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.
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Judicial Review/Crown Liability - Practice - Application to Strike Againts Lay Litigant Premature
Eidsvik v. Canada (Minister of Fisheries and Oceans), 2011 FC 940
Judicial Review/Crown Liability - Review of Management Plan - Standard of Review - Maplelodge Farms Test Applied - Exception to Mootness Rule - Larocque Distinguished - Under Rule 302 Cannot Challenge Both Fishing Plan and Issuances of Licences Under Plan In Same Proceeding
Association Des Crevettiers Acadiens Du Golfe Inc. v. Canada (Attorney General), 2011 FC 305
Judicial Review/Crown Liability - No discretion under Specie At Risk Act to Permit Harmful Activities to Killer Whale Habitat
David Suzuki Foundation v. Canada (Fisheries and Oceans), 2010 FC 1233
Judicial Review - jurisdiction of Superior Court - whether action in contract and tort a collateral attack on jurisdiction of Federal court
Torts - whether action in tort and contract a collateral attack on jurisdiction of court - No duty on Minister to explain enforceability of contract
Contracts - whether action in tort and contract a collateral attack on jurisdiction of court - Not Enforceable if fettering Discretion
Andrews v. Canada (A.G.), 2009 NLCA 70
This case involved a superior court action by a group of snow crab fish harvesters who alleged that they had a contract with the Minister of Fisheries whereby they gave up their historic right to a proportionate share of a relatively large increase in the total allowable catch of snow crab in the 1990's in exchange for a promise from the Minister of Fisheries that he or she would maintain their traditional catch levels at the 1988-93 levels unless conservation required an overall reduction in the total allowable catch below 1993 levels. As a result of alleged failures of the Minister to honour this commitment in 2000 and thereafter, this group commenced a superior court action alleging breach of contract or alternatively negligence. They claimed damages in excess of $23,000,000.
In an application by the Crown to strike the statement of claim, one of the main issues that arose was the whether or not the superior court had jurisdiction. The Crown argued that the action was a collateral attack on the exclusive jurisdiction of the Federal Court to hear matters of judicial review under section 18 of the Federal Court Act. The plaintiffs argued that there was concurrent jurisdiction under s. 17 of the Federal Court Act and s. 21(1) of the Crown Liability Act. The Applications Judge (2008 NLTD 145 link]), after reviewing a number of authorities including Genge v. Canada (A.G.), 2007 NLCA 60, stated that since judicial review is not a pre-requisite for an action in contract or tort (see Genge para. 40), a court must determine the true nature of the application. In doing so, the court distinguished a number of cases cited by the plaintiffs, such as Keeping v. Canada (A.G.), 2003 NLCA 21, as cases not involving the exercise of ministerial discretion. Since no contractual right to quota could exist until the Minister exercised his or her discretion each year to approve a quota, the true nature of the action was an attack on the Minister's discretionary power (para. 42 trial level decision). Similarly, no negligence in entering into an agreement could be established that was independent of the Minister's exercise of discretion to approve quota. In characterizing the action as a matter of judicial review outside the jurisdiction of the superior court, the court concluded that "[w]here the allegations are fundamentally tied to the decision-making authority of the Minister, there is no room for an action in tort or contract because the impugned action was not independent from the exercise of ministerial authority" (para. 43). As result, the Applications Judge held the statement of claim did no disclose a reasonable cause of action and declined jurisdiction and refused to grant a stay pending a superior court action.
Upon appeal to the Court of Appeal, the decision of the Applications Court was upheld with Wells, J.A. dissenting and with partially different reasons being provided by Barry, J.A. and Welsh, J.A..
