Copies of many of the decisions referred to can be obtained from the web site of the Canadian Legal Information Institute. At this site, these cases can also be noted up using the Reflex Record to determine whether they have been changed upon appeal. 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] F.C.J. No. 637; 2006 FC 510 (Fed. Ct. T.D.) (link) 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 (link).
Crown Liability/Judicial Review - denial of Application for Extension of Time to file judicial review application Barnard v. Geof Regan, Minister of Fisheries and Oceans, Fisheries and Oceans Canada and Azulemar Fishing Ltd. 2006 F.C. 203 (reasons) 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. Judicial Review/Crown Liability - Interlocutory Injunctions and Declaratory Relief Practice - Interlocutory Injunctions against the Crown Summerside Seafood Supreme Inc. v. Prince Edward Island (Minister of Fisheries, Aquaculture and Environment [2006] P.E.I.J. No. 32, 2006 PESCAD 11 (P.I.E.S.C. Appeal Div.) (link) 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:
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 - Declaratory Relief - Does the Fisheries Act give the Minister of Fisheries and Oceans power to finance Research by selling fisheries resources Larocque v. Canada (Minister of Fisheries and Oceans) [2006] F.C.J. No. 985, 2006 FCA 237 (F.C.A.) (link) 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.), [1997] 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 - 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 (Attorney General) [2006] F.C.J. 1357, 2006 FC 1076 (Fed. Ct. T.D.) (link) 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 - 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] F.C.J. No. 1573, 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 - Negligent Audit - Misfeasance Taxation - transfer Pricing by Fish Processors Canus v. Canada Customs 2005 NSSC 283 (Reasons) 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, [2003] 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, [2001] 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, [1998] 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 - 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 (A.G.) [2005] F.C.J. 423, 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 [4]: 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 - 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 (Reasons) 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 - 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) 245 D.L.R. (4th) 597 (Nfld & Lab. C.A.); Leave to appeal to SCC refused [2004] SCCA No. 548 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 [1999] 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. Judicial review/Crown liability -Interim declaration of entitlement to fish processing licence Summerside Seafood Supreme Inc. v. Prince Edward Island (Minister of Fisheries, Aquaculture and Environment [2004] P.E.I.J. No. 88, 2004 PESCTD 68 (Campbell J.) This case involved a fish processing plant that had had its fish processing licence renewed every year for 12 years. When the Minister refused to renew the licence on the grounds that the plant was in default of a debt obligation to the provincial government, the plant brought a judicial review proceeding under the provincial Judicial Review Act and Crown Proceedings Act. Upon granting an interim declaration of entitlement to a fish processing licence, the court ruled as follows:
Judicial Review/Crown liability - Decision of Minister based upon recommendation of appeal board containing misapprehension of facts quashed Decker v. Canada (Attorney General) [2004] F.C.J. No. 1762, 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:
The Minister was not precluded from remitting the matter back to a differently constituted board. Judicial Review Crown Liability - Challenge to Minister's power to amend a fish farm licence without proper consultation of Indian Band - Declaration of duty to consult Aboriginal rights and defences - Challenge to Minister's power to amend a fish farm licence without proper consultation of Indian Band - Declaration of duty to consult 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 - 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] F.C.J. No. 1318, 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 - Approval of Amendment of fish farm licence Homalco Indian Band v. British Columbia [2005] B.C.J. No. 401, 2005 BCSC 283 (B.C.S.C.) 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] F.C.J. No. 259, 2004 FC 213 Judicial Review/Crown liability - Judicial review of decision of Provincial court judge for breaching rules of natural justice Armstrong v. Gill [2004] B.C.J. No. 2392, 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 - 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 19, 2004 BCSC 919 Judicial Review and Crown Liability - Non infringement of treaty rights by British Columbia Oil and Gas Commission Saulteau First Nation v. British Columbia (Oil and Gas Commission [2004] B.C.J. No. 128, 2004 BCSC 92 Judicial
Review/Crown Liability – Definition of “fishing” Aboriginal Rights
and Defences – Public Interest Standing Chief Percy Williams et al. v. Minister of Fisheries and Oceans and Heritage Salmon Ltd. 2003 F.C.J. No. 1893, 2003 FCA 484 See trial level digest below. Judicial
Review/Crown Liability Keeping v. Canada (Attorney General) [2003] N.J. No. 116, 2003 NLCA 21 affirming [2002] N.J. No. 9 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 Fennelly
v. Canada (Minister of Fisheries and Oceans) [2003] F.C. NO. 1398, 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:
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 [1998] 2 F.C. 548 (C.A.). Judicial
