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Case Summaries

Contracts - Illegality
Practice - Resulting trusts over Licences-

Hurley v. Power, 2008 NSSC 363 [link]

This case involved a claim by a plaintiff who allegedly paid $130,000 for a lobster licence.  Since DFO regulations prevented him from holding it himself, he arranged to have it held by a nominee who later sold it and kept the proceeds of sale. In an action against the various parties involved, the court refused to impose a trust over the licence because it had been sold and transferred to a purchaser who had no knowledge of the trust. Although the licence had apparently been purchased by the plaintiff with money obtained from illegal activities (illegal cigarette and alcohol sales), the court was prepared to grant judgement against the party who received the money (but no longer held the licence) because: 

In the case at bar, the ‘illegality’ upon which the Defendants would seek to rely refers to the source of Hurley’s funds [the plaintiff], and possibly to his failure to disclose their existence to a relevant authority - in other words, his ‘general depravity’.  However, the source of the purchase funds need not be established to prove the existence of the trust relationship arising between the parties in respect of the property purchased.  The underlying ‘illegal transaction’, if indeed one exists, is simply not relevant.

 Moreover, illegality should only exceptionally lead to such a severe consequence as the forfeiture of a person’s property, especially where that forfeiture would be in favour of a person who was a willing party to the illegality.’

Contracts - Lease of fishing Licence - Calculation of Damages - injunctions; constructive trusts

Genge v. Dredge, 2008 NLTD 172, 280 NFLD & P.E.I.R. 283 (Nfld & Lab. S.C.)

This case involved a dispute over the breach of an oral agreement to lease a shrimp fishing licence by way of failing to make the agreed upon lease payments. In granting judgement to the original licence holder, the court made a number of findings and orders including the following:

  1. A fishing licence is an asset that is capable of being leased (para. 57);
  2. Since the shrimp licence had become married to another licence, the court did not order specific performance of a term of the agreement requiring the licence to be transferred back to the original holder as the original holder would be unjustly enriched by receiving the licence that had become married the shrimp licence;
  3. Since an injunction would prevent the licence from being utilized by either party, the court did not order in injunction;
  4. The decision of the SCC in Saulnier v. Saulnier, 2008 SCC 58 "does not overrule and tends to support previous decisions . . . in which a s. 7(1) Licence has been considered property capable of being subject of a constructive trust;
  5. A constructive trust was imposed by the court by way of order requiring the holder to the licence to hold the licence in trust for the original holder, prohibit the holder from transferring the licence to any other person other than the original holder or his estate and to transfer the licence to the original holder or his estate when and if DFO permits the licence to be transferred without being married to the other licence; and
  6. A copy of the court's order is to be forwarded to the Area Licencing Administrator of DFO so that the constructive trust "may be endorsed or noted on DFO's records" (para 125).

Editor's note:  Carwsell provided the neutral citation 2008 NLTD 292, however this citation does not appear to work on CANLII or on the Newfoundland and Labrador court website?

For other cases involving constructive trusts on fishing licences see also The “Wa Yas”  [1993] F.C.J. 909 (F.C.A.) affirming [1993]1 F.C. 36. and my article in the Fisheries Papers section of this web page entitled, “Licence Trusts”.

Contracts - Trust Agreement made for purpose of circumventing residency Requirements and limit of one fishing Licence

Loder v. Citifinancial Canada Inc., 2007 NLCA 78 [link]

This case involved a fish harvester who purchased a fishing licence for $130,000.  Since the licence included a requirement that the holder be a resident and an additional requirement that limited persons to holding only one licence, the purchaser entered into an arrangement to have a third party hold the licence in trust for him.  

Upon the third party getting into financial difficulties, judgments were registered against him with the result that a sheriff received funds earned from the licence.  The purchaser of the licence then made a court application for payment of those funds to him based upon the trust agreement. 

In refusing to enforce the trust agreement, the chamber's judge distinguished an earlier line of authorities that have enforced such agreements, including B.C.P. v. Sparrow (1989), 35 B.C.L.R. (2d) 334 (B.C.C.A.) as cases dealing with trust between vendor's and purchasers. Since the trust in questions was not such a trust, the court refused to enforce it because the applicant did not come to court with clean hands. 

