Goodwin v. Canada (Attorney General), 2005 FC 1185

Date: 20050830

Docket: T-486-04

Citation: 2005 FC 1185

Ottawa, Ontario, this 30^th day of August, 2005

Present:           The Honourable Mr. Justice Mosley                                   

BETWEEN:

                                          JOEL WAYNE GOODWIN, of Melbourne,

in the County of Yarmouth, Province of Nova Scotia,

and DEREK PATRICK D'ENTREMONT,

of Middle West Pubnico, in the said County

Applicants

and

THE ATTORNEY GENERAL OF CANADA

for the Minister of Fisheries and Oceans of Canada

Respondent

REASONS FOR ORDER AND ORDER

[1]

This is an application for judicial review of a decision by the Minister of Fisheries and Oceans respecting the length of vessels used in the lobster fishery during the 2004-2005 fishing season. The applicants are boat owners and fishers who have held licenses to fish in Lobster Fishing Area ("LFA") 34, off southwestern Nova Scotia. They seek declaratory relief under paragraph 18.1(3) of the Federal Courts Act, R.S.C. 1985 c. F-7 that the decision is ultra vires the Minister's authority under the Fisheries Act, R.S. 1985, c. F-14.

[2]         For the reasons set out below, I am satisfied that the application is both out of time and without merit. Accordingly, it will be dismissed.

BACKGROUND

[3]         Long-standing Department of Fisheries and Oceans ("DFO") policy prohibited lobster boats in LFA 34 from exceeding an overall hull length of 13.7 metres or 44'11". This was initially put in place to prevent the owners of larger boats from having an unfair advantage in the number of traps they could place at the opening of the season. The policy did not allow extensions of any kind and was incorporated in the license conditions issued under the Lobster Fishing Regulations prior to 1983. Thereafter, the hull length policy was maintained under the Commercial Fisheries Licensing Policy for Eastern Canada ("the policy"), but not enforced through the license conditions.

[4]         The hull length policy seems to have been ignored by some fishers who had stern extensions added to their vessels after an official measurement of the length overall ("LOA") of the hull had been made by a certified marine surveyor. Below water extensions, described as "stern tanks", were solid continuations of the hull or bolted to the hull and effectively extended the length of the vessels. They were often used for ballast or storage. Above water extensions or "transom platforms" in the nature of a stern shelf did not change the LOA of the hulls in the water. However, they too were proscribed by the policy.

[5]         The applicants contend that DFO condoned this deviation from the policy by not enforcing it and as a consequence, a number of vessels were constructed with both below and above water stern extensions and placed in service for fishing lobster and, in some cases, other species. DFO's evidence is to the effect that no over-length vessel was knowingly registered for use in the LFA 34 fishery.

[6]         Where a vessel was used for more than one fishery, the policy provided that the most restrictive rules would apply but this was not, it appears, strictly observed and led to some misinterpretation of the requirements for LFA 34.

[7]         The lack of enforcement of the policy led to concerns being expressed by members of the fishing community and discussions at the local Advisory Committee level in February and March 2002. The LFA 34 Advisory Committee was comprised of elected fisher representatives, DFO officials and other "stakeholders". Its function was to make recommendations to DFO on the management of the LFA 34 fishery. In consultation with the local fishers, and following an industry survey, it became clear to DFO representatives that most fishers supported enforcement of the existing overall length restrictions, while allowing for temporary stern shelf or ramp extensions to allow for gear storage while traps were being loaded.

[8]         The fishers' and DFO officials' concerns made their way up the departmental hierarchy, and in June 2003, the Minister received a recommendation that the existing policy be revised so as to permit temporary extensions to a maximum of 1.5 metres (5'), so long as they were not "an integral part of the hull." Vessels not in conformity with the policy would have to be modified prior to the beginning of the 2004-05 season in November, 2004. The Minister endorsed the recommendation on June 18^th 2003.