Review/Crown Liability – Decision of Minister to Not Issue Licence Keating v. Minister of Fisheries (2002) 224 F.T.R. 98, 2002 BCT 1174 (Fed. Ct. T.D.) This case involved judicial review of a decision of the Minister of Fisheries to deny a fisherman’s request for the reinstatement of his supplementary crab licence. After an appeal to the Atlantic Fisheries Licence Appeal Board, the Board recommended to the Minister that the licence be re-instated based upon extenuation circumstances such as the fisherman’s illiteracy. However, after receiving a memo from a deputy minister saying allowing the appeal would “create considerable criticism from licensed crab fishers in the area” he denied the appeal. In allowing the application and remitting the matter back to the Minister to make a decision, the court reasoned that taking into account potential criticism from other fishers was an extraneous and irrelevant consideration (para. 67-8, 71). The court also allowed extrinsic affidavit evidence because it did “not introduce material facts that were not part of the record before the Minister” (60). The court also applied Jada Fishing (2002) 288 N.R. 237 (F.C.A.) (digested herein) with respect to its ability to review the decision of an appeal board in the context of a review of a decision of the Minister who considered the recommendation of that board. In addition the court refused mandamus based upon the decision of Carpenter Fishing Corp. v. Canada [1998] 2 F.C. 247 (F.C.A.) (digested herein). Editor’s Note: With respect to the courts finding that potential criticism from other fishers was an irrelevant consideration, at paragraph 67 the court distinguished Comeau Sea Foods Ltd. v. Canada (1997) 1 S.C.R. 12. In particular, see the court of appeal decision of Linden J. in Comeau at paragraph 33 and paragraph 50 of the Supreme Court of Canada decision where the court said, “[w]here a Minister of the Crown is required by statute to exercise his or her discretion in reaction to immediate and pressing policy concerns, the Legislature can usually be taken to have intended that he or she be ultimately responsible to political authority.” At paragraph 72, the court concludes that there has been a breach of natural justice. To the extent that proper reasons were not supplied by the Minister, I would agree. However, judicial review based upon irrelevant considerations is better categorized as an error or jurisdiction (See Brown and Evans, Judicial Review of Administrative Actions in Canada section 14:2633 and chapter 7:4000). See also the postscript to Comeau Seafoods Ltd. decision herein (link). Judicial Review Crown Liability Employment Law –
Employment Insurance Appeal Mercer v. Canada (Minister of National Revenue [2003] T.C.J. NO. 543, 2003 TCC 652 (Tax Ct. of Canada) (Cain D.T.C.J.) 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 – Exemption from Crown Disclosure – S. 37-8 Canada
Evidence Act Pereira E. Hijos, S.A. v. Canada (Attorney General) [2002]
F.C.J. No. 1658, 2002 FCA 470 (F.C.A.) This case involved a damage action against the Federal Government alleging trespass, assault and negligent navigation arising out of the seizure of the Spanish fishing vessel “Estai” on the high seas in 1995. The decision involved a pre-trial application for an order that a Crown official answer a number questions with respect allegations that the Canadian Government was involved in vote buying in order to get the support of Cuba and other countries to support it in its successful bid at a N.A.F.O. meeting to obtain a large share of the Greenland halibut quota in 1995. The Crown opposed the application on the basis that disclosure would be contrary to the public interest and as such was exempt from disclosure pursuant to ss. 37 and 38 of the Canada Evidence Act. At first instance (2001
FCT 1434 (Fed. Ct. T.D.) (Nadon, J.)), the court denied the Plaintiff’s
application on the ground that disclosure would have a “chilling effect” on
Canada’s international relations. It
also concluded that the answers sought from the Crown were irrelevant to the
issues before the court. Upon appeal, the Federal Court of Appeal allowed the appeal and required the questions to be answered with Canada being given the right to file a new certificate because the current certificate was filed before the questions were asked and did not state the release of information would be injurious to Canada’s international relations. Even though the Court of Appeal agreed with the motions judge that “the information which the plaintiffs seek to obtain will not establish a fact crucial to the plaintiffs case” (one of the factors to be considered in the test set out in R. v. Kahn, [1996] 2 F.C. 316 (T.D.)), it decided to allow the appeal. Judicial Review/Crown Liability – Admission of Extrinsic Evidence re Lack of Jurisdiciton Ecology
Action Centre Society v. Canada (Attorney General) 2002
FCT 1209; [2002] F.C.J. No. 1778 (T.D.) (Dawson J.) This
case involved an application to quash a variation order that opened the Georges
Bank for fishing by any means, including dragging. The Applicant argued that the
variation order was beyond the jurisdiction of the decision maker because the
use of draggers would cause damage to fish habitat. At the initial application before a
Prothonotary, the applicant tendered seven affidavits of expert evidence
regarding the impact that draggers would have on the area affected by the
variation order. The Prothonotary refused to admit these affidavits on the
grounds that they were not before the initial decision maker and that the want
of jurisdiction argued could be made apparent without reference to the
