Assoc. des crabiers Acadiens Inc. v. Canada (Minister of Fisheries and Oceans), 2004 FC 23

                                                                                                                                  Date: 20040108

                                                                                           Docket: T-891-03

                                                                                                                          Citation: 2004 FC 23

Ottawa, Ontario, Thursday, January 8, 2004

PRESENT: PROTHONOTARY MIREILLE TABIB

BETWEEN:

ASSOCIATION DES CRABIERS ACADIENS INC.,

duly incorporated in accordance with the laws of the province

of New Brunswick, and ASSOCIATION DES CRABIERS DE LA BAIE,

duly registered in accordance with the laws of the province of Quebec

Applicants

- and -

HER MAJESTY THE QUEEN IN RIGHT OF CANADA, represented

by the MINISTER OF FISHERIES AND OCEANS

Respondent

                                          REASONS AND REASONS FOR ORDER

TABIB P.

[1]                In early May 2003, the Minister of Fisheries and Oceans ("the Minister") announced his triennial management plan for snow crab in the south of the Gulf of St. Lawrence ("the management plan"). The management plan specified the total authorized catch ("TAC") of crab in the designated fishing zones and the percentage of TAC allocated to traditional fishermen, first nations and new fishermen. The applicants, who represented traditional crab fishermen in the Gulf of St. Lawrence, asked the Court by judicial review to quash the management plan on the ground that the Minister had exceeded his jurisdiction, inter alia by basing his decision on irrelevant and improper considerations unrelated to the purposes of the Fisheries Act, R.S.C. 1985, c. F-14, and the Oceans Act, S.C. 1996, c. 31, contrary to his obligation to preserve and protect snow crab.

[2]                By the motion at bar the applicants asked that their application for judicial review be heard as if it were an action and sought other incidental or alternative relief, namely authorization to amend their pleading to add additional causes of action and relief measures, extension of the deadlines for filing their affidavits and the filing by the respondent of certain documents requested under Rule 317 of the Federal Court Rules, 1998.

[3]                The respondent, objecting to the applicants' motion, for her part also asked that the respondent's style of cause be amended and that the Court add as respondents all persons holding crab fishing permits in the zone affected by the management plan.

Applicants' motion to hear application as action

[4]                Section 18.4 of the Federal Court Act provides the following:

[5]                Well-settled precedents of this Court have set out as follows various factors which may be taken into account in considering such an application (MacInnis v. Canada, [1994] 2 F.C. 464 (C.A.), Drapeau v. Canada (Minister of National Defence), [1995] F.C.J. No. 536 (C.A.), Merck Frosst Canada Inc. v. Canada (Minister of Health), [1997] F.C.J. No. 1273 (F.C.) and Del Zotto v. Canada (Minister of National Revenue), [1995] F.C.J. No. 1359 (F.C.)):

(1)         the desirability of avoiding unnecessary proceedings;

(2)         the desirability of avoiding unnecessary cost and delay;

(3)         the question of whether points at issue require evaluating the attitude and credibility of witnesses; and

(4)         the need for the Court to consider the evidence as a whole.

[6]                The applicants maintained that the first two tests are met in the case at bar, since they intend to bring an action for damages to recover losses suffered now or in future by traditional fishermen as a result of the implementation of the management plan. Such an action, they argued, would involve the same facts and points of law, so that it would be advisable to avoid unnecessary proceedings and needless cost and delay to convert the application for judicial review into an action and so allow the pleadings to be amended to include a claim for damages: the two applications could then be heard jointly.

[7]                This argument cannot be accepted. Not only is there at present no action for damages, but the intention to bring such an action professed by the applicants runs into the obstacle that such an action is not for the applicants to bring. The applicants are only associations representing the interests of traditional fishermen. Strictly speaking, such associations may have the interest necessary to file the instant application for judicial review, but it is clear that they themselves suffer no financial or economic loss from implementation of the management plan and so would not have the right or interest necessary to bring an action to recover damages that their members might sustain. Accordingly, there is no evidence and no indication of the possible or probable existence of related remedies, the parallel hearing of which could be avoided by treating the application at bar as an action.

[8]                The applicants argued that the facts at issue require evaluating the attitude and credibility of witnesses. The testimony the applicants expected to call included:

-            testimony of expert witnesses regarding the history of crab fishing, assessing the biomass of stocks, measures necessary to protect the industry, the impact of overcapacity fishing on the destruction of stocks and the negative effect of a permanent increase in fishing effort;

-            testimony by fishermen and other interveners regarding these facts;

-            testimony by employees of the Department of Fisheries and Oceans about the factors which led the Minister to adopt the management plan.

