Federal Court Fisheries Issues: 

  A survey of fisheries cases commonly heard in the Federal Court  

Presented to:

Federal Court Judges Seminar

Sponsored by the Federal Court of 

Canada and the C.M.L.A.

12 April 2002

 I.        Introduction  2

II.     Legal Nature of a Fishing Licence  2

A.        Introduction  2

B.    Disputes Between Licence Holders and Government 3

C.    Disputes Between Private Individuals  4

III.            Existence and Nature of Federal Court Jurisdiction over Fisheries Matters?  6

A.        Introduction  6

B.    Section 22 of the Federal Court Act 6

C.        Overlapping Jurisdiction of the Federal Court under its In Rem Jurisdiction and the Superior Courts Pursuant to the Seizure Provisions of the Federal Fisheries Act. 9

D.    Judicial Review   12

1.        Introduction – Range of Applications and Impediments to Judicial Review   12

2.     Proper Procedure for Judicial Review   14

3.     Powers of the Federal Crown under s. 92(12) of the Constitution Act 15

4.     The Wide Discretion Given to the Minister under s. 7 of the Fisheries Act and Standards of Review   16

a)        Reasonableness Test 17

b)        Patent Unreasonableness Test 18

(1)            Bad Faith  18

(2)            Irrelevant or Extraneous Purpose  20

5.        Justiciability  21

E.    Damage claims against the Crown  22

1.        Misfeasance or Abuse of Public Office  22

2.        Negligence  24

3.        Contract 26

4.        Conversion  29

5.     Breach of the Canadian Bill of Rights. 30

IV.       Misc. 30

V.        Conclusion  31

I.     Introduction

This paper is written as a general overview of the types of fisheries cases that are commonly heard in the Federal Court of Canada.  For those readers who are already familiar with the basic concepts and principals that arise in these cases, this paper also discusses some of the more recent  fisheries law cases, including:

1. R. v. Ulybel Enterrises Ltd. (S.C.C.) – pages 9-12;
2. Ward v. Canada (Attorney General) (S.C.C.) – page 15-6;
3. Jada Fishing Co. v. Canada (Minister of Fisheries and Oceans) (F.C.A.) – page 17, notes 41 & 50;
4. Radil Bros.Fish Co. v. Her Majesty the Queen (F.C.A.) – pages 6, 7-9, notes 49 & 52; and
5. Aucoin v. Canada (Fed. Ct. T.D.) – pages 18-9 & note 66.

II.  Legal Nature of a Fishing Licence

A.   Introduction

The starting point for any discussion of the legal nature of a licence, is the definition as set out in the often quoted case of Heap v. Hartley (1889), 42 Ch.D. 461 (C.A.):

A dispensation or licence properly passes no interest, but only makes an action lawful which without it had been unlawful.[1] (emphasis added)

With respect to a fishing licence, one must also look to s. 7(1) of the Fisheries Act R.S.C, 1985 c. F-14 which provides as follows:

Subject to subsection (2), the Minister may, in his absolute discretion, wherever the exclusive right of fishing does not already exist by law, issue or authorize to be issued leases and licences for fisheries or fishing, wherever situated or carried on. (emphasis added)

The legal nature of a fishing licence, or at least the consequences that flow from it, will depend upon whether one is dealing with a dispute between a licence holder and the government or alternatively a dispute between private individuals.

B.   Disputes Between Licence Holders and Government

Although there are now a large number of cases dealing with the legal nature of a fishing licence,[2] the case most recently cited with approval by the Supreme Court of Canada is the decision Jollife v. The Queen [1986] 1 F.C. 511 (T.D.).  The Supreme Court of Canada describes the Jollife decision as follows:

 Joliffe held that there is no such thing as a vested right in a licence beyond those rights granted for the period for which the licence was issued.  In Joliffe, the plaintiffs sought a declaration against the Minister on their entitlement to fish for salmon by purse seine after he had failed to deliver on assurances he had given them that he would re-issue a licence for salmon purse-seining.  Upon termination of a licence, the Minister has an "absolute discretion" in the issuance of new ones, per Strayer J. (later J.A.), at p. 520:

A case, which illustrates the difficulty the courts have had, dealing with the licence concept, is Timothy Joys v. Minister of National Revenue (1995), 128 D.L.R. (4^th) 385 (F.C.A.). This case involved a large commercial fishing vessel that was seized for illegal importing of drugs pursuant to the provisions of the Customs Act.  The issue in the case was whether in the evaluation of a “conveyance” duly seized and forfeited, the value of the commercial fishing licence “issued in respect of that vessel” could be included. The trial judge (Teitelbaum J.) and the dissenting judge in the appeal (Marceau J.A.) defined “conveyance by looking at the “aggregate values it might have if it were sold on the open market qua licenced fishing vessel”.[4] In doing so, they relied upon cases where mortgage holders had, with the blessing of D.F.O., successfully transferred fishing vessels along with the vessel’s licences[5] to new holders.[6]

The majority of the Federal Court of Appeal (Decary J.A. with concurring judgement by Robertson J.A.), viewed the matter differently.  They adopted a more restrictive view of the word “conveyance” as defined in the Customs Act to “mean” any “water-borne [. . . ] craft [. . . ] that is used to move persons or goods.” Since the fishing licence was not necessary for the vessel’s purpose as a means of transport of goods, it was not part of the conveyance.  In the view of the Decary J.A., this interpretation was supported by the fact under the Fisheries Act and Regulations “licences being the property of the Crown and issued at the discretion of the Minister, can simply not be disposed of in the same manner as other things legally subject to seizure.”[7]

C.   Disputes Between Private Individuals

The most frequently quoted case regarding the “property” like nature of fishing licence when considering disputes between individuals is the judgement of Joyal J. in Johnson v. Ramsay Fishing Co. Ltd. et al.  (1987, 47 D.L.R. (4^th) 544 (F.C.T.D.).  This case involved a dispute between a fifty per cent shareholder of a company and the company itself over the entitlement to a fishing licence that had been mistakenly issued to the shareholder instead of the company for several years.  In holding that the licence belonged to the company, the court said as follows:

These findings, however, are only with respect to the determination, as between the plaintiff and the company and no one else, as to which one can claim a beneficial interest in the licence. These findings relate solely to that issue assuming, of course, that ownership and beneficial interest are equated. It is true that by the nature of the licence, it constitutes an asset which wastes away from year to year, the Crown reserving at all times its unfettered discretion to issue or to refuse to issue a licence. The evidence before me, however, is that a roe herring licence is an asset on which the cost of acquisition may be depreciated or which may be rented out from time to time for gainful sums. There is also evidence that since 1975 and to the present day, roe herring licences have in fact been issued for all applicants who were licencees at the terminal date of 1974 or 1977, as the case may be, and who otherwise continued to comply with the conditions of issuance from time to time. In my mind, such a licence becomes something pretty close to a chose in action, as is a patent right, a bank note, a share in a company. In more vernacular language, it is property. [8] (emphasis added)

Another frequently quoted case involving disputes between private individuals is British Columbia Packers Ltd. v. Sparrow (1989), 35 B.C.L.R. (2d) 334 (B.C.C.A.).  This case involved an agreement to hold the beneficial interest in a herring licence in trust for a purchaser in order to circumvent regulations preventing transfers.  Upon the vendor breaching the agreement to hold the licence in trust and defending that breach on the grounds that the contract was illegal, the court enforced the trust agreement as follows:

 The object of the agreement was the transfer of all beneficial interest in the herring licence to the respondent, Sparrow, who was to remain a bare trustee holding the legal title. It would be unprofitable elaboration to do more than say that one can search the statute and regulations and find no prohibition of transfer of beneficial interest in a herring licence. The restrictions apply only to dealing with the legal title. (p. 340).

