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 that at least at the time this decision was made in 1997, the court was of the view that a decision regarding the granting of a specific licence would attract a different standard of review.[58]

In the more recent decision of Jada Fishing Co. v. Canada (Minister of Fisheries and Oceans[59] the motions judge (Pelletier J.), reviewed a recommendation regarding 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 the Suresh decision.[60]

Recently in Comeau’s Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans) [1997] 1 S.C.R. 12, the Supreme Court of Canada appears to have affirmed the application of the patently unreasonable standard of review[61] to cases involving the authority of the Minister to issue and authorize the issuance of licences under section 7 of the Fisheries Act.

a)              Reasonableness Test

Recently, when applying the reasonableness test in the case of Jada Fishing Co. v. Canada (Minister of Fisheries and Oceans, the Court of Appeal said, “following Baker, supra, the recommendations would be unreasonable if not supported by reasons that could stand up to a somewhat probing examination.”[62]

b)             Patent Unreasonableness Test

This test was set out by the Federal Court of Appeal in the Carpenter Fishing, supra as follows:

Policy guidelines outlining the general requirements for the granting of licences are not regulations; nor do they have the force of law. It flows from the decision of the Supreme Court of Canada in Maple Lodge Farms Ltd. v. Government of Canada [See Note 2 below] and from the decision of this Court in Canadian Assn. of Regulated Importers v. Canada (Attorney General), [See Note 3 below] that the Minister, provided he does not fetter his discretion to grant a licence by treating the guidelines as binding upon him, may validly and properly indicate the kind of considerations by which he will be guided as a general rule when allocating quotas. These discretionary policy guidelines are not subject to judicial review, save according to the three exceptions set out in Maple Lodge Farms: bad faith, non-conformity with the principles of natural justice where their application is required by statute and reliance placed upon considerations that are irrelevant or extraneous to the statutory purpose.[63] 

Although Comeau’s Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans) was not a judicial review case, in obiter it also appears to have affirmed this test.[64]

The elements of this test warrant separate examination.

(1)            Bad Faith

Given the obvious evidentiary difficulties, bad faith is often difficult to prove.  However, a finding of bad faith was recently made in the case of Aucoin v. Canada 2001 FCT 800 (Fed. Ct. T.D) (Rouleu J.). 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 fishermen’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 the 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).

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.[65]

(2)            Irrelevant or Extraneous Purpose

Given the broad interpretation of the power of the federal government under s. 92(12) of the Constitution Act and the broad discretion give to the Minister of Fisheries under section 7 of the Fisheries Act, it is very difficult to successfully challenge a decision of the Minister under this heading.  For example, in the Carpenter Fishing appeal, after citing the Gulf Trollers decision, supra  the Comeau’s Sea Foods decision, supra and section 7 of the Fisheries Act, the Court said as follow:

[W]hen examining the exercise by the Minister of his powers, duties, functions and discretion in relation to the establishment and implementation of a fishing quota policy, courts should recognize, and give effect to, the avowed intent of Parliament and of the Governor in Council to confer to the Minister the widest possible freedom to manoeuvre (para. 37).

Despite this wide freedom to manoeuvre, the Minister of Fisheries does occasionally get caught going beyond the permissible purposes of the Fisheries Act.  Examples include the following:

1. Creating a regime established for the purpose of offering financial aid to seasonal employees for area fish plants who no longer qualify for employment insurance;[66]

2. Refusing to issue a snow crab licence for the first three weeks of the fishing season and reducing the quota under the licence by 50 per cent for the entire season in order to penalize the licence holder for not complying with the conditions of his licence;[67]

3. Suspending a fishing licence for violating a Fisheries Regulation based upon the erroneous assumption that the licence holder would not suffer undue financial hardship;[68]

4.     Failing to give special consideration to the principles of adjacency and economic dependence as required by a land claims agreement or misconstruing those principles when allocating an increased total allowable catch among competing fishing groups; and[69]

5. Refusing to issue a permit (pursuant to power delegated from the Governor in Council) to a U.S. fishing vessel to enter Canadian waters for the purpose of buttressing Canada’s stance in international fisheries negotiations.[70]

5.              Justiciability

Another hurdle faced by an applicant for judicial review is the concept of justiciability. This is the principle that the courts are not a suitable forum for determining matters of public policy.[71] This appears to be the concept the Federal Court of Appeal was applying in Carpenter Fishing, supra when it said as follows:

They rather argued that the Minister's decision to implement part of the policy--what they called the current owner restriction--was illegal and that the illegal part could be severed from the policy. They asked the Trial Judge, for all practical purposes, to substitute their own formula to that of the Minister, without any consultation with the industry and without any vote. In complying with their request, the Trial Judge became the Minister for a day and imposed a formula the effect of which on the halibut fishery is unknown and untested. This, clearly, the Trial Judge could not do, even if he had been right in finding the policy invalid; the most he could have done would have been to remit the matter back to the Minister for reconsideration and adoption of a different formula. It is only in the rare occasion where a component of a policy is so irrelevant and contrary to public policy--quota, for example, that would be allocated in part on the basis of the colour of the skin of the fisherman--that a court could take upon itself to sever that component from the formula. (para. 42) (emphasis added)

See also Nunnavut, supra, para 55 & 71; and Caissie v. Canada (Minister of Fisheries and Oceans)[2001] F.C.J. No. 625[72].

E.   Damage claims against the Crown

A somewhat less common source of jurisdiction for fisheries cases is the jurisdiction granted under section 17 of the Federal Court Act for damage claims against the Crown.  Although successful damage claims against the Minister of Fisheries are even rarer than successful judicial review applications, they are occasionally successful.  These include claims based upon the following:

1. Misfeasance or abuse of public office;

2. Negligence;

3. Contract;

4. Conversion; and

5. Breach of the Canadian Bill of Rights.

1.              Misfeasance or Abuse of Public Office

As noted by David J. Mullan, “the occasions for the invocation of this form of liability are very infrequent. Indeed were it not for Duplessis’s frankness when testifying as to his conduct and the reasons for it, it is doubtful that Roncarelli’s action would have succeeded.”[73] 

The fisheries version of Roncarelli v. Duplessis[74] is the case of Lapointe v. Canada (Minister of Fisheries and Oceans) (1992), 4 Admin. L.R. (2d) 29 (Fed. Ct. T.D.) (Collier J.) (“Lappointe No. 2”).  This case involved a fisherman who had been convicted of catching herring in a closed area.  In response to political pressure to take action against the fisherman, the Minister of Fisheries suspended the fisherman’s licence despite receiving advice from a Department of Justice lawyer that he had no authority to do so and could be found liable in damages if the decision were challenged.  As previously noted, in a separate proceeding Rouleau J. quashed the decision to suspend the licence and ordered its re-instatement.[75]  In the subsequent action for damages, the Court awarded damages for loss of income plus punitive damages.  In granting the damage award, the court said as follows:

 The facts reveal the defendants consciously elected to disregard the law in order to make an example of the plaintiff and to confirm the Department's commitment to preventing fishermen from fishing in closed areas.  The cancellation of the plaintiffs' licences can only be characterized as an extraordinary action taken in a highly visible situation.  By unlawfully ordering the cancellation, with full knowledge there was no legislative authority to do so, the defendants committed an unwarranted and illegal act for which they are subject to liability for the damages sustained by the plaintiffs.

More recently in the Radil Bros. Case,[76] McKeown J. set out the test for nonfeasance as follows: 

In order to make out the tort of misfeasance in public office, the Plaintiff must establish the following three elements:

¶ Robertson J. A., in Comeau, supra, at 529-530 described misfeasance in a public office as follows:

McKeown then struck the portion of the statement of claim alleging nonfeasance on the grounds that the statement of claim made no allegations to support such a claim.[78]  This portion of his decision was upheld by the Court of Appeal.[79]

For an example of an unsuccessful claim of misfeasance see the judgement of Robertson J.A. in Comeau’s Sea Foods v. Canada (Minister of Fishereries), supra at paragraphs 116 to 123.  See also  Keeping v. Canda (Attorney General) [2002] N.J. No. 9 (Nfld. 7 Labrador S.C.) (Aylward J.) at paragraphs 56-7.

2.              Negligence

Probably the best-known fisheries case on negligence is Comeau’s Seafoods Limited v. Canada (Minister of Fisheries and Oceans).[80] In this case, the Minister of Fisheries sent the Plaintiff fishing company a telex advising that he had authorized the issuance of four offshore lobster licences to it. The Plaintiff then provided the Minister with details of its fishing plans, including the fact that it had spent $500,000 dollars in converting one vessel into a lobster fishing vessel and was anticipating spending additional funds on its other vessels.  After the initial notification, the issuance of the licences became a political issue and after intense lobbying from the inshore lobster fleet, the Minister announced that the four licences would not be issued pending further study.  A study was completed which recommended that no new offshore licences be issued, since that could “influence the distribution of income derived from the lobster fishery, the ability of new entrants to gain access to the fishery and the relationship between the inshore and offshore fisheries.” The Licences were never issued.