Both majority decisions agreed upon the law to be applied as summarized by Welsh, J.A: as follows:
To summarize, the above decisions support several conclusions. First, where, pursuant to legislation, a minister is authorized to exercise discretion in the public interest, that discretion may not be constrained for future use or fettered either directly or indirectly, unless the legislation otherwise provides. Indirect fettering includes exposing the minister or government to liability for damages or payment of compensation for failure to exercise the discretion in a particular way. Despite the apparent harshness of the result, an agreement, implied undertaking or representation having the effect of fettering the minister’s authority is unenforceable and damages are not available. Nonetheless, the minister must act in good faith, not arbitrarily, and must not base his or her decision on considerations irrelevant or extraneous to the statutory purpose. Finally, while damages are not available, a claim for unjust enrichment may be permitted. (para. 83)
However, the two majority judgements varied somewhat on their application of the law to the facts. Welsh J.A. applied the law similarly to that of the Applications Judge by holding that a "claim for damages for failure to exercise the discretion in a particular manner amounts to an improper indirect fettering of the Minister's discretion. . . . The same analysis applies and the same conclusion follows whether the claim is made in contract or tort . . ." (para. 84).
Barry J.A. agreed with Welsh's analysis of the contract claim, but with respect to the tort claim, he added that the pleadings did not set out any duty owed by the Minister to the Applicants. The Applicants must "be taken to know the law and , specifically, the rule against fettering ministerial discretion. Given that knowledge, how can this Court say the Minister owed any duty to explain the limitations on the enforceability of any commitment regarding quotas? In my opinion, no such duty existed." (para. 98).
The dissenting reasons are set out at paragraphs 1 to 58 of the judgement.
Editor's note: Although it did not likely affect the outcome of the decision, all three judges in reviewing the jurisprudence on judicial review of discretionary decisions appear to have overlooked the fact that the requirement of the decision maker to act in good faith, not arbitrarily, and to base his or her decision on considerations irrelevant or extraneous to the statutory purpose are in addition to the needs to meet the requirements of natural justice. In this regard see the editorial comments at the end of the Arsenault digest (link).
(Attorney General) v. Telezone Inc, 2010 SCC 62
Editor's postscript: Since this case was decided, the Supreme Court of Canada released Canada (Attorney General) v. Telezone Inc, 2010 SCC 62, which over-ruled the Genge Canada decision and stated that "where a plaintiff's pleading alleges the elements of a private cause of action, I think the provincial superior court should not in general decline jurisdiction on the basis that the claim looks like a case that could be pursued on judicial review" (para. 76). However, the provincial superior courts and the Federal Court do have the residual discretion to stay a damage claim if, in its essential character it is a claim for judicial review with only a thin pretence of a private wrong (para. 78).
Judicial Review - Decision of Minister based upon recommendation of Atlantic Fisheries licensing appeal Board
Ralph v. Canada , 2009 FC 1274
This case involved an East coast fisher who applied for a turbot licence when a limited entry fishery was announced in 2000, but failed to obtain the licence because of insufficient landings during the qualifying period. He filed an appeal to the Atlantic Fisheries Licence Appeal Board ("AFLAB") and asked for that a licence be granted due to extenuating circumstances, namely, that he had spent $400,000 on upgrades to his vessel to allow him to participate in the fishery. After reviewing his submission, the board concluded that there was insufficient evidence linking the repairs to the turbot fishery (para. 16 & 40). As a result, it recommended to the Minister that the appeal be dismissed (para. 16).
The fisher applied to the Federal Court for judicial review relying, in part, upon the case of Decker v. Canada (A.G.) (digested here).
As preliminary matter, the court had to determine the standard of review to apply. Relying upon the case of New Brunswick (Management Board) v. Dunsmuir,  S.C.R. 190 (digested here), the court decided that questions of procedural fairness, natural justice and matters of law would be decided on a standard of correctness and questions of fact, mixed law and fact and the exercise of discretion should be decided upon a standard of reasonableness (para. 21-2).
In reviewing the Minister's exercise of discretion in accepting the AFLAB's conclusion that there were no extenuating circumstances, the court concluded as follows:
This letter [describing the repairs to the boat in 1999] is insufficient to show a "demonstrated financial commitment" by the Applicant for the prosecution of the turbot fishery and the Board committed no error by failing to mention it in its recommendation to the Minister (para. 40).