In at least one case, the court was even prepared to impose a constructive trust so as to do justice between private parties when there was no express trust in place.[9]

III.          Existence and Nature of Federal Court Jurisdiction over Fisheries Matters?

A.   Introduction

As previously mentioned, most fisheries cases heard in the Federal Court are either claims against the federal Crown pursuant to sections 17, 18 and 18.1 of the Federal Court Act, or actions involving admiralty jurisdiction pursuant to section 22 of the Act.  Both of these areas of jurisdiction will be examined separately. 

As a result of the recent decision of the Supreme Court of Canada in R. v. Ulybel Enterprises Ltd.  (2001), 203 D.L.R. (4^th) 513, it appears that the Federal Court may also have some jurisdiction to hear applications for relief from forfeiture pursuant to section 75 of the Fisheries Act.  This new area of jurisdiction will also be examined.

B.   Section 22 of the Federal Court Act

As was recently pointed out in the case of Radil Bros. Fishing Co. Ltd. v. Her Majesty the

Queen et al. 2001 FCA 317; (2001) 207 D.L.R. (4^th) 82 (F.C.A.),[10] laws relating to fisheries under section 91(12) of the Constitution Act (sea coast and inland fisheries) cannot be equated with navigation and shipping for the purposes of section 22(1) of the Federal Court Act.[11]  However since fishing vessels share characteristics in common with all ships, jurisdiction is often asserted over them under jurisdiction relating to navigation and shipping such as collisions[12], carriage of goods[13] and contracts arising out of construction or repairs to ships.[14]

The more difficult cases, however, tend to arise over disputes involving matters which are unique to fishing vessels, such as fishing licences, fishing gear, and the processing of fish at sea. 

Claims where Federal Court jurisdiction has been recognized in the past include the following:

1.   A necessaries claim for the supply of bait and ice to a ship to enable it to carry on with fishing;[15]

2.   A necessaries claim for the supply of fish by a fishing vessel on the high seas to a fish processing vessel on the high seas in a specified area for the purpose of processing those fish;[16]

3.   A dispute involving a contract for the supply of funds to a vessel owner to be used for acquisition and processing of salmon and salmon roe at sea (with the assistance of on-board technicians supplied by the party supplying the funds);[17]

4.   A dispute involving a contract for the use of a vessel for the purchase, but not processing, of fish at sea;[18]

Claims where Federal Court jurisdiction has not been recognized in the past include the following:

1.     A claim of intentional cutting of ground line of a competing Black Cod vessel by non owner crew members and the use and subsequent disposal of the traps of the competing vessel;[19]

2.     A claim of conspiracy to improperly transfer ground fish quota to a fishing vessel and use the vessel to fish the quota (framed as a maritime tort);[20]

3.     A necessaries claim arising out of an agreement to supply a portion of a fishing quota to a vessel owner/charterer;[21] and

4.     A claim by a fishing vessel owner against its agent (a fish processing company) based on fraud, negligence and breach of fiduciary duty in failing to ensure a proper transfer of fishing licences (so as to preserve their catch history for the purpose of determining quota entitlement) by the Department of Fisheries and Oceans (Radil Bros. Fishing Co. Ltd. v. Her Majesty the Queen et al. (F.C.A.).)[22]

The most recent pronouncement of the Federal Court of Appeal on the issue is the Radil Bros. case described above.  One of the arguments raised during the appeal, was whether or not the supply of a fishing licence was either a necessary or “goods, materials or services supplied to a ship” as set out in s. 22(2)(m) of the Federal Court Act.

In rejecting the argument based upon s. 22(2)(m) of the Act, Decary J.A. relied upon his previous decision in Joys v. M.N.R., supra for the proposition that fishing licences are not an integral part of a vessel and that such licences are not issued to a vessel but to a person in respect of a vessel.[23]  With respect, I would suggest that one must be careful in applying concepts from a case concerning the Customs Act to other cases, as the Customs Act uses the word “means” which denotes an exhaustive definition of the word “conveyance” (p. 392).  In the Joys case the licence was not considered part of the “conveyance” because the licence “was by no means necessary to the vessel’s purpose as a means of transportation” (p. 393).  It cannot be said that a fishing licence is not necessary to the purpose of a fishing vessel, which in these modern times cannot go fishing without a licence.

