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These summaries are prepared by Brad Caldwell of Caldwell & Co.,  401-815 Hornby Street, Vancouver, B.C., V6Z 2E6. Telephone (604) 689-8894,  E-mail: bcaldwell@admiraltylaw.com  

Recently posted case summaries and articles relating to Fisheries Law can be found on this page. Previously posted summaries and articles are archived by subject matter. Simply click on the appropriate heading in the table below for cases relating to that subject matter.  

Copies of many of the decisions referred to can be obtained from the web site of the Canadian Legal Information Institute. At this site, these cases can also be noted up using the Reflex Record to determine whether they have been changed upon appeal.

TOPICS

Judicial Review/Crown Liability Offences
bullet Due Diligence
bullet Variation Orders
bullet Search and Seizure
bullet By Licence Holders and Employers
bullet Sanctions
bullet Forfeiture
bullet Fishing Prohibitions
bullet Officially Induced Error
bullet Miscellaneous
Fisheries Practice
Contracts
Aboriginal Rights and Defences
Torts Constitutional Cases
Taxation Papers and Articles
Employment Law Reports ,Studies and Pending Legislation
Riparian Fishing Rights  

Recent Cases 

Aboriginal Rights and Defences - Characterization of Aboriginal fishing Rights in Declaratory Action

Lax Kw'alaams Indian Band v. Canada (Attorney General), 2011 SCC 56 [link]

This case involved a claim by a group of  Coast Tsimshian First Nations located near Prince Rupert, B.C.) for a declaration of entitlement to harvest all species of fish, shellfish and aquatic plants in their tribal territories and sell them on a commercial scale. The trial and related proceeding took 125 days resulting in a  trial judgement  that was  released in 2008. In the trial judgment, the Court  reviewed the  historical evidence and expert interpretations thereof and concluded that:

[T]rading in all species of Fish Resources and Fish Products, besides eulachon grease, was low volume, opportunistic, irregular, for FSC purposes, and incidental to fundamental pre-contact Coast Tsimshian kinship relations, potlatch and ranked society.

. . .

I agree that an aboriginal right, once proven, is not limited in terms of species of the specific resource which formed the subject of the ancestral activity on which the aboriginal right is based.

However, the plaintiffs’ simplistic position that the ancient trade in eulachon grease has transmogrified to a modern day right to commercial fishing of salmon, halibut and all other marine and riverine species of fish, ignores the fundamental fact that the Coast Tsimshian fished for sustenance, not for trade. The rendering of the eulachon into oil was an unique ancestral practice that brought wealth and prestige to the society, but it was not inter-related with the subsistence fishing of salmon, halibut, and other Fish Resources and Products.

[As quoted from para. 30 of BCCA decision]

As a result of this conclusion, the case was dismissed by the trial Court.

Upon Appeal, to the British Columbia Court of Appeal (link), the decision of the trial court was upheld.

The case was further appealed to the Supreme Court of Canada on four different issues.

1) Did the courts below err by characterizing the appellants’ Aboriginal rights claim based on the pleadings rather than an enquiry into pre-contact practices ?

With respect to this issue, the Court rejected the "commission of inquiry" or "flying dutchman" approach advocated by the appellants because it is illogical,contrary to authority and contrary to the rules of civil procedure. However, the Court did state that if necessary, amendments to pleadings should be sought at trial. The court then set out a four part test with respect to characterization of the claim and establishment of an aboriginal fishing right based upon that characterization as follows:

2) Did the courts below err in isolating the ancestral practice of trading in eulachon grease “as a practice of its own” rather than focusing more comprehensively on the Coast Tsimshian “fishing way of life”?

While analyzing this issue, the Court noted that aboriginal rights continue to evolve from the time of first contact in terms of both subject matter and method of exercise. With respect to method of exercise, courts have repeatedly recognized that fishing methods continue to evolve. However in terms of subject matter, the situation is more complex. In this regard, the Court adopted a quote from Marshall (2005) stating that "Aboriginal practice cannot be transformed into a different modern right" Notwithstanding the reference in Sappier to pre-contact "way of life", this does not replace the distinctive culture test set out in Van der Peet. The trial judge did not find sufficient trade, other that trade in eulachon grease, that was integral to the distinctive culture of the Plaintiffs.

With respect to the "species specific" debate, this will depend upon the facts of each case. In the absence of compelling reasons, the Court would not be inclined to freeze an aboriginal group's permissible catch to what it caught at the time of contact. However in the case of the Plaintiff's claim, the declaration granted by the trial court with respect the eulachon fishery was an exception to the general finding of the court that they had no aboriginal commercial rights.

The Court upheld the trial court's finding that the "transformation of the pre-contact eulachon grease trade into a modern commercial fishery would not be 'evolution' but the creation of a different right" (para. 59). In particulary, the court adopted the following wording of the trial court as modified by use of the words "provides a sufficient historical bais for":

In my opinion, it would be stretching the concept of an evolved Aboriginal right too far to say that the Coast Tsimshian practice of trading in eulachon grease provides a historical basis for a modern right to fish commercially all species in their Claimed Territories. (para. 30). [emphasis added]

3) Did the courts below err by refusing to consider whether the appellants had established a “lesser” right to fish on a “moderate” scale “to sell to others in order to acquire money, goods or services to sustain [their] communities” or to an Aboriginal right to fish for food, social and ceremonial purposes?

The trial court's conclusion that trade in fish apart from eulachon grease was not integral to the Coastal Tsimshian pre-contact society was as fatal to the lesser commercial claim as it was to the greater commercial claim. In any event, since neither party led evidence regarding a pre-contact practice of "sustaining the community" through trade and since the matter was not raised until final argument it would be unfair to allow a new claim to be added at such a late stage.

4) Did the courts below err in dismissing the claim based on the Honour of the Crown by concluding that, in the allotment of fishing station reserves, the Crown did not expressly or impliedly promise the Lax Kw’alaams a preferential fishery?

The trial court found no express promise to any preferential access. The finding of an implied promise on R. v. Marshal (No. 1), was distinguishable because the implied promise was based upon the wording of a treaty. As result the decision of the trial court was upheld.

Contracts - Enforcement of trust agreement over groundfish licence - quantum meruit award for opportunity grounfish licence gave to original holder to obtain additional licences

Devereauz v. Lewis, 2011 NLTD 132 (link)

Judicial Review/Crown Liability - Unjust enrichment - justiciability

Kimoto v. Attorney General of Canada, 2011 FCA 291 [link]

This case involved amendments to Chapter 3 of the Pacific Salmon Treaty that required Canada to reduce its catch of chinook salmon from the west coast of Vancouver Island and required the U.S. to provide 30 million dollars to Canada for a fisheries mitigation program to reduce effort in Canada's commercial troll fishery. After some consultation, the Minister of Fisheries decided on a mitigation program that included a voluntary permanent licence program for trollers on the west coast of Vancouver Island (Area "G") and also trollers from the Strait of Georgia (Area "H") and Northern B.C. (Area "F"). The Area "G" trollers brought an application for judicial review challenging the decision and taking the position that the 30 million dollars should have been paid to them. At the first instance, the Federal Court trial division denied the application.

Upon appeal the Federal Court of Appeal also denied the application for the following reasons:

  1. Since the applicants had no property right in the fish that remained uncaught (Saulner v. RBC was distinguished), the law of expropriation does not apply;
  2. "The Minister is charged with the formidable task of managing, developing and conserving the fisheries, which belong to the Canadian people as a whole. Decisions with respect to conservation and management issues must necessarily balance the interests of competing stakeholders. In this case, the Minister informed herself of the available options (of which there were many) by conducting extensive consultations with the various stakeholders . . . In our view, the basis of the Minister’s decision was sufficiently transparent and intelligible, and the decision itself fell within the range of possible, acceptable outcomes which are defensible in respect of the facts and law (see Dunsmuir v. New Brunswick, 2008 SCC 190)";
  3. In accordance with Comeau's Sea Foods Ltd. v. Canada, [1997] 1 S.C.R. 12, since licensing is a tool available to the Minister to manage the fishery, it was reasonable for him to choose a licence retirement plan to achieve reduction of fishing effort; and
  4. The Larocque decision was distinguishable, because there was not sale of fish in the the Kimoto case.