[9]         On June 19, 2003, the revised policy was announced by way of press release. A statement that the policy would be enforced through an amendment to license conditions formed part of that press release. It is a summary conviction offence to violate a license condition, punishable by fines of up to $100,000.00. The new licence conditions were to become effective for the 2004-2005 season. The press release contained these statements:

The policy stipulates that fishers must use vessels under 45' or 13.7 metres in length in these lobster fishing areas. In recent years some fishermen have constructed out-of-water stern extensions to their vessels. These extensions may be permitted provided that the maximum total extended length does not exceed 1.5 metres (5 feet).[...]

A detailed document explaining how the vessel replacement rules will be applied will be prepared to ensure that they are explicit and clearly understood by all participants.

The policy will be enforced through an amendment to the conditions of licence issued to lobster fishers for the fall 2004 and spring 2005 lobster fishing season.

[10]       The applicants did not commence these proceedings until almost nine months later, shortly after a letter dated March 2, 2004 (the "detailed document") was sent by DFO's acting Area Director in Yarmouth to the LFA 34 fleet reiterating the message about enforcement of the vessel length rules through the license conditions for the season opening on November 28, 2004 (and ending May 31, 2005).

[11]       The letter from the Area Director reads, in part:

Therefore, please be informed that, starting with the lobster fishing season for LFA 34 opening on November 28, 2004, the LFA 34 lobster licences will include a new condition restricting vessel length and authorizing additional stern equipment. The condition is expected to read as follows:

"Under this license, while fishing for lobster in LFA 34, the license holder is authorized to use only a vessel having a maximum length overall of 13.7 metres (45 feet). For the purpose of this license condition, the definition of length overall is the horizontal distance measured between perpendicular lines drawn at the extreme ends of the outside of the main hull of the vessel excluding any bow and/ or stern extension equipment of any type."

"Under these license conditions, the license holder is authorized to use a fixed or removable out of water stern shelf or ramp, provided the maximum total extended length of this stern or ramp does not exceed 1.5 metres (5 feet). Any out of the water shelf or ramp may not exceed 1.5 regardless of the length of the vessel to which this equipment is attached."

"For the purposes of this condition of license, all extension equipment shall be measured while deployed or extended in the manner for which it is designed to be used." [Emphasis added]

[12]       There does not appear to be any dispute between the parties that the underwater stern tanks at issue would be interpreted by DFO as forming part of the "main hull of the vessel" and thus would be factored into the calculation of overall length. As a result, the applicants' boats, unless modified to remove the stern tanks at considerable cost and inconvenience to the owners, would be in contravention of the policy and the proposed license conditions. As conceded by counsel for the applicants during oral argument, this case is ultimately about "the cost of compliance." The applicants' objectives are to either have their boats "grandfathered" and thereby exempted from enforcement of the policy, or, to receive compensation for the costs of modifying the vessels. But neither of those objectives are directly at issue in these proceedings.

[13]       On October 22, 2004, the enforcement of the new policy through licence conditions was suspended pending the outcome of this litigation.

ISSUES

[14]       The respondent raises two preliminary issues:

1.          Admissibility of certain of the affidavit evidence;

2.          Timeliness of the application.

[15]       The applicants challenge the decision based on the following grounds:

1.          Lack of jurisdiction to restrict vessel length by way of licence conditions;

2.          Retrospective effect of the decision on vested rights/ legitimate expectations;

3.          Lack of conformity of the actual licence conditions with the Minister's decision of June 18.

STANDARD OF REVIEW

[16]       The applicants submit that with respect to the question of the Minister's jurisdiction to change the policy, the standard should be one of correctness. The respondent submits that the discretionary nature of the Minister's decision means that the standard of review of the decision should be patent unreasonableness: Suresh v. Canada (Minister of Citizenship and Immigration), [2002] S.C. R. 3 at para. 29; Tucker v. Canada (Minister of Fisheries and Oceans), (2001), 288 N.R. 10 at para. 2 (F.C.A.).

[17]       Further the respondent submits that as this is a discretionary decision of a Minister, the principle in [1982] 2 S.C.R. 2">Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2 at 3 should apply: a Minister's policy decision should not be reviewable unless bad faith, non-conformity with the principles of natural justice and reliance on extraneous factors can be demonstrated by the Applicants.