[9]                It should be noted here that no affidavit has yet been entered in the record. The Court therefore is not in a position to determine by itself the complexity of the matters at issue or the volume and nature of the cross-examinations which might be required. At this stage, therefore, the exercise is purely speculative and this makes the applicants' task all the harder.

[10]            The complexity or technical nature of evidence cannot by themselves justify hearing an application for judicial review as an action, if it is possible to present the evidence intelligibly by affidavit. The applicants have not discharged their burden of showing that the expert evidence would be so complex or would require searching cross-examination in which the credibility of the expert witnesses would be at issue. Even the affidavit of the expert witness submitted by the applicants in support of their motion seems to the Court to set out clearly and precisely the factual basis of the application, thereby undermining their argument that this expert testimony requires a viva voce hearing.

[11]            What is more, and this applies both to testimony by expert witnesses and by fishermen, most of the evidence proposed by the applicants on the probable effect of the management plan on fisheries does not seem relevant to the matter. As Strayer J., as he then was, noted in Vancouver Island Peace Society v. Canada, [1992] 3 F.C. 42:

In determining whether an official or agency has acted in accordance with the law in reaching the decision in question, the Court can consider whether the official or agency has correctly interpreted the law and whether the decision has been taken on the basis of facts and reasons relevant to the purpose for which the authority was given to make such a decision. But within that permissible range, the original decision-maker has a right to make a decision which the Court cannot reverse even if it per chance does not agree with such decision.

[12]            In the same way, the Court's function on judicial review here is limited to considering whether the Minister based his decision on irrelevant factors. It is not the Court's place to substitute its own assessment of the facts for that of the Minister by considering whether the Minister made the "correct" decision, and whether the management plan will actually have the effect contemplated by the purposes of the Act. To paraphrase Strayer J. in the aforesaid case, I do not see how the evidence the applicants proposed to present about the harmful effect of the management plan can be relevant, except perhaps to the extent that if such a thing is possible it could show that there was no reasonable basis for the Minister concluding that the management plan would meet the objectives permitted by the law.

[13]            Accordingly, I cannot accept the applicants' argument that the application for judicial review requires the determination of complex questions of fact requiring a full-scale trial.

[14]            As to whether the credibility of officials attached to the Department of Fisheries and Oceans is such a conclusive factor that it requires viva voce evidence, it is obviously too early to speculate on that point as the respondent's affidavits have not been filed.

[15]            Finally, regarding the need for the Court to hear the evidence as a whole, the applicants make essentially the same arguments of fact, but add what in my opinion is the real reason for their motion, the need for the applicants to have access to the evidence disclosure procedure and examinations for discovery and to summon witnesses who would not voluntarily appear.

[16]            The applicants based their judicial review application in part on the allegation that the Minister adopted the management plan based on factors unrelated to the purposes of the Act. The evidence for this allegation, if it exists, is necessarily under the control of the respondent, but (and this results from the very nature of the allegation) could well not appear in the record that was officially before the Minister at the time the decision was made. In fact, the disclosure by the respondent in response to the applicants' application under Rules 317 and 318 does not appear to contain anything unrelated to the legitimate factors mentioned in the Act, hence the additional application by the applicants for "complete" disclosure of the documents requested (this will be dealt with below).

[17]            I readily recognize the problems the applicants have regarding their allegation that the Minister based his decision on factors unrelated to the purposes of the Act or that his action was arbitrary or discriminatory. However, going from that to concluding that it is necessary for the instant application to proceed by an action so as to allow the applicants to conduct a thorough inquiry, in an effort to establish their allegations by all possible means, is a step which I am not willing to take based on the evidence presented to me.

[18]            The applicants sought to show by Mr. Haché's affidavit that the Minister himself dictated the content of the file submitted to him, so as to justify a decision he had already made and based on unrelated factors, and as a result it is to be feared that without the disclosure process and preliminary examination the applicants would be deprived of real and relevant evidence. The evidence presented does not persuade the Court. The applicants' "evidence" is limited to speculations, which appear to be based only on their opinion that the management plan is so fundamentally flawed and likely to threaten the very purposes of the Act that unrelated considerations must necessarily have guided the Minister's decision. There is no indication in the record that, if such factors existed, the applicants would be unable to present evidence of them without the procedure of a hearing and the disclosure of evidence in an action.