Taxation - Exemption under s. 87 of the Indian Act when aboriginal crew members fishing under communal fishing licence owned by Band, on boat owned by Band, for Company located on reserve.

McDonald v. R., 2011 TCC 437 [link]

Editor's note: This case, along with three similar cases (Bastien, Dube and Robertson) were under appeal at the time of posting (30 November 2011).

Aboriginal Rights and Defences - FSC Priority - FSC Priority does not always amount to priority in time

R. v. Quipp, 2011 BCCA 235 (5 member panel of BCCA)

 

Torts/ Constitutional - Bar to Litigation in Nfld. Workplace, Health, Safety and Compensation Legislation constitutionally inoperative and inapplicable to estate of deceased fish harvesters

Newfoundland (Workplace Health, Safety and Compensation Commission) v. Ryan Estate, 2011 NLCA 42

See digest of trial decision below.

Aboriginal Rights and Defences - Aboriginal right to catch and sell fish

Ahousaht Indian Band and Nation v. Canada (Attorney General), 2011 BCCA 237 [link]

This case involved a claim by five Nuu-chah-nulth ("NCN") First Nations with territories situated on the west coast of Vancouver Island to a wide range of aboriginal fishing rights over a large geographical area including submerged lands extending 100 nautical miles into the ocean and rivers. After a lengthy trial, the trial court: (1) Granted a judgement declaring an aboriginal right to fish for any species of fish in the environs of their territories extending nine nautical miles out to sea and to sell fish such fish; (2) Found a prima facie infringement of the aboriginal right; and (3) Reserved judgement on infringement, giving the parties a two year hiatus to attempt to negotiate an appropriate level of accommodation.  Summaries of the different parts of the trial decision are set out below. Numeric references are to paragraph numbers.

Aboriginal Rights - History

The historical evidence, as summarized by the trial court was as follows:

 I have concluded from the evidence the following:

1.         the Nuu-chah-nulth had longstanding trade networks both in a north/south direction along the coast and overland via the Tahsis and other trade routes;

2.         trade relations existed with “strangers” who came to pay tribute to powerful chiefs but in doing so received reciprocal gifts in return;

3.         marriages were arranged to facilitate trade with extended kin, kin having a broad definition;

4.         dentalia [shells] were found in exotic places (that is, far from the place of origin) by archaeologists, indicating their use as a trade item;

5.         iron was noted by the earliest of the explorers to be traded up and down the coast, indicating a strong pre-contact trade network;

6.         the Nuu-chah-nulth were not equally endowed with the same resources and thus the exchange of foodstuffs was necessary;

7.         the systems of payment of tribute, gift giving, reciprocal exchange and trade overlapped with each other and existed within a polite form of respect for powerful chiefs;

8.         the Nuu-chah-nulth did not trade for the purposes of accumulating wealth (I heard no such evidence);

9.         the Nuu-chah-nulth had the ability to dry, preserve, and trade vast quantities of fish and marine products.  (For a more detailed discussion, see the section above titled “Dependence on Fish”); and

10.       the frequency and amount of trade, including trade in fish and marine products, suggest that such trade was a practice integral to Nuu-chah-nulth society.

 I conclude that at contact, the Nuu-chah-nulth engaged in trade of fisheries resources.  I conclude that that trade included the regular exchange of fisheries resources in significant quantities to other tribes or groups, including groups with kinship connections.  I do not exclude from this definition reciprocal gift giving or barter. [Para 281-2]

Aborignal Rights - Integrality of Ancestral Practices to Distinctive Cultures

The trial court summarized it findings on parts 2 - 4 of the Van der Peet test as follows:

The second and third parts of the Van der Peet analysis direct the Court to consider the existence of the ancestral practices supporting the claimed rights to both harvest fish and sell that fish, and whether those rights were integral to the distinctive cultures of pre-contact Nuu-chah-nulth society.  At contact, the Nuu-chah-nulth were overwhelmingly a fishing people.  They depended almost entirely on their harvest of the resources of the ocean and rivers to sustain themselves.  The Nuu-chah-nulth traded these resources with other aboriginal groups both within a loosely defined kinship network and outside that network.  After contact with Europeans, that well-established trading custom was expanded to adapt to the influx of European explorers and fur traders.  Having concluded that the various Nuu-chah-nulth tribes shared a language and culture, I have, where appropriate, made the necessary inferences from the evidence that all the Nuu-chah-nulth peoples engaged in trade with each other even though the evidence of indigenous trade cannot on the basis of the direct observations made at contact be attributed to each of the plaintiffs.  In my view, there is sufficient evidence of indigenous trade up and down the WCVI for me to conclude that each of the plaintiffs was engaged in that indigenous trade.

 I am also satisfied that fishing and trading in fisheries resources were practices that were integral to the distinctive cultures of pre-contact Nuu-chah-nulth society.  I have concluded that each of the plaintiffs has demonstrated sufficient connection to the pre-contact society from whose aboriginal practices they claim to have derived their aboriginal rights.  Similarly, each of the plaintiffs has demonstrated sufficient geographic connection between their claimed fishing territories and those of their ancestors from whom they claim to derive their aboriginal rights.  Fishing was the predominant feature of the Nuu-chah-nulth society and I have concluded that indigenous trade in fish was also an integral feature of Nuu-chah-nulth society.  As distinct from the conclusion reached by Satanove J. in Lax Kw’alaams Indian Band that any indigenous trade in fish by the plaintiff band was infrequent or opportunistic, I conclude these plaintiffs have proven trade in fish to be a prominent feature of their society.

The fourth part of the Van der Peet analysis requires the Court to consider whether reasonable continuity exists between the pre-contact practice and the contemporary claim. I have considered the evidence of continuity of fishing as it evolved into commercial fishing.  The plaintiffs have proven that Nuu-chah-nulth people have continued until recent decades to fish.  That fishing activity has at times been done as wage work, and at times on a commercial basis.  The evolution of the modern fishery is discussed in more detail in the infringement section of this judgment.  Suffice it to say that there is ample evidence from which to conclude that the plaintiffs have proven reasonable continuity between the pre-contact practice of fishing and trading that fish, and their contemporary claim.

With respect characterization (the first part of the Vanderpeet test) the trial court acknowledged that it must incorporate some contours or limitations reflective of aboriginal practice at contact (444),  In doing so it found that:

  1.  Ancestral practices translate into a broader modern entitlement than “exchange for money or other goods” (defined as small scale sale outside of the commercial market) (486);
  2. Harvest and sale of fish to “sustain the community is not a viable characterization, as it incorporates the notion of a minimum guarantee (482);
  3. Sale is not for the purpose of accumulating wealth (para 486);
  4. The right does not extend to a modern industrial fishery or to unrestricted commercial sale (para 486);
  5. The right applies to any species of fish (para 489);
  6. The right should ultimatlely be characterized as simply  “the right to fish and sell fish” with further limitations on scope to be done within the justification analysis(487).

Title

Given its findings on aboriginal fishing rights, the trial court found it unnecessary to make a decision on title.

Infringement

After a lengthy review of the evidence, the trial court concluded the following with respect to infringement:

I pause here to acknowledge that to the extent that some aboriginal fishers have been able to continue in the fishing industry with some economic success, it could be argued that the regulatory regime is not the cause of the lack of aboriginal participation. Undoubtedly, factors that I have described above, including the collapse of the salmon stock, changes in equipment, the reduction in the price of fish, the closure of local fish buying businesses, environmental factors, international treaties, and conservation imperatives have all contributed to drive the plaintiffs out of the fishing industry.

The licensing regime is not entirely responsible for the plaintiffs’ non-participation in the fishery. I have mentioned several times, however, the evidence that there are now only three or four full-time Nuu-chah-nulth fishers compared to 70 or 80 who fished in 1992. I concluded that as late as the early 1990s and possibly up until the collapse of the salmon fishery in 1995, there remained a somewhat active Nuu-chah-nulth commercial fishing fleet. The point I make is that if the fishery had remained as healthy and abundant as in previous decades, the Nuu-chah-nulth may have been able to compete, even within the existing licence regime. Put another way, there are other causes besides the impugned regulatory regime for the lack of Nuu-chah-nulth participation in the WCVI fishery. In my view, however, it is sufficient for the present analysis that the plaintiffs have proven that the regulatory regime as it currently exists prevents them from exercising their aboriginal rights by their preferred means through the imposition of unreasonable limitations that create undue hardship for them. That is not altered by the fact that the regulatory regime has evolved over time in response to such factors as changes in the fishery, conservation requirements and advances in scientific knowledge.