[18]       With regard to the jurisdictional issue raised by the applicants, as noted by the Federal Court of Appeal in Davies v. Canada (Attorney General) (2005), 330 N.R. 283 (F.C.A.), a question which "goes to jurisdiction" is simply descriptive of a provision for which the proper standard of review is correctness, based upon the outcome of the pragmatic and functional analysis. It is not sufficient to state that a question of jurisdiction must be reviewed on a correctness standard without performing a more searching analysis.

[19]       The "jurisdictional question" in issue is essentially whether the Minister's decision to make the decision in issue was open to him according the Fisheries (General) Regulations under subsection 22(1), and more generally under the Fisheries Act, subsection 7(1), which provides:

[20]       A decision whether to issue licenses and whether to impose license restrictions must be made in accordance with the Fisheries Act and is a question of law (although of course it cannot be made in a legal vacuum without some facts to trigger the question). No great deference is required in such a case.

[21]       Under the Act, it is the Minister's duty to manage, conserve and develop the fishery in the public interest on behalf of Canadians : Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12 at para. 37. This is also a fair characterization of the purposes of the Act as a whole. The purpose of subsections 7(1) and 22(1), under which this decision was taken, is to provide the tools by which the management, conservation and development of the Canadian fishery can be accomplished.

[22]       While the decisions taken under subsections 7(1) and 22(1) are generally polycentric in nature, the question of whether a decision can be made considers only the legality, not the desirability of making a decision. Competing interests and conflicting claims by various affected parties can have no part in this kind of decision, so the deference that might otherwise be afforded will be minimal.

[23]       The Minister can be assumed to have a good working knowledge of the Act and its purposes and to have a superior knowledge to that of this Court regarding the particular matters governed by the Act and Regulations. He can also be assumed to be well-informed about those actions that are open to him under the Act and Regulations, but he cannot be assumed to have legal expertise superior to that of a Court. Again, little deference is required.

[24]       Applying the pragmatic and functional analysis to the limited question of whether the Minister had jurisdiction under the Act to engage in decision-making, I find that the appropriate standard of review is correctness.

[25]       It remains to determine the appropriate standard of review for the impugned decision itself. The decision in this case is discretionary, polycentric, and largely political in nature. The expertise of the Minister and departmental officials in determining matters of fishery regulation is greater than that of the Court and warrants considerable deference. I agree with the respondent that to the extent that the question in issue consists of a finding of fact, the standard should be patent unreasonableness.

ARGUMENT & ANALYSIS

Preliminary Matters

1.         Admissibility of affidavits

[26]       The respondent submits that portions of the applicants' affidavits should be struck out because they are not confined to facts known to the deponents, and contain facts that are irrelevant to the grounds of the application. The respondent also complains that they contain evidence that was not before the decision maker and that such evidence is not confined to evidence related to the Minister's jurisdiction.

[27]       The impugned paragraphs describe long-standing boat building practises in the area, why some vessels are built for dual purposes (different fisheries), discuss the costs and inconvenience of removing stern tanks, and explain why, in the opinion of the affiants, longer boats are safer. The evidence also describes, as seen from the perspective of the affiants, how DFO previously ignored infringement of the policy.

[28]       Much of this evidence, such as the dual purposes for which certain boats were constructed and the costs of tank removal, is irrelevant to the issues raised in these proceedings and is therefore inadmissible. The controversy over whether longer boats are safer at sea is interesting but immaterial in my view. DFO awareness of the infringing practises relates to the applicants' arguments about legitimate expectations, but procedural unfairness has not been established in these proceedings. Given the conclusion I have reached about disposition of this application, I do not find it necessary to strike out the impugned paragraphs as they were given no weight in reaching that decision.

2.          Timeliness of application

[29]       The application as filed and served in March 2004 seeks judicial review of the June 2003 decision to revise the vessel length policy and enforce it through license conditions. The respondent submits that it is out of time: Durant v. Canada (Minister of Fisheries and Oceans) (2002), 218 F.T.R. 143 at para. 23 (T.D.). It should have been brought within 30 days of the Minister's decision. No motion to extend time has been brought: Federal Court Act, subsection 18.1(2). The applicants have not demonstrated that they had a continuing intention to bring the application in a timely manner. On this basis alone, they would not be able to succeed on a motion to extend the time for their application: Canada (Attorney General) v. Hennelly (1999), 244 N.R. 399 (F.C.A.).