affidavits. Upon appeal, the court applied the test for reviewing discretionary decisions of prothonotaries. In doing so he rejected an argument that the Prothonotary’s order was based upon an incorrect application of the principle or a misapprehension of the facts. With respect to facts, the court applied Gitxsan Treaty Society v. Hospital Employees’ union, [2000] 1 F.C. 135 (C.A.) for the proposition that extrinsic evidence is only admissible in those circumstances “in which the only way to get at the want of jurisdiction is by the bringing of such new evidence before the reviewing court”. With respect to principle, the court rejected the argument that the test set out in Gitxsan only applies to judicial review of decisions that are judicial in nature. The Court agreed with the Prothonotary that substantial material was already before the court on the matters raised by the impugned affidavits. For similar reasons, the court also found that the decision of the Prothonotary did not raise an issue “vital to the final result of the case”. Judicial Review/Crown Liabiltiy - Injunctions Against the Crown North of Smokey Fisherman’s Association v. Canada (Attorney General) [2003] F.C.J. No. 40, 2003 FCT 33 (Fed. Ct. T.D.) (Layden-Stevenson J.) 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). Judicial
Review/Crown Liability – 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; [2003] N.S.J. No. 79 (N.S.S.C.) (Edwards J.) 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 [2002] 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. Judicial
Review/Crown Liability – Definition of “fishing” Aboriginal Rights
and Defences – Public Interest Standing Chief Percy Williams et al. v. Minister of Fisheries and Oceans and Heritage Salmon Ltd. 2003 FCT 30 (F.C.T.D.) (Rouleau J.) 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 [2002] 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 Hache v. Canada (Minister of Fisheries and Oceans 2002 FCT 703, [2002] F.C.J. 952 (F.C.T.D.) (Tremblay-Lamer J.) This case is the sequel to Aucoin v. Canada (Minister of Fisheries and Oceans) [2001] F.C.J. 1157 (digested herein). Aucoin involved a challenge to a co-management agreement between D.F.O. and the East Coast (zone 12) snow crab fishermen. It is reported that as a result of changes to the Unemployment Insurance Act in 1995, it became apparent that numerous employees working in snow crab processing plants were not going to be able to work the minimum number of weeks required to qualify for unemployment insurance benefits. Consequently, D.F.O. initiated discussions with the zone 12 crab fishermen for the purpose of obtaining a contribution of funds from them to be used with other funds contributed by the Provincial Government for the purpose of creating make work projects for the shore workers. As a result of these discussions, the crab fisherman entered into a co-management or partnering type agreement to provide a percentage of their gross revenue to the shore workers. Pursuant to this agreement, a procedure for collecting funds was set up as follows: Each year, D.F.O. with-held 20 per cent of the fishermen’s quota and transferred it to a non profit corporation. Upon payment by each fisherman to the non-profit corporation, the corporation would notify D.F.O. and then transfer the payment to a second non-profit corporation. Upon transfer of the money, the fisherman’s share of the with-held quota would then be released. Although legislation was tabled in Parliament to
authorize this type of co-management or partnering agreement (Bill C-62), this
legislation died on the order paper when Parliament was dissolved in April of
1997. Despite the failure to pass
this legislation, the crab fishermen honored this agreement and paid the levy for several years until they
received an opinion from the Auditor General that the levy was of questionable
legality. They then decided to
challenge the levy imposed for the 2001 fishery by way of an application to the
Federal Court for judicial review. Upon
review, Rouleau J. found that the decision of the Minister was null and void and
ultra virus his powers under the Fisheries Act and prohibited the
Minister from implementing the plan. The
applicants in the Aucoin proceeding then commenced and action in Federal
Court seeking damages against the Crown for, amongst other things, return of the
funds they paid in 2001 in order to obtain the release of the 20 per cent quota
that had been with-held. The plaintiffs then brought an application for summary
judgement of their claim. The
court denied the summary judgement application and referred the matter to the
trial court. In doing so, it said,
amongst other things, as follows: 1.
The characterization of the quota transferred from the Partenariat to the
individual fishers was incorrect because “the quota to be allocated was within
the discretion of the Minister and no fisher has the legal right to a specific
quota in any given year” (para. 16); 2.
Air Canada
v. Ontario Liquor Control Board, [1997]
2 S.C.R. 581 can be distinguished because the funds in this case appear
to have been paid to a third party; 3.
A full trial is necessary to determine whether or not the fishers
received anything in exchange for the quota they are alleged to have lost; 4.
The facts of the case appeared closer to the facts of Cheticamp
Fisheries Co-operative Ltd. v. Canada [1995] N.S.J. No. 127 (C.A.) where an
action against the Crown for interference with economic relations failed because
the plaintiff failed to prove that it did not receive value equal to the monies
held back; and 5. The Plaintiffs had not provided sufficient evidence that the Minister’s actions were deliberately calculated to injure the plaintiffs as is required to support a claim of misfeasance of public office. Judicial
Review/Crown Liabilitiy Jada
Fishing Co. Ltd. et al v. Canada (Minister of Fisheries and Oceans) et al. 2002
FCA 103 (F.C.A.)
In
this case the motions judge (Pelletier
J.), reviewed a recommendation regarding a quota allocation adjustment for an
individual fisherman made by the Pacific Region Licence Appeal Board to the
Minister of Fisheries. Using the Pushpanathan
pragmatic and functional analysis as applied to an “expert tribunal,”
the motions judge applied a standard of review of reasonableness. Upon appeal, the Federal Court of Appeal held that the
recommendations of the Appeal Board itself were not reviewable, but proceeded to
review the decision of the Minister based in part upon the Appeal Board’s
recommendations. In doing so, the
court applied the reasonableness standard of review.