It is indisputable that the plaintiffs cannot fish and sell their fish as they previously did, in part, because of Canada’s regulatory regime. It is impossible for the plaintiffs to pay the large amounts the market sets for licences, and they are simply unable to compete in an economically sustainable way in the non-aboriginal fishery under the present regulatory regime. I am satisfied of that evidence.

Canada’s stated policy of encouraging economic opportunity in the fisheries for First Nations is constrained by its view that any such commercial fishing opportunities must not be at the expense of non-aboriginal fishers.

The plaintiffs assert in this lawsuit an aboriginal right to sell their fish commercially. Although Canada has many programs designed to enhance commercial fishing opportunities for aboriginal fishers, fundamentally Canada does not recognize the right of those fishers to fish and to sell their fish commercially as an aboriginal right. Canada argues that the plaintiffs are the beneficiaries of these special programs that protect and enhance their participation in the commercial fishery. However, I am satisfied that these programs have been largely ineffective in assuring the plaintiffs’ reasonable participation in accordance with their preferred means in the commercial fishery. Indeed, those programs have not succeeded in maintaining even a modest native commercial fishery.

 I conclude that the plaintiffs have proved that Canada’s fisheries regulatory regime prima facie infringes their aboriginal rights to fish and to sell fish by their preferred means, both legislatively and operationally. I exclude the clam fishery and the FSC fishery from this conclusion. [786-790]

With respect to clams, the trial court concluded that there had been no infringement, despite the fact that there had been no formal recognition by DFO of an aboriginal right to harvest and sell clams [756, 804].

Food Social and Ceremonial Fishery ("FSC")

With respect to FSC claims, the tiral court found that "DFO" policies with respect to the FSC fishery cumulatively guard against unstructured discretion and provide appropriate guidance for decision makers" [825]. Based, in part, upon evidence that current allocations were not being caught, the court found that there had been no infringement of FSC rights.

Justification

With respect to justification, the tiral court stated that Gladstone is clear that in order to satisfy the doctrine of priority in the context of an aboriginal right without internal limitation, the Government must take into account the fact that the aboriginal group has a constitutionally protected right (862, 874). Given the Vanderpite decision, it was not unreasonable for the Government to have assumed that the NCN did not have a constitutionally protected right to sell fish. Also, at trial the Plaintiffs' lead no evidence re the level of participation in commercial fishery that would be sufficient (871). As a result of this, Canada did not have factual context in which to  demonstrate minimal impairment (891, 843-4, 848).  Accordingly, it would be unfair to hold that Canada  has failed to justify its prima facie infringement without first providing the parties an opportunity to consult and negotiate based upon the court’s findings of fact. A period of two years was granted for the parties to consult and attempt to negotiate an appropriate level of accommodation of the Plaintiffs' constitutional right to fish and sell fish. 

To help guide such negotiations and for the purpose of any further legal proceeding in the event that negotiations fail, the court provided the following  list of  legislative objectives and societal interests that the Government may take into account when regulating the fishery (881-3):

a.         conservation and sustainability of fisheries resources;

b.         protection of endangered species;

c.         establishing priority for aboriginal FSC fisheries after conservation;

d.         health and safety of the fishers and consumers;

e.         adherence to international treaties;

f.          facilitation of aboriginal participation in the fisheries;

g.         pursuit of economic and regional fairness including the participation in the fisheries by other aboriginal groups and recognition of the historic reliance upon and participation in the fisheries by non-aboriginal groups;

h.         achievement of the full economic and social potential of fisheries resources; and

i.          safe and accessible waterway.

 The trial court also made some other additional findings including:

  1. Depending on health and abundance of fish stocks, Canada may be able to justify considerable constraint (875);
  2. Consultations by DFO have been comprehensive and thorough. (877);
  3. Since Fisheries management is extraordinarily complex, Canada’s approach to management should be afforded considerable deference (879).

British Columbia Court of Appeal Decision

Upon appeal, the majority decision written by Hall, J.A. substantially upheld the decision of the trial court, except with respect to the geoduck fishery. In this regard, the appeal court held that since the geoduck fishery was high tech and of very recent origin. The court stated that "[t]here is simply no adequate basis in the evidence to support an ancestral practice that would translate into any modern right to participate in harvesting and selling this marine food resource"

In upholding the decision of the trial judge, the majority appeal court decision rejected arguments suggesting that the trial court erred in failing to consider infringement on a species by species basis. It stated that "at the presently incomplete stage of this litigation, to seek a greater degree of specificity is neither possible nor practicle". In doing so, it distinquished the case of Lax Kw'alaams as a case where the "specific practise" was "found to be tied to 'one species of fish and one product'". However, the appeal court did say that the issue of species specificity will be very much front and centre when and if the case proceed to consider the issues of justification and accomodation.

The minority decision of Chiasson J.A. agreed with the conclusions of the majority decision except with respect to how to define the scope of the aboriginal right to sell fish. Mr. Justice Chaiasson, would have limited that right to "sell fish for the purpose of attaining the equivelent to a moderate livelihood, being the basics of food, clothing and housing, supplemented by a few amenities."

Constitutional law - Jurisdiction over Occupational Health and Safety on Fishing Vessels

Jim Pattison Enterprises et al. v. British Columbia (Workers' Compensation Board), 2009 BCSC 88 [link]; upheld on appeal at 2011 BCCA 35 [link]

This case involved a challenge to the constitutional validity of occupational health and safety regulations relating to commercial fishing vessels enacted pursuant to the British Columbia Workers' Compensation Act.  It involved one vessel that fished primarily in waters outside the British Columbia jurisdiction, but within Canadian territorial waters as well as other vessels that fished more than half their time beyond the territorial jurisdiction of Canada. Based upon extensive evidence of overlapping regulations from both Transport Canada and Work Safe BC, the court relied primarily upon Canadian Western Bank v. Alberta, 2007 SCC 22 (digested herein) to uphold the validity of the provincial legislation.  In declining to apply the paramountcy doctrine the trial court stated as follows:

Clearly there is considerable overlap and potential for confusion, as stated in the expert opinion evidence filed by the plaintiff.  It is possible that compliance with both regimes will be difficult and expensive.  However, it has not been shown that it is impossible to comply simultaneously with the CSA and its regulations and with the WCA and the OH&SR, properly interpreted, or that there are provisions of one law forbidding what the other law requires.  This case is not like Lafarge, where it was impossible to comply simultaneously with both laws as the Supreme Court interpreted them.  (para. 162)

The trial court did, however, state that if the Provincial legislation had imposed stability requirements, rather than simply require the provision of stability documents, it would have found an operational conflict so as to find the conflicting Provincial legislation inoperative pursuant to the paramountcy doctrine.

Similarly, with respect to the interjurisdictional immunity doctrine, the trial court followed R. v. Mersey Seafoods, 2007 NSSC 155 (digested herein) to find that the legislation did not impair "the core of federal competence over navigation and shipping" so as to be inapplicable. In doing so, it also found that the fishing companies that brought the court applications were not federal undertakings because their vessels did not "play any role in connecting British Columbia with any other country or province, or . . . provide shipping services to offshore destinations" or enter ports other than B.C. ports. Since they were not federal undertakings, it was not necessary for the court to determine whether the provincial regulations impaired a vital or essential part of a federal undertaking.

Editor's note:   In the context of deciding whether or not the fishing companies were federal undertakings or provincial undertakings, the court provided a good review of the jurisprudence regarding that application of provincial and federal labour laws to shipping. See also paper discussing this case [link].

This case was upheld on appeal.