With respect to a licence not being issued to a vessel but to a person in respect of a vessel, it must be remembered that an action in rem is dependant upon the liability of the owner of the vessel in personam.[24] Accordingly, so long as the licence in the Radil Bros. case was supplied to the vessel owner for the use on the vessel, there should have been no impediment to the court-exercising its jurisdiction.

I would also take issue with the court’s rejection of the argument that the supply of a licence could be a necessary.  Although the term “necessary” is not referred to specifically in any of the subsections to section 22(2) of the Federal Court Act, in the often quoted case of Kuhr v. The Ship “Friederich Busse”, Addy J. noted that “[t]his has long been recognized as a claim falling within the ambit of Canadian maritime law and also the jurisdiction of the former Exchequer Court of Canada and thus the Federal Court of Canada.”[25]  In this case, Addy J. also quotes from Roscoe’s Admiralty Jurisdiction and Practise for the proposition that the term necessary has been “gradually amplified by modern practises”.  I would suggest that historically fishing licences were not considered necessaries because either they were not required or if required they could be purchased for a nominal sum.  In modern times, of course, that is not the case and fishing licences are often worth considerably more than the vessels that fish them. 

It appears that in Radil, the case of the F.A.S. Seafood Producers Ltd. v. Canada (1998) T.C.J. No. 664 (Tax Court of Canada) was not brought to the court’s attention.  This case involved a fisherman who purchased two fishing licences for a total of $150,000 and attempted to deduct the cost of acquisition as an expense against income rather than as capital.  In holding that a fishing licence must be treated as capital, the court said as follows:

[T]he licences are a necessary foundation of a fishing business in the same way as a boat and nets or other tackle. A potential entrant to the industry is immediately faced with the anomalous situation that although the annual licence fees are relatively low, ranging from a high of $2,000.00 for licences to fish for roe herring and herring spawn on kelp, to a low of $10.00 for a number of different classes of licence, they are also, subject to some minor exceptions, unobtainable, except through the one-time outlay of a very substantial amount to purchase an existing licence.[26] (emphasis added)

I would submit that in modern times the court in F.A.S. Seafood Producers Ltd. v. Canada was correct when it said “licences are a necessary foundation of a fishing business in the same way as a boat and nets or other tackle.”  I would also submit that the court was incorrect in the Radil case when it stated that “[f]ishing licences are not issued on the credit of a ship . . .”[27]  While there may have been no evidence in that particular case, it is very common for collateral marine agreements (marine mortgages) to contain a provision purporting to encumber any fishing licences issued to the vessel.  In fact, the practise of D.F.O. assisting mortgage holders in realizing upon vessels including their fishing licences was referred to in Joys v. M.N.R. in its discussion of the cases of Waryk v. Bank of Montreal[28]and CCR Fishing Ltd. et al. v. The Queen.[29]

Given all of the above, it is unfortunate that in exercising its jurisdiction under Canadian maritime law the court did not take the opportunity to expand that jurisdiction to take into account the modern requirements of fish boats.  As was noted in ITO – Int’l Terminal Operators v. Miida Electronics, [1986] 1 S.C.R. 752, “An historical approach may serve to enlighten, but it must not be permitted to confine.”[30]

C.   Overlapping Jurisdiction of the Federal Court under its In Rem Jurisdiction and the Superior Courts Pursuant to the Seizure Provisions of the Federal Fisheries Act.

This issue was recently addressed by the Supreme Court of Canada in R. v. Ulybel Enterprises Ltd.  (2001), 203 D.L.R. (4^th) 513.