[30]       The applicants' primary submission on this issue is that no extension of time was required as the Minister's decision was not complete or not completely communicated to the applicants until the proposed license conditions were disclosed to the fishers. In the alternative, the applicants, during the hearing, asked the Court to consider granting an extension.

[31]       In oral argument, counsel for the applicants stated that what they were challenging was not in fact the policy decision but rather the decision by the area director to impose the license conditions. Until the conditions were actually known, fishers were not in a position to object to the way the policy would have an impact upon them. But that is not the application before the Court.

[32]       Undercutting the applicants' argument is that it was clear from the June 2003 announcement that the policy change would be enforced through amendments to the license conditions. And it is also clear from the evidence that the applicants were well aware of DFO's intention to prohibit the underwater stern tanks and the controversy that their use had generated within the LFA 34 fisher community.

[33]       The applicants' submission that they were justified in waiting for the "detailed document" does not stand up in light of the fact that they did nothing to change their application to reflect the license conditions as issued. It appears they filed the application when they knew the area director's letter had been sent but without actually waiting to receive it. In any event, waiting for this information before filing an application for judicial review is analogous to waiting for the reasons supporting a decision. That in itself would not be sufficient reason to justify failing to file a timely application: Westinghouse Canada Inc. v. Canadian International Trade Tribunal (1989), 104 N.R. 191 at para. 6 (F.C.A.); Skycharter Ltd. v. Canada (Minister of Transport) (1997), 125 F.T.R 307 (T.D).

[34]       The underlying consideration when an application is out of time is that justice should be seen to be done between the parties: Grewal v. Minister of Employment and Immigration, [1985] 2 F.C. 263 (F.C.A.). The application in these proceedings was prepared well in advance of its filing. The applicants waited to file and serve it upon the respondent until they knew the license conditions were being issued through the area director's letter.

[35]       It was open to the applicants to file their application within thirty days of the June 2003 decision, to seek an extension of time to challenge that decision or to bring a separate application for judicial review of the March 2^nd decision to issue the license conditions. That the applicants chose to do none of those things is, in my view, fatal to this application.

[36]       I note that, given the time required to perfect and hear an application for judicial review, one practical advantage of the delay for the applicants was that enforcement of the policy was suspended for the 2004-05 season.

[37]       I am also satisfied that the application must fail on its merits.

Substantive Issues

1.          Jurisdiction

[38]       The applicants submit that the Minister's power to place conditions on fishery licences is provided for in the Fisheries Act, section 43 and Fishery (General) Regulations subsection 22(1) and, more specifically, in paragraph 22(1)(g):

[39]       The applicants submit first, that the justification for imposing conditions must come within the general language of subsection 22(1): "for the proper management and control of fisheries and the conservation and protection of fish." These clauses must be read conjunctively, they argue, and there must be evidence to demonstrate that the decision was grounded in such concerns if it is claimed that the Minister had jurisdiction to make the decision. Further paragraph 22(1)(g), they contend, applies to the specific vessel named in the license rather than to any class of characteristics. The Minister's conditions must be within the scope authorized by the Regulations: R. v. Savory (1992) 108 N.S.R. (2d) 245 (C.A.).

[40]       The applicants submit that the fact that the restriction does not exist in other lobster fishing regions shows that it cannot be a valid conservation measure. Conservation is controlled by the number of traps permitted, and there is no relationship between conservation and the size of a vessel. While the press release announcing the Minister's decision states, "Allowing vessel size to increase in LFAs 33 and 34 would increase fishing effort on a resource already subject to high fishing pressure, contribute to over-capitalization, and place additional burden on community harbours (berthing space)," a DFO briefing note dated March 26, 2003 concedes that a connection between vessel size and conservation could not be demonstrated at that time. The applicants also contend that there is no evidence of pressure being placed on berthing space by the longer boats.