Judicial Review/Crown Liability - No discretion under Specie At Risk Act to Permit Harmful Activities to Killer Whale Habitat

David Suziki Foundation v. Canada (Minister of Fisheries and Oceans), 2010 FC 1233 [link]

Judicial Review/Crown Liability - Unjust enrichment - justiciability

Kimoto v. Attorney General of Canada, 2011 FC 89 [link]

Crown Liability/Judicial Review - Liability of Crown for Damage to Wild Stocks Caused by Fish Farms

Kwicksutaineuk/Ah-Kwa-Mish First Nation v. British Columbia (Minister of Agriculture), 2010 BCSC 1699 [link]

Crown Liability/Judicial Review - Liability of Crown for Damage to Wild Stocks Caused by Fish FarmsAboriginal Rights and Defences - Practice - Certification of Class Action Against Crown for Liability for Damage to Wild Stocks Caused by Fish Farm

Kwicksutaineuk/Ah-Kwa-Mish First Nation v. British Columbia (Minister of Agriculture), 2010 BCSC 1699 [link]

Contracts -  Bonus Payments from fish buyers

Matchim v. BGI Atlantic Inc., 2010 NLCA 9 (link)

This case involved a dispute between a crab buyer and a crab harvester over whether or not an oral promise to pay  a 60 cent per pound bonus above the union negotiated price for crab was a legally enforceable contract. At the trial level, the trial Court relied in part upon the case of Philpott et al v. Sullivan (2007), 267 Nfld. & P.E.I.R. 183) to find that the promise was a discretionary payment that attracted no legal obligation (para. 30).

Upon appeal, the a majority judgement of the Court granted an appeal and found a legally enforceable obligation to pay a bonus.  It did so, in part, upon the following grounds:

  1. The fact that the discussions regarding payment of 60 cents above and beyond the union price took place in the context of a commercial setting (para. 65-6);
  2. The use of the words "fair market price" instead of "union negotiated price" in the supply and trust agreements; and
  3. The existence of an arbitration clause to resolve disputes between parties regarding price.

A separate minority judgement would have overturned the decision of the trial Court, but would have remitted the matter back for trial instead of granting judgement.

Taxation - Treatment of Funds received from Sale of Licence to Government Licence Retirement Program

Gildard Hache v. Her Majesty the Queen, 2010 TCC 10 (link)

This case involved a snow crab and groundfish fisher who entered into an agreement with the Government of Canada in 2001 under the Fisheries Access Program ("FAP") to surrender his fishing licences and related gear for $3,050,000 dollars. The purpose of the FAP was to allow aboriginal groups to take part in the commercial fishery. At the time that the licences were offered to the Government in February of 2002, the ground fish licence had not been fished during the previous 10 years because the fishery had been closed and had not been issued with licence conditions, which effectively "deprived the licence of any validity" (para 4). With respect to the Snow Crab licence, in 2000 it was not issued to to to the fisher until after  fishing had ended in that year. In February of  2001 he filled out an application under the FAP to sell both licences and his fishing gear for $3,209,518.20, with $2,109,518 allocated to the licences.    Subsequently, he entered into the agreement referred to above. After being assessed tax on the amount of $2,583,465 deemed received from the sale of the licences, the fisher appealed his assessment to the Tax Court of Canada.

Initially, the Government took the position that the funds received from the sale of the licences should be treated as a eligible capital property under ss. 9 & 14 of the Income Tax Act ("ITA"). However at the appeal hearing it abandoned this approach and took the position that it should be treated as the disposition of capital property under ss. 38, 39 and 40 of the ITA. In doing so, the Government argued that for the purposes of the ITA, the disposition for the fishing licences was a disposition of "property".

In rejecting this argument, the Court declined to follow the prior case of Winsor v. Canada 2007 TCC 692 (digested here) because that case relied upon a lower level decision in the case of Saulnier v. RBC that was overturned by the Supreme Court of Canada on appeal.  The Court noted that in Saulnier, the Supreme Court of Canada stated that "in general, a fishing licence cannot be considered property at common law" (para. 18). Although Saulnier held that a fishing licence "bears some analogy to a common law profit a prendre, which constitutes a property right . . . such a right exists only during the validity of a the licence.  In addition the Court noted that in Saulnier, the licences was only considered a property right for the purpose of the Business and Insolvency Act that had an extended definition of property that included "profit, present or future . . . in . . . property". Since the year 2000 snow crab licence had not yet been renewed at the  time of the application in 2001 and the groundfish licence had no conditions, this case was distinguished from the Saulnier case where apparently the licence holder held a validly issued licence at the time he made the assignment of his property. The Court compared the "voluntary payment" from the Government to be analogous to a  company shareholder receiving payment under a non competition clause.  Since such a payment was not considered disposition of property, a voluntary payment for a licence relinquishment was also not considered a disposition of property. 

Editor's note: As of the time of writing (2 March 10) this case was under appeal. See FCA No. A44-10.

Aboriginal Rights and Defences - Taxation of Fishing income from traditional Territory (Off reserve) Taxation - Taxation of Aboriginal Fishing Income

Roberts v. R, 2010 TCC 52 (link)

This case involved a status member of the Kitsumkalum First Nation who lived on a reserve near Port Essington approximately 70 miles from Prince Rupert, British Columbia. After being assessed income tax on fishing income earned  while fishing outside his reserve, but in his traditional fishing territory the FN Fisher appealed his assessment to the Tax Court of Canada. In deciding whether or not to assess tax upon the income, the court applied a 9 part connecting factors test.

With respect to location of the fixed place of business, the Court found that the FN Fisher lived on a reserve and maintained a business office and stored equipment on the reserve.

With respect to business activities, nature of work and location where business decisions made, (the most important connecting factor) the Court found (1) the core of the business was catching fish aboard a commercial fishing vessel located in off reserve waters, (2) the catch was never taken to the reserve, but offloaded directly to fish plants located off reserve, (3) business decisions were made both on reserve while planning and off reserve while fishing.

With respect to place of payment, while some cheques were delivered to the reserve, most payments were made by the fish buyer directly crediting his account.

With respect to, the degree to which the business was integral to life on the reserve or in the commercial mainstream, it was argued by the FN Fisher that the fishing activity was integral to life on the reserve because it was done in his Nation's traditional fishing territories.  This argument was rejected because of (1) weak evidence of traditional use in the areas in question, and (2) existing jurisprudence such as Walkus v. R. [2003] 3 CTC 181 that gave a very narrow definition of the phrase "on a reserve".

Based upon the Court's review of all the connecting factors, it upheld the Government's assessment of tax payable.

 

Offences - search and Seizure - Roadside Inspection for Game- Whether breach of s. 7 & 10(b) of charter of rights to search and take statement after Conservation Officer had reasonable and probable grounds
Aboriginal Rights and defences - Roadside Inspection for Game - Whether breach of s. 7 & 10(b) charter rights to search and take statement after conservation officer had reasonable and probable grounds

R v. Rice, 2009 BCCA 569 (link)

This case involved charges of illegal hunting and possession of moose by three aboriginal hunters. Although not a fisheries case, it is relevant to fisheries prosecutions because (1) it involved an inspection under s. 95 of the B.C. Wildlife Act, which is similar to an inspection under s. 49 of the federal Fisheries Act;  (2) it applied the test formulated in the Supreme Court of Canada fisheries case of R. v. Fitzpatrick, [1995] S.C.R. 154; and (3) it is one of the first post R. v. Grant  appellate decisions (digested here) dealing  with search and seizure in regulatory prosecutions.

The background facts are that  a conservation officer was conducting a road side inspection under s. 95 of the Wildlife Act at a time when  moose hunting in the area was closed except for aboriginals from that specific area. When the conservation officer asked if the three occupants of the motor vehicle had been hunting, one occupant responded in the affirmative. When ask if they had shot anything, they answered in the affirmative and produced status cards showing that only one of the three status aboriginals were from the immediate area. When asked what was shot, one of the occupants, who was not from the immediate area, admitted to shooting a moose that was in the back of the motor vehicle.

At trial and the ensuing appeals, the issues were:

Whether or not the admission of shooting the moose should be excluded from evidence pursuant to  (1) s. 7 of the Charter for interfering with rights of liberty (because of threat of imprisonment) and fundamental justice (because of self-incrimination) and/or (2) s. 10(b) of the Charter for failing to provide a right to counsel when detained.