Since the decision of the Minister was upheld on the reasonableness
standard, the court did not feel it necessary to consider whether or the patent
unreasonableness test should be applied on the basis of Suresh v. Canada (Minister of Citizenship and Immigration) 2002 SCC
1. In addition, the court pointed
out that the remedy requested by the applicant (an increased quota) could not be
granted in any event because it would “merely amount to a substitution of the
Court’s recommendation for that of the Panel . . .”. Judicial
Review/Crown Liability Jose
Pereira E. Hijos, S.A. v. Canada (Attorney General) 2001
FCT 1434 (Fed. Ct. T.D.) (Nadon, J.) This
case involved a damage action against the Federal Government alleging trespass,
assault and negligent navigation arising out of the seizure of the Spanish
fishing vessel “Estai” on the high seas in 1995. The decision involved a pre-trial application for an order
that a Crown official answer a number questions with respect allegations that
the Canadian Government was involved in vote buying in order to get the support
of Cuba and other countries to support it in its successful bid at a N.A.F.O.
meeting to obtain a large share of the Greenland halibut quota in 1995. The Crown opposed the application on the basis that disclosure would be
contrary to the public interest and as such was exempt from disclosure pursuant
to ss. 37 and 38 of the Canada Evidence Act. The
court denied the Plaintiff’s application on the ground that disclosure would
have a “chilling effect” on Canada’s international relations. It also concluded that the answers sought from the Crown were irrelevant
to the issues before the court. Judicial
Review/Crown Liability Keeping
v. Canada (Attorney General) [2002]
N.J. No. 9 (Nfld. & Labrador S.C.) (Alward J.) 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 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). 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 the
availability of an administrative remedy trumped tort law, the 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). Judicial
Review/Crown Liability – Ministerial Discretion – Patently Unreasonable Test Tucker
v. Canada (Minister of Fisheries and Oceans) [2001] F.C.J. No. 1862 (F.C.A.) This
case involved an action by a fisherman against the Minister of Fisheries for
damages arising from a decision by the Minister requiring the fisherman to elect
either to utilize an inshore fishing licence for Judicial
Review/Crown Liability Newell
v. Canada 2002 FCT 373
(Fed. Ct. T.D.) (Mackay, J.) This
case involved a crab fisherman who exceeded his individual quota for 1999 crab
landings and consequently had his 2000 individual quota reduced by an amount
equal approximately to his overage in the previous year. In response, the fisherman commenced an action against the Crown seeking
damages for the Crown’s “intentional tortuous interference with his economic
interests which caused him to suffer economic loss”. Upon
application of the Crown, the Court struck the fisherman’s claim on the
grounds that it disclosed no reasonable cause of action. The Court’s reasons for doing so included the following: 1. The Mathews
v. Canada (A.G.) (1996) 118 F.T.R. 81 (T.D.) line of authorities were distinguishable because in the
Newel case the statement of claim contained no factual allegations
that the primary purpose of the quota reduction was to impose a penalty; and 2. “Since a fishing licence
conveys a privilege, not a right, the plaintiff’s claim that the Crown
tortiously interfered with his economic right to fish does not disclose a
reasonable cause of action i.e., a claim recognized by law” (para. 13). In obiter,
the Court also dealt with the
issue of whether or not it was necessary to first bring an application for
judicial review before bringing a application for damages as was done in the
case of LaPointe et al. v. Canada
(Minister of Fisheries and Oceans) (1992), 51 F.T.R.161. Based upon the Zarzour
v. Canada (2000) 268 N.R. 235 (F.C.A.) the Court suggested that “it may be
that in particular circumstances there is no necessity to first seek judicial
review before initiating a claim for damages . . .” (para. 18). Judicial
Review/Crown Liability Durant
v. Canada (Minister of Fisheries and Oceans 2002 FCT 327 (Fed. Ct. T.D.) (O’Keef, J.) This case involved an application for judicial review of a decision by the Minister of Fisheries to discontinue the practise of allowing oyster cleaners to go out onboard oyster boats to clean oysters while the boats fish. Although a fisher’s registration card and a licence were apparently required to clean oysters aboard a fish boat, for many years D.F.O had not been enforcing this rule and had been allowing cleaner to attend on boats with a fisher’s registration card, but not a licence. As a result of an announcement made in April of 2000, commencing on September 15, 2000 no oyster cleaners were allowed to clean oysters aboard fish boats (licences were not issued for this purpose). In denying the application for judicial review, amongst other things the court rules as follows:
Editor’s note: Charges under the Fisheries Act against the applicant were dismissed in Prince Edward Island Provincial Court 2. See the digest of this case under the heading “Offences – Misc.” Judicial Review/Crown Liability – Co-Management AgreementsAucoin
v. Canada (Minister of Fisheries and Oceans) 2001 FCT 800 (F.C.A.) This case involved a challenge to a co-management agreement between D.F.O. and the East Coast (zone 12) snow crab fishermen. It is reported that as a result of changes to the Unemployment Insurance Act in 1995, it became apparent that numerous employees working in snow crab processing plants were not going to be able to work the minimum number of weeks required to qualify for unemployment insurance benefits. Consequently, D.F.O. initiated discussions with the zone 12 crab fishermen for the purpose of obtaining a contribution of funds from them to be used with other funds contributed by the Provincial Government for the purpose of creating make work projects for the shore workers. As a result of these discussions, the crab fisherman entered into a co-management or partnering type agreement to provide a percentage of their gross revenue to the shore workers. Pursuant to this agreement, a procedure for collecting funds was set up as follows: Each year, D.F.O. with-held 20 per cent of the fishermen’s quota and transferred it to a non profit corporation. Upon payment by each fisherman to the non-profit corporation, the corporation would notify D.F.O. and then transfer the payment to a second non-profit corporation. Upon transfer of the money, the fisherman’s share of the with-held quota would then be released. Although legislation was tabled in Parliament to
authorize this type of co-management or partnering agreement (Bill C-62), this
legislation died on the order paper when Parliament was dissolved in April of
1997. Despite the failure to pass
this legislation, the crab fishermen honoured this agreement and paid the levy for several years until they
received an opinion from the Auditor General that the levy was of questionable
legality. They then decided to
challenge the levy imposed for the 2001 fishery by way of an application to
the Federal Court for judicial review. Upon
reviewing the case, the court looked at the question of whether the
conditional licences issued to the non-profit corporation (presumably to hold
he 20 per cent quota) could be authorized under s. 7 of the Fisheries Act.