Upon appeal, the  appeal court reviewed  the authorities and concluded that "the authorities do not support the restrictive view stated by the Chambers Judge" [para. 15].  The court further stated:

Clearly the foregoing decisions, including those of this Court in Green v. Harnum, confirm that the registered holder of a DFO fishing license can bind himself or herself contractually respecting not only disposition of the license but the ongoing economic benefits therefrom, and that conversely non-license holders can enforce agreements with license holders in that regard.  As noted in B.C. Packers there is no express statutory or regulatory prohibition against the transfer of a beneficial interest in a fishing license. [para. 21]

Contracts - Dissolution of Partnerships
Practice - Ascertainment of  Income From Fishing Licences - Effect of Deliberate Obstruction of Evidence

Harnum v. Green 2007 NLCA 57, (link);  leave to appeal denied [2007] S.C.C.A. 538

This case involved a fishing enterprise type partnership where one partner continued to carry on the enterprise after the break up of the partnership. This appeal concerned the following issues:

(1) Whether the trial judge erred in law in determining that the value of the assets, for the purpose of sharing between the partners, is the value at the time of distribution and sale of the assets rather than the estimated value as at dissolution;

(2) Whether the trial judge erred in determining the share of post-1999 income of the partnership payable to the departing partner on the basis of the estimates, without admitting the income tax returns of the partner who continued the business; and

(3) Whether the trial judge erred in ordering that the licences and the boat be sold.

With respect to item one (time of valuation), the appeal court ruled that the time of the valuation would be the time at which the assets are distributed. As a result the departing partner retained the benefit of an increase in value of the assets.

With respect to item two (entitlement to post break up income), the court ruled that "[w]here a partnership has existed and has either been dissolved, or if there has not been a formal dissolution but a partner has 'otherwise stopped being a partner', without a final settlement of accounts as between the partners, and one or more partners continue to use the assets, name or business connections and earn income, that income must be accounted for to the partner or partners who have not continued to make use of the partnership assets, name or business connections" (para. 60).

In this case, the only real income producing assets were the fishing licences. Since the partner that continued to carry on the business deliberately obstructed the court's ability to provide the other partner with an accounting, the court relied upon the unchallenged  expert evidence of the departing partner regarding the the type of income that fishing enterprises of the same type normally earned during the relevant time period.

With respect to item three (order for sale of licence and vessel), since there was a true dissolution of the partnership, under the provisions of the Partnership Act, a partner is entitled to insist that the partnership property be sold to ascertain its true value.

Contracts - Trust Agreements-

Philpott and Hopkins v. Sullivan, 2007 NLTD 111 (link)

This case involved a dispute between a fish processor and a  fisher over the enforceability of a trust agreement, which provided that the fisher would hold a crab licence as bare trustee for the processor.  When the processor commenced and action to enforce the trust, the fisher raised a number of defences including non est factum, unconsciounability, and contrary to public policy. After reviewing all of the evidence, the court rejected all of these defences.  With respect to the argument that the agreement was void as being contrary to public policy, the court said as follows:

The agreement is not unenforceable on public policy grounds.   It is true that the License-holding arrangement was structured as it is because of the regulatory requirements of the Department of Fisheries and Oceans. However, the parties to the agreement are not seeking to act or conduct themselves in a manner contrary to the regulations.  The fishing activity contemplated by the License is not being carried on in a manner contrary to the regulations.  Similar agreements have been considered enforceable by the Courts. I restrict my comments on the enforceability of the agreement to the particular circumstances of this case, noting in particular that it is a dispute between the parties to the agreement.  Where third-party interests are involved, or where the purpose of the trust arrangement clearly is to effect a result which is contrary to the intent of the regulatory structure, the result may be different. [para 38 - footnotes omitted]

Contracts - Agreement with Processor - Implied Terms re Liability for shortfall

Ocean Fisheries Ltd. v. Mitchell  [2006] B.C.J. No. 994, 2006 BCSC 713 (link)

This case involved an agreement between a herring fish harvester and a fish processor whereby the fish processor advanced money to the fish harvester in exchange for an agreement to deliver fish. The agreement did not address the issue of what would happen if there were not enough fish landed to cover the funds advanced. At trial evidence was lead that it was the custom of Ocean Fisheries Ltd. to require its fish harvesters to assume the risk of a shortfall.  There was no evidence either way with respect to the practice of other fish harvesters.  Based upon the conclusion that it would not be commercially sensible for a fish processor to advance funds and not expect to get it back, the court implied a term into the contract that the fish harvester would be liable for any shortfall. 