At the trial level, the Strayer J. applied the Anns v. Merton London Borough Council test to hold the Minister of Fisheries liable in negligence.  Based upon his finding that the Minister’s revocation of his authorization to issue a licence was ultra virus, he did not apply the policy exception set out in Anns.  At the appeal level, in a 2-1 decision, the Federal Court of Appeal set aside the trial decision.  In the judgement of Stone J.A., he relied upon the obiter comments of Lord Keith in Rowling v. Takaro Properties Ltd.[81] to find that the availability of an administrative law remedy was a policy reason for barring the plaintiff from pursuing in action in negligence.  Robertson J.A.  allowed the appeal for different reasons.  He applied the Anns test and held that duty of the Minister to issue the fishing licence was negated because it was a policy decision.  Under the alternative duty requiring the Minister to act reasonably in ascertaining whether he had the legal authority to revoke the earlier authorization, he found that the Minister did not breach the requisite standard of care.  In his dissent, Linden J.A. substantially agreed with the trial judge that once the policy decision to authorize the issuance of a licence had been made, no policy issues remained to be resolved. He also would have held the Minister liable for consequential economic loss.  Accordingly, the Minister had no policy immunity.  Linden J.A. was critical of the application of Rowling v. Takaro Properties Ltd. and any eclipsing of the needs of tort law by the needs of administrative law. In particular, he referred to the practical difficulty of fishermen relying upon an administrative remedy because of the difficulty of obtaining such a remedy prior to the fishing season.

Unfortunately, the Supreme Court of Canada missed the opportunity to clarify the law of negligence as it relates to crown liability by deciding the case on alternative grounds.[82]  Mr. Justice Major writing for the Court noted that section 7 of the Fisheries Act is silent on whether the Minister of Fisheries can revoke an authorization previously given.  He then reviewed the authorities on the Ministers absolute discretion under section 7 and concluded as follows:

It is my opinion that the Minister’s discretion under s. 7 to authorize the issuance of licences, like the Minister’s discretion to issue licences, is restricted only by the requirement of natural justice, no regulations currently being applicable.  The Minister is bound to base his or her decision on relevant considerations, avoid arbitrariness and act in good faith. 

He went on to conclude that the power to authorize the issuance of a licence under section 7 is a continuing power within the meaning of section 31(3) of the Interpretation Act which can be revoked at any time prior to issuance of the licence.  Since the Minister revoked his prior authorization for the purpose of invoking government policy, negligence was not established.[83]

With respect to the suggestion by Stone J.A. in the Comeau’s Sea Foods decision that the existence of an administrative law remedy negates a duty of care, see the decision of the Federal Court of Appeal in Radil Bros, supra where in reviewing an application to strike a statement of claim, Decary J.A. referred to the decision of Stone J.A. and said as follows:

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 duty was not, in the circumstances, to be negatived or limited.  Radil has a steep hill to climb, but it cannot, at this stage, be said that it cannot be done.[84] (emphasis added)

It may be that there is a middle ground between the positions of Stone J.A. and Linden J.A. with respect to the issue of whether or not an administrative remedy negates imposing a duty of care on policy grounds.  See for example, Lapointe (No. 2), supra where after granting an award of certiorari to quash the cancellation of a fishing licence, in a subsequent action the court also granted damages for the loss of fishing income that occurred prior to the administrative remedy being granted.  Although this case involved the tort of misfeasance rather than negligence, it would be only a modest extension of the law to allow a similar claim to damages arising from negligence.

For a relatively recent decision where damages were awarded against the Department of Fisheries for negligence see Keeping v. Canada (Attorney General) [2002] N.J. No. 9 (Nfld. 7 Labrador S.C.) (Aylward 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”[85]  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 availability of an administrative remedy, he 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.[86]

For a case on negligent misrepresentation, see Keleher et al. v. Canada (Minister of Fisheries and Ocean (1989) 26 F.T.R. 161 (Fed. Ct. T.D.) (Reed J.). In this case a group of fishermen were misled, by a letter from the Minister of Fisheries and by statements from D.F.O. officials, into thinking that they would not be able to obtain a fishing licence in the following year because of their employment as stevedores.  These fishermen then detrimentally relied upon this advise by surrendering their licences to a government buy back program at an improvident price.  As a result, the Minister was held liable for negligent misstatement.

3.              Contract

Cases where the Minister of Fisheries has been held liable in contract are very rare. 