With respect to the s. 7 rights, the accused argued that his rights were breached because he was compelled to answer incriminating questions after the conservation officer had established reasonable and probable grounds to believe an offence had been committed. In determining whether or not the s. 7 rights of the accused had been breached the court applied the four-part test from R. v. Fitzpatrick as adopted and applied in R. v. White, [1999] 2 S.C.R. 417, namely (1) existence of coercion; (2) existence of an adversarial relationship between the accused and the state; (3) the risk of an unreliable confession in a statutorily compelled confession; and (4) whether use of the statement would increase the likelihood of abuse by the state.

With respect to the existence of coercion, the Court followed the Fitzpatrick decision and ruled that "the obligations imposed upon the accused hunter were imposed as a result of voluntary participation in hunting, a highly regulated activity." Accordingly, as in the case of Fitzpatrick, the requirement to provide information regarding hunting activities was not considered coercive (para. 61).

With respect to the existence of an adversarial relationship, the Court followed R v. White to hold that even though the conservation officer had reasonable grounds to believe that an offence had occurred, since the dominant purpose of the questioning was not the investigation of an offence, the relationship was not considered adversarial for the purpose of the test.  

The Court also ruled that the items 3 and 4 of the Fitzpatrick test did not apply.

With respect to the s. 10(b) right to legal counsel, it was argued by the accused that he should have been advised of his right to counsel and been provided with an opportunity to consult with counsel before being asked who shot the moose. For reasons similar to those articulated with respect to s. 7 of the Charter, the Court ruled that the accused must be deemed to have consented to be detained by virtue of his participation in the licenced activity. Although the roadside stop and questioning could  be considered a detention as in the sense used in the case of  R. v. Subaru, 2009 SCC 33 (a companion case to R. v. Grant referred to here), this form of investigative detention did not trigger a right to counsel.  As was the case with the s. 7 analysis, there was no infringement despite the fact that the conservation officer had reasonable and probable grounds to believe an offence had occurred because "the  purpose of s. 95 and all the questions asked by the officer  was to obtain truthful information about compliance with the Act" (para. 74). Given the Courts reference to R. v. White in the same paragraph, presumably the Court  meant "predominate" purpose.

Editor's note:  As a result of this case, some earlier cases such as R. v. Kinghorne, 2003 NBQB 341 (digested here) may no longer be good law.  Some of these earlier cases held that an inspection was transformed into a search when credibly based probability  replaced suspicion. In this regard, see also the references in this case to R. v. Jarvis 2002 SCC 73 [link] at pargraphs 41-8.

Offences - Due Diligence - Tuna - Meaning of "Doing the prohibited act prima facie imports the offence" -   Sentencing - Monetary benefits - Net Benefit or Gross Proceeds

R. v. Henneberry, 2009 NSCA 112 (link)

See  link to case.

Offences - Due Diligence Can include Self-Reporting Fishing in closed area and then Returning Crabs to water -
Offences - Misc. Definition of "fishing"

Editor's note: This is the only case that I am aware of where the release of  crabs caught in a closed area has  qualified as due diligence.

Offences by Licence holders and Employers

R. v. Boyd, 2010 NSPC 5 (link)

See link to case. 

Offences - Misc. - Using unauthorized vessel to fish for crab - definitions of fishing - Misc - Constructive Possession of Lobster - Eye Witness Identification

R. v. Thornehill, 2010 CanLII 1589 (NLP.C.) (link)

See link to case.

Offences - Misc. - Using unauthorized vessel to fish for crab - Definition of "Fishing" included transfer of fish from one vessel to another

R. v. Frampton, 2010 Carswell Nfld 24 (4 February 2010)

Offences - Misc - Sport fishing - Necessity for the Crown to Prove that the accused is fishing for recreational purposes

R. v. Donnell, 2009 BCSC 1193 (link)

This case involved a number of charges against a fish harvester under the B.C. Sport Fishing Regulations. At trial, although it was established that the fish harvester  had a fishing licence, the Crown did not lead evidence of whether it was a sports fishing licence, a food fishing licence or a commercial licence. The only evidence that was lead regarding the nature of the fishing was a statement made by the accused to the fisheries officer that he was on a pension and needed fish to eat. As a result the Trial Court ruled that the Crown had failed to prove an necessary element of the offence, namely that the accused was sports fishing as defined by the regulations to be fishing for recreational purposes.

Upon appeal, the Summary Conviction Appeal Court upheld the decision of the Trial Court. 

Offences - Failure to Designate under s. 8 of the Aboriginal Communal Fishing Regulations - Necessity of Including charge in Information - directed verdict

R. v. Boudreau, 2009 NSPC 45 (link)

See link to case.

Offences - Forfeiture - Whether Part of Sentence

R. v. Jones, 2009 CanLII 50076 (link)

This case involved the sentencing of  poacher of Atlantic salmon. The Court imposed an overall fine of $3,500, a two year fishing prohibition and forfeiture of a boat that was used in the commission of the offence. With respect to the forfeiture order, the Court cited a number of authorities including R v. Smith (1978), 15 Nfld. & P.E.I.R. 115 for the proposition that "while the court may consider the sentence when exercising its discretion as to whether or not forfeiture is appropriate" (para 29), forfeiture is not part of the sentence (paragraphs 21-9). The Court also stated that in exercising the discretion, forfeiture ought to be imposed "where it is established that but for the vehicle in question, the offence would probably not have been committed" (para. 30).

Editor's note:   For cases taking a contrary approach to the question of whether forfeiture is part of the sentence see:  R. v. McNeil, 2007 BCSC 773 (digested here) and R. v. Cox [2007] N.J. No. 71 (digested here) along with the editor's note in the digest  of R. v. Sandover-Sly  regarding the test set out in Thomas , Principles of Sentencing (digested here).

Constitutional - Jurisdiction over Salmon Aquaculture

Morton v. British Columbia (Agriculture and Lands), 2009 BCSC 136 [link]

This case involved a challenge to the constitutional authority of the Provincial Government of British Columbia to regulate the aquaculture industry.   The challenge was brought by Alexandra Morton and a number of other interest groups including the Area E Gillnetters Association. Apparently the applicants believed that the existing Provincial legislation would "not protect the environment" and a successful challenge would cause the Federal Government "to fulfill its constitutional obligations" for the protection of the environment (para. 90).

After reviewing the current regulatory regime for aquaculture in British Columbia as well as the the Supreme Court of Canada case of  Canadian Western Bank v. Alberta, 2007 SCC 22, the court started its analysis by applying the pith and substance test to the challenged legislation. In doing so, a central issue was whether or not the aquaculture industry was a "fishery" so a to fall under the federal jurisdiction over fisheries under s. 91(12) of the Constitution Act. After reviewing a number of dictionary definitions of the word "fishery", the court found two concise dictionaries that included "rearing" in the definition.  The court also concluded that when fish farms harvest  fish from their pens that the fish are "caught". Based upon the dictionary  definitions and the court's own view of what the "man on the McDonald bus" would think, the court concluded that the term "fishery" as it appears in the Constitution includes fish farming.  Based upon its conclusion that aquaculture is a fishery, the court concluded that the management of aquaculture was with federal jurisdiction.

The court then went on to determine whether the provincial regulation could be upheld under the double aspect doctrine.  In doing so it concluded that although the Province had jurisdiction to manage  the land beneath the fish farms under s. 92(5) of the Constitution Act, this was not sufficient to give it jurisdiction to manage fish farms. With respect to property and civil rights under s. 92(13), although the Province has authority to regulate fish processing and labour relations applicable to the fishing industry, this did not extend to "regulation and protection of the fisheries" (para. 172). With respect to the Province's jurisdiction over agriculture (s. 95), given the courts conclusion that fish farming is a fishery, the court would not allow provincial regulation of the aquaculture industry under this heading.  It did suggest that the Federal Crown could  delegate some of the management functions to the Province by Order in Council as it has done with oyster regulation.  However, failing a proper delegation the provincial regulation could not be upheld under  the agriculture heading.

The court also rejected attempts to uphold the provincial regulations under the necessarily incidental doctrine and paramountcy doctrine. 

In a somewhat surprising move, despite the fact that the Federal Government is not currently regulating the aquaculture industry to any great degree and the fact that the Federal Government chose not to participate in the proceedings (see quote from Kitkatla para. 72-3 in Jim Pattison [link] at para. 207), the court  applied the now disfavoured interjurisdictional immunity doctrine to hold (as an alternative finding) that the provincial laws constituted an "interference with the core of a matter within the exclusive jurisdiction of Parliament . . " (para. 190).