Judicial review - Refusal to convert Judicial review Proceeding to action -
Assoc. des Crabiers Acadiens Inc. v. Canada, 2009 FCA 357
Judicial Review - Mandamus to Enforce terms of Management Plan
Arsenault v. Canada , 2009 FCA 300
This case involved a group of traditional crabbers from Prince Edward Island who who were promised financial assistance totalling 37.4 million to offset a 10.85 per reduction in their share of the total allowable catch that was re-allocated to aboriginal fishers pursuant to the Marshall Response initiative. This compensation package was incorporated into the Management Plan and and licences were issued. However, when the fishers sought to claim their share of the financial assistance they were told they would not receive it unless they signed a general form of release that had not been referred to in the management plan.
The issue in the ensuing application for mandamus was "whether the financial assistance announced in the Management Plan forms part of the Minister's discretionary decision under the Act and if so, whether the Minister has a public legal duty to implement the Plan as announced" [para. 29 trial decision].
In deciding the above stated issue in favour of the applicant fishers and making an order of mandamus requiring the payment of compensation without the need for a release, the trial Court concluded that "following the Minister's approval of the Management Plan, his discretionary power was spent and, as a result, he was legally bound to implement it" [para. 19 of appeal decision].
In overturning the trial Court decision and allowing the Crown appeal, the majority appeal judgement stated as follows:
I therefore respectfully believe that Blanchard J. erred in law or that he proceeded on a wrong principle of law in finding that the Minister’s discretion was spent when he approved the Management Plan. The Management Plan is an expression of policy, not a decision to grant permits under section 7, and the Minister’s discretion is thus not exhausted by the approval thereof. The Minister was not bound by his policy and he could, at any time, make changes thereto. Consequently, whether the Minister turned his mind to a release of liability condition when he issued the Management Plan or whether it was an afterthought resulting from suggestions made by Department officials is, in my view, of no help to the respondents, as the Minister could not fetter his discretion when he issued the Management Plan. [para 43]
In a minority concurring decision, Pelletier J.A. was of the view that the Management Plan should be viewed as a series of different decisions as opposed to one single decision. After reviewing the test for granting mandamus, Pelletieir J.A. concluded as follows:
The crabbers had no legal right to any particular amount of quota. This flows from the nature of fishing licences, in respect of whose issuance the Minister has the broadest discretion: see Comeau’s Sea Foods Ltd v. Canada (Minister of Fisheries and Oceans), 1997 CanLII 399 (S.C.C.),  1 S.C.R. 12,  S.C.J. No.5, at paragraph 49. Consequently, if there is no vested right to a given quota, there can be no right to compensation arising purely from the fact of loss of quota. As a result, the decision to offer compensation for lost quota is not one which is based on a statute or a regulation. In fact, the crabbers allege in their action that their right to compensation is a matter of contract. The exercise of the minister’s discretion to issue fishing licences with reduced quota under section 7 of the Act did not result in a public legal duty to pay compensation for the lost quota. There being no public legal duty, the crabbers are not entitled to an order of mandamus.
Editor's note: It is useful that in this and several other recent cases, the Federal Court of Appeal has quoted at length the test to be applied to the review of discretionary decisions from Maple Lodge Farms v. Government of Canada  2 S.C.R. 2. This is useful because this test has been misunderstood by some courts as a result of an unfortunate choice of words by the Supreme Court of Canada at paragraph 36 of Comeau's Sea Foods Ltd. v. Canada [digested herein], which could be interpreted as meaning that reliance upon irrelevant and extraneous considerations, avoiding arbitrariness and acting in good faith is part of the natural justice analysis. However a review of Thomson v. Minister of Fisheries at footnote 9 [link] referred to at paragraph 36 of Comeau reveals that the Court was in fact relying upon the test as set out in Maple Lodge Farms, which makes it clear that these matters are to be considered in addition to the question of the natural justice (see quote at paragraph 38 of Arsenault).
Judicial Review/Crown Liability -Aboriginal Rights/Defences
Nunavut Wildlife Management Board v. Minister of Fisheries and Oceans et al., 2009 FC 16
Barry Group, a Canadian Fishing Company, sold 1900t of turbot quota to two other offshore fishing enterprises for in excess of $10 million. The Minister approved the transfer in late January 2008 and after completing the usual searches, the purchasers completed the transaction in early March 2008, more than 30 days after the Minister’s decision. On March 14, 2008, the Nunavut Wildlife Management Board (“NWMB”) filed an application for judicial review, on the grounds that it was not adequately consulted. On its face, NWMB would not appear to be a party directly affected by the quota transfer approval decision, however the court held that it was and that the application was not beyond the normal 30 day time limit for such applications because NWMB was not aware of the decision until Feb. 18, 2008. None of the commercial parties had any notice of the NWMB interest until they received notice of the application for judicial review.