One such case is Puddister Trading Corporation Ltd. v Canada (28 May 1997), No. T-168-92 (Fed. Ct. T.D.) (Simpson J.).  This case involved an application by a licence holder for compensation arising out of the closure of the offshore seal fishery of Newfoundland.  While the plaintiff was not successful in its primary objective, of obtaining compensation for the closure of the fishery, it obtained limited success in obtaining damages against the Department of Fisheries and Oceans (D.F.O.) for the failure of bureaucrats to follow the instructions of Cabinet. 

As a result of  protests by Greenpeace and other environmental organizations in the 1970's and early 1980's, the European Economic Community banned the importation of whitecoat and blueback seal pelts into Europe in 1983.  As a result of this ban, in 1984 and 1985 no offshore seal hunters participated in the fishery.  However, they did continue to renew their licences in the hopes that market conditions would improve.  In 1986, a Royal Commission on the seal fishery released a report that recommended permanent closure of the fishery for newborn seals and compensation for those persons affected by the closure.   In 1987, prior to any action being taken to implement this report, the Plaintiff, who owned several licensed offshore sealing vessels, began fishing again. This renewed fishing caused more protests from animal rights groups along with a "thinly veiled threat" from one such group to release a video that would adversely affect the East Coast cod fishery.   These renewed protests in turn caused the Minister of Fisheries, Thomas Siddon, to permanently close the offshore fishery in 1988. Shortly after the closure of the fishery, the Minister's delegate, John Crosbie, announced that the Government would appoint someone to look into the issue of compensation for persons displaced by the closure.  At the time, the Minister and his delegate were both in favour of compensation, while the bureaucrats including the Deputy Minister and the Atlantic Seal co-ordinator were against it. Consequently, because of the difference of opinion between the Minister and his  bureaucrats, Cabinet decided to order and fund an independent study by John Gover into the issues surrounding compensation.  John Crosbie then encouraged the offshore licence holders to get together and retain a consultant to assist them in presenting a case for compensation to John Gover.  The Plaintiff and several other licence holders then retained independent consultants at a cost to them of  roughly $28,000 dollars. Unfortunately for the licence holders, the Minister did not occupy himself with the organization and implementation of the study.  Instead, this task was left to the Atlantic Sealing Co-ordinator under the supervision of the Deputy Minister.  Simpson J.'s critical comments  in this regard are worth quoting at length:

In my opinion, the Minister erred when he trusted the implementation of the Study to his Department's officials without supervision by his personal staff when he knew that those officials opposed compensation.  What happened was that Comeau and others did not ultimately arrange the broad independent study that the Minister and Crosbie had foreseen when the Study received Cabinet approval as part of the Sealing Policy, and which was reflected in the Draft Terms of Reference.  Instead, the bureaucrats turned the Study into a narrow accounting exercise, compromised its independence and qualified it by introducing a requirement for ministerial or other undefined "official" approval prior to Phase Two.

Ultimately, D.F.O. never ordered the second phase of the study and the holders of offshore licences were never compensated for their losses arising from the closure of the fishery.  The Plaintiff, Puddister Trading Co., then commenced its action claiming damages for breach of contract.  Although the reasons for judgement are not entirely clear, it appears that the Plaintiff argued that the Government had made a binding offer to pay reasonable compensation to any fishers who participated in its study.  It was argued that by participating in the study the Plaintiff accepted this offer.  It would also appear that the Plaintiff argued that the money it spent on consultants to provide the information for the study constituted the required consideration for the contract. The court rejected the Plaintiff's claim based upon the objective theory of contract law.  Subjectively, the Plaintiff honestly believed that by providing funding for the study, D.F.O. had made a commitment to pay compensation, however, the court found that there was no contract because a reasonable person in the Plaintiff's position would not have believed D.F.O. had made such a commitment simply by agreeing to study the issue.  The court noted that upon the closure of a fishery D.F.O. was under no legal obligation to pay compensation to displaced fishermen.  Since the claim in contract failed, and since there was no legal obligation to compensate fishers for the closure, the Plaintiff’s claim for compensation failed. All was not lost, however, for the court concluded that D.F.O. had breached an obligation to perform a full study and consequently was in breach of contract.  Accordingly, damages were awarded to the Plaintiff to compensate it for the money it paid for consultants to participate in the study.  In addition, the Plaintiff was awarded the costs of its action.

For a case where the Department of Fisheries and Oceans was unsuccessful in upholding a partnering agreement based upon the law of contract see:  Aucoin v. Canada (Minister of Fisheries and Oceans, supra, paragraphs 47-50.

See also: 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 of the British Columbia Rules of Court, 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), supra 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 follow. However, since the Federal Court of Appeal in Comeau’s Seafoods  “did not state that such a claim [for damages] could never be successful” (emphasis added), 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.