The end result was that the court declared all of the challenged legislation either  invalid, or inapplicable to the aquaculture industry except to the extent that it purported to regulate the cultivation of marine plants. The court also  suspended the implementation of its judgement for 12 months in order to give the Federal Government time to enact legislation to fill the gap left by the provincial legislation declared invalid and inapplicable.

Postscript: 

1) See 2009 BCCA 378 (link) where the Canadian Aquaculture Industry Alliance was denied intervener status for an appeal of the trial level decision by Marine Havest Canada Inc.

2) See 2009 BCCA 481 (link) were the BCCA ordered that  the Hearings Court reconsider the argument that fish farms and the fish in them are private property in respect of ss. 1(h) and 2(1) of the Farm Practices (Right to Farm) Act.

3) See 2010 BCSC 100 (link) where the Hearings Court reconsidered the matter referred to it by the Court of Appeal and decided it was not necessary to consider whether or not farmed salmon are private property because under a pith an substance test the sections at issue are "inextricably linked to the province's purported regulatory regime for aquaculture", which had previously been held ultra virus.

Editor's note:  When applying the pith and substance test, the Court  applied the old methodology used in the Kitkatla decision of subsuming the interjurisdictional immunity analysis into the pith and substance test, rather than the newer methodology set out in   Canadian Western Bank v. Alberta of applying the interjurisdictional immunity test after the court has determined the pith and substance of the matter at issue and determined whether there are any incidental affects. This is curious as the Court cited Canadian Western Bank  in its original decision.

In this decision the Court also granted intervener status to the Musgamagw-Tsawataineuk Tribal Council.

Judicial Review - Decision of Minister based upon recommendation of Atlantic Fisheries licensing appeal Board

Ralph v. Canada (A.G.), 2009 FC 1274 (link)

This case involved an East coast fisher who applied for a turbot licence when a limited entry fishery  was announced in 2000, but failed to obtain the licence because of insufficient landings during the qualifying period. He filed an appeal to the Atlantic Fisheries  Licence Appeal Board ("AFLAB") and asked for that  a licence be granted due to extenuating circumstances, namely, that he had spent $400,000 on upgrades to his vessel to allow him to participate in the fishery. After reviewing his submission, the board concluded that there was insufficient evidence linking the repairs to the turbot fishery (para. 16 & 40). As a result, it recommended to the Minister that the appeal be dismissed (para. 16).

The fisher applied to the Federal Court for judicial review relying, in part, upon the case of Decker v. Canada (A.G.) (digested here).

As preliminary matter, the court had to determine the standard of review to apply.  Relying upon the case of New Brunswick (Management Board) v. Dunsmuir, [2008] S.C.R. 190 (digested here), the court decided that questions of procedural fairness, natural justice and matters of law would be decided on a standard of correctness and questions of fact, mixed law and fact and the exercise of discretion  should be decided upon a standard of reasonableness (para. 21-2). 

In reviewing the Minister's exercise of discretion in accepting the AFLAB's conclusion that there were no extenuating circumstances, the court concluded as follows:

This letter [describing the repairs to the boat in 1999] is insufficient to show a "demonstrated financial commitment" by the Applicant for the prosecution of the turbot fishery and the Board committed no error by failing to mention it in its recommendation to the Minister (para. 40).

Judicial review - Refusal to convert Judicial review Proceeding to action -

Assoc. des Crabiers Acadiens Inc. c. Canda, 2009 FCA 357 (link)

 

Judicial Review - Mandamus to Enforce terms of Management Plan

Arsenault v. Canada (A.G.), 2009 FCA 300 [link]

This case involved a group of traditional crabbers from Prince Edward Island who who were promised financial assistance totalling 37.4 million to offset a 10.85 per reduction in their share of the total allowable catch that was re-allocated to aboriginal fishers pursuant to the Marshall Response initiative. This compensation package was incorporated into the Management Plan and and licences were issued. However, when the fishers sought to claim their share of the financial assistance they were told they would not receive it unless they signed a general form of release that had not been referred to in the management plan.

The issue in the ensuing application for mandamus was "whether the financial assistance announced in the Management Plan forms part of the Minister's discretionary decision under the Act and if so, whether the Minister has a public legal duty to implement the Plan as announced" [para. 29 trial decision].

In deciding the above stated issue in favour of the applicant fishers and making an order of mandamus requiring the payment of compensation without the need for a release, the trial Court concluded that "following the Minister's approval of the Management Plan, his discretionary power was spent and, as a result, he was legally bound to implement it" [para. 19 of appeal decision].

In overturning the trial Court decision and allowing the Crown appeal, the majority appeal judgement  stated as follows:

I therefore respectfully believe that Blanchard J. erred in law or that he proceeded on a wrong principle of law in finding that the Minister’s discretion was spent when he approved the Management Plan. The Management Plan is an expression of policy, not a decision to grant permits under section 7, and the Minister’s discretion is thus not exhausted by the approval thereof. The Minister was not bound by his policy and he could, at any time, make changes thereto. Consequently, whether the Minister turned his mind to a release of liability condition when he issued the Management Plan or whether it was an afterthought resulting from suggestions made by Department officials is, in my view, of no help to the respondents, as the Minister could not fetter his discretion when he issued the Management Plan. [para 43]

In a minority concurring decision, Pelletier J.A. was of the view that the Management Plan should be viewed as a series of different decisions as opposed to one single decision. After reviewing the test for granting mandamus, Pelletieir J.A. concluded as follows:

The crabbers had no legal right to any particular amount of quota. This flows from the nature of fishing licences, in respect of whose issuance the Minister has the broadest discretion: see Comeau’s Sea Foods Ltd v. Canada (Minister of Fisheries and Oceans), 1997 CanLII 399 (S.C.C.), [1997] 1 S.C.R. 12, [1997] S.C.J. No.5, at paragraph 49. Consequently, if there is no vested right to a given quota, there can be no right to compensation arising purely from the fact of loss of quota. As a result, the decision to offer compensation for lost quota is not one which is based on a statute or a regulation. In fact, the crabbers allege in their action that their right to compensation is a matter of contract. The exercise of the minister’s discretion to issue fishing licences with reduced quota under section 7 of the Act did not result in a public legal duty to pay compensation for the lost quota. There being no public legal duty, the crabbers are not entitled to an order of mandamus.

Editor's note:   It is useful that in this and several other recent cases, the Federal Court of Appeal has quoted at length the test to be applied to the review of discretionary decisions from Maple Lodge Farms v. Government of Canada [1982] 2 S.C.R. 2. This is useful because  this test has been misunderstood by some courts as a result of an unfortunate choice of words by the Supreme Court of Canada at paragraph 36 of  Comeau's Sea Foods Ltd. v. Canada [digested herein], which could be interpreted as meaning  that reliance upon irrelevant and extraneous considerations, avoiding arbitrariness and acting in good faith is part of the natural justice analysis. However a review of Thomson v. Minister of Fisheries at footnote 9 [link] referred to at paragraph 36 of Comeau reveals that the Court was in fact relying upon the test as set out in Maple Lodge Farms, which makes it clear that these matters are to be considered in addition to the question of  the natural justice  (see quote at paragraph 38 of Arsenault).

Judicial Review - jurisdiction of Superior Court - whether action in contract and tort a collateral attack on jurisdiction of Federal court
Torts -  whether action in tort and contract a collateral attack on jurisdiction of court - No duty on Minister to explain enforceability of contract
Contracts -  whether action in tort and contract a collateral attack on jurisdiction of court - Not Enforceable if fettering Discretion

Andrews v. Canada (A.G.), 2009 NLCA 70 (link)

This case involved a superior court action by a group of snow crab fish harvesters who alleged that they had a contract with the Minister of Fisheries  whereby they gave up their historic right to a proportionate share of a relatively large  increase in the total allowable catch of snow crab in the 1990's in exchange for a promise from the Minister of Fisheries that he or she would maintain their traditional catch levels at the 1988-93 levels unless conservation required an overall reduction in the total allowable catch below 1993 levels. As a result of alleged failures of the Minister to honour this commitment in 2000 and thereafter, this group commenced a superior court action alleging breach of contract or alternatively negligence. They claimed damages in excess of $23,000,000.