[19]            Accordingly, the applicants did not establish sufficient grounds to justify departing from the rule that applications for judicial review are treated summarily.

Applicants' incidental applications

[20]            The applicants did not specify the additional causes of action and relief they wanted to add to their pleadings if they were given leave to do so. Judging from the background to this motion, it would appear that the changes would have related to a claim for damages, if the application were converted to an action. As the principal motion to convert the application to an action has been dismissed, the motion to allow an amendment becomes moot and is denied.

[21]            The respondent did not oppose the application for an extension of time to file the applicants' affidavits, but asked to be given equivalent time to file her own affidavits. The Court notes that the applicants expressed their intention of filing this motion before the deadlines mentioned in Rule 306 expire, and that it was reasonable for them not to prepare their affidavits before the outcome of the motion was known. Additionally, they did not ask that the time allowed be greater than the thirty­-day deadline mentioned in Rule 306. The time allowed will accordingly be thirty days from the date of this order. With regard to the deadline sought by the respondent, the Court does not consider in the circumstances that the applicants in fact had a longer deadline than that mentioned in the Rules or that there is in any case any good reason to give the respondent a longer time than the Rules would otherwise allow.

[22]            Finally, with regard to the applicants' application for disclosure, Rule 317(1) provides as follows:

[23]            I adopt the reasons stated by Associate Prothonotary Giles in Ecology Action Centre Society v. Canada (Attorney General), [2001] F.C.J. No. 1588, adopting the rules set out by the Court of Appeal in Canada v. Pathak, [1995] 2 F.C. 455:

[6] . . . What is relevant is what was before the decision maker when he was reaching his decision . . . it does not include everything dealing with the subject which may have crossed his desk at a prior time. It certainly does not include everything in his department or area of responsibility.

[24]            In David C. Bevan 's statement the respondent disclosed documents [TRANSLATION] "which were in the possession of the Minister of Fisheries and Oceans when he took the decision which is at issue [in this application]". In the present state of the record the applicants have not established to the Court's satisfaction that the other documents requested, even if they were otherwise in the possession of the Minister or his Department and might have been relevant to the decision, are in fact documents relevant for the purposes of Rule 317, in that they were taken into account by the Minister in reaching his decision.

Respondent's motions

[25]            The first part of the respondent's motion seeks to amend the style of cause so that the respondent is described as "The Minister of Fisheries and Oceans" rather than "Her Majesty the Queen represented by the Minister of Fisheries and Oceans".

[26]            The Court's decisions on the question of the proper style for the Crown in right of Canada in an application for judicial review are confusing to say the least, and the lack of uniformity even in the approach taken by counsel for the Department of Justice does not in any way help the situation. On the one hand, it is clear that the board or tribunal whose decision is the subject of an application for judicial review is not an appropriate party in the application (Canada (Human Rights Commission) v. Canada (Attorney General and Frank Bernard), [1994] 2 F.C. 447 (C.A.) and Yeager v. Canada (Correctional Service), [2000] F.C.J. No. 537 (F.C.)). Here it is the Minister's decision which is the subject of the application, and accordingly the Minister would not be the appropriate respondent. On the other, it has been held that when special relief is requested from a representative of the Government, it is the Minister responsible for administering the Act and Regulations in question who must be named, not his Department (Mahmood v. Canada, [1998] F.C.J. No. 1345 (F.C.), Eniss v. Canada, [1995] F.C.J. No. 1593 (F.C.) and Glaxo Canada Inc. v. Department of National Health (1985), 15 C.P.R. (3d) 1). In the respondent's submission, these decisions support her argument that the Minister should be named as respondent.

[27]            It appears that unless a specific order is requested against the Minister, the latter is not an appropriate respondent. In the case at bar, I do not consider that the application for an order quashing the management plan and [TRANSLATION] "referring the management plan back to the Minister with a requirement that he comply with the rules of natural justice and the purposes of the [Act]" is an order for specific relief against the Minister, in the same way as an order of mandamus or an injunction. Consequently, the Minister is not an appropriate respondent in the case at bar.

[28]            The question remains whether the respondent should be designated not as Her Majesty the Queen but the Attorney General of Canada.

[29]            Section 48 of the Federal Court Act provides, with reference to the model indicated as an appendix, that a proceeding "against the Crown" may name "Her Majesty the Queen" as respondent.