[41]       The respondent characterizes the June 2003 decision as a change of policy in the nature of a discretionary, legislative act, not an administrative one, since it equally affected everyone in the group, and not individuals. The applicants seek to fetter the Minister's statutory discretion because of the benefit they derived from a previous lax interpretation of the policy. The Minister may devise policy, change existing policy, and in some cases, deviate from policy: Pacific National Investments Ltd. v. Victoria (City), [2000] 2 S.C.R. 919 at paras 59-66; [1982] 2 S.C.R. 2">Maple Lodge Farms Ltd., supra at 3.

[42]       I do not accept the applicants interpretation of subsection 22(1) as requiring a conjunctive reading of the opening clauses. Legislation delegating management of natural resources should be given a broad and purposive interpretation: Maple Lodge Farms, supra at 4. This court has held that conservation and the protection of fish are not the only bases upon which the Minister can manage the fishery: Association des Senneurs du Golf Inc. v. Canada (Minister of Fisheries and Oceans) (1999), 175 F.T.R. 25 at para. 25, aff'd (2001), 288 N.R. 1 (F.C.A.).

[43]       Maple Lodge Farms established that discretionary policy decisions are not subject to judicial review, save for three exceptions: where there has been bad faith on the part of the policy maker, non-conformity with the principles of natural justice (where required), and reliance upon considerations that are irrelevant or extraneous to the statutory purpose. In the context of the regulation of the fishery, the Maple Lodge Farms test has been applied in Carpenter Fishing Corp. v. Canada, [1998] 2 F.C. 548 (C.A.).

[44]       None of the three exceptions recognized by the Maple Lodge Farms test applies, in my view, to the decision under review.

[45]       Where bad faith is claimed, the implications are so serious that the allegations must be made expressly and unequivocally. That has not been done in this case and it appears clear from the evidence that the Minister, in deciding to make the policy change, was responding to concerns that had emanated initially from the industry itself.

[46]       The change of the vessel length policy was more in the nature of a legislative act than an administrative decision. Minimal natural justice considerations apply to such decisions. On the facts of this case, there is no basis upon which to conclude that the applicants were denied procedural fairness. There was extensive consultation with fishing industry stakeholders, including a democratic survey, before the policy was approved. I am satisfied that there were at least as many procedural protections as were required in Durant, supra at paras. 30, 31 and 34.

[47]       Finally, the decision does not appear to have been made entirely or predominantly on irrelevant or extraneous considerations. The material placed before the Minister with the recommendation reviewed the history of the issue and identified several options for consideration. None of the factors presented appear to have been irrelevant or extraneous.

[48]       Vessel length restrictions have previously been upheld by this court: Munroe v. Canada (Minister of Fisheries and Oceans) (1996), 6 F.T.R. 149 (T.D.). So have license limitations on the means employed to catch fish: MacKinnon v. Canada (Fisheries and Oceans) (1986),6 F.T.R. 203 at paras. 50, 53 (T.D.). Public notices varying the closing time for commercial salmon fishing have been upheld as legislative acts that exercise a regulatory function: Gulf Trollers Association v. Canada (Minister of Fisheries and Oceans), [1987] 2 F.C. 93 paras. 1, 7 (C.A.).

[49]       The applicants' challenge to the Minister's jurisdiction to make the policy decision in June 2003 is, in effect, a disguised attack on the wisdom of the policy. It is not, in my view, for the Court to second-guess that policy or to question the Minister's motives. I am satisfied that he had the jurisdiction to make the decision and the application must also fail on that ground.

2. Retrospectivity

[50]       This issue was not raised in the notice of application but presented for the first time in the applicants' written submissions. The applicants submit that the owners of non-conforming vessels had acquired rights to use boats they had constructed or modified and put in service to fish for lobster in LFA 34 during the period when the vessel length policy was not enforced. The decision to enforce the policy through license conditions is in the nature of a statutory change that has retrospective effect. It makes those non-conforming vessels illegal for use in the fishery and imposes significant penalties for contravention of the new conditions.