In an application by the Crown to strike the statement of claim, one of the main issues that arose was the whether or not the superior court had jurisdiction. The Crown argued that the action was a collateral attack on the exclusive jurisdiction of the Federal Court to hear matters of judicial review under section 18 of the Federal Court Act. The plaintiffs argued that there was concurrent jurisdiction under s. 17 of the Federal Court Act  and s. 21(1) of the Crown Liability Act. The Applications Judge (2008 NLTD 145 link]), after reviewing a number of authorities including Genge v. Canada (A.G.), 2007 NLCA 60, stated that since judicial review is not a pre-requisite for an action in contract or tort (see Genge para. 40), a court must determine the true nature of the application. In doing so, the court distinguished a number of cases cited by the plaintiffs, such as Keeping v. Canada (A.G.), 2003 NLCA 21, as cases not involving the exercise of ministerial discretion. Since no contractual right to quota could exist until the Minister exercised his or her discretion each year to approve a quota, the true nature of the action was an attack on the Minister's discretionary power (para. 42 trial level decision).  Similarly, no negligence in entering into an agreement could be established that was independent of the Minister's exercise of discretion to approve quota. In characterizing the action as a matter of judicial review outside the jurisdiction of the superior court, the court concluded that "[w]here the allegations are fundamentally tied to the decision-making authority of the Minister, there is no room for an action in tort or contract because the impugned action was not independent from the exercise of ministerial authority" (para. 43). As result, the Applications Judge held the statement of claim did no disclose a reasonable cause of action and declined jurisdiction and refused to grant a stay pending a superior court action.

Upon appeal to the Court of Appeal, the decision of the Applications Court was upheld with Wells, J.A. dissenting and with partially different reasons being provided by Barry, J.A. and Welsh, J.A..

Both majority decisions agreed upon the law to be applied as summarized by Welsh, J.A: as follows:  

To summarize, the above decisions support several conclusions. First, where, pursuant to legislation, a minister is authorized to exercise discretion in the public interest, that discretion may not be constrained for future use or fettered either directly or indirectly, unless the legislation otherwise provides. Indirect fettering includes exposing the minister or government to liability for damages or payment of compensation for failure to exercise the discretion in a particular way. Despite the apparent harshness of the result, an agreement, implied undertaking or representation having the effect of fettering the minister’s authority is unenforceable and damages are not available. Nonetheless, the minister must act in good faith, not arbitrarily, and must not base his or her decision on considerations irrelevant or extraneous to the statutory purpose. Finally, while damages are not available, a claim for unjust enrichment may be permitted. (para. 83)

However, the two majority judgements varied somewhat on their application of the law to the facts. Welsh J.A. applied the law similarly to that of the Applications Judge by holding that a "claim for damages for failure to exercise the discretion in a particular manner amounts to an improper indirect fettering of the Minister's discretion.  . . . The same analysis applies and the same conclusion follows whether the claim is made in contract or tort . . ." (para. 84).

Barry J.A. agreed with Welsh's analysis of the contract claim, but with respect to the tort claim, he added that the pleadings did not set out any duty owed by the Minister to the Applicants. The Applicants must "be taken to know the law and , specifically, the rule against fettering ministerial discretion. Given that knowledge, how can this Court say the Minister owed any duty to explain the limitations on the enforceability of any commitment regarding quotas? In my opinion, no such duty existed." (para. 98).

The dissenting reasons are set out at paragraphs 1 to 58 of the judgement.

Editor's note: Although it  did not likely affect the outcome of the decision, all three judges in reviewing the jurisprudence on judicial review of discretionary decisions appear to have overlooked the fact that the requirement of the decision maker to act in good faith, not arbitrarily, and to base his or her decision on considerations irrelevant or extraneous to the statutory purpose are in addition to the needs to meet the requirements of natural justice.  In this regard see the editorial comments at the end of the Arsenault digest (link).

(Attorney General) v. Telezone Inc, 2010 SCC 62

Editor's postscript: Since this case was decided, the Supreme Court of Canada released Canada (Attorney General) v. Telezone Inc, 2010 SCC 62, which over-ruled the Genge Canada decision and stated that "where a plaintiff's pleading alleges the elements of a private cause of action, I think the provincial superior court should not in general decline jurisdiction on the basis that the claim looks like a case that could be pursued on judicial review" (para. 76). However, the provincial superior courts and the Federal Court do have the residual discretion to stay a damage claim if, in its essential character it is a claim for judicial review with only a thin pretence of a private wrong (para. 78).

 

 

Aboriginal rights and Defences - Treaty Rights

R v. Cardinal, 2009 ABPC 77 [link]

In this case, the court rejected a long list of defences based upon the inter-relationship between Treaty 6 rights and the Natural Resources Transfer Agreement ("NRTA"). With respect to the interjurisdictional immunity doctrine, the court concluded that since the Provincial hunting and fishing laws could not go the the "core of Indianness" because their Treaty right to sell fish was extinguished by the NRTA. 

Offences - Search and Seizure

R. v. Grant, 2009 SCC 32 [link]

This is a non-fisheries decision that purports to provide a new analytical framework for (1) determining whether or not there has been a detention for the purpose of ss. 9 and 10(b) of the Charter; and (2) determining whether or not to exclude illegally obtained evidence under s. 24(2).

With respect to its application to fisheries cases, at paragraphs 78 and 113-14,  it is  similar to the fisheries case of R v. Fitzpatrick [1995] 4 S.C.R. 154 (paragraphs 49-51) [link] with respect to its emphasis on the expectation of privacy as a matter to be considered under the  s. 24(2) analysis. In particular, at stage two of the newly formulated test, expectation of privacy is one of the factors to be considered in assessing the impact of the impugned state conduct on the interest protected by the infringed charter right.  Given the court's reference to R. v. Buhay 2003, SCC 30 [link] at para. 113, it would appear that reasonable expectation of privacy is also still relevant to the issue of whether or not there has been a breach of the s. 8 right against unreasonable search.

Offences - Misc. - Possession of V-notched Lobster - Ultra Virus - Unconstitutionally vague

R. v. Tibbo, 2009 CanLII 28877 (NL P.C.) [link]

This case involved a charge of failing to comply with a licence condition requiring fish harvesters to return to the water any lobster that have previously been marked  with a V notch so as to show that they are capable of spawning. At a pre-trial application, the licence conditions were challenged as (1) being ultra virus and (2) being so broad and vague as to violate the principals of fundamental justice as guaranteed by s. 7 of the Charter.

In rejecting the first argument the Court noted that since s. 22(1)(b) of the Fisheries Act allows licence conditions to restrict the gender of fish taking of fish by gender, "it follows logically that the Minister has the legal authority to prohibit the taking of one fifth of those female lobster . . ." (para. 49).

In rejecting the second argument, the court applied the gross disproportionality test from R. v. Clay, 2003 SCC 75 to find that:

It is difficult to conclude, on the evidence before this Court, that the requirement, by licence condition, that lobster fishers return ten percent of the lobster catch (being marked breeders) to the sea to encourage conservation, as part of a demonstrated and admittedly successful conservation program, is “grossly disproportionate”. On the contrary, it accords with the DFO mandate of conservation of the fishery. [para. 54]

Offences - Search and Seizure - Waiver of Right to counsel

R. v. Boudreau, 2009 NSPC 26 [link]

This case involved a motion during a trial to exclude a statement made by the accused to a fisheries officer.  Prior to the making of the statement the accused had been given a Charter warning and had advised that he did not want to call a lawyer "at this time". Based upon the  British Columbia Provincial Court decision of R. v. Liddell, [2008] B.C.J. NO. 947, defence counsel argued that the words not "at this time" did not amount a waiver.  The Nova Scotia court refused to follow the B.C. court and held that there had been a valid waiver.

The court also rejected an argument that the accused must be offered access to a lawyer with expertise in fisheries matters.

