residents of Canada ...in a manner consistent with Canada's interjurisdictional obligations." The special allocation made to Nunavut interests clearly was not "special enough" in the eyes of the Government of Nunavut and in the eyes of Nunavut Tunngavik Incorporated. It is not difficult for the Court to be sympathetic to that position, but that, of itself, is no grounds to set aside the decision under review. Against the standard of judicial review that is here appropriate, I am satisfied that the decision under review must stand. It cannot be said to be patently unreasonable. Put another way, it was open to the Minister, taking into account all of the competing interests that were before him.
Judicial Review/Crown Liability
Aboriginal Rights and Defences - Approval of Amendment of fish farm licence
Homalco Indian Band v. British Columbia, 2005 BCSC 283
Judicial Review/Crown liability
Offences - Misc. - Judicial review of decision of Provincial court judge for breaching rules of natural justice
Armstrong v. Gill , 2004 BCSC 1480
This case involved a prosecution under the Fisheries Act. In the course of a pre-trial application by the defence for disclosure of Crown documents, the matter was adjourned so that the parties could exchange and file written submissions. Although written submissions from both parties were filed, for some unexplained reason only the Crown's submissions were provided to the judge hearing the motion. In the course of the subsequent hearing it became apparent that the judge had not received the written submissions of the defence and attempted to remedy the situation by hearing oral submissions from counsel for the defence.
Upon receiving an adverse ruling on the disclosure motion, the defence brought an application for certiorari of the ruling and an order of mandamus directing that the disclosure application be heard afresh before a different judge.
After reviewing the evidence and the applicable authorities, the court concluded that "an informed person viewing the events realistically and practically would concluded that in the circumstances that occurred here there was an appearance of bias" (para 39). Accordingly the requested remedies of certiorari and mandamus were granted.
Judicial Review/Crown liability - Decision of Minister based upon recommendation of appeal board containing misapprehension of facts quashed
Decker v. Canada (Attorney General), 2004 FC 1464
This case involved a ground fish harvester whose application for a temporary shrimp permit was denied on the ground that his vessel was not fully geared up and ready to fish at the required time. Upon appealing the denial to the Atlantic Fisheries Licence Appeal Board, his appeal was turned down by the Minister. Upon bringing a application for judicial review, the Federal Court quashed the decision of the Minister and remitted the matter back to him for re-consideration for the following reasons:
(1) Since the report of the Appeal Board was one of the bases upon which the Minister arrived at his decision, the court could review the decision of the Appeal Board (Fennelly v. Canada 2003 FC.1097 (digested herein);
(2) The Appeal Board made its recommendation based upon a misapprehension of the facts because it did not make a finding on two important issues: (a) whether or not an exemption to the gear on-board requirement was given to the applicant; and (b) whether or not extenuating circumstances existed due to demonstrated financial commitment by the applicant.
The Minister was not precluded from remitting the matter back to a differently constituted board.
Judicial Review/Crown Liability
Aboriginal Rights and Defences - Challenge to Shrimp Allocation Decision based on failure to give sufficient weight to Land Claims Agreement - Standing of Attorney General of Nunavut
Blaney v. British Columbia (Minister of Agriculture Food & Fisheries), 2005 BCSC 283
This was a judicial review application challenging a decision of the Minister of Agriculture Food and Fisheries to approve an amendment of a aquaculture licence allow a change from Chinook salmon to Atlantic salmon. After hearing evidence the court granted a declaration that the Minister had a continuing duty to consult and adjourned the application for judicial review generally.
Judicial review/Crown liability - Review of decision of Provincial Minister to deny processing licence for processing of snow crab
St. Anthony Seafoods Limited Partnership v. Nfld. & Labrador (Minister of Fisheries and Aquaculture), 2004 NLCA 59
This case involved a fish processing plant in Saint Anthony, Nfld. In 1998 the Minister of Fisheries and Aquaculture wrote to the processor and promised a multi-specie processing licence, including a licence to process snow crab. Although a licence to process shrimp was quickly granted, the Ministry never followed through on its promise to issue a snow crab licence.
Upon application for judicial review, the applicant argued, amongst other things, that (1) there was an abuse of ministerial discretion; and (2) promissory estoppel applied.