In rejecting the Minister’s discretion to do so, the court said
as follows: There
is evidence that the licences for snow crab fishing were issued to the
‘Partenariat’ [the
non profit corporation] who owned no fishing vessel and were not engaged in
the fishing industry. Though the Minister has absolute discretion, it is specified
that he may issue licences for fisheries or fishing, not for the purpose of
assisting in setting up an unemployment benefit scheme and collecting
additional levies. The Minister’s conduct in this regard is not supported by
any authority nor is it justified for any statutory purpose. The Fisheries Act is to protect and regulate fisheries and this was
undoubtedly beyond the scope of the Minister’s discretion (para. 43) .
. . I am satisfied that the Minister did not act in good faith (para. 45) A
regime established for the purpose of offering financial aid to seasonal
employees for area fish plants who no longer qualify for employement insurance
benefits is wholly unrelated to the issuance of leases or licences for the
proper management and control of fisheries and conservation and protection of
fish (para. 46). In
addition, in the absence of either an authorization from Cabinet or enabling
legislation, the court also questioned the ability of the Minister to enter
into legally binding contracts to fetter his discretion under s. 7 of the Fisheries
Act. As
a result of the court’s conclusions, it issued an order prohibiting the
implementation of the partnering agreement and setting aside the decision of
the Minister transferring 20 per cent of the quota to the non profit
corporation. Editor’s Note: In the Report of the Panel on Studying Partnership released in 1998 (www.dof-mpo.gc.ca/COMMUNIC/backgrou/1998/hq90_e.htm), a letter from the Deputy Minister of Fisheries is quoted as confirming that the Minister of Fisheries lacks the legal authority to enter into partnering arrangements. Despite this fact, the Minister appears to have proceeded with a number of partnering arrangements on both the East coast and the West coast without passing any new legislation to authorize it. Given this fact, it is not surprising to see this agreement being struck down by the courts. Judicial
Review/Crown Liability – Aboriginal Rights Yale First
Nation v. HMTQ In Right of Canada et al 2001
BCSC 746 This case involved an alleged
agreement between the Yale First Nation and the Minister of Fisheries to allow
a pilot sale fishery in the year 2000 pursuant to the Aboriginal Communal
Fishing Licence Regulations. In an application for summary judgment
under Rule 18A, the Yale First Nation sought a declaration that a document
purporting to record the agreement was an enforceable agreement. The Crown opposed the application for
summary judgment and also sought a declaration under Rule 19(24) that the
plaintiff’s claim be struck as disclosing no reasonable claim. With respect to the summary judgment
portion of the application, the court admitted parole evidence to find that
the written agreement contained a condition precedent to the effect that the
agreement was contingent upon the Department of Fisheries obtaining a similar
agreement from a neighbouring First Nations group. Since such an agreement was not obtained, the condition
precedent was not satisfied and the agreement was not enforceable. In obiter, the court also said
that given the decision of Comeau’s Seafoods Ltd. v. Canada (Fisheries
and Oceans) (1997), 142 D.L.R. (4th) 193 (S.C.C.), even if the
condition precedent had been satisfied, the Minister could not have been
forced to issue a fishing licence. With respect to the application to
strike under Rule 19(24), the court was sympathetic to the Crown’s argument
that at best the agreement was only an agreement authorize the issuance of a
licence. And since the Minister
had the discretion under section 7 of the Fisheries Act to revoke that
authorization at any time prior to the licence being issued, no damages could
flow. However, since the Federal Court of Appeal in Comeau’s Seafoods “did
not state that such a claim [for damages] could never be successful”,
the court did not strike the plaintiff’s claim. In obiter, the court also suggested that under the circumstances, the plaintiff may not have been entitled to declaratory relief because the declaration only concerned a future right (the issuance of a fishing licence) as opposed to an existing right. Given the Comeau decision, the court suggested the plaintiff’s rights did not ripen until a licence had actually been issued. Editor’s Note: Unfortunately, the reasons for judgment in this case do not show the actual wording of the written agreement signed by the Yale First Nation. If the actual agreement only referred to the Minister agreeing to “authorize” the issuance of a licence, then I would agree with the obiter comments of the court. However, if the agreement were simply to issue a licence, I would think the plaintiff would have a reasonable prospect of at least obtaining a judgment for damages. See for example paragraphs 74-7 of the Court of Appeal judgement in Comeau Seafoods; Puddister Trading Corporation Ltd. v Canada (28 May 1997), No. T-168-92 (Fed. Ct. T.D.) (Simpson J.) (digested herein); But see: Aucoin v. Canada (Minister of Fisheries and Oceans) [2001] F.C.J. No. 1157; 2001 FCT 800 at para. 47-8. Judicial