The Court held that the lack of consultation did not violate Article 15.3.4 of the Nunavut Land Claims Agreement because the quota transfer did not affect the substance or value of the Inuit harvesting rights and opportunities. As a result, the Court did not overturn the Minister’s decision. However, given new concerns raised by the applicant, the Court held that in the future the Minister should broaden his or her consultations with NWMB so as to give the Nunavut an opportunity to explore the possibilities of purchasing quota from quota holders that no longer wished to remain in the fishery.
Aboriginal - Oral History - Judicial Review - Admission of supplementary affidavits of Aboriginal Oral History
Gwasslaam (Geroge Phillip Daniels) v. Canada (Fisheries and Oceans), 2008 FC 912
This case involved a claim to an aboriginal fishing right.
In an application under Federal Court Rule 312 to admit supplemental affidavit evidence of oral history, the Prothonotary denied the application primarily on the grounds that the evidence of oral history was available at the time the application was filed. Upon appeal from a decision of a Prothonotary, the court ruled that it was "in the interests of justice that available evidence with respect to the state of the oral history underlying the Aboriginal claim at the heart of the Application should be available to aid the judge deciding the Application." (para. 13)
Judicial Review Crown Liability - Extension of time to File application arising out of Larocque decision - Availability of order of Mandamus to return funds held by the Crown
Chiasson v. Canada , 2008 FC 616
This case involved an agreement reached between the Minister of Fisheries and the Association des Pescheurs de Poissions de Fond Acadiens Inc. ("APPFA") whereby the Minister would issue a snow crab fishing licence to the APPFA with an allocation of 1000 metric tons in exchange for an agreement from the APPFA to pay the Minister $1,500,000 to be spent on certain management related projects. On June 23, 2006, after the APPFA had paid the money to the Minister, the Federal Court disallowed a similar arrangement in the case of Larocque v. Canada (digested herein). At this point in time the Minister had already spent $477,326 of the funds. Subsequent to the release of the Larocque decision the Minister stopped using the funds and instead used public funds for the management of the fishery.
The court addressed several issues, including:
1) Whether the 30 day deadline for judicial review should be extended;
2) Should a declaration be made that the Minister is illegally holding funds; and
3) Availability of an order of mandamus for the return of funds.
With respect to the first issue (extension of the limitation period), after reviewing the applicable authorities the court granted an extension as the Crown would suffer no prejudice and "[f]iling an application for judicial review in April or May 2006, before the Court of Appeal had rendered its decision in Larocque, would have been a waste of judicial resources. The state of the law in April 2006 was such that Mr. Justice de Montigny held in Larocque, 2006 FC 694 . . . at the trial level, that the program for issuing fishing licences fell within the Minister’s authority under section 7 of the Fisheries Acts."
With respect to the second issue, the court made a declaration that the Minister "illegally used or sold 1000 metric tons of snow crab to finance departmental research activities and is illegally holding the proceeds of the 2006 sale". In doing so, the court also cited authorities for the proposition that the government must obey the law (para. 33).
With respect to the third issue (mandamus), the court declined to make an order as the applicants had other recourses available to them, namely commencing a tort action in a superior court seeking damages (para 30).
Judicial Review/Crown Liability - Standard of Review
Dunsmuir v. New Brunswick, 2008 SCC 9
Although this is a non-fisheries case, it is listed because it is a SCC decision that has made a significant change to the standard of review to be applied in judicial review proceedings. As a result of this case, there will now only be two standards: (1) correctness and (2) reasonableness.