[51]       By analogy to jurisprudence respecting statutes construed as having retrospective application, the applicants argue that policy changes affecting vested rights must clearly, either expressly or by necessary implication, convey an intent to alter those rights: [1977] 1 S.C.R. 271">Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271. In this case, they argue, there is nothing in the June 2003 decision which clearly states such an intent.

[52]       The doctrine of legitimate expectation was alluded to in the applicants' notice of application but was not pressed in argument. It was conceded that the applicants had not been denied procedural fairness in the form of an opportunity to be consulted or to present their views to the decision maker prior to the decision being made: Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170.

[53]       As submitted by the respondent, describing a policy decision as being in the nature of a legislative act does not necessarily import principles of statutory construction to the analysis of the validity of that decision. However, even assuming that the presumption against retrospective effect applies to policy decisions, vested rights are not acquired in the context of fishing licenses, as a new license must be obtained each year: Tucker v. Canada (Minister of Fisheries and Ocean) (2000), 197 F.T.R. 66 at para. 18 (F.C.); Munroe, supra.

[54]       By definition, new license conditions are likely to affect the way the people who obtain those licenses can exercise their privileges under the licenses. But as long as the changes are made for valid policy reasons, it is not open to members of the industry - who are subject to the regulation of the Minister by reason of the nature of their livelihoods - to insist that all previous conditions or exceptions to the conditions be grandfathered. To do so would effectively tie the Minister's hands. The applicants can not succeed on this ground.

3.          Lack of conformity with prior decision

[55]       The applicants complain that the license conditions as communicated to the fishers in the letter of March 2, 2004 do not conform to the recommendation that the Minister signed off on, nor does it conform to the recommendation of the LFA 34 Advisory Committee. Neither the Minister nor the Advisory Committee mentioned that permitted extensions would not include underwater tank extensions, but the license conditions do not allow for them.

[56]       Since the license conditions do not conform to the Minister's decision, they should not be enforceable, the applicants argue. It was not open to the Minister's subdelegates to unilaterally alter his decision.

[57]       The respondent submits that the evidence demonstrates that the fisher's survey only showed support for exceptions for out of water extensions. The Advisory Committee accepted the results of the survey, as did the Minister, when he accepted the second option placed before him. The Minister opted not to allow extensions that are an integral part of the hull. The respondent submits that this clearly refers to the underwater tanks. The news release dated June 19, 2003 referred to an exception being made only for out of water extensions.

[58]       In my view, the proposed license condition is consistent with the Minister's decision. The intent of the decision was to limit the overall length of vessels fishing in LFA 34. The effect of the underwater stern tanks forming an integral part of the hull was to extend the overall length of the vessels beyond the limit permitted. An exception for above-water extensions was permitted. These had no effect on measurement of the overall length of the hull.

[59]       Accordingly, this application is dismissed with costs to the respondent.

                                               ORDER

THIS COURT ORDERS that this application is dismissed with costs to the respondent.

" Richard G. Mosley "

   Judge

                                     FEDERAL COURT

                              SOLICITORS OF RECORD

DOCKET:                  T-486-04

STYLE OF CAUSE: JOEL WAYNE GOODWIN, of Melbourne,

in the County of Yarmouth, Province of Nova Scotia,

and

DEREK PATRICK D'ENTREMONT, of Middle

West Pubnico, in the said County

PLACE OF HEARING:                                 Halifax, Nova Scotia

DATE OF HEARING:                                   May 3, 2005

REASONS FOR ORDER

AND ORDER BY : The Honourable Mr. Justice Mosley

DATED:                     August 30, 2005

APPEARANCES:

William Moreira                                                 FOR THE APPLICANTS

Andrea Baldwin

Louis D'Entremont

Reinhold Endres, Q.C.                                                   FOR THE RESPONDENT

SOLICITORS OF RECORD:

WILLIAM MOREIRA                                                 FOR THE APPLICANTS

ANDREA BALDWIN

Stewart McKelvey Stirling Scales

Halifax, Nova Scotia

LOUIS D'ENTREMONT

D'Entremont & Boudrea

Pubnico, Nova Scotia

JOHN H. SIMS, Q.C.                                                  FOR THE RESPONDENT

Deputy Attorney General of Canada

Halifax, Nova Scotia