Contracts - Frustration by Change in Minister's Policy

Doucette v. Jones [2006] N.B.J. No. 225, 2006 NBCA 63

See: Article about trial level decision  as upheld by court of appeal: Licence Trusts and Frustration of Contracts (article).

Contracts - Partnerships - accounting And Valuation

Garland Estate v. Garland [2005] N.J. 260, 2005 NLTD 140 

This case involved a application by the estate of a deceased partner for an accounting from the remain partner with respect to a fishing partnership.  After reviewing the applicable law and the fishing assets, the court found that the property in question, including fishing licences, was partnership property , valued the property and ordered a pay out.

Contracts - Existence and scope of partnership

Caul v. Caul [2004] N.J. No. 398, 2004 NLTD 223 (Nfld. & Lab. S.C.)

This case involved a family fishing business.  After the father retired, the five sons sought direction from the court as to who if any of them were partners. After reviewing the law of partnership in general and as it applies in fishing enterprises, per Johannes Estate v. Sheaves (1996), 23 B.C.L.R. (3d) 283, the court held that two of the five sons were partners.  Some of the factors that influenced the finding of partnership between the two brothers were:

  1. Sharing of profits;

  2. Sharing of responsibility for losses, including guaranteeing debts;

  3. Joint ownership of property; 

  4. Participation in management;

  5. Tax filings as partners; 

  6. Signing authority for bank accounts and contracts;

  7. Held selves out as partners; and 

  8. Contributed money.

Some of the factors that influenced a finding that the remaining three brothers were not partners were:  

  1. One did not believe he was a partner;

  2. They did not share responsibility for losses, including guaranteeing debts;

  3. They did not own partnership property jointly;

  4. They did not control the business or participate in management; 

  5. They did not make tax filings as partners; and 

  6. They did not have signing authority. 

Contracts for lease of lobster licence - Mandatory injunction for return to original holder of licence

Shand v. Goreham [2004] N.S.J. No. 512, 2004 NSSC 272

Contracts - Bankruptcy

Dugas (Re Bankruptcy) 2004 NBCA 15

This case involved a bankrupt fisher who because of poor health, arranged for another person to fish his crab licence. At issue was the extent to which the trustee in bankruptcy could collect the revenue received from the licence revenue.  Although it was agreed that the licence itself was exempt from seizure (see s. 2 of the Bankruptcy Act), the court ordered that the revenue from the licence in 2003 was payable to the trustee.  From that money the trustee was obliged to pay all necessary expenses relating to the fishery.

Editor’ note: For other cases on Bankruptcy as it relates to fishing licences see:  Re Bennet (1988), 67 C.B.R. (NS) 314 (B.C.S.C.); Waryk v. Bank of Montreal (1990) 80 C.B.R. (N.S.) 44 (B.C.S.C.); Caisse Populaire de Shippagan Ltee v. Ward [2000] N.B.J. No. 378 (N.B.Q.B.); Careen v. Fewer & Strathie Ltd. 2003 NLCA 33 (digested herein); RBC v. Saulnier 2006 NSCA 91 

This case was upheld on appeal.  

See also 2004 NBQB 200 where an application for discharge is refused.

Contracts – Breach - Order Granting Trustee to Sign Licence Documents 
Practice – Bankruptcy – Order Granting Trustee to Sign Licence Documents

Careen v. Few & Strathie Ltd. [2003] N.J.  No. 164, 2003 NLCA 33 (Nfld. and Labrador C.A.) 