With respect to abuse of ministerial discretion, the court applied the functional and pragmatic approach from Baker v. Canada  2 S.C.R. 817. After applying the four part test, the court concluded that the patent unreasonable standard was appropriate because the decision maker was a minister upon whom considerable discretion was conferred by the statute (para 60). In applying the patent unreasonableness test, the court found that a defect in an evidentiary foundation for a decision could render the decision patently unreasonable (para 73). In this regard, the appeal court found that the Minister erred in, amongst other things, concluding that it had not made a prior commitment to grant a snow crab licence to the applicant (he incorrectly concluded the commitment had been made to a different corporate entity). Since the evidence showed that prior commitment was an important factor for the Minister, the court held that this error rendered the Minister's decision patently unreasonable. However, rather than substitute the decision of the court for that of the Minister, the court remitted the matter back to the Minister for reconsideration in accordance with its decision.
With respect to public law promissory estoppel, the court applied the test from Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services)  2 S.C.R. 281 which requires that "there be no estoppel in the face of an express provision of a statute" (para 83 quoting from Mount Sinai). Given the broad discretion in respect of processing licences given to the Minister under the Fish Inspection Act, the court found that "the over-riding public interest expressed . . . precludes the application of estoppel" (para 90).
Leave to appeal to the Supreme Court of Canada was refused at  SCCA No. 548.
Judicial Review/Crown Liability - Unsuccessful attempt to to establish misfeasance and tort of interference with contractual relations re issuance and failure to issue hake quota and licences
Oak Island Group Limited v. A.G. (Canada), 2004 NSSC 179
Judicial Review/Crown Liability - Unsuccessful challenge to variation order allowing dragging on Georges Bank - Canadian Environmental Assessment Act not applicable
Ecology Action Centre Society v. Canada (Attorney General), 2004 FC 1087
Judicial Review/Crown Liability - Decision of provincial Crown Agency in refusing to allow stacking of shellfish tenures upheld
Lorindale Holdings Ltd. v. British Columbia Assets & Land Corp., 2004 BCCA 352
Judicial Review/Crown Liability - No breach of procedural fairness re application of limitation period for CORE review process
Brennan v. Canada (Minister of Fisheries) , 2004 FC 213
Judicial Review and Crown Liability
Aboriginal Rights and Defences - Non infringement of treaty rights by British Columbia Oil and Gas Commission
Saulteau First Nation v. British Columbia (Oil and Gas Commission), 2004 BCSC 92
Judicial Review/Crown Liability – Definition of “fishing” - Does not require the holder of the licence to use or exploit the fish that were killed
Aboriginal Rights and Defences – Public Interest Standing
Chief Percy Williams et al. v. Minister of Fisheries and Oceans and Heritage Salmon Ltd., 2003 FCA 484
This case involved an application by the Chief Percy Williams on behalf of the members of the Twicksutaineuk/Ah-kwa-mish Tribes for judicial review of a decision of the Minister of Fisheries to issue a Marine Mammal Predator licence to a fish farm for the purpose of killing of problem seals and seal lions.
As a preliminary matter, the court had to determine whether or not the tribe members had public interest standing. Upon reviewing the first of the three part test set out in Harris v. Canada  4 F.C. 37 (F.C.A.), the court ruled that the tribe members did not have public interest standing because they were not able to establish that they were likely to succeed on the merits of their application.
The Tribe essentially argued that the licence in question was not a “fishing” licence because it did not require the holder of the licence to use or exploit the fish that were killed. After reviewing the legislation in question and the relevant case law, the court rejected this argument. The court was of view that the act of fishing was complete once possession of the fish is obtained. As an example, the court referred to catch and release practices in the sports fishery where anglers catch fish with the specific intention of releasing them once they are caught.
Postscript: This decision was upheld by the Court of Appeal 2003 FCA 484
Judicial Review/Crown Liability
Fennelly v. Canada (Minister of Fisheries and Oceans), 2003 FC 1097
This case involved judicial review of a decision of the Minister of Fisheries to not re-issue an exploratory snow crab licence. The applicant was a fisherman who owned two boats, a 75 foot stern trawler (the “Bear Cove Point”) and a 95 foot multipurpose trawler (the “Sandy Joanne”). In 1995 he was issued an exploratory crab fishing licence for use on the “Bear Cove Point”, which has been continually re-issued since that time.