This case involved the Canadian registered fishing vessel “Kristina Logos,” which obtained a provisional registration in Panama without first obtaining a deletion certificate from the Canadian Registrar of Ships. It then fished in the NAFO fishing zone without a Canadian fishing licence, which it could do legally if it were a foreign fishing vessel but not as a Canadian fishing vessel.  In order to garner international support for Canadian concerns over excessive fishing by foreign fishing vessels on the nose and tail of the Grand Banks, Canada had to demonstrate its ability to control its own fishing vessels.  Accordingly, it seized the “Kristina Logos” under s. 51 of the Fisheries Act and charged the master.

While the vessel was under seizure, it was also arrested by two claimants in two separate Federal Court admiralty proceedings. One claimant was a bank suing for default under a marine mortgage and the second claim involved a claim to title by some shareholders of the vessel’s owner. Both claimants arrested the vessel. The Crown intervened in one of the Federal Court proceedings and obtained an order that the vessel be released from arrest and sold pending litigation.  The stated reason for the Crown’s application was to avoid the heavy costs being incurred by the Crown for the preservation of the vessel.  Subsequent to the sale of the vessel, the owner of the vessel was convicted of fishing without a license and sentenced with a term of the sentence providing for forfeiture of $50,000 from the proceeds of sale.

Upon appeal to the Newfoundland Court of Appeal, one of the issues raised was whether or not a sale of the vessel prior to the determination of the criminal proceedings, prevented the Crown from claiming forfeiture of the proceeds of sale of the vessel.  The court analyzed sections 71 & 72 of the Fisheries Act and concluded that the legislation did not authorize the court to dispose of a seized vessel prior to trial and retain the proceeds of sale.  The court concluded that by selling the vessel, the Crown had released it from detention which terminated any forfeiture rights the Crown had in the criminal proceeding pursuant to the provisions of the Fisheries Act.

Upon appeal to the Supreme Court of Canada, this decision was reversed and the court interpreted the s. 72 forfeiture powers more broadly so as to restore the $50,000 forfeiture order.   In doing so, the court said as follows:

 The admiralty provisions of the Federal Court Act and the provisions of the  Fisheries Act  can and should be read as a consistent, harmonious scheme for the regulation of maritime matters.  Fishing vessels and their use are at the heart of the activities governed by each regime, and the law in one area will inevitably exert an influence on the law in the other.  For example, it is a likely scenario that many fishing vessels are mortgaged and must be active and producing income in order to discharge the mortgage.  A seizure of such a vessel under the Fisheries Act can result in a lengthy pre-trial detention.  If an owner is unable to obtain the return of the vessel by posting security, by taking the vessel out of the working ocean, it is likely that a period of detention that curtailed the income producing activities of the vessel would precipitate a civil claim against the vessel in a court of admiralty jurisdiction such as the Federal Court of Canada.  Therefore, a reasonable and obvious explanation of the 1991 amendments to s. 72(1) is that the above scenario was anticipated by the legislators, who, in order to preserve the jurisdiction of the courts to impose forfeiture as a penalty, broadened the power to make an order of forfeiture to include in its scope the proceeds of a disposition of a seized vessel realized under an authority other than the Fisheries Act, thus giving effect to Parliament's intention to increase penalties for fisheries offences while also preserving the operation of the presumption of innocence vis-à-vis the quasi-criminal processes of the Fisheries Act(para. 51). (emphasis added)

It should be noted, however, that the court suggested that if the Crown had instituted Federal Court proceedings itself in order to obtain a sale pendant lite, rather than appearing as an intervener in an action already commenced by a third party, it may have viewed its actions as an “end run around the limitations in the Fisheries Act” and decided the case differently.[31]

In addition to allowing the Crown to seek forfeiture of funds paid into Federal Court in rem proceedings (after conviction), the court also suggested the following:

1. “[A] person charged with an offence under the Fisheries Act cannot rely on the presumption of innocence to prevent or delay a person with an in rem claim against his property from obtaining a remedy”[32]; and