Review/Crown Liability - Injunctions Cassie v. Canada (Minister of Fisheries and Oceans) [2001] F.C.J. No. 625; 2001 FCT 379 (Fed. Ct. T.d.) (Blanchard J.) This case involved an application by a group of snow crab fishermen for an injunction ordering the Minister of Fisheries to issue snow crab licences to them. Whether or not the court could issue an order of mandamus compelling the
Minister to issue the requested licences. In denying the application, the court
relied upon Hahlon v. Canada (Minister of Employment and Immigration)
[1986] 3 F.C. 386 for the proposition that an order of mandamus may be made to
compel the performance of a public duty, but it cannot dictate the result to
be achieved. Since the Minister
has complete discretion under s. 7 of the Fisheries Act, the court
cannot dictate how that discretion will be exercised. The court also noted that s. 22(1) of
the Crown Liability and Proceedings Act prohibits the issuance of an
injunction against the Crown. Given all of the above, the applicant failed to satisfy the first branch of the tripartite test set out in RJR-Macdonald Inc [1994] 1 S.C.R. 311. Judicial Review/Crown Liability – Application to strike under Rule 221(1)(a) as disclosing no reasonable cause of action. Radil Bros.
Fishing Co. Ltd. v. Her Majesty the Queen et al. 19
October 2001 (No. A-786-00) (F.C.A.) Facts This case involved an appeal from an
order of the trial division of the Federal Court (2000 F.C.J. 1885) allowing
an appeal from an order of a Prothonotary (reported at (1999) 175 F.T.R. 182).
The alleged facts, as taken from several of the judgements, are
quite complicated as the case arose out of what is commonly called a
“licence swap” transaction. The
aggrieved party in this case was the owner of an 86-foot fishing vessel with a
category “T” trawl licence which had both a good history of landings and a
high priority position in the Hake Consortium selection process (the
“Owner”). In 1993 the Owner entered into an agreement to purchase a
category “A” salmon licence
from a fish processor for placement upon its vessel. An “A” licence was then transferred to the Owner’s vessel by way
of a transaction whereby a married set of “A” and “T” licences belonging to the fish processor were
transferred to the Owner’s vessel and the Owner’s single “T” licence
was transferred back to the vessel from which the married licences had come.
The result was a classic “swap” transaction. It was alleged by the Owner, that
prior to the swap it was known to all parties that a quota system would likely
be introduced in the ground fish fishery and that catch history would be a
factor in calculating individual vessel quotas. Subsequently, when the individual quota fishery was instituted into the
ground fish fishery in 1997/8, the quota allocation was based 70 per cent upon
the catch history of the vessel. Since the swapped “T” licence obtained
from the fish processor did not have as good a landings record as the original
“T” licence, the Owner lost a considerable amount of quota. In addition, it lost its priority on the Hake Consortium selection
process. It was alleged by the fish processor
that prior to the swap, it had discussed the proposed transaction with the
director of licensing for D.F.O., and had been given a verbal assurance that
the transfers would be affected so that the catch histories of the vessels
would stay with the vessels and not be transferred with the licences. Unfortunately for the Owner and fish processor, the director of
licensing had died and there was no written record of the alleged agreement
with him. To make matters worse, the vessel to which the original “T” licence was transferred, was subsequently sold by the fish processor to a third party who claims to have specifically purchased the vessel because of the high landings associated with the swapped licence. It claimed to have had no knowledge of the alleged agreement with D.F.O. and opposed the enforcement of any such agreement. Previous
Proceedings The plaintiff originally commenced
legal proceedings by way of a judicial review application under Federal
Court Rule 300 seeking both mandamus and declaratory relief against the
Crown. Upon the application of
the third party purchaser, the court later ordered that the application be
converted to an action so as to allow for full discovery and viva voce (oral)
evidence. However, when
converting the proceeding to an action, the Owner also claimed for damages in
addition to the declaratory relief originally claimed. During a summary trial application
before Rouleau J., the third party purchaser was then successful in having the
portion of the prayer for relief struck which claimed relief above and beyond
what was originally contained in the (originating) application under Rule 300.