Judicial Review/Crown Liability - Aboriginal Rights and Defences
Ahousaht First Nation v. Canada, 2007 FC 567
This case involved an application by group of First Nations for judicial review of a decision of the Minister of Fisheries to implement a three year pilot plan for individual transferable fishing quotas in the for rockfish, lingcod and dogfish. It was alleged by the First Nations that the Minister had failed to satisfy its duty to consult before implementing the pilot plan. With respect to the scope of the duty to consult the court concluded as follows:
In this case, we are not dealing with a claim to a specific piece of land where the government might be contemplating some development project, or even the issuance of a licence to exploit resources on said land which might substantially deplete the resource in question. Rather, we are dealing with a claim of an aboriginal right to fish commercially, in the context of a proposal by the government to implement a program of quotas with a view, first and foremost, to encourage conservation, as well as to meet a number of other objectives, such as achieving greater accountability and improving economic viability. As such, the respondent argues that, rather than infringing the applicant’s alleged rights, the Pilot Plan will help protect the groundfish fisheries, for the benefit of all Canadians, including the applicants.
In ruling that the Crown had satisfied the duty to consult the court said as follows:
Given the multilateral consultations that were held by DFO in which the applicants took part, given the conservation issues at stake, given the potential impact on groundfish fisheries of the introduction of the 100 per cent monitoring of all catch for the 2006 fishing season without the implementation of transferable IQs, and given that the plan was introduced as a three-year pilot only, I am satisfied that the Minister’s decision to proceed without waiting for bilateral consultations with the applicants to conclude was justified, and did not constitute a failure to abide by his duty to consult with the applicants. [para. 66]
Editor's note: This case was upheld on appeal for slightly different reasons. The decision is reported at 2008 FCA 212
Judicial Review/Crown Liability - Jurisdiction of Federal Court/Superior Ct - Duty to Seek Judicial Review prior to action for damages - Negligence Misrepresentation of Fisheries Officer
Genge v. Canada (Attorney General), 2007 NLTD 36
This case involved a negligent misrepresentation action against the Crown arising from a fisheries officer who mistakenly advised a seal fisher that a seal hunt had closed. The Crown brought an interlocutory application for an order striking out the claim on the grounds that the court lacked jurisdiction and for an order that the claim could only take place after the applicant has made an application for judicial review.
In refusing the Crown's application, the court followed Keeping v. Canada (Attorney General) 2002, 210 Nfld. & P.E.I.R. 1 (digested herein), to find as follows:
I find that the “essence” of the Respondents’ claim is that a fisheries officer made a “terrible mistake” which cost them financially. The mistake had nothing to do with the official capacity of the fisheries officer. It had nothing to do with the management of the seal fishery, the Fisheries Act, the Regulations, the Management Plans, Directives or Orders. The claim arises out of a federal employee that was not paying attention or was too distracted to properly inform himself of the true factual situation. It was a human failing and not an “official” failing. (para 9)
Judicial Review/ Crown Liability - Whether Government of Canada had the Legal Right to Board and arrest vessel in International Waters - No Damages for out of pocket expenses arising from arrest - Test for liability of Crown for actions of servants acting pursuant to invalid legislation
Canada (Attorney General) v. Hijos, 2007 FCA 20
This case involved a civil action by the owner of the Spanish Trawler "Estai" against the Government of Canada arising out of its highly publicized seizure on the high seas in March of 1995. In response to various arguments advanced by the vessel owner, the trial court (2005 FC 1011 (link)) concluded as follows:
(1) Pursuant to the terms of the Coastal Fisheries Protections Act the regulations authorizing the arrest of the "Estai" on the high seas were valid and the ensuing arrest was therefore legal;
(2) When arresting the vessel, the authorities were not reckless and did not use excessive force;
(3) Ice damage was not proven;
(4) Given the stay of proceedings and remarkable circumstances, damages were awarded to cover out of pocket legal, ships agents expenses, loss of fishing income, and extra bunkers; and
(5) No punitive damages were ordered.
The Crown appealed the trial court's award of damages and the the plaintiff cross appealed on a number of grounds, the main one being that the trial court erred in concluding that the regulations authorizing the arrest of vessel on the high seas were not authorized by the Coastal Fisheries Protection Act.