2. Although section 74 and 75 of the Fisheries Act envision applications for relief from forfeiture by innocent parties to be made before superior courts, it “is open to an innocent party to assert its interest in the form of an in rem claim against the vessel in Federal Court, under its admiralty jurisdiction.[33]

These conclusions raise some difficult questions.  For example, if an in rem  claimant obtains a Federal Court order for sale, does this automatically terminate the seizure under s. 51 of the Fisheries Act so as to give the new purchaser possession of the vessel?  Another question is what impact would a subsequent arrest of a fishing vessel have on security posted by an owner pursuant to s. 71(2) of the Fisheries Act?  It would appear that by posting security, the vessel owner could end up losing both the full security to the Crown and the value of the vessel to the in rem claimant.  This would be more than the vessel owner would lose if the vessel had remained under seizure? 

While the appeal to the Supreme Court of Canada was pending, this court also raised the issue of the priority of a forfeiture order under section 72 of the Fisheries Act in relation to a holder of a registered mortgage.  At the initial priorities hearing, Prothonotary Morneau decided that the forfeited funds would be paid out in priority to the mortgage.[34]  Upon appeal, MacKay J. gave priority to the mortgagee on the grounds that it was just “another unsecured claim in personam against the owner of the vessel”[35] and “[n]one of the other claims of the parties give rise to a lien recognized in admiralty law.”[36]

MacKay J.’s view of the matter appears to be supported by some parts of the subsequent decision of the Supreme Court of Canada where it refers to the “personam” jurisdiction of the Newfoundland Supreme Court under the Fisheries Act.”[37] However, in other parts of the decision, the Supreme Court of Canada appears to view the right of forfeiture more as an in rem right.[38] Query, also how one explains section 75 of the Fisheries Act which allows “any person who claims an interest in the thing as  . . . mortgagee . . .” to apply for relief from forfeiture. If a mortgagee has priority over a forfeiture order, this section of the Fisheries Act is unnecessary. At the time of writing, an appeal of this decision was pending.

D.   Judicial Review

1.              Introduction – Range of Applications and Impediments to Judicial Review

The Federal Court hears a wide range of applications for judicial review of governmental decisions involving the fishing industry.  These include the review of decisions regarding the following:

1. Issuance of fishing licences;[39]

2. Allocation of fishing licences and rights to fish between user groups;[40]

3. Quota entitlements;[41]

4. Area restrictions;[42]

5. Cancellation or suspensions of licences for of contravention of the Fisheries Act;[43]

6. Orders for forfeiture of licences under the Customs Act;[44]

7. Determination of whether or not there has been proper forfeiture or relinquishment under the Fisheries Act;[45]

8. Aboriginal  entitlement; and[46]

9. Challenges to partnering agreements set up by the Minister of Fisheries without legislative authority.[47]

In order to succeed in a judicial review of a fisheries decision, an applicant has to overcome a number of significant hurdles.  These include the following:

1.     Determination of the proper procedure for bringing the application;

2.     The broad interpretation that the courts have given to the powers of the federal Crown under section 92(12) of the Constitution Act;

3.     The wide discretion given to the Minister of Fisheries under s. 7 of the Fisheries Act;and

4.     Justiciability and the limited remedies available to an applicant for Judicial Review.

Each of these hurdles will be examined separately.

2.              Proper Procedure for Judicial Review

 An application for judicial review can only be made by an originating application under s. 18 and 18.1 to 18.4 of the Federal Court Rules.  Although this can later be converted into an action with leave of the court[48], one cannot add a damage claim to the action when converting it.[49]  Accordingly, if one wishes to bring both an application for judicial review and action for damages against the Crown at the same time, it appears that one must commence both an originating application for judicial review and an action for damages, and then apply to have them heard at the same time.[50]

One must also be careful not to seek a declaration in an action against the Crown.  Unlike the situation at the time Johnson v. Ramsay Fishing Co.[51] was decided, sections 18(3) and 18.1 of the Federal Court Act now make it mandatory for declaratory relief against a federal board, commission or other tribunal to be commenced only through an application for judicial review.[52]