In 1998 he was also issued an exploratory snow crab licence for use on the “Sandy Joanne”. In 1999 when he applied for re-issuance of both licences, the licence on the “Bear Cove Point” was issued but not the licence on the “Sandy Joanne”. In the year 2000, the Department of Fisheries (DFO) wrote to the applicant and advised him that the licence issued to the “Sandy Joanne” in 1998 was a temporary replacement for the “Bear Cove Point”.
In 2001 the applicant applied to the Regional Licence Appeal Committee and requested that the licence for the “Sandy Joanne” be re-issued. This Committee declined his application and he subsequently applied to the Atlantic Fisheries Licence Appeal Board. During his appeal he advised the Board that there existed no documentation for the Department of Fisheries indicating that in 1998 he had to bank the crab licence on the “Bear Cove Point”. After hearing the appeal, the Board made a recommendation to the Minister of Fisheries that the appeal be denied. The Minister then denied the appeal.
In what appears to be a well-argued case, a number of issues were raised including:
1. Ability to review a decision of the Atlantic Fisheries Licence Appeal Board;
2. Standard of Review;
3. Requirements of Natural Justice;
4. Whether concern about criticism from other participants in the fishing industry was a proper factor for consideration by the Minister;
5. Adequacy of Reasons given by the Appeal Board; and
6. Whether or not the Minister based his decision on correct information (s. 18.1(4)(d) of the Federal Court Act).
Although the arguments with respect to these issues are set out in the reasons for judgement, the court only addressed the issue of whether or not the Minister (and the Appeal Board) based his decision on correct information. Upon reviewing the evidence the court found that both the Appeal Board and the Minister failed to address the issue of whether or not the licence issued to the “Sandy Joanne” in 1998 was only an authorization for the use of a replacement licence under the licence issued to the “Bear Cove Point” or whether it was a separate and independent licence (para. 48). Accordingly, the decision of the Minister to deny the issuance of a licence to the “Sandy Joanne” was quashed with an order that the matter be remitted back to the Minister who (with the assistance of the Appeal Board if he desired) would reconsider the matter after reviewing and considering the evidence with respect to status of the “Sandy Joanne” licence in 1998.
The court refused to make an order that the Applicant receive a separate licence for the “Sandy Joanne” as this would make the court the minister for the day, contrary to what was said in Carpenter Fishing Corp. v. Canada  2 F.C. 548 (C.A.).
Judicial Review Crown Liability - Employment Law – Employment Insurance Appeal
Mercer v. Canada (Minister of National Revenue), 2003 TCC 652
This case dealt the issue of whether or not the common law spouse of an East Coast fish boat owner who worked as a deckhand on his fishing vessel could be considered an employee for the purpose of a section of the Employment Insurance Act that excluded coverage for employees who do not work at arms length from their employers. Based upon the evidence that the deckhand received 79 per cent of the share of the catch while only performing 50 per cent of the duties, the Court excluded coverage based upon the assumption that she was an employee.
Judicial Review/Crown Liability
Keeping v. Canada (Attorney General), 2003 NLCA 21
This case involved a crab fisherman who relied upon a fisheries officer to measure the tonnage of his boat in order to qualify for a fishing licence. In holding the fisheries officer liable in negligence, the trial court found that measuring the depth of a vessel and telling the owner where to place the measuring tape was “not a policy decision but a decision required in the implementation of the policy” (para. 61 trial decision). Since the fisheries officer knew that the tonnage measurement was in connection with a licence that had been applied for, there was proximity or neighbourhood and harm was foreseeable.
With respect to the issue of whether or not the availability of an administrative remedy trumped tort law, the trial court distinguished the Comeau’s Sea Foods decision as a case involving a discretionary decision on a policy issue which had no application to a case involving simple negligence in the operational sense (where there is no practical administrative remedy available).