The court rejected the vessel owner's cross appeal primarily upon a conclusion that the challenged regulations were intra virus. However, prior to doing so, it embarked upon an interesting review of the law with respect to the liability of the Crown for damages arising from the enactment of laws subsequently found to be unconstitutional. In doing so, it concluded that the Crown will not be liable unless it can be established that it was either acting in bad faith, was negligent or was reckless (para 61).
Appliction for leave to SCC dismissed  SCCA 119
Judicial Review/Crown Liability - Application to Strike Pleadings - Public Trust Obligations - s. 7 Fisheries Act
Canada (Attorney General) v. Prince Edward Island , 2006 PESCAD 27
This case involves a statement of claim issued in the Prince Edward Island Supreme Court by the Government of Prince Edward Island against the Government of Canada claiming a series of declarations with respect both to the constitutionality of s. 7 of the Fisheries Act and a the validity of a series of historical management decisions of the Minister of Fisheries.
In refusing to strike the statement of claim, the trial court (2005 PESCTD 57) made a number of findings including the following: (1) It is not "plain and obvious" that the words "absolute" in s. 7 of the Fisheries Act are unconstitutional; (2) the jurisdiction of the Federal Court does not oust the jurisdiction of the Superior Court; and (3) With respect to the public trust argument, "[i]f a government can exert its right, as guardian of the public interest, to claim against a party causing damage to that public interest, then it would seem that in another case, a beneficiary of the public interest ought to be able to claim against the government for a failure to properly protect the public interest (para 30).
Upon appeal the Government of Canada, the Prince Edward Island Court of Appeal the court held that
The part of the statement of claim with respect to the constitutional challenge to s.7 of the Fisheries Act, supra is struck out as disclosing no reasonable cause of action. The claim for breach of the Terms of Union also discloses no reasonable cause of action. The Supreme Court of Prince Edward Island has no jurisdiction to hear the s.36 constitutional claim, the s.15 Charter claim or the breach of public trust claim. The appeal is therefore allowed.
Leave to appeal to the Supreme Court of Canada was denied at  S.C.C.A. no. 97 without reasons.
Judicial Review/Crown Liability - Decision of Minister of Fisheries based upon Recommendation of Advisory Boards - Requirements of Natural Justice for requests for Reconsideration - Limit period for Review of Series of Decisions
Benoit v. Canada , 2006 FC 1076
This case involved a fish harvester who was denied CORE status in 1996 and failed to overturn the initial denial after a series of eight appeals.
With respect to the the non-binding recommendations of two advisory boards, the Court followed Jada Fishing Co. v. Canada 2002 FCA 103 (digested herein) to hold that these recommendations were not subject to judicial review.
With respect to the limitation period set out in s. 18.1(2) of the Federal Court Act, the Court held that only the most recent application to the Minister for reconsideration was subject to judicial review.
With respect to the standard of review to be applied to an application for reconsideration, the court applied the patent unreasonableness standard. That is "the Minister is bound to base his or her decision on relevant considerations, avoid arbitrariness and act in good faith." With respect to natural justice, in responding to an application for reconsideration when such an application had not been invited, only minimal procedural fairness was required.
Applying this test, the court declined to grant the application.
Judicial Review/Crown Liability - Declaratory Relief - Does the Fisheries Act give the Minister of Fisheries and Oceans power to finance Research by selling fisheries resources
Larocque v. Canada , 2006 FCA 237
This case involved the failure of the Department of Fisheries and Oceans ("DFO") in 2003 to negotiate a co-management arrangement with the snow crab fleet, which would have provided funding for scientific research related the snow crab fishery. As a result of that failure, DFO decided to undertake research itself by hiring a private contractor and paying him by issuing a scientific research licence that allowed the contractor to retain and sell 50 metric tons of snow crab. Although the preferred method of research was by means of trawl survey, since the trawl surveys would not have produced enough fish to allow the contractor to catch and retain 50 metric tons, the licence also provided for two trap surveys. This method of financing was adopted notwithstanding the fact that the Auditor General has previously raised concerns about such methods.