3.              Powers of the Federal Crown under s. 92(12) of the Constitution Act

Another hurdle to be overcome by an applicant for judicial review is the broad powers granted to the Federal Crown under section 92(12) of the Constitution Act (See Coast and Inland Fisheries). One of the most frequently quoted fisheries case is the decision of the Federal Court of Appeal in the case of  Gulf Trollers Assn. v. Canada (Minister of Fisheries and Oceans), [1987] 2 F.C. 93.  This case involved a challenge to fisheries regulations providing for closing times that favoured sports fishermen over commercial fishermen.  Although this was originally an application for certiorari, the administrative law issues had to a large extent become moot by the time the case came before the Court of Appeal.  Despite this fact, the Court of Appeal decided to render a decision because the fundamental issue before the court was “whether Parliament, in the exercise of its legislative competence under subsection 91(12) of the Constitution Act, 1867 can establish close and open times for catching fish not only for the purpose of conservation but also for the purpose of a socio-economic nature” (pp. 102-3).  The court upheld the closure of the fishery to commercial fisherman and said the following in frequently quoted passage:

Parliament may manage the fishery on social, economic or other grounds, either in conjunction with steps taken to conserve, protect, harvest the reserve or simply carry out social, cultural or economic goals and policies. (p.106)

This passage was recently cited with apparent approval by the Supreme Court of Canada in the case of Ward v. Canada (Attorney General) 2002 SCC 17.[53] Although the Supreme Court appears to have fallen short of specifically adopting the words “social”, it speaks of a very broad constitutional power as follows:

These cases put beyond doubt that the fisheries power includes not only conservation and protection, but also the general "regulation" of the fisheries, including their management and control.  They recognize that "fisheries" under  s. 91(12) of the Constitution Act, 1867 refers to the fisheries as a resource; "a source of national or provincial wealth" (Robertson, supra, at p. 121); "a common property resource" to be managed for the good of all Canadians (Comeau's Sea Foods, supra, at para. 37).   The fisheries resource includes the animals that inhabit the seas.  But it also embraces commercial and economic interests, aboriginal rights and interests, and the public interest in sport and recreation. (para. 41).[54]

As will be seen below, in the context of judicial review, the Gulf Trollers decision and the broad interpretation of the power of the federal government under s. 92(12) most often arises in the context of whether or not the Minister as acted for an irrelevant or extraneous purpose.[55]  It is also relevant to the issue of what standard of review is to be applied to a decision of the Minister.[56]

4.              The Wide Discretion Given to the Minister under s. 7 of the Fisheries Act and Standards of Review

In addition to the wide constitutional power of the federal Crown, an applicant for judicial review also has to overcome the wide discretion given to the Minister of Fisheries under section 7 of the Fisheries Act.  As noted above in the discussion of the legal nature of a fishing licence, s. 7 of the Fisheries Act gives the Minister the authority to issue licences in his “absolute discretion”.  Accordingly, the standard of review to be applied to decisions of the Minister regarding licences, is determined by the jurisprudence governing discretionary decisions.  

Although the recent decision of Suresh v. Minister of Citizenship and Immigration[57] suggests that the Supreme Court is leaning towards applying the “patently unreasonable” test to all discretionary ministerial decisions, the existing jurisprudence as applied to fisheries cases suggests that the nature of the test still depends, amongst other things, upon the nature the decision being made.   For example in Carpenter Fishing, supra, a case involving judicial review of a quota allocation decision, the Federal Court of Appeal said as follows:

In my view, the Trial Judge erred in hearing and assessing the evidence on the basis that what was at issue was not legislative action.  That error led him to impose adherence to rules of natural justice that did not apply and to examine the evidence as if he was entitled to second-guess the propriety of the quota attributed by the Minister (para. 27).

The imposition of a quota policy (as opposed to the granting of a specific licence) is a discretionary decision in the nature of policy or legislative action (para. 28). (emphasis added)

It is clear