In response, the Owner then commenced an action in Federal Court
claiming both the declaratory relief and damages which had been claimed in the
previous action as converted from an (originating) application. This action
was against the Crown, the fish processor and the third party purchaser.
An identical action was also commenced in the Supreme Court of British
Columbia. In response, the Crown
brought an application in Federal Court to strike out the Owners statement of
claim pursuant to Rule 221(1) as disclosing no reasonable cause of action.
At first instance before Prothonotary
Hargrave,
the Court denied the motion to strike, provided the plaintiff amended
its statement of claim to include grounds upon which the “a minister’s
discretionary decision might be challenged, grounds which might include
malfeasance, or grounds similar to those set out in Thomson
v. MCI . . . or in Williams
v. Canada . . .” Upon Appeal to the trial division of the Federal Court (McKeown J.), the decision of the Prothonotary was reversed by striking out the statement of claim in the Federal Court action. Decision
of the Federal Court of Appeal Upon further appeal to the Federal
Court of Appeal by the Owner, the court of
appeal in a decision written by Decarry J.A., allowed the statement of claim
to be struck, but gave the Owner leave to file a re-amended statement of claim
alleging negligent misrepresentation against the Crown. In doing so, the court applied the test set out in
Hunt v. Carey
Canada Inc, [1990] S.C.R. 959 as modified as it relates to parallel
Federal Court proceedings in the case of Sweet v. Canada, [1999] F.C.J.
No. 140 (F.C.A.). The court also
rejected the assessments of the case provided by both the Prothonotary
(malfeasance) and the Motions Judge (illegality).
The appeal court was of view that the motions judge construed the
decision of Comeau’s Sea Foods Ltd. v. Canada, [1995] 2 F.C. 467 to
narrowly in rejecting negligent misrepresentation as a possible cause of
action because of the availability of an administrative law remedy to the
plaintiff. In this regard, the
court said: It is premature, at this early stage of the proceedings, to conclude that Radil has no chance, with appropriate amendments, to demonstrate that the alleged negligent misrepresentation was part of an operational, as opposed to policy decision, that there was a prima facie duty of care and that the scope of the duty was not, in the circumstances, to be negatived or limited. Radil has a steep hill to climb, but it cannot, at this state, be said that it cannot be done. (para. 37) Editor’s note: With respect to the issue of
negligence, see the dissent of the Federal Court of Appeal in Comeau’s
Sea Foods v. Canada where Linden J. argues for a remedy against the
Minister of Fisheries based upon the law of negligence as set out in Anns
v. Merton London Borough Council.
See also [1994] 76 CBR 253, where the author argues that in Comeau,
the Supreme Court of Canada missed an opportunity to clarify the law regarding
negligence of public officials. Given
the dissenting opinion of Linden J., I would agree with the Federal Court of
Appeal that the trial level appeal court was over zealous to the extent that
it held that it was plain and obvious that a claim base upon negligence must
fail. See also the digest of this case under the heading, “Practise – Admiralty jurisdiction over fisheries matters” Postscript: See also 2002 FCT 1237 where the Crown brings a partially successful motion on the grounds that the amended statement of claim exceeds what is allowed by the order of the Court of Appeal. See also 2003 FCT 79 where Prothonotary Hargrave fore the most part denies a Crown application to strike out the amended statement of claim. Judicial
Review/Crown Liability Mount Sinai
Hospital Center v. Quebec 2001
SCC41 Although this is not a fisheries case,
it is very similar to the Comeau’s Seafood decision of the S.C.C.
(digested herein) in the sense that it dealt with an initial promise by a
Minister to issue a licence (for a short term care hospital facility),
subsequent reliance on that promise, and then a refusal to issue the licence. At the final level of appeal before
the S.C.C., the majority decision distinguished the Comeau’s Seafood decision
by confining its application to legislation such as the Fisheries Act which
has a two step authorizing and then issuing process for licences. Unlike the Comeau’s
Seafood case, the majority forced the Minister to issue the licence on the
ground that once the Minister had made up his mind to issue the licence, his
discretion had been exhausted and a subsequent Minister’s later reversal of
the earlier Minister’s decision to not issue the licence was reviewable. Unfortunately, the majority
sidestepped the issue of whether or not public law promissory estoppel
applied. The minority judgement concurred in
the result, but reached it by way of a different analysis. They reviewed the decision of the Minister by applying a standard of
patent unreasonableness. In their view, the decision of the Minister was patently
unreasonable. The minority also concluded that public law promissory estoppel could not be applied. In doing so, they set out the four requirements for promissory estoppel and added that for public law estoppel, there is a fifth requirement, namely: “[p]ublic law estoppel clearly requires an appreciation of the legislative intent embodied in the power whose exercise is sought to be estopped. The legislation is paramount. Circumstances that might otherwise create an estoppel may have to yield to an overriding public interest expressed in the legislative text . . . ‘there can be no estoppel in the face of an express provision of a statute’” (para. 47). Aboriginal Rights
and Defences – Availability of Interlocutory Relief to stop Enforcement
Measures Practise –
Injunctions that Finally Determine Rights Ought not be made on an Interlocutory Basis Crown Liability
Judicial Review – Availability of Injunctive Relief Against the Crown Shubenacadie Indian Band v.