For non-fisheries cases imposing liability on the Crown for breach of contract see:

1. Muntuck v. Canada [1986] 3 F.C. 249 (T.D.) (McNair J.) (referred to by Linden J. on the Comeau Seafood’s decision);

2. Grant v. Province of New Brunswick (1973), 6 N.B.R. (2d) 95 (C.A.) (referred to by Linden J. on the Comeau Seafood’s decision);

3. Wells v. Newfoundland, [1999] 3 S.C.R. 199; and

4. Queen v. CAE Industries [1986] 1 F.C. 129 as referred to at paragraphs 47-8 of Aucun v. Canada (Minister of Fisheries and Oceans), supra.

See also Pacific National Investments v. Victoria (City) 2000 SCC 64 where the majority decision of a deeply divided Supreme Court of Canada ruled that in the absence of express legislative authority, a municipality cannot contractually bind itself to fetter its future legislative powers. It further ruled that an agreement to compensate in the event of breach of the agreement was also ultra virus.

4.              Conversion

For a successful conversion action against the Department of Fisheries see Longmire v. Canada [1993] F.C.J. No. 977 (Fed. Ct. T.D.) (MacKay J).  This case involved a scallop fisherman who was charged with fishing in a prohibited area. When the fishing vessel returned to harbour approximately three hours after being boarded by fisheries officers, the fisherman was ordered to return a large portion of his catch to sea pursuant to section 73(4) of the Fisheries Act.  After being acquitted of the fisheries charge, the fisherman sued the Crown on the grounds that the order to return the catch to sea was not authorized by the Act because it was not done “at the time of seizure” as required by s. 73(4).   MacKay J. accepted this argument and awarded the fisherman damages for conversion.[87]   

5.              Breach of the Canadian Bill of Rights.

For a somewhat dated case involving a claim for breach of the Canadian Bill of Rights, see,  Noel & Lewis Holdings Ltd. v. The Queen (1983), 1 Admin. L.R. 290 (Fed. Ct. T.D.) (Walsh J.).  This case involved a fisherman who wished to purchase a replacement licence from a 79 foot 5 inch fish boat to place upon his 95 foot fish boat.  After consulting with D.F.O. about the proposed purchase, he was advised by D.F.O. that it would not allow the 79-foot licence to go onto his boat because of the difference in length.  After later discovering that D.F.O. had allowed similar transfers for other fishermen, the fisherman commenced an action against D.F.O.    After reviewing the evidence at length, Walsh J. concluded as follows:

I am satisfied that the various persons attempting to apply these policies were acting in good faith, they had no guidelines to follow and even the unwritten policies were varied from time to time.  The results appear to have depended upon the person to whom the applications or appeals were made, the persistence of the person making these applications and the pressures which he could bring to bear at higher levels. (p. 312) 

After concluding that the “plaintiffs were not treated in the same manner a many other applicants in the vague application of the guidelines” (311-2), he concluded that the plaintiff was treated in a discriminatory fashion (p. 322) contrary to the Canadian Bill of Rights (p.311).  However, since the plaintiff had not proved that he could have obtained the necessary financing to purchase the licence if the transfer had been approved, only nominal damages were awarded.

IV.         Misc.

For a case of no great utility, but of considerable interest see:  Carpenter Fishing et al. v. The Queen 2002 BCSC 324 (B.C.S.C.), where  Stromberg-Stein J. dismissed an application for a declaration that:

1. Sections 5(6) (10 judges must from Quebec) and 7(1) ( judges must reside near Ottawa) of the Federal Court Act  violate the Charter; and

2. The composition of the Federal Court of Appeal during the Carpenter Fishing Appeal on December 23, 1997 was unconstitutional.

This case was dismissed on the following grounds:

1. The applicants had no private or public interest standing;

2. The application was a “feebly disguised collateral attack on the correctness or validitiy of the appeal decision”; and

3. The Charter arguments were barred by res judicata.

V.  Conclusion

As can been seen by this survey, the Federal Court hears a wide variety of fisheries cases under both its admiralty jurisdiction and its jurisdiction over Crown liability.  This paper should serve as a good starting point to familiarize oneself with the common issues that arise in these cases.  For updates on fisheries cases, see the fisheries page, of the case summary section of admiraltylaw.com.

This paper was prepared and presented by Brad M. Caldwell, Barrister & Solicitor of 401 – 815 Hornby Street, Vancouver, British Columbia, V6Z 2E6.  Tele:  604 689 8894,  Fax:  604 689 5739.