Offences - Misc. - unmarked gear - definition of "Fishing Gear" - amendment of Information at trial

R. v. Beck, (2009) NWTSC 26 [link]

This case involved a accused charged with "[o]n or about September 19, 2006 . . . [d]id set unmarked fishing gear . . .". At trial, the Trial Judge refused an application under s. 601(3) of the Criminal Code to amend the Information to insert the words "operate or leave unattended" after the word "set".  He did so on the grounds that granting the amendment would irreparably prejudice the accused who would have cross examined differently had he known operation of the fishing gear was at issue. As a result, the Court  acquitted on the basis that the Crown failed to prove that the net had been "set" within the limitation period. The trial judge also acquitted on the grounds that the nets at issue were not "fishing gear" with the meaning of the s. 27 of the Fishery (General) Regulations.

Upon summary conviction appeal, all of the above described issues were raised as grounds of appeal.

With respect to the amendment issue, the Summary Conviction Appeal Court found that the applicable section of the Criminal Cord was s. 601(2) (amendments to conform to evidence) rather than s. 601(3) (cure a defect). Since s. 601 (2) was a discretionary rule, it attracted a more deferential standard of review than a decision under s. 601(3). After applying the palpable and overriding error standard, the Appeal Court refused to overturn the Trial Court's finding of irreparable prejudice. 

With respect to the limitation period issue, the Court applied R. v. West Fraser Mills Ltd., (1994), 13 C.E.L.R. (N.S.) 1 (B.C.C.A.) to hold that under s. 82 of the Fisheries Act, in the absence of a certificate from the Minister of Fisheries stating the date when he or she became aware of the offence, the two year limitation period starts to run as of the date of the offence. Accordingly, since there was no certificate from the Minister entered into evidence, the Appeal Court upheld the Trial Court finding that the Crown had failed to prove the gear was set within the two year limitation period.

With respect to definition of "fishing gear", after reviewing the French text of the Regulations, the court concluded that the term "fishing gear" included fishing nets. However, given the finding on the amendment issue and limitation period issue the acquittal was not overturned.

Offences - Misc. - Adjournment of Trial

R v. Ramalheira, 2009 NLCA 4 [link]

This case involved charges against the Master of a foreign fishing vessel under the Coastal Waters Protection Act. After several trial adjournments, the Provincial Court refused an adjournment based upon the alleged poor health of the accused in part because the medical report in support of the application was "scant at best" and given the numerous prior adjournments and the passing of time it was in the public interest to have the trial proceed. Since appeals of interlocutory orders are not normally allowed in criminal proceedings, the accused brought an application for prohibition and certiorari in aid, which was denied by the Trial Division court. Upon further appeal, with one judge dissenting, the Appeal Division court upheld the Trial Division judgement and refused the application for review. The reasons for doing so included: (1) the fact that this was a regulatory offence rather than a criminal offence where the consequences of a conviction for the accused were not as far reaching; (2) since the fishing vessel was continuing to fish in the area, there would  presumably be other crew members available who could testify; and (3) "undoubtedly there are various data recordings (notably GPS) that modern vessels maintain" (para. 17).

The dissenting judge disagreed  that regulatory offences should be treated differently and suggested that if Parliament intended such proceedings to proceed in rem (against the ship itself), it would have provided for such a proceeding within the legislation. (para. 41).

Constitutional/Practice/Torts - Bar to Litigation in Newfoundland Workplace, Health, Safety and Compensation Act

Ryan Estate v. Universal Marine (Ryan's Commander), 2009 NLTD 120 [link] upheld on appeal at 2011 NLCA

In this case, the Newfoundland Trial Division held that the statutory bar to litigation in the Nfld. Workplace Health, Safety and Compensation Act (WHSCA) is unconstitutional.

Ryan Estate v. Universal Marine (Ryan's Commander) involved a claim by the estates of two crew members of the fishing vessel Ryan's Commander that capsized off of the coast of Nfld. in 2004.  After commencing civil actions for damages, an internal review specialist of the Work Health and Safety Commission  ruled that there was a statutory bar to litigation because both the deceased and the defendants were workers and the deaths occurred in the course of employment. Upon judicial review, the Trial Division ruled that the statutory bar to litigation in the WHSCA must be read down under the interjurisdictional immunity doctrine because it impairs the federal power to sue for  damages under the Marine Liability Act. In doing so, the court noted that the provincial WHSCA legislation was in pith and substance an insurance scheme. 

The court also held that the provincial legislation could not be upheld under the paramountcy doctrine.

Editor's note: An article explaining the interjurisdictional doctrine can be found on the Admiraltylaw.com website at http://www.admiraltylaw.com/fisheries/Papers/interjurisdictional%20immunity.pdf 

This decision was upheld on appeal with a dissent.

Offences - Forfeiture

R. v. Craig, 2009 SCC 23 [link]

This is a non-fisheries case where the Supreme Court of Canada ruled that for offences under the Controlled Drugs and Substances Act the totality approach should not be applied. 

Practice - Bankruptcy and Insolvency Act s. 38 - Proceedings after Discharge  Against Fishing Licence not Listed in Disclosure Statement

RE Burt Bankruptcy, 2009 NLTD 19 [link]

This case involved a fish company that had loaned money to an individual for the purchase of a fishing licence. The fish harvester made an assignment into bankruptcy, but did not list his fishing licence as an asset. Despite a request by the fish company, the Trustee in Bankruptcy refused to take legal proceedings against the licence. Based upon an apparent consent received from an encumbrance holder and the court taking judicial notice of the fact that "commercial fishing licences can be sold to satisfy outstanding debts and judgements and the Department of Fisheries and Oceans Canada DFO will issue new licences if it receives the appropriate documentation relinquishing and requesting re-issuance of fishing licences ..." the court granted an order under s. 38 of the Bankruptcy and Insolvency Act allowing the fish company to take proceedings against the discharged bankrupt. The court also enjoined the bankrupt from disposing of its licence pending completion of the legal proceedings to be commenced by the applicant against the licence.

Editor's note:  For a related proceeding where the Superior Court confirmed the Bankruptcy Court order enjoining the Bankrupt from selling its licence see:  Beothic Fish Processors ltd. v. Burt, 2009 NLTD 65 [link]

 

Judicial Review/Crown Liability

Aboriginal Rights/Defences

Nunavut Wildlife Management Board v. Minister of Fisheries and Oceans et al., 2009 FC 16 [link]

Barry Group, a Canadian Fishing Company, sold 1900t of turbot quota to two other offshore fishing enterprises for in excess of $10 million. The Minister approved the transfer in late January 2008 and after completing the usual searches, the purchasers completed the transaction in early March 2008, more than 30 days after the Minister’s decision. On March 14, 2008, the Nunavut Wildlife Management Board (“NWMB”) filed an application for judicial review, on the grounds that it was not adequately consulted. On its face, NWMB would not appear to be a party directly affected by the quota transfer approval decision, however the court held that it was and that the application was not beyond the normal 30 day time limit for such applications because NWMB was not aware of the decision until Feb. 18, 2008. None of the commercial parties had any notice of the NWMB interest until they received notice of the application for judicial review.

The Court held that the lack of consultation did not violate Article 15.3.4 of the Nunavut Land Claims Agreement because the quota transfer did not affect the substance or value of the Inuit harvesting rights and opportunities. As a result, the Court did not overturn the Minister’s decision. 

However, given new concerns raised by the applicant, the Court  held that in the future  the Minister should broaden his or her consultations with NWMB so as to give the Nunavut an opportunity to explore the possibilities of purchasing  quota from quota holders that no longer wished to remain in the fishery.

Offences - Misc. - Definition of "Fishing"- Requirement for Dockside Observer when transferring Fish to another vessel at Sea

R v. Fitzpatrick, 2009 CANLII 2686 [link]

This case involved a father and son with long line crab fishing vessels who fished together.  Since only the father's vessel was equipped with a power hauler, they surreptitiously used the father's vessel for hauling both sets of traps and then transferred some of the crab to the son' s boat to be landed by the son. Applying the broad definition of "fishing" from the Frederich Gerring Jr. (1807), 27 S.C.R. 271 and other cases, the court held that when the father was hauling his son's gear he was fishing.  Since he was not licensed to fish that gear, he was fishing illegally.  In addition, when he transferred the fish that he had hauled at sea to his son's boat, he breached a licence condition that require him to have a dockside observer present when offloading crab.