Canada (Minister of Fisheries and Oceans) [2000]
F.C.J. No. 1445 (Fed. Ct. T.D.) (Pelletier J.) This case involved a Nova Scotia Indian
Band which was relying upon the two R v. Marshall decisions (digested
herein) in support of an application for an interlocutory injunction to enjoin
D.F.O. from taking enforcement measures to prevent its members from
participating in a Band regulated lobster fishery. The two main issues in the case were:
With respect to the first issue, the
court reconciled two somewhat inconsistent authorities to hold that
“injunctions which finally determine rights, and therefore amount to a
declaration of rights, ought not be made on an interlocutory basis” (para. 44)
except in situations where (1) “the rights must be exercised immediately or
not at all” or (2) “when the damage caused by the refusal of the injunction
will make success at trial nugatory” (para. 51). Since the issue of treaty rights to fish for lobster would likely
“stretch a long way into the future (para. 52), the court did not apply any of
the exceptions to the general rule. Accordingly
the Court ruled that the motion for interlocutory relief be dismissed. Despite its dismissal of the motion, the court also gave its view on the application of the tripartite test for the availability of an injunction. In reviewing the test for determining the balance of convenience the court applied RJR-MacDonald Inc. v. Canada [1991] 1 S.C.R. 311 to find that in constitutional type cases, one must look at the public interest. Once it is established that the government authority is charged with the duty of promoting the public interest and that the “impugned legislation, regulation, or activity was undertaken pursuant to that responsibility” . . . “the court should in most cases assume that irreparable harm to the public interest would result from the restraint of that action” (para. 65). Since the impugned conduct was the enforcement activities of the Department Fisheries against persons fishing without licences, the court ruled, that “the public interest is against creating a vacuum of authority”. Accordingly the court found that the balance of convenience did not favour granting an injunction. Judicial Review - Injunctions - Declaratory Relief McKay v. Canada (Minister of Fisheries and Oceans) (11 December 1998) No. T-1602-98 (Fed Ct. T.D.) (Weston J.) This case involved an attack on the alleged privatization of the ground fish fishery in the Scotia-Fundy area by way of the creation of individual transferable fishing quotas. The case was brought as an action for both injunctive and declaratory relief. On a pre-trial application by the Defendant, the court struck the portions of the statement of claim asking for injunctive relief on the grounds that such relief can only be obtained by way of application for judicial review under section 18.1 of the Federal Court Act see: Mundle v. Canada (1995), 85 F.T.R. 258).
With respect to the declaratory relief sought, the court allowed
the statement of claim to stand, as its allegations were consistent
with the basis of challenge allowed by Carpenter Fishing Ltd.
v. Canada (1997), 221 N.R. 372, namely "bad faith, nonconformity
with the principles of natural justice where the application of
those principles is required by statute, and reliance upon considerations
that are irrelevant or extraneous to the statutory purpose."
Judicial Review - Constitutional validity of terms and conditions imposed on Seal Observation Licences - interim injunction application against the Crown. International Fund for Animal Welfare, Inc. v. Canada (Attorney General) (17 March 1998) No. 98-CV-5100 Ontario Ct. of Justice (General Division) (Chadwick J.) This case involved a constitutional challenge of the conditions imposed upon observation licences for the East Coast seal fishery, issued under section 31 of the Marine Mammal Regulations. The Plaintiff argued that the conditions imposed upon the licences prevented the Plaintiff from fulfilling its mandate of informing the public about the seal hunt and thus violated the Plaintiff's rights to freedom of expression under section 2(b) of the charter. Upon applying for an interlocutory injunction against the crown, the Plaintiff's application was denied. In its reasons for judgment, the court said that when determining the balance of convenience in a constitutional case, one must go beyond considering just the interests of the parties to the suit. Interlocutory injunction are rarely granted because they have the effect of disrupting the orderly function of government (Manitoba A.G. v. Metropolitan Stores Ltd. [1987] 1.S.C.R. 110). The court refused to grant an injunction because it would cause harm to the public interest and restrain the Minister from exercising his power under the Fisheries Act. In its reasons, the court referred extensively to Animal Welfare Inc. v. Canada 35 C.P.R.R. 359 where a similar application was reviewed by the Federal Court of Appeal. In that case, the court held that both regulations requiring observers to stay half a nautical mile from the hunt and the manner in which the regulations were implemented were not reasonably justified under section 1 of the Charter. A passage quoted from the Court of Appeal said as follows:
Counsel for the Plaintiff: Clayton Ruby and Lesli Bisgould Judicial Review - Decision of Minister to establish quota policy - legislative function Carpenter Fishing Co. et al. v. Minister of Fisheries and Oceans (23 Dec. 1997) A-941-96 (Fed. C.A.), (Leave to appeal to S.C.C. denied 20 August 1998, S.C.C. Bulletin, 1998, p. 1194 & 19 November 1998 Bulletin 1998.)
On December 23, 1997, a unanimous decision of the Federal Court
of Appeal overturned the Carpenter Fishing Decision. |