In 2003, a snow crab fish harvester brought an application for a declaration that the Minister of Fisheries did not have the power "to issue a scientific fishing licence in exchange for a 50-ton allocation of snow crab" (para 9). At the initial application, the Trial Division of the Federal Court denied the application for the following reasons (as described by the Court of Appeal):
[I]issuing the licence would for all intents and purposes be no more than a veiled means of funding the DFO's activities" (paragraph 27). He says that in his opinion "the means of compensating the licence holder for his or her contribution to the DFO's scientific analyses is purely accessory to the true object of the licence" (paragraph 28); that "[t]he situation could have been regarded differently if it had been proven that the crab allocation granted to the licence holder resulted in significant net profits" (paragraph 29) and that "unless the Act were to prohibit the Minister from allocating a snow crab quota to a fisher in exchange for surveys carried out on behalf of the DFO for scientific purposes, I see nothing in the licence itself that would render its issuance unlawful or ultra vires" (paragraph 31). Stating that he was therefore of the opinion that "the Act is silent on this [issue]" (paragraph 32), he then says that the Minister has a broad discretion in issuing licences and that in this case he had exercised his discretion while taking into account the Parliament's objectives.
Upon appeal to the Federal Court of Appeal, the trial level decision was overturned and the requested declaration was granted. In doing so, the Court of Appeal was careful to clarify that it did not take issue with the power of the Minister to issue licences for scientific purposes (para. 11) or even authorize fish caught under a scientific licence to be sold under some circumstances (para. 25). However, based upon the facts of the particular case, the court found that the Minister erred in not obtaining authorization pursuant to the provisions of the Financial Administration Act. In a widely quoted part of the decision the court said as follows:
[I]t is accepted, as the Supreme Court of Canada put it in Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), 1997 CanLII 399 (S.C.C.),  1 S.C.R. 12, that "Canada's fisheries are a 'common property resource', belonging to all the people of Canada" and that "it is the Minister's duty to manage, conserve and develop the fishery on behalf of Canadians in the public interest" (at pages 25 and 26). They do not belong to the Minister, any more than does their sale price. Also, when the Minister decided to pay a contracting party with the proceeds of sale of the snow crab, he was paying with assets that did not belong to him. Paying with the assets of a third party is, to say the very least, an extraordinary act that the Administration could not perform unless so authorized by an act or by duly enacted regulations. Such an act, on its very face, is like an expropriation of fishery resources or a tax on them for the purposes of funding the Crown's undertakings.
Since the application was limited to declaratory relief, the decision has only prospective effect to future snow crab research.
Judicial review/Crown liability -Interim declaration of entitlement to fish processing licence - Practice Interlocutory Injunctions Against the Crown
Prince Edward Island v. Summerside Seafood, 2006 PESCAD 11
This case involved a fish processing plant that was refused a fish processing licence from the Provincial Minister of Fisheries because of its alleged indebtedness to the Provincial Government arising from a loan guarantee. The fish processor commenced a judicial review proceeding against the Government and its officials and then obtained an interim declaration that the fish processor had a right to have its 2004 processing licence issued to it and order that the licence be issued pending litigation.
On appeal by the Crown, the appeal court vacated the interim declaration on the grounds that it was unnecessary as an interlocutory injunction was available.
With respect to the issue of whether or not an interlocutory injunction should be issued, after a lengthy review of the applicable authorities on injunctions and related authorities on stays of proceedings, the court the court set out the following test:
All these comments suggest that it is time to set aside attempts to develop separate jurisprudence for mandatory versus prohibitory interlocutory injunctions or to make distinctions between interlocutory injunctions and stays of proceedings. Rather, there needs to be a focus on the principles applicable to all these analyses.
I would adopt the view that, while there must be a serious issue to be tried, to begin with all that is required is a finding that the issue is neither frivolous not vexatious. Once that is determined the court must consider the issues of irreparable harm and balance of convenience. Those latter two issues may be weak for the applicant, in which case it may be necessary to take another look at the seriousness of the issue to be tried. Where the case for the applicant appears almost certain to be found in his favor, then the other issues may not need to have a particularly strong weight in their favor, they could even be neutral. However, even where a judge is doubtful about the success of a case, but cannot find the issue to be frivolous, then irreparable harm to the applicant and/or overwhelming inconvenience to the applicant as opposed to very little inconvenience to the respondent, can decide the issue in the applicant’s favor. (para. 64-5).