Upon appeal, the court similarly distinguished Comeau’s Sea Foods on the basis that in the Keeping case when the licence was applied for, the policy pertaining to the issuance of licences had already been adopted and implemented (para. 32). After referring to the test for setting aside a discretionary decision as set out in Comeau’s Sea Foods, the court said that if the vessel had been properly measured by the fisheries officer, “there would have been no valid reason for the Minister not to have issued William Keeping a supplementary crab licence. To not have done so, given that Mr. Keeping would have met all the required criteria, would have been completely arbitrary and in bad faith.”
Editor’s note: This case is significant because it could be used to argue that the failure of the Minister of Fisheries to renew a fishing licence is reviewable because it would be arbitrary and in bad faith.
Judicial Review/Crown Liability – Practice - Damages for delay in Issuing Hake Licence - Practice – Application to Strike because Action is Judicial Review Dressed Up as Tort action
Oak Island International Group Ltd. v. Canada (Attorney General) , 2003 NSSC 47
This case involved a Nova Scotia corporation involved in the business of fishing for silver hake and selling it to an offshore market. The company alleged that it was injured as a result of : (1) a delay in approving its fishing licence and quota in 1995; (2) it received a shortfall in its quota allocation in 1995; and (3) in 1996 it was denied a licence because it did not meet a 15 per cent Canadian processing requirement.
The Crown made a pre-trial application to strike the statement of claim on the grounds that under s. 28 and 18.1 of the Federal Court Act the Nova Scotia Supreme Court did not have jurisdiction because the action was really judicial review dressed up as a tort action.
In denying the Crown’s motion, the court applied the test set out in Horseman v. Horse lake First Nation  A.J. No. 1020 (Q.B.) to the effect that the plaintiff need only show that it was not plain and obvious at this stage that its action was not based on a cause of action other than judicial review. In applying this test, the court reviewed the plaintiffs claims of: (1) abuse of public office; (2) interference with the respondent’s economic interests; and (3) interference with the Respondent’s economic relations to conclude that these were clearly issues of tort law and not within the scope of judicial review.
Editor's note: For more cases dealing with this issue see footnote 17 in the paper CROWN LIABILITY C.L.E. of British Columbia FEDERAL COURT PRACTICE UPDATE - 2003 by Brad Caldwell and Robin Whittaker located in the Papers Section of the Fisheries Page.
Judicial Review/Crown Liabiltiy - Injunctions Against the Crown
North of Smokey Fisherman’s Association v. Canada (Attorney General), 2003 FCT 33
This case involved a judicial review proceeding against the Minister of Fisheries challenging his decision to open a winter cod fishery in the Sydney Bight area east of Cape Breton. While the hearing of the proceeding was pending, the applicant, an association of fishermen, brought on a motion for an interlocutory injunction enjoining the Minister from opening the fishery.
The court dismissed the application for an injunction for the reasons set out below.
S. 22 of the Crown Liability and Proceedings Act prohibits injunctions against the Crown when acting within the powers granted to it by law (although allowing declarations). Since the applicant was not able to show any statutory provision contravened by the Minister or any evidence that his decision was motivated by irrelevant considerations or that he acted arbitrarily or in bad faith, s. 22 applies. In this regard, the court appears to have rejected an argument that the Oceans Act, SC. 1996, c. 31 bound the Minister to take the precautionary approach to management.
Alternatively, the court ruled that the applicant did not satisfy the three-part test for an injunction.
With respect to whether or not there existed a “serious issue to be tried”, the court noted that when the result of the interlocutory motion will, in effect, amount to a final determination of the application, the threshold for satisfying the test is raised and the applicant must make out a prima facie case.
With respect to “irreparable harm”, the court noted that it was necessary to show irreparable harm to the applicant itself.
With respect to “balance of convenience”, the court noted that “an action taken by the Crown is prima facie deemed to be in the public interest . . .” (para. 24). When a public authority is prevented from exercising its statutory powers, “it can be said that the public interest, of which the authority is the guardian, suffers irreparable harm . . . A court should not, as a general rule, attempt to ascertain whether actual harm would result (para. 26) . . . Here, NOSFA, in effect, seeks to have the court manage or police the fishery. That is not a function of the court.” (para. 27).