This case involved the breach of agreement respecting the purchase and sale of a fishing licence. This agreement included a declaration of trust concerning the status of the licence prior to it being transferred to the purchaser. Prior to the licence being completely paid for and prior to the transfer of the licence, the vendor made an assignment in bankruptcy.  In order to facilitate the completion of this transaction by the trustee, a court made an order authorizing the trustee to sign documents in place of the bankrupt vendor. Upon appeal by the bankrupt, the court refused to set aside the order and revised the order to provide that “any benefits, and any obligations necessary to claim those benefits, of the agreement . . . flow through to the trustee in bankruptcy, and for greater certainty, the authority of the trustee in bankruptcy to sign, in the place of [the bankrupt] any and all documentation required by the Department of Fisheries and Oceans, or others, to effect the transfer of fishing licences . . . is confirmed.”

Editor’s note: It is not known whether or not D.F.O. recognized the validity of this order and transferred the licence?  

Post script: The use of trust agreements on the East coast of Canada has been challenged in a discussion paper released by D.F.O. entitled  "Preserving the Independence of the Inshore Fleet in Canada's Atlantic Fisheries" December 2003  www.dfo-mpo.gc.ca/afpr-rppa.

Contracts – Enforcement of Agreement to Hold Licence as Nominee
Practise – Stay Pending Appeal of Order for Transfer of Licence

D.E. & Sons Fisheries Ltd. v. Goreham [2003] N.S.J. No. 71, 2003 NSCA 31 (N.S.C.A.)

This case involved an action by a fish processing company to enforce an alleged agreement by a fisherman to hold a lobster licence as nominee for the company.  Upon a summary judgement application, the court gave judgement for the fish processing company and ordered the fisherman to execute all necessary documents to transfer the licence to a nominee of the fish processor. The fisherman appealed the decision and sought a stay of execution of the order pending appeal.  

The Court of Appeal applied the test set out in Fulton Insurance Agencies Ltd. v. Purdy (1990), 100 N.S.R. 92d) 341 (C.A.) to deny the stay for the following reasons: 

  1. The applicant satisfied the first part of the test by establishing it had an arguable case on the appeal;
  1. Since the applicant could be compensated in damages and the respondent appeared to have the financial ability to pay the damages, there was no irreparable harm; and
  1. There were no exceptional circumstances, such as an egregious error on the face of the judgement, which would make it fit and just to grant a stay.

Contracts – For Sale of Licence

Baker v. Smith [2002] N.S.J. No. 348; 2002 NSCA 98 (N.S.C.A.)

This case involved an application for specific performance of a contract to whereby a purchaser would fish a vendor’s snow crab licence and purchase it when it became transferable. The Court of Appeal upheld the ruling of the trial judge refusing to enforce the contract for the following reasons: 

  1. There was no agreement or “meeting of the minds” on an essential term of the contract regarding the details of  future employment of the purchaser by the vendor; and
  1. The deal was subject to the parties entering into a written contract, which they failed to do.

Contracts – Sharing of Losses

458093 BC Ltd. v Dietterle et al., 2001 FCT 823

This case concerned the interpretation of an agreement between the Plaintiff and Defendant relating to the roe herring fishery. The Plaintiff alleged an agreement between it and the Defendant fishermen the terms of which required the Plaintiff to lease the Defendant fishing licences and to provide specific services such as packing and trucking. Expenses for such services were to be recovered “from the final price payable to the fisherman”. In return for providing the fishing licences and services, the Defendant would fish exclusively for the Plaintiff. The agreement further specified how the profits from the fishing would be split between the parties but was silent on what would happen in the event of a loss. Precisely such an event occurred after the 1997 fishery and the Plaintiff sought to recover from the Defendant a portion of the loss. The Prothonotary dismissed the Plaintiff’s claim holding that there was no provision in the contract imposing personal liability on the fishermen in the event of a loss and that the Plaintiff had failed to establish a “long standing and consistent practice” that such losses were shared.

Contracts – Leases – Constructive Trust

Baines v. Deluney [2002] N.J. 48; 2002 CanLII 54020 (Nfld. S.C.)

This case involved the issue of whether or not a shrimp licence transferred to a fisherman was transferred for the purpose of a sale or the purpose of a long-term lease. After reviewing all of the evidence, the court concluded that the transfer was for the purpose of a lease and not a sale. It then imposed a constructive trust on the fishing licence and ordered that the licence be transferred back. In imposing the constructive trust, the court applied the case of Cabot v. Hicks [1999] N.J. 69 (Nfld. S.C.).  It also adopted the following quote from Soulos v. Korkontzilas et al. (1997), 212 N.R. 1 (S.C.C.):  “a constructive trust is the formula through which the conscience of equity finds expression.  When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee.”