Although the trial level judge granted an injunction, he did not state state what test, if any, he applied in granting the injunction. Accordingly, his decision amounted to an error of law. Since all of the material in support of the original application was before the appeal court, it considered the injunction application on its merits.
With respect to the first part of the three part test, although the material put forward was not strong, it convinced the court that there was a serious issued to be tried, because of the allegations that the discretion of the Treasury Board on whether or not to direct the minister to issue a processing licence was fettered by public announcements of the premier of the province. In addition, there was some evidence to suggest that the fish processor was not truly indebted to the province. However, given the existence of a strong privative clause, the existence of a serious issue to be tried was not sufficient to support an injunction without strong evidence of irreparable harm or balance of convenience.
In this regard, the Government provided no evidence of irreparable harm. Conversely for the fish processor there was evidence that: (1) the processor had been issued licences for the 12 previous years; and (2) the failure to obtain a licence would mean it could not hire its workers, process fish, meet the requirements of its suppliers and possibly go out of business.
Based upon all of the above, the appeal court was prepared to issue an interlocutory injunction. Although it was not prepared to order the government to issue a licence in the future, it granted an order enjoining the Minister of Fisheries, Aquaculture and the Environment from refusing to issue a fish processing licence to the fish processor on the basis that it was indebted to the province (para. 101).
Judicial Review/Crown Liability - Judicial Review Of decision of Minister denying access to Nova Scotia snow crab fishery - Mootness
Campbell v. Canada (Attorney General) , 2006 FC 510
This case involved an application for judicial review of a decision of the Minister of Fisheries denying a request by nine applicants for access to the Nova Scotia snow crab fishery. With respect to the issue of mootness, since the fishing season had already passed there was no live controversy between the parties. Notwithstanding this fact, the court agreed to hear the matter as it involved an important issue and it was likely that the policy in issue would remain the same for the following year.
In denying the request for judicial review, the court refused to apply the pragmatic and functional test to determine a standard of review, on the grounds that this test did not apply to matters of natural justice (para 24-5).
Editor's note: To the extent that the court equated bad faith or failure to take into account relevant considerations with a breach of natural justice, see the postscript to Comeau Seafoods Ltd. decision herein.
Judicial Review/Crown Liability - Practice - Denial of Application for Extension of Time to File Judicial Review Appication
Barnard v. Geof Regan, Minister of Fisheries and Oceans, and Azulemar Fishing Ltd., 2006 F.C. 203
This case involved the ranking of Canadian fishing vessels on a list that allowed these vessels to participate in the U.S. tuna fishery. Under this list, it was anticipated that only the first 94 fishing vessels would be able to participate in this fishery in 2007 and thereafter. After being placed at 97th position on the list, the applicant appealed its ranking to the Minister of Fisheries by way of appeal to the Pacific Region Licence Appeal Board ("PRLAB"). Based upon a non binding recommendation from the PRLAB, the Minister refused to change the applicant's position on the list. Approximately three weeks after the thirty day deadline for filing an application for judicial review of the Minister's decision, the applicant filed an application for an extension of time. Shortly thereafter, Azulemar Fishing Ltd. was added to the proceeding as a respondent, as it occupied the 94th position on the list and would be unable to fish in 2007 if bumped off of the list by the applicant.
Upon hearing the application, the court denied the extension for the following reasons:
1) With respect to the existence of a reasonable explanation for the delay, the court concluded that the applicant did not form the intention to appeal until three weeks after the due date. Efforts to determine what is behind an impugned decision and determining what remedies to take do not constitute adequate explanations for delay.
2) With respect to the existence of an arguable case, the court concluded that judicial review of a decision not to vary a policy is not readily available.
3) With respect to prejudice, there was prejudice to the public in that there is a public interest in finality of decisions (Grenier v. Canada 2005 FCA 348). There was also clear prejudice to Azulemar Fishing Ltd., because it expended funds for the refit of its fishing vessel for the tuna fishery after the 30 day appeal period expired. This prejudice was compounded by the failure of the applicant to serve Azulemar with notice of its application in a timely manner.