[30]            In Vancouver Island Peace Society v. Canada, [1994] 1 F.C. 102, Mackay J. considered that section 48 applied both to actions and applications for judicial review, and that accordingly, even if an application for judicial review is essentially a "proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal " and the proper respondent would be the Attorney General, an application for judicial review filed solely against Her Majesty the Queen is not inadmissible.

[37] I am not prepared to dismiss the applicants' motion in relation to certiorari on the ground that relief is sought against the wrong party, as the respondents urge. Although the Attorney General is not joined as the legal representative of the Governor General in Council, the applicants have named Her Majesty the Queen as respondent. If this were an action, that form would be appropriate. In such a case, an action, Mr. Justice Teitelbaum has held that it is sufficient to name Her Majesty the Queen as defendant and if it is not the intention to sue the Attorney General personally, it is redundant to include the Attorney General as a party. (Kealey v. Canada (Attorney General), [1992] 1 F.C. 195 (T.D.)). In my view, where the respondents name in an originating motion include Her Majesty the Queen, failure to name the Attorney General in lieu of Her Majesty should not be a bar to considering the application which relates to Orders in Council.

[31]            The provisions of Rule 303(1) and (2), which have come into effect since that case, state:

[32]            I conclude from the discussion by Mackay J. in Vancouver Island Peace Society and from these provisions that although an application for judicial review filed solely against Her Majesty the Queen remains valid, it is preferable for such an application to be filed against the Attorney General of Canada.

[33]            Finally, the applicant asked pursuant to Rule 303(1)(a) that all snow crab fishing permit holders in the area affected by the management plan be named as respondents, as being persons directly affected by the order sought. In addition to the permit holders represented by the applicants, there would be over 3,000 permit holders.

[34]            I understand that just as the fishermen who are members of the applicants could have an interest in challenging the management plan, the holders of fishing permits issued in the area affected by the management plan could have an interest in presenting their case in the judicial review proceeding. However, it was not shown that an order quashing the management plan would have the effect of cancelling the permits already issued or altering the quotas already granted. What is more, the snow crab fishing permits are only valid for the fishing season in which they are issued. Fishing permits for the 2003 season have already expired and the holders do not have any vested right in their renewal. The persons whom the respondent would like to have added as applicants are therefore not "directly affected" by the order sought, since it will not affect or diminish any right which they have (see Warner-Lambert Canada Inc. v. Canada (Minister of Health) (2000), 193 F.T.R. 117 (F.C.)).

[35]            Finally, it should be noted here that it is not the permit holders who are asking to be joined as respondents, but the respondent who is seeking to have them compulsorily joined. It seems to me that it is all the more necessary that the pecuniary and special nature of the right that would be affected by the order sought be established in such a case.

                                                                       ORDER

THE COURT ORDERS THAT:

1.          the applicants' motion for the application to be heard as if it were an action is dismissed;

2.          the style of cause is amended so that the Attorney General of Canada will be designated as respondent in place of Her Majesty the Queen in Right of Canada represented by the Minister of Fisheries and Oceans;

3.          the instant application will proceed as a specially managed proceeding;

4.          subject to any directive or order by the judge or prothonotary responsible for management of the proceeding, the schedule for measures to be taken in the case at bar is as follows;

(a)         the applicants will serve and file their affidavits and documentation thirty days at the latest after the date of this order;

(b)         the deadlines to be observed for the following stages in this proceeding will be those mentioned in the Federal Court Rules, 1998;

5.          costs in the cause.

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L.

                                                              FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                         T-891-03

STYLE OF CAUSE:                          ASSOCIATION DES CRABIERS ACADIENS INC., duly incorporated in accordance with the laws of the province of New Brunswick, and ASSOCIATION DES CRABIERS DE LA BAIE, duly registered in accordance with the laws of the province of Quebec

v.

HER MAJESTY THE QUEEN IN RIGHT OF CANADA, represented by the MINISTER OF FISHERIES AND OCEANS

DATE OF HEARING :                    November 17, 2003

PLACE OF HEARING:                   Halifax, Nova Scotia

REASONS [for order or judgment] :     Mireille Tabib, prothonotary

DATE OF REASONS :                    January 8, 2004

APPEARANCES:

Brigitte Sivret/Micheline Gleixner                                   FOR THE APPLICANTS

Moncton, New Brunswick

Dominique Gallant, Halifax, Nova Scotia                        FOR THE RESPONDENT

SOLICITORS OF RECORD:

McInness Cooper, Moncton, New Brunswick FOR THE APPLICANTS

Morris Rosenberg, Toronto, Ontario                FOR THE RESPONDENT