Editor’s note: For other cases involving constructive trusts on fishing licences see also The “Wa Yas”  [1993] F.C.J. 909 (F.C.A.) affirming [1993]1 F.C. 36. and my article in the Fisheries Papers section of this web page entitled, “Licence Trusts”.

Contracts – Trusts over fishing licences

Fish Reduction Ltd. v. Molone [1997] N.S.J. NO. 467 (N.S.C.A.)

This case involved an alleged arrangement whereby in order to get around a restriction upon the holding of fishing licences by companies, two companies arranged for an individual to hold a fishing licence in trust for the companies. In an action to enforce the alleged agreement, the court reviewed the evidence and declined to find such a trust.  In doing so, the court said that “[o]ne starts with a basic premise that . . . the registered owner of the licence was the beneficial owner, and that in order to be successful, . . . [the parties alleging the trust] were obliged to establish there was a trust imposed . . .” (para. 24). Upon reviewing evidence that the fish companies normally reduced its trust arrangement to writing, the court took an adverse inference from the fact that the alleged trust agreement at issue had not been reduced to writing.

Upon appeal, the finding of the trial court (Carver, J.) was upheld.  

Contracts - Right of First Refusal

Native Citizens Fisheries Ltd. v. James Walkus Fishing Co. (27 July 1998) No. C884030 (B.C.S.C.) (Downs J.)

This case involved a dispute over whether or not a right of first refusal to lease two roe herring seine licences was properly exercised. After reviewing a great deal of evidence and some related issues such as res Judicata, mistake of law, and misrepresentation, the court ruled that the rights of first refusal had been properly exercised.

Counsel for the Plaintiffs: M.P. Swanson, P. Thiele, G.Lloyd and I. Tuly-Barn

Counsel for the Defendant: B.S. McAlister and D.C. Henricks

Contracts - Frustration - Contrary to Public Policy

Gaudet v. Landry Estate (2 June 1998) No. N/C.140/93 (N.B. Q.B.) (Riordon J.)

This case involved a dispute over an agreement to sell a lobster licence, a herring licence, a mackeral licence and a cod licence along with a small amount of fishing gear. An agreement was entered into with the vendor to sell the licence to a purchaser who was obtaining financing from and giving the use of the licence to his brother in law. A deposit of $3,000 was paid with a deferment of the balance of $30,000 until later so the vendor could attempt to defer tax on the sale. Prior to the final payment, the vendor was offered more money by another party and sold the licence to that party.

In an action by both the purchaser and the brother in law, the vendor attempted to argue that the agreement was void because it was in effect as sale to the brother in law which was against the policy of the Department of Fisheries and Oceans who would not allow such a transfer because the brother in law already held a lobster Licence. This argument was rejected by the court, without any real in depth reasons.

The vendor also attempted to argue that the contract of sale was frustrated because of a moratorium which the Department of Fisheries had imposed upon transfers of Cod licences. This argument was also rejected by the court on the grounds that the cod licence was of little importance or value as was demonstrated by the fact that it was surrendered to D.F.O. when the licence package was sold to the party who offered more money.

Damages were awarded to the purchaser equivalent to the difference in price between the original contract of sale and price which the licences were eventually sold for.

Contracts - rebates -

Franoice C. Cormier fish Inc. v. Bouctouche Fish Market Ltd. (10 December 1996) No. M/C/663/94 (N.B.Q.B.) (Dodin J.)

The Plaintiff was a commission fish buyer who purchased fish from lobster fishers on behalf of the Defendant, fish processor. It was standard practice in the lobster industry to pay a base price for lobsters which was later adjusted depending upon the price paid by the major processors. In two different years, there was a post season rebate paid by the major processors. In one of the two years, the Defendant paid a rebate to some of its customers, but not the Plaintiff. The Plaintiff sued the Defendant to recover the unpaid rebate.  

The Court held that the requirement to pay a rebate was part of the contract between the commission buyer and the fish processor and gave judgment against the fish processor.

Counsel for the Plaintiff:   Stephen J. McNally

Counsel for the Defendant:   Yvon G